Congressional Research Service debunking of Birtherism (2nd CRS memo found)

Litlebritdifrnt2
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Congressional Research Service debunking of Birtherism (2nd CRS memo found)

#176

Post by Litlebritdifrnt2 » Tue Nov 29, 2011 4:12 pm

Hey RC I posted about this in the Birfer Popourri thread, the mods can feel free to delete it if need be.

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Congressional Research Service debunking of Birtherism (2nd CRS memo found)

#177

Post by raicha » Tue Nov 29, 2011 4:18 pm

Yanno, you can delete your own posts. Ya don't need a mod to do it. Just sayin'.

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Congressional Research Service debunking of Birtherism (2nd CRS memo found)

#178

Post by Epectitus » Tue Nov 29, 2011 4:18 pm

Apologies if this is a dupe but did any of you see this over at Doc's site?





[/break1]obamaconspiracy.org/2011/11/new-congressional-report-on-presidential-eligibility/]http://www.obamaconspiracy.org/2011/11/ ... igibility/





It says what we knew it would say of course but why have I not seen more wailing and gnashing of teeth about it at birfer sites?And he directly takes on the Vattelites!!!!





It may be noted that some have argued that the relevant common meaning of natural born citizen that was prevalent in 18th century America should not be the one that was actually applicable in the American colonies during that time from British statutory and common law, and which was adopted specifically by the states after independence in 1776 (and which, as noted by Justice Story, formed the “foundation” for American jurisprudence), but rather should be recognized as one derived from what has been described as a “philosophical treatise” on the law of nations by a Swiss legal philosopher in the mid-1700s. This particular treatise, however, in the editions available at the time of the drafting of the U.S. Constitution, did not actually use, either in the original French or in English interpretations at that time, the specific term “natural born citizens.” It was not until after the adoption of the Constitution in the United States did a translator interpret the French in Emmerich de Vattel’s Law of Nations to include, in English, the term “natural born citizens” for the first time, and thus that particular interpretation and creative translation of the French, to which the Vattel enthusiasts cite, could not possibly have influenced the framing of the Constitution in 1787.





Furthermore, and on a more basic level, the influence of the work of Vattel on the framers in employing the term “natural born” in relation to domestic


citizenship within the Constitution is highly speculative at best, is without any direct historical evidence, and is contrary to the mainstream principles of constitutional interpretation and analysis within American jurisprudence. Although it appears that there is one single reference by one delegate at the Federal Convention of 1787 to Vattel (in reference to several works of different authors to support an argument for equal voting representation of the states in the proposed Congress), there is no other reference to the work in the entire notes of any of the framers published on the proceedings of the Federal Convention of 1787, and specifically there is no reference or discussion of the work at all in relation to citizenship at the Convention, in the Federalist Papers, or in any of the state ratifying conventions.Emphasis in the original.
"Hell, I would wear a dress and ruby red slippers all year if we can prove this" - Mike Zullo

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Congressional Research Service debunking of Birtherism (2nd CRS memo found)

#179

Post by ballantine » Tue Nov 29, 2011 4:18 pm

Doc C has up an [link]article,http://www.obamaconspiracy.org/2011/11/ ... igibility/[/link] with a new version of this report dated November 14, 2011 from Jack Maskill. [link]CRS Report for Congress Prepared for Members and Committees of Congress Qualifications for President and the “NaturalBorn” Citizenship Eligibility Requirement,[/link]It is very good. Much better than his last paper. Birthers will love it. He doesn't make the argument that Wong Kim Ark is precedent like I have made but pretty much gets everthing else right. Gets Minor right. Such is dicta that fails to address children of aliens:"In one early Supreme Court case after Dred Scott ,the Court narrowly applied the earlier theory of citizenship in Dred Scott (as being only theoriginal community of people who ratified the Constitution and their progeny),129and relied instead on the common law to discuss the concept of citizenship in the United States after the original generation of citizens. The Court noted that those children born on the soil of the United States to citizen-parents would clearly be among those who are “natural born” citizens under thecommon law, but didn ot rule or hold that such category of citizenship was exclusive to such children.130The Supreme Court in Minor v. Happersett , in ruling in 1875 that women did not havethe constitutional right to vote in federal or state elections (as a privilege or immunity of citizenship), raised and discussed the question indictaas to whether one would be a “natural born” citizen if born to only one citizen-parent or to no citizen-parents, noting specifically that“some authorities” hold so. The Court, however, expressly declined to rule on that subject in this particular case....Those issues or “doubts” raised by the Supreme Court in Happersett in 1875 were, however, answered by the Supreme Court in a later decision in 1898, in United States v. Wong Kim Ark ... The majority opinion of the Court clearly found, by any fair reading of itsreasoning, discussion, and holding, that every person born in the United States and subject to its jurisdiction (that is, not the child of foreign diplomats or of troops in hostile occupation),regardless of the citizenship of one’s parents, is a “natural born” citizen, and that the FourteenthAmendment merelyaffirmed the common law and fundamental rule in this country that one bornon the soil of the United States and subject to its jurisdiction is a “natural born” citizen..."Maskill completely dismisses Vattel with arguments that could have been taken from Fogbow:"It may be noted that some have argued that the relevant common meaning of natural born citizenthat was prevalent in 18th century America shouldnot be the one that was actually applicable int he American colonies during that time from British statutory and common law, and which was adopted specifically by the states after independence in 1776 (and which, as noted by Justice Story, formed the “foundation” for American jurisprudence), but rather should be recognized as derived from what has been described as a “philosophical treatise” on the law of nations by a Swiss legal philosopher in the mid-1700s This particular treatise, however, in the editions available at the time of the drafting of the U.S. Constitution, did not actually use, either in theoriginal French or in English interpretations at that time, the specific term “natural born citizens.” It was not until after the adoption of the Constitution in the United States did a translator interpret the French in Emmerich de Vattel’s Law of Nationsto include, in English, theterm “natural born citizens” for the first time, and thus that particular interpretation and creative translation of the French, to which the Vattel enthusiasts cite, could not possibly have influenced the framing of the Constitution in 1787. Furthermore, and on a more basic level, the influence of the work of Vattel on the framers in employing the term “natural born” in relation to domestic citizenship within the Constitution is highly speculative at best, is without any direct historical evidence, and is contrary to the mainstream principles of constitutional interpretation and analysis within American jurisprudence. Although it appears that there is one single reference by one delegate at the FederalConvention of 1787 to Vattel (in reference to several works of different authors to support anargument for equal voting representation of the states in the proposed Congress),there is noother reference to the work in the entire notes of any of the framers published on the proceedings of the Federal Convention of 1787,and specifically there isnoreference or discussion of thework at all in relation tocitizenshipat the Convention, in the Federalist Papers, or in any of thestate ratifying conventions.It would appear to be somewhat fanciful to contend that in employing terms in the U.S.Constitution the framers would disregard the specific and express meaning of those precise termsin British common law, the law in the American colonies, and subsequently in all of the states inthe United States after independence, in favor of secretly using, without comment or explanation,a contrary, non-existent English translation of a phrase in a French-language treatise oninternational law. In a state case cited with approval by the U.S. Supreme Court, an extensivelegal analysis of the question of natural born citizenship under the law of the United States byAssistant Vice Chancellor Sandford, in New York in 1844, found that the laws in all of theAmerican colonies, and then in all of the states after independence, followed the English commonlaw principles of jus soli, that is, that birth in the territory governed citizenship at birth, regardlessof the nationality or citizenship of one’s parents.106Sandford found that it would be“inconceivable” that the framers, in drafting the Constitution, would abandon without explicitcomment or explanation in the document, the existing law in all of the colonies, and then in all of the states, of who were natural born citizens in favor of an “international” or “natural” law theoryof citizenship by “descent” (through one’s father), an argument pressed by one of the litigantsrelying, in part, on Vattel. Addressing specifically the question of the use of the term “natural born citizen” in the federal Constitution as one of the qualifications for President, Vice Chancellor Sandford found the following:It is a necessary consequence, from what I have stated that the law which had prevailed onthis subject, in all the states, became the governing principle or common law of the UnitedStates. Those states were the constituent parts of the United States, and when the union wasformed, and further state regulation on the point terminated, it follows, in the absence of adeclaration to the contrary, that the principle that prevailed and was the law on such pointinall the states, became immediately the governing principle and rule of law thereon in thenation formed by such union.... The termcitizen,was used in the constitution as a word, themeaning of which was already established and well understood. And the constitution itself contains a direct recognition of the subsisting common law principle, in the section thatdefines the qualification of the President. “No person except anatural born citizen, or acitizen of the United States at the time of the adoption of this constitution shall be eligible tothe office of President,” &c. The only standard which then existed, of natural born citizen,was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there beany reasonable doubt that he was eligible under the Constitution? I
think not. The positionwould be decisive in his favor that by the rule of common law, in force when the constitutionwas adopted, he is a citizen.Moreover, the absence of any avowal or expression in the constitution of a design to affectthe existing law of the country on this subject, is conclusive against the existence of suchdesign. It is inconceivable that the representatives of the thirteen sovereign states, assembledin convention for the purpose of framing a confederation and union for national purposes,should have intended to subvert the long-established rule of law governing their constituentson a question of such great moment to them all, without solemnly providing for the change.The treatise in question by Emmerich de Vattel was a work concerning the “law of nations,”which we would now classify generally as “international law.” However, the concept of citizenship within a particular country is one governednot by international law or law of nations, but rather is governed by municipal law, that is, the internal law of each country.108Vattel’swritings on citizenship by “descent” reflected in many circumstances what the law or practicemay have been in certain European nations at the time—that is, that citizenship followed thenationality or citizenship of one’s father, as opposed to the place of birth.109This concept,although prevalent on the European Continent was, even as expressly noted in Vattel’s work itself, clearlynot the law in England or thus the American colonies,110and clearly was not theconcept and common understanding upon which U.S. law was based. James Madison, oftenreferred to as the “Father of the Constitution,” expressly explained in the House of Representatives in the First Congress, in 1789, that with regard to citizenship the “place” of birth,and not “parentage” was the controlling concept adopted in the United States.111Additionally, th eSupreme Court in 1971 simply and succinctly explained, after citing historical legal precedent:“We thus have an acknowledgment that our law in this area follows English concepts with anacceptance of the jus soli, that is, the place of birth governs citizenship status except as modified by statute.”112Again in 1998, the Supreme Court expressly recognized jus soli, the place of birth,as controlling in the United States, noting that in this country “citizenship does not pass bydescent” except as provided by Congress in statute.113

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Congressional Research Service debunking of Birtherism (2nd CRS memo found)

#180

Post by esseff44 » Tue Nov 29, 2011 4:20 pm

Yanno, you can delete your own posts. Ya don't need a mod to do it. Just sayin'.But then the comments become little orphans. :cry:

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Congressional Research Service debunking of Birtherism (2nd CRS memo found)

#181

Post by realist » Tue Nov 29, 2011 4:21 pm

Jack had also just picked it up and it's available there as well.Congressional Research ServiceJack MaskellLegislative AttorneyNovember 14, 2011 CRS Report for CongressPrepared for Members and Committees of CongressQualifications for President and the “NaturalBorn” Citizenship Eligibility RequirementJack MaskellLegislative Attorney November 14, 2011Congressional Research Service7-5700[/break1]crs.gov/]http://www.crs.gov/R42097[link]Qualifications for President and the “NaturalBorn” Citizenship Eligibility Requirement,[/link]
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Congressional Research Service debunking of Birtherism (2nd CRS memo found)

#182

Post by Epectitus » Tue Nov 29, 2011 4:31 pm

Oh... and it takes on Minor v. Happersett as well!!!! Sucks to be Donofrio.





The Supreme Court in Minor v. Happersett, in ruling in 1875 that women did not have the constitutional right to vote in federal or state elections (as a privilege or immunity of citizenship), raised and discussed the question in dicta as to whether one would be a “natural born” citizen if born to only one citizen-parent or to no citizen-parents, noting specifically that “some authorities” hold so. The Court, however, expressly declined to rule on that subject in this particular case. In dicta, that is, in a discussion not directly relevant to or part of the holding in the case, the Court explained:





The Constitution does not, in words, say who shall be natural-born citizens. Resort must be


had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers


of the Constitution were familiar, it was never doubted that all children born in a country of


parents who were its citizens became themselves, upon their birth, citizens also. These were


natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities


go further and include as citizens children born within the jurisdiction without reference to


the citizenship of their parents. As to this class there have been doubts, but never as to the


first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for


everything we have now to consider that all children born of citizen parents within the


jurisdiction are themselves citizens.





Those issues or “doubts” raised in dicta by the Supreme Court in Happersett in 1875 were, however, answered by the Supreme Court in a later decision in 1898, in United States v. Wong Kim Ark, which clearly repudiated the narrow and exclusive “original-community-of-citizens” reasoning of the Court in Dred Scott based on lineage and parentage, in favor of interpreting the Constitution in light of the language and principles of the British common law from which the concept was derived. The majority opinion of the Court clearly found, by any fair reading of its reasoning, discussion, and holding, that every person born in the United States and subject to its jurisdiction (that is, not the child of foreign diplomats or of troops in hostile occupation), regardless of the citizenship of one’s parents, is a “natural born” citizen, and that the Fourteenth Amendment merely affirmed the common law and fundamental rule in this country that one born on the soil of the United States and subject to its jurisdiction is a “natural born” citizen.All emphasis in the original.
"Hell, I would wear a dress and ruby red slippers all year if we can prove this" - Mike Zullo

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Congressional Research Service debunking of Birtherism (2nd CRS memo found)

#183

Post by bob » Tue Nov 29, 2011 4:32 pm

Yanno, you can delete your own posts. Ya don't need a mod to do it. Just sayin'.Once someone posts after your post, you can't delete it.
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Congressional Research Service debunking of Birtherism (2nd CRS memo found)

#184

Post by Litlebritdifrnt2 » Tue Nov 29, 2011 4:34 pm

It is a thing of beauty is it not. Can't wait til the birfers catch wind of it.ETA - thanks to whoever merged the discussions :D

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Congressional Research Service debunking of Birtherism (2nd CRS memo found)

#185

Post by esseff44 » Tue Nov 29, 2011 4:43 pm

It is quite amazing and comprehensive. There it all is in a large nutshell. I am sure that the birthers will try to make sure that none of their fellow birthers 'get wind of it.' Will this ever find its way onto WND or P&E, Haskin's or any of the birther site. Will anyone send a copy to Sheriff Joe to pass on to his posse?It even mentions the $20,000 sanctions Judge Land placed on O'rly.

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Congressional Research Service debunking of Birtherism (2nd CRS memo found)

#186

Post by Curious Blue » Tue Nov 29, 2011 4:57 pm

Usually these research documents are produced at the request of members of Congress. I wonder who requested this one.I'd just note that these reports can be generated at the request of any staffer -- it doesn't have to be a member. It can be their legislative assistant, or even an intern. So you can't draw much in the way of a conclusion about the source of a CRS document.





That being said, if an intern sent a request to CRS, you wouldn't see something with the length and depth of the latest birther-debunking legal treatise.





I just wanted to point out the above, as the more typical use of the CRS is to help with details related to drafting of legislation and/or communications with constituents on more routine, and often more arcane, matters.

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Congressional Research Service debunking of Birtherism (2nd CRS memo found)

#187

Post by Epectitus » Tue Nov 29, 2011 5:00 pm

It is quite amazing and comprehensive. There it all is in a large nutshell. I am sure that the birthers will try to make sure that none of their fellow birthers 'get wind of it.' Will this ever find its way onto WND or P&E, Haskin's or any of the birther site. Will anyone send a copy to Sheriff Joe to pass on to his posse?It even mentions the $20,000 sanctions Judge Land placed on O'rly.I've made sure that Sharon and Mario are aware of it. We'll see what they have to say. I know someone else has already let Orly know.Or not. -xx
"Hell, I would wear a dress and ruby red slippers all year if we can prove this" - Mike Zullo

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Congressional Research Service debunking of Birtherism (2nd CRS memo found)

#188

Post by Litlebritdifrnt2 » Tue Nov 29, 2011 5:04 pm

Birfer reaction in 3, 2, 1 THIS WAS OBVIOUSLY WRITTEN BY A SOROS OBOT WORKING FOR THE WHITEHOUSE TO SUBVERT THE TRUTH JUST AS WE ARE WINNING WITH OUR ELECTION BOARD CHALLENGES!!!!!!!! ARGLE BARGLE.


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Congressional Research Service debunking of Birtherism (2nd CRS memo found)

#190

Post by Reality Check » Tue Nov 29, 2011 5:15 pm

Apologies if this is a dupe but did any of you see this over at Doc's site?I searched but didn't see you had posted this already Britty. I think this is the correct thread for it as it turns out. I think this memo is gong to make some Birther heads caplode. :lol:
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Congressional Research Service debunking of Birtherism (2nd CRS memo found)

#191

Post by Sterngard Friegen » Tue Nov 29, 2011 5:16 pm

Now if only CRS would take on the social security and selective service number bullshit we'd be able to go home.

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Congressional Research Service debunking of Birtherism (2nd CRS memo found)

#192

Post by ballantine » Tue Nov 29, 2011 5:21 pm

It is quite amazing and comprehensive. There it all is in a large nutshell. I am sure that the birthers will try to make sure that none of their fellow birthers 'get wind of it.' Will this ever find its way onto WND or P&E, Haskin's or any of the birther site. Will anyone send a copy to Sheriff Joe to pass on to his posse?It even mentions the $20,000 sanctions Judge Land placed on O'rly.I've made sure that Sharon and Mario are aware of it. We'll see what they have to say. I know someone else has already let Orly know.Or not. -xxDid you point out Maskell quotes the 3rd Circuit calling Mario's appeal frivolous? He''ll love that. This is the best paper on the topic. Better than any of the law review articles to date. Doesn't miss much at all. Cites some fairly obscure authority that would have taken much research time to discover.

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Congressional Research Service debunking of Birtherism (2nd CRS memo found)

#193

Post by Whatever4 » Tue Nov 29, 2011 5:24 pm

Now if only CRS would take on the social security and selective service number bullshit we'd be able to go home.How can a guy as old as you still be so naive?
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Congressional Research Service debunking of Birtherism (2nd CRS memo found)

#194

Post by Sterngard Friegen » Tue Nov 29, 2011 5:26 pm

:mrgreen:

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Congressional Research Service debunking of Birtherism (2nd CRS memo found)

#195

Post by Epectitus » Tue Nov 29, 2011 5:26 pm

Did you point out Maskell quotes the 3rd Circuit calling Mario's appeal frivolous? He''ll love that. This is the best paper on the topic. Better than any of the law review articles to date. Doesn't miss much at all. Cites some fairly obscure authority that would have taken much research time to discover.It is a serious piece of research, and managed to (as far as i have seen) get the nuances right. I am often frustrated by a failure of otherwise solid debunking pieces to take the time to fully understand the arguments being made by Birthers... opening the door for all sorts of equivocation. Even some of the legal decisions we've seen make mistakes of detail. This guy took the time to fully understand what it was he was actually responding to, and that impresses me.
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Congressional Research Service debunking of Birtherism (2nd CRS memo found)

#196

Post by MaineSkeptic » Tue Nov 29, 2011 5:30 pm

It is a serious piece of research, and managed to (as far as i have seen) get the nuances right. I am often frustrated by a failure of otherwise solid debunking pieces to take the time to fully understand the arguments being made by Birthers... opening the door for all sorts of equivocation. Even some of the legal decisions we've seen make mistakes of detail. This guy took the time to fully understand what it was he was actually responding to, and that impresses me.Definitely. It almost makes me suspect that Mr. Maskell has been hanging out here.

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Congressional Research Service debunking of Birtherism (2nd CRS memo found)

#197

Post by mimi » Tue Nov 29, 2011 5:30 pm

Apologies if this is a dupe but did any of you see this over at Doc's site?





[/break1]obamaconspiracy.org/2011/11/new-congressional-report-on-presidential-eligibility/]http://www.obamaconspiracy.org/2011/11/ ... igibility/





It says what we knew it would say of course but why have I not seen more wailing and gnashing of teeth about it at birfer sites?And he directly takes on the Vattelites!!!!


Emphasis in the original.Jeebus! Is Mario on suicide watch? Donofrio? What is left for them? Oh, the humanity.





Just one failure after another.





It's natural for Charlie Kerchner to be a failure at law, but poor, poor, disillusioned, inept Mario and Leo. Not to mention the Pidgeon. (Nobody counts Orly. Even the media thinks she's nutz.)

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Congressional Research Service debunking of Birtherism (2nd CRS memo found)

#198

Post by jtmunkus » Tue Nov 29, 2011 5:40 pm

Just goes to show how corrupt Congress is. They have completely glossed over de Vattel's impact on the Founders and their real intentions.

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Congressional Research Service debunking of Birtherism (2nd CRS memo found)

#199

Post by Slarti the White » Tue Nov 29, 2011 5:59 pm

Jeebus! Is Mario on suicide watch? Donofrio? What is left for them? Oh, the humanity.Just one failure after another.It's natural for Charlie Kerchner to be a failure at law, but poor, poor, disillusioned, inept Mario and Leo. Not to mention the Pidgeon. (Nobody counts Orly. Even the media thinks she's nutz.)I wonder if Mr. Maskell's memo meets Leo's new standards for comments on his blog...
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Congressional Research Service debunking of Birtherism (2nd CRS memo found)

#200

Post by Sterngard Friegen » Tue Nov 29, 2011 5:59 pm

Just goes to show how corrupt Congress is. They have completely left out any mention of de Vattel's impact on the Founders and their intentions.de Vattel is extensively discussed and debunked.

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