Debunking The Logic of Orly Taitz and the Birthers

Orly Taitz is the crazy blond lawyer who has been popping up on both serious and comedic media all over the place, presenting the birther case why Obama is not a valid citizen, but did you ever wonder where Taitz and the birthers get their info? Here is a look at the “logic” behind the birthers.

Now, apparently the Birther followers failed to take the usual Civics classes that I would hope the rest of us have passed. It does not matter where Obama was born, although clearly he has documented to a fare-thee-well that he was born in Hawaii. It does not matter WHERE Obama was born; because no one is disputing that his MOTHER was born in the United States, and was a valid U.S. citizen at the time of Obama’s birth; or his maternal grandparents. Our laws require ONLY one parent be a citizen for their offspring to be citizens, and in most instances, acquisition of natural born citizenship is also available through either set of grandparents who are citizens.

Article I of the Constitution, Section 8, gives the Congress the right to establish and define who is a citizen, and naturalization, 4th item down on the list:

“Article 1 – The Legislative Branch
Section 8 – Powers of Congress

To establish an uniform Rule of Naturalization, “

For those who slept through American History, the Constitution was ratified in 1788, effective in 1789, with the various amendments expanding it over a number of years. The subject of who is and who is not eligible to be a citizen came promptly under the Naturalization Act of 1790; they weren’t wasting any time defining who was and was not a citizen. (No surprise, it was pretty much white immigrants of European origins; people of other races and ethnicities, indigenous Americans, and so on were ‘tagged in’ later, in some cases, surprisingly later than you might expect.)

Here is one of the places where Orly Taitz has something; the Naturalization Act of 1790 defined citizenship as automatic at birth if born abroad rather than inside the U.S. for the children of FATHERS, but NOT MOTHERS, who were U. S. citizens.

EXCEPT that this has been amended in 1934 legislation to give equal acquisition of citizenship through a child’s mother; and was further specified in 1952 legislation, well before Obama was born. That legislation was the Immigration and Nationality Act.

Title III addresses acquisition of citizenship – the correct term for what is under discussion. Title III also addresses the issue raised about John McCain’s legal right to be President, as he was born in the Panama Canal Zone.


for Obama:

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 1 of the International Organizations Immunities Act (59 Stat. 669; 22 U.S.C. 288) by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or20(B) employed by the United States Government or an international organization as defined in section 1 of the International Organizations Immunities Act, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24 , 1952, to the same extent as if it had become effective in its present form on that date; and

(h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States.

The section applicable to McCain:

SEC. 303. [8 U.S.C. 1403]

(a) Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this Act, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States.

(b) Any person born in the Republic of Panama on or after February 26, 1904, and whether before or after the effective date of this Act, whose father or mother or both at the20time of the birth of such person was or is a citizen of the United States employed by the Government of the United States or by the Panama Railroad Company, or its successor in title, is declared to be a citizen of the United States.

McCain is old, but he is not pre-1904 old; he comes from a family of famous admirals on his father’s side, and his mother was born in Oklahoma. Had he been elected, he would have been ‘legal’ for the office of president, under these provisions. Interestingly, this is not a new topic; other presidents, notably Chester Arthur, also have faced the issue of presidential natural citizenship qualification.

So… why would Orly Taitz, herself from a foreign country, keep insisting that Obama is not eligible to be President? I decided to do a bit of research into that, since my own civics class days were a while ago. There are two conflicting legal premises involved, “jus soli”, which roughly translates as “law of ground” and “jus sanguinous”, the concept of “law of blood” which requires both parents to be considered for citizenship purposes. In Europe, different countries opted for either jus soli, or jus sanguinous, in determining citizenship; in the U.S., we have more of a hybrid citizenship by birth.

It is fairly obvious that those in the House and Senate who have not taken a firm stand in support of President Obama in response to the Birther movement are not sincere. None of them appear to genuinely believe this is an issue. Others seem equally disingenuous in their statements. However, there are those who are perhaps more gullible, certainly misguided individuals who seem to sincerely believe that Obama is not our legal president. These people have the frantic kind of fear that is unique to ignorance. They are desperate to believe that however unlikely, it makes some kind of sense that we do not have a bi-racial black man legitimately occupying the oval office.

We cannot any of us know what their motivation is, although racism seems the most likely explanation. In watching the news footage, I have yet to see anyone who appears to be a person of color who is in terror of the results of the 2008 election. It is possible that fact and reason might succeed with these frightened birthers, but not probable.

There are few options to resolve the divide other than to try. The alternative is to laugh at them, but that doesn’t solve the problem of segments of our political whole breaking off into little extremist shards. That process, the fragmenting of our political spectrum, ultimately weakens the whole, the opposite of unifying divergent views. Education is the only possible solution, beginning with our own information, our own education.

These two quotations from very different occupants of the White House rather sum up the opposing world views, one which would exclude anyone perceived to be too different to be accepted as eq ual citizens among us:

“No, I don’t know that atheists should be considered as citizens, nor should they be considered as patriots. This is one nation under God.”

– George H.W. Bush

American 41st US President (1989-93),

Or inclusive of all of us:

“I think if the people of this country can be reached with the truth, their judgment will be in favor of the many, as against the privileged few”

– Eleanor Roosevelt

American United Nations Diplomat, Humanitarian and First Lady (1933-45), wife of Franklin D. Roosevelt, 32nd US president.

One Reply to “Debunking The Logic of Orly Taitz and the Birthers”

  1. Let me share this article with you; it is well written and on point, from a learned attorney and constitutional scholar. You may wish to rethink you position on this matter. Read carefully about what the 14th Amendment said; it talked about naturalization, and citizens, not “Natural Born Citizens”, Citizens naturalized or born are not eligible to be President of the United States of America.

    Thursday, August 20, 2009

    “The Law of Nations as U.S. Federal Common Law and Not English Common Law Defines What an Article II “Natural Born Citizen” Is given the profound differences between the citizenship rules associated with the English common law and those connected with American national citizenship, it is evident that the Founders did not use English common law to define what an Article II “natural born Citizen” is but rather used the law of nations for that purpose.

    To the extent that the English common law was relied upon in the colonies and States, that law was at the time that the Constitution was adopted “to a greater or less extent, recognized as the law of the States by which the Constitution was adopted.” The English common law would, however, be applied to determine questions of citizenship only if the written law was silent, i.e., there was no statute or federal or state court decision on the subject. Ludlam, Excutrix, & c., v. Ludlam, 26 N.Y. 356 (1863). But the Founders did not rely upon the English common law to define the new national United States citizenship that they created for the new Constitutional Republic. Rather, the Founders displaced the English common law with the law of nations which became the new U.S. federal common law and the law of the federal government.

    The Framers did not define an Article II “natural born Citizen” because they did not see a reason to. It was a term that was well defined by the law of nations and well-known by civilized nations. Given that citizenship affects “the behavior of nation states with each other” (Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), all civilized nations knew what the definition of citizenship was. Upon independence from Great Britain, the United States “were bound to receive the law of nations, in its modern state of purity and refinement. Ware v. Hylton, 3 Dall. 199. 199, 281 (1796). There are other numerous authorities that state that the law of nations became the national law of the United States. Even William Blackstone recognized the importance of the law of nations which he considered “universal law” and the life blood of a nation wanting to be part of the “civilized world.” 4 W. Blackstone, Commentaries on the Laws of England 67 (1769). Hence, the law of nations, when not codified into any Act of Congress, became the common law of the United States.

    The Founders believed that the common law was discoverable by reason and was forever present, a “discoverable reflection of universal reason.” Sosa. So since the Constitution did not define “citizen” or “natural born Citizen,” “resort must be had to the customs and usages of civilized nations” found in the law of nations, as defined by scholars, jurists, and commentators of the time who devoted “years of labor, research and experience” to the subject. The Paquete Habana, 175 U.S. 677, 700(1900).

    We know from the historical record and from the way the Constitution is framed that the Founders relied heavily upon E. Vattel and his treatise, The Law of Nations, as a crucial and fundamental guide in knowing what the law of nations was. The Founders knew that the law of nations as per Vattel defined a “citizen” simply as any member of society. They also knew that a “natural born Citizen” had a different standard from just “citizen,” for he or she was a child born in the country to two citizen parents. That is the definition of a “natural born Citizen,” as recognized by numerous U.S. Supreme Court and lower court decisions (The Venus, 12 U.S. 253(1814), Shanks v. Dupont, 28 U.S. 242 (1830), Scott v. Sandford, 60 U.S. 393 (1856), Minor v. Happersett, 88 U.S. 162 (1875) , Ex parte Reynolds, 20 F. Cas. 582 (C.C.W.D. Ark 1879), United States v. Ward, 42 F. 320 (1890); Wong Kim Ark, 169 U.S. 649 (1898), Ludlam, Excutrix, & c., v. Ludlam, 26 N.Y. 356 (1863) and more) and the framers of the Civil Rights Act of 1866, the 14th Amendment, the Naturalization Act of 1795, 1798, 1802, 1885, and our modern 8 U.S.C. Sec. 1401. It should be noted that during the Founding and throughout American history, there has always been a distinction between a general “citizen” on the one hand and a “natural born citizen” on the other. The law of nations did not make any specific requirements for one to be a “citizen” of a nation, for such a person was basically just a member of the civil society. Before and after the revolution, the Founders considered anyone who resided in the colonies or States and who adhered to the revolutionary cause to be a “citizen,” regardless of place of birth or condition of the parents. But the law of nations did provide for a strict definition of a “natural born citizen,” i.e., the child born in the country of citizen parents. And the Founders also adopted that stricter definition for an Article II “natural born Citizen” which applied only to one wanting to be President and Commander in Chief of the Military.

    The Founders also understood what “natural allegiance” was. They knew that “liegance, and faith and truth, which are her members and parts, are qualities of the mind and soul of man, and cannot be circumscribed within the predicament of ubi.” (p. 76). Calvin’s Case (7 Coke, 1, 6 James I.) They understood that an English “natural born subject” residing out of the kingdom or jurisdiction of the king still owed allegiance to the king of England. Id. Hence, they understood that “natural allegiance” or “allegiance by birth” does not depend upon locality or place; that it is purely mental in its nature, and cannot, therefore, be confined within any certain boundaries. . .” Ludham, 26 N.Y. at 363. They understood that natural allegiance or allegiance by birth did not depend upon boundaries or place but rather upon parentage. Id. at 364. The Founders understood that “as long as the parents continue to owe allegiance to the crown of England, so long will their children, by the rules of the common law, whether born within or without the kingdom, owe similar allegiance, and be entitled to the corresponding rights of citizenship.” Id. at 365. Finally, the Founders also understood that even though a child may be born on U.S. soil, if he was born of a British father, the Crown of England owed that child the same protection that it owed the father. Id. at 370-71.

    Simply stated, the definition of “natural born subject” as found in the English common law simply did not work for the Founders. Great Britain was a monarchy and the new nation was a Constitutional Republic. Great Britain did not have a President to be democratically elected by the people but the new nation did. Great Britain was not concerned with foreign influence making its way into the hereditary monarchy but the Founders were concerned about the Office of President being attacked from within and without with foreign influence infecting not only the voters but also the political leaders themselves. The Founders understood that citizenship and allegiance went together. The born-in-country-to-two-U.S.-citizen- parents formula was the best way for them to assure that only a person with undivided allegiance and loyalty to the United States would be eligible to be President and Commander in Chief of the Military. This test was not tied to the physical territory alone, which the Founders understood and which Lord Coke confirmed did not assure anyone’s natural allegiance. Rather, this test combined both the soil with the allegiance of the child’s parents into the child at the time of birth. For the Founders, this was the best way to assure sole and absolute allegiance in the new-born child.

    The Founders knew that the States had their own laws on how they defined citizens and how they naturalized aliens. United States v. Rhodes, 27 F.Cass. 785, 791 (1866). They also knew that these laws were not uniform. The Founders in Article I, Sec. 8, cl. 4 gave Congress the power to make uniform the laws of naturalization. The Founders also wanted a uniform definition of “citizen” and “natural born Citizen.” The law of nations provided them with those definitions which were also accepted by other civilized nations and which allowed them to establish a national standard for citizenship that would be incorporated and become part of U.S. national law.

    Further proof that the Founders in defining citizenship did not accept English common law but rather the law of nations which was based on natural law can be found in the Congressional debates concerning the adoption of the Fourteenth Amendment. When commenting on the proposed amendment on May 30, 1866, Senator Howard said:

    “This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Govern- of the United States, but will include every other class of persons.”

    Congressional Globe, 39th Congress, 1st Session, May 30, 1866, P. 2890, col. 2. The doctrine that children, if legitimate, follow, in regard to their political rights and duties, the condition of their fathers, is founded on natural law. Ludlam, 26 N.Y. at 368. Note that Senator Howard said that the amendment was only declaratory of “natural law” which became “national law” which in turn became the “law of the land.” The Senator is telling us that citizenship was defined by federal law which under Article VI of the Constitution was the supreme law of the land. He did not refer to any British common law or individual state law as being the basis for how citizenship was defined. Rather, his reference to “natural law” connects to the law of nations which was based on “natural law.” And the law of nations, as incorporated into the laws of the new Republic, did become the new national law of the United States. Moreover, in providing the list of those parents who would disqualify children born on U.S. territory from becoming a citizen, Senator Howard included parents who were foreigners, aliens, ambassadors, or foreign ministers. Note that the list included “foreigners” and “aliens.” Hence, the exclusion was not only for the children of ambassadors and enemy aliens, as was the rule of the English common law, but also for the children of “foreigners” and “aliens.” This exclusion was also repeated by Senator Johnson who stated that the child would have to be born on U.S. soil to “parents who at the time were subject to the authority of the United States.”

    Furthermore, everything that the Founders established about citizenship in the United States is not consistent with British common law that treats the subject. The English common law did not use the concept of “natural born subject” as a means to protect the head of the military and civilian government of Great Britain from foreign influence. Rather, the British were very liberal in granting “natural born subject” status so as to create for its monarchy-based empire as many subjects as possible. We saw an extreme of this policy when Great Britain insisted on impressing American sailors into its military which practice lead to the War of 1812. But John Jay, in writing to General George Washington on July 25, 1787, was very specific that the Commander in Chief of the military would have to be a “natural born citizen” (underlining born in the original) so as to assure that no foreigner would hold that office. The Founders accepted Jay’s recommendation and included in Article II the “natural born Citizen” clause. Hence, Americans were very cautious in granting “natural born Citizen” status because they had a democratically elected President and Commander in Chief of the Military and representative form of government which they needed to protect from foreign influence. This was consistent with the law of nations.

    The English common law provided that an alien naturalized is “to all intents and purposes a natural born subject.” Co. Litt. 129 (quoted and cited in Rhodes, 27 F.Cass. at 790). With such recognition, a naturalized citizen would have been eligible to be President of the new Republic. But we know that the Founders considered a naturalized citizen to be only a “citizen” (able to be President under Article II’s grandfather clause and Senator or Representative under Article I) and not a “natural born Citizen” (which status was required of a would-be President for births after 1789). This was consistent with the law of nations. The 14th Amendment also made the same recognition. Not being a “natural born Citizen,” the Founders did not permit naturalized citizens to be President. But again, the Framers, after 1789 (when the grandfather clause expired and Article II required a child to be a “natural born Citizen” and not only a “citizen”) would not have allowed such children to be President, for they would have been naturalized “citizens” and not “natural born Citizens.”

    English common law did not distinguish between “natural born subject” and “subject.” The Founders, the framers of the 14th Amendment, all Congresses in their Acts, and virtually all courts in their decisions have treated “natural born Citizen” and “citizen,” as two separate and distinct terms. This dichotomy is consistent with the law of nations which did make such a distinction. This distinction shows that “citizens” could be created by the Fourteenth Amendment and Congressional Acts but an Article II “natural born Citizens” could only be created by satisfying the natural law standard as expressed in the law of nations (place of birth and parentage).

    Unless they were ambassadors/diplomats or alien enemies, the English common law considered irrelevant the citizenship of the child’s parents when determining whether a child born on English soil was a “natural born subject.” The Founders knew from the law of nations that in England, the “single circumstance of being born in the country naturalises the children of a foreigner.” Vattel, Sec. 214. This would have been consistent with the monarchy’s desire to make as many “natural born subjects” as possible for its growing empire. The U.S. common law went beyond these two exceptions and did consider relevant the condition of the child’s parents when determining whether the child was to be afforded U.S. citizenship at birth. See the cases cited above. Under the law of nations, such a child born in the country to foreign parents was considered to have been naturalized under English law. But again, the Framers would not have allowed such a naturalized child to be considered a “natural born Citizen,” for they permitted the latter to be President but not the former. The maxim that was applied in this connection is recognized in the law of nations and was partus sequitur patrem (the child follows the condition of the father). Shanks v. Dupont, Barry v. Mercein, 46 U.S. 103 (1847); Ludlam, 26 N.Y. at 376; Ex parte Reynolds, and United States v. Ward.

    The English common law had no concern for whether a person consented to be declared a “natural born subject.” This phenomenon was made much worse by the British not allowing any “natural born subjects” to expatriate and forcing them to be bound to the King for life through their perpetual natural allegiance. The English common law provided for perpetual natural allegiance which a subject could never renounce (once a British subject always a British subject). The English common law did not allow for a “natural born subject” to elect upon becoming of age another citizenship. English common law did not recognize a “natural born subject” as losing his or her allegiance to the King through the act of naturalizing in another country. But U.S. common law and statutes provided that an alien or U.S. citizen could expatriate and become a different citizen from that which he/she was born. For the Founders, consent was the foundation of citizenship. It was through that consent that the Founders expected U.S. citizens to give their absolute and sole allegiance to the U.S. This consent which was expressed as a transfer of allegiance to the U.S. was also critical to an alien becoming a naturalized U.S. citizen. It was expatriation that allowed foreigners to come to America, naturalize, and procreate a child on U.S. soil, which allowed that child to be born with sole allegiance and loyalty to the U.S. and eligible to be President. The Founders’ knowledge of consent as the basis for citizenship and acceptance of expatriation and election of citizenship upon becoming of age, had their source in the law of nations and not in the English common law which did not involve itself with these concepts.

    While the English common law recognized that “the king cannot reckon upon the full and absolute obedience” of persons who were either born with or voluntarily chose to have a dual allegiance, the English were not concerned in the least that their notion of “natural born subject” created, in not taking into consideration the citizenship of the child’s parents, dual allegiance problems. Reeve, History of the English Law. But American courts recognized that U.S. citizens born on U.S. soil to foreign parents or born abroad to U.S. citizen parents had double allegiance which significantly affected that person’s allegiance and political and military rights. U.S. law explicitly warns about the dangers and problems of dual allegiance. Perkins v. Elg, 307 U.S. 325, 344-48 (1939); Kawakita v. United States, 343 U.S. 717, 723-26, 733-36 (1952). America even went as far as passing curfew and exclusion laws during World War II which deprived freedom of movement and association to 14th Amendment American “citizens” of Japanese descent (their mothers and fathers were Japanese nationals) because of “pressing public necessity” and the need to provide America with every possible protection against espionage and sabotage which jeopardized America’s survival. Please note that this government action was justified because the “segregation of the disloyal from the loyal” within American 14th Amendment “citizens” of Japanese descent was not possible. See Korematsu v. United States, 323 U.S. 214 (1945). In other words, we could not place at risk the survival our country for the sake of trying to determine who was loyal or disloyal to the cause. Our nation took the drastic action that it did against 14th Amendment “citizens” of Japanese descent because they were dual nationals and children of aliens or foreigners. Hence, even though these persons were 14th Amendment citizens, we still considered and treated them as being subject to a foreign power. Can we just imagine what would have happened if President and Commander in Chief Truman would have been a 14th Amendment “citizen” with Japanese parents. To be consistent, I guess our nation would have had to place him in a concentration camp too with the rest of the other 14th Amendment citizens of Japanese descent. Would our hypothetical President Truman have dropped the bomb on Japan? Would he have if his Japanese parents lived in Japan?

    Pre-revolutionary English statutes that provided that the foreign born children of British “natural born subjects” were deemed “natural born subjects” did not require that the parents had to reside in Great Britain at or prior to the time of the child’s birth. U.S. statutes, on the contrary, required that the father had to be a resident of the U.S. at the time of the child’s birth in order for the father to be able to transmit his U.S. citizenship to his foreign born child. These statutes also attached importance to when the child was born, for they were made only retrospective until changed many years later. The Naturalization Act of 1790 declared these children to be “natural born Citizens,” and later in the Naturalization Act of 1795 just “citizens,” but only retrospectively. It was not until the act in 1885 that Congress declared these foreign-born children to be “citizens,” both retrospectively and prospectively. See Weedin v. Chin Bow, 274 U.S. 657 (1927). Hence, U.S. law, in these foreign born children cases, attached just as much importance to the actual U.S. residence of the father and when the child was born than it did to the foreign born child descending from the U.S. citizen parents. Also, American statutes considered these children only “citizens” and not “natural born Citizens.” This limitation was contrary to the English statutes which deemed these children “natural born subjects.” As an aside, consider that the Senate in formulating Resolution 511 relied in part upon the Naturalization Act of 1790 to declare McCain a “natural born Citizen.” This was error for two reasons: (1) the act was repealed by the Naturalization Act of 1795, which removed the “natural born” language and just kept in “citizen;” and (2) Congress declared the foreign born children of U.S. citizens to be “natural born Citizen” only retrospectively. In other words, only those children already born at that time were so declared, not children to be born in the future like McCain.

    That Justice Gray in Wong Kim Ark was willing to disregard the correct meaning of “subject to the jurisdiction” and make Wong a U.S. citizen does not prove in any way that the Founders used English common law to define “natural born Citizen.” Also, Wong Kim Ark did not address what an Article II “natural born Citizen” is. Rather, it only declared Wong a “citizen” under the 14th Amendment (a member of American society), under the unique facts of that case and by disregarding well-established case law and the 14th Amendment’s and Civil Rights Act of 1866’s framers’ intent and clear instructions on the meaning of “subject to the jurisdiction.”

    Hence, we can see that it is not reasonable to maintain that the meaning of “natural born Citizen” can be found in the English common law. Rather, that definition may be found in the law of nations as commented on by E. Vattel. All aspects of the citizenship laws during the Founding era and the adoption of the 14th Amendment were consistent with the law of nation’s definition of citizenship.

    It was also the law of nations that defined a “natural born citizen” as one that is born in the country to parents who are themselves citizens. It is this definition which became incorporated into federal common law and which Obama cannot satisfy because his father was a British subject/citizen and not a U.S. citizen and Obama himself was a British subject/citizen by descent when he was born. Obama’s British citizenship, which continues in effect today, also allowed him to gain Kenyan citizenship from the age of 2 to the age of 21. Obama is therefore not an Article II “natural born Citizen” and ineligible to be President and Commander in Chief of the Military.”

    Mario Apuzzo, Esq.
    185 Gatzmer Avenue
    Jamesburg, New Jersey 08831

    Jim Buzzell
    Retired Senior Chief Petty Officer
    United States Navy
    “Going in Harms Way”

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