Aha! The Birthers Were Privy To Secret Information After All!
Well, I am not above ripping off the “You Didn’t Build That-Yes I Did Too Build That” partisan squabble theme. Sooo, lets look at the Imaginary Law that the Birthers built, all by themselves. Now we could do this by reading Wong Kim Ark (1998) and then Ankeny (2009) and so forth and so on, and prove the Birthers entire theory is not based in REAL law, and thus by that process infer that their theory is totally manufactured.
But it would be far more fun to take the Birthers’ own thought processes and examine how they go astray from their end. Thankfully, Mario “The Mangler” Apuzzo, Esq. is on retainer with the Birther Dreamwerks, so we won’t have to look far. Plus, he is an Article II Constitutional specialist on this stuff, in much the same way as Lem Putt is a specialist in his chosen field. (see Note 2, below).
Here is what I found at Apuzzo’s blog, and with this one six-sentence paragraph we can see where the Birthers derive their weird beliefs and why judges equip their bailiffs with butterfly nets whenever the Birthers come to visit:
The Fourteenth Amendment by its clear text gives the status of a “citizen of the United States” to those born or naturalized in the United States and “subject to the jurisdiction thereof.” It does not give anyone the status of a “natural born Citizen.” When the Founders and Framers inserted the “natural born Citizen” clause in the Constitution, there was no Fourteenth Amendment. Hence, they surely did not write the clause into the Constitution having in mind any citizenship standard that is contained in the Fourteenth Amendment. And there does not exist any evidence that the Fourteenth Amendment repealed or amended the Founders’ and Framers’ definition of an Article II “natural born Citizen.” Hence, Article II, Section 1, Clause 5 and the Fourteenth Amendment stand as two separate and distinct constitutional provisions which provide two different constitutional citizenship standards.
Here is a link, in case you want to read the whole thing:
http://puzo1.blogspot.com/2012/08/barack-obama-ballot-challenge.html
Now, let’s examine this sentence by sentence to see how Apuzzo ending up constructing the ramshackle hovel of his theory.
Sentence 1: The Fourteenth Amendment by its clear text gives the status of a “citizen of the United States” to those born or naturalized in the United States and “subject to the jurisdiction thereof.”
Well, this is true. No problem so far.
Sentence 2: It [14th Amendment] does not give anyone the status of a “natural born Citizen.”
Whoops! @#%!!&**#. Mario just whacked the crap out his thumb with the hammer. Apuzzo is making a conclusion here. This was a FALSE assumption on his part. Because when you refer to the SCOTUS case, Wong Kim Ark (1898), section V., you find this:
V. In the forefront both of the Fourteenth Amendment of the Constitution and of the Civil Rights Act of 1866, the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms.
From sections II and III of the Wong Kim Ark decision, we know that “fundamental principle of citizenship by birth within the dominion” was also known as NATURAL BORN CITIZENSHIP:
It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.
Further down in section III, we find this put even more succinctly:
In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said:
All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion [p663] that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.
1 Abbott (U.S.) 28, 40, 41.
So Mario Apuzzo Esq. is simply, and badly, wrong. By the clear holding of the Wong Kim Ark Court, the 14th Amendment DID INDEED give those born within the country, and not subject to the two exceptions, “the status of a “natural born Citizen.” This fundamental mistake is where the Birthers first start to go off course.
Sentence 3: When the Founders and Framers inserted the “natural born Citizen” clause in the Constitution, there was no Fourteenth Amendment.
This is true. The 14th Amendment was not passed until 1868.
Sentence 4: Hence, they surely did not write the clause [natural born citizen] into the Constitution having in mind any citizenship standard that is contained in the Fourteenth Amendment.
Also true, because the Constitution came first by about 80 years. But, that does not mean that the opposite is also true. In fact, it is very possible for the 14th Amendment coming 80 years later to “have in mind a citizenship standard that is contained in the Constitution.” Repeating again the introduction to section V:
V. In the forefront both of the Fourteenth Amendment of the Constitution and of the Civil Rights Act of 1866, the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms.
Did you get that Mario??? Both the 14th Amendment, and the preceding Civil Rights Act of 1866, affirmed the fundamental principle of citizenship by birth within the dominion. This was the common law on natural born citizenship. For, as is stated further down in Section V, and cited with approval:
In 1871, Mr. Fish, writing to Mr. Marsh, the American Minister to Italy, said:
The Fourteenth Amendment to the Constitution declares that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” This is simply an affirmance [p690] of the common law of England and of this country so far as it asserts the status of citizenship to be fixed by the place of nativity, irrespective of parentage. The qualification, “and subject to the jurisdiction thereof” was probably intended to exclude the children of foreign ministers, and of other persons who may be within our territory with rights of extraterritoriality.
2 Whart.Int.Dig. p. 394.
and here is more from section V, which proves the 14th Amendment was declaratory of pre-existing law, that is – the common law relating to natural born citizenship, [cites omitted]:
The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, “All persons born in the United States” by the addition “and subject to the jurisdiction thereof,” would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases — children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State — both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.
And what was that common law they were referring to? One more time for the slow:
[E]very child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.
So no, Article II of the Constitution did not contemplate the 14th Amendment, but the 14th Amendment sure contemplated the Article II common law on natural born citizenship.
Sentence 5: And there does not exist any evidence that the Fourteenth Amendment repealed or amended the Founders’ and Framers’ definition of an Article II “natural born Citizen.”
Very true. The 14th Amendment did NOT repeal or amend the Article II “natural born Citizen” clause. That is because the 14th Amendment actually AFFIRMED the Article II natural born Citizen. From the bottom of section V of Wong Kim Ark:
The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory. . .
The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject. . .
Sentence 6: Hence, Article II, Section 1, Clause 5 and the Fourteenth Amendment stand as two separate and distinct constitutional provisions which provide two different constitutional citizenship standards.
No they don’t. For persons born within the United States, they are the same thing. Which is what court after court keeps telling the Birthers. Those courts either cite the same things from Wong Kim Ark, that I have, or they simply cite the reasoning in the Ankeny decision, which in turn is based on WKA, as persuasive.
You see, the courts aren’t looking to play devious little word games which back up their personal desires. They are just courts, and judges, who read the law and try in an honest fashion to figure out what it means. In their simple and naive fashion, the judges and courts think that:
1. The common law concept that persons born in the country to parents who are neither foreign diplomats or invading soldiers, makes one a natural born citizen, regardless of the citizenship of the parents.
and:
2. The 14th Amendment provision bestowing citizenship on persons born in the country to parents who are neither foreign diplomats or invading soldiers, makes one a citizen, regardless of the citizenship of the parents.
are:
3. Talking about the same group of people – native born citizens, or citizens at birth, or natural born citizens.
They think this because the same requirements are met by both groups, to wit:. . . born in the country to parents who are neither foreign diplomats or invading soldiers. In fact, for this NOT to be true, Mario Apuzzo, Esq. would have to amend his 5th sentence above to read the reverse of what it does:
The Fourteenth Amendment repealed or amended the Founders’ and Framers’ definition of an Article II “natural born Citizen.”
Because if 14th Amendment didn’t repeal or amend the previous common law, then those born in the country to parents who are neither foreign diplomats or invading soldiers are the same people, no matter which law you use. In effect, Apuzzo’s own assumptions and reasoning destroys his own argument.
This has been a step by step analysis of how Mario Apuzzo, Esq. ended up in legal La La Land. This is how he ends up believing Emerich de Vattel sets the standard for natural born citizenship. This is how Apuzzo latches on the the two citizen parents stuff, because that notion is nowhere to be found in the 14th Amendment. It isn’t found in the Constitution either, but since the term isn’t defined there, it is easier to play games with. But first, Apuzzo has to get rid of the pesky 14th Amendment or his other tenets can go nowhere.
But, as you can see above, Apuzzo went astray in his reasoning early on. And it is obvious to the non-Birther community. This is why the Birther mantra, “there is a difference between a natural born citizen and a 14th Amendment citizen” keeps getting bounced out of courtrooms across the nation. This is why the Apuzzites are getting assessed court costs, and having their arguments called frivolous, and without merit.
Apuzzo can not even maintain internal consistency in his own argument. Sooo, with the image above in mind, people should be careful about entering his sanctuary. You might fall in.
Squeeky Fromm
Girl Reporter
Note 1. The Image. I found this image (An outhouse at Goat Peak, 6,305 ft (1,922 m) above sea level) at Wiki, which has many interesting things to say about Outhouses:
http://en.wikipedia.org/wiki/Outhouse
Note 2. Lem Putt, The Specialist. My father had a copy of this book. Here is a online link to the short 1929 book:
http://journeytoforever.org/farm_library/specialist.html
Note 3. Privy. For ESL’s, this word has two meanings:
1. outhouse: a small outbuilding with a bench having holes through which a user can defecate
2. privy(p): (followed by `to’) informed about something secret or not generally known; “privy to the details of the conspiracy”
Reader hklrnaa47 has provided this additional information about the etymology of these two definitions in the comments below. I am updating this note to add this. Thank You hklrnaa47!!!
Hi Squeeks. Your 2 part definition of the word ‘privy’ doesn’t actually explain how the same word gained those 2 definitions.
In fact ‘privy’ is a very old word having to do with toilet and the location of emptying ones bowels. Once upon a time, Kings, being special people and all, were provided with special servants, called ‘Privy Counselors’ whose job it was, quite literally, to wipe the Kings ass.
As you can imagine, someone entrusted with this rather intimate access to the Kings person had to be completely trustworthy and dependable. They would grow, over time, to do more than just help with the Kings movements, they would be entrusted with secrets of all kinds.
Thus definition number two.
For the Image Easter Egg. Another word play. Going over the edge is an idiom which means to go crazy. However, the word “going” or “go” (which also means to use the restroom) combined with a privy perched on the edge of a cliff, and presumably emptying out over said edge, means something else entirely.
The Birther Think Tank 