Monday, February 6, 2012

Judge Malihi's Ruling Grossly Incompetent

Having read Judge Malihi's embarrassingly flawed opinion as well as Atty Mario Apuzzo's thoughtful analysis of that opinion, to the best of my humble abilitylet me try to reasonably summarize the latter for your consideration.

For even the acolyte, the uninitiated, the layman, an objective reading of the Constitution and pertinent caselaw clearly and unambiguously defines "natural born citizen" as a person born of two US Citizen parents. Defenders of Obama and the willfully ignorant may scream, rant, rave and hurdle ad hominems 'til they're blue in the face, but this is incontrovertible FACT and LAW--not opinion.

Gratuitously adjudging Obama has having been born in the United States and that he is, therefore, a "natural born citizen", Judge Malihi violated the rules of evidence by failing to rely upon the evidence presented by plaintiffs at the hurried January 26th hearing. In effect, by "considering" Obama born in the US, what evidence DID he rely upon to reach this whole cloth opinion? Certainly not the plaintiffs' evidence, and most certainly not the evidence which was NOT submitted by Obama's absent defense. No, he relied upon a terribly flawed state decision, Ankeny v Governor of Indiana.

The grossly incompetent and insupportable Ankeny v Governor of Indiana ruling gratuitously defined "natural born citizen" quite apart from original Constitutional meaning, a ruling which, in any event, has no binding sway beyond the State of Indiana. Only SCOTUS can render such a uniformly binding ruling. And, yet, Ankeny and Malihi relied upon their own trumped up definition of "natural born citizen" and not upon the original intent and meaning conveyed to that word of art by our framers and corroborating caselaw.

Central to the framers' and founders' meaning of NBC was the framers' reliance upon de Vattel's Law of Nations (1758) which defined NBC as being one who is born in the country of parents who are citizens. Note: the Natualization Acts of 1790, 1795 and 1802 show that only children born in the United States of US Citizens can be Art II "natural born citizens" and that children born of aliens in the US are aliens themselves.

Citing  and misreading Minor v Happersett (1875), Ankeny erroneously opined that Happersett left in question whether or not a child born in the US of alien parents was a NBC. Not so. Where doubt was expressed in that ruling was on the question of whether or not a person born of alien parents in the US is even a "citizen". In fact, Happersett, correctly relying upon de Vattel and American common law, and not English common law, left NO DOUBT that a NBC is a child born in the country of two US Citizen parents.

Relying upon the Wong Kim Ark ruling in 1898 which dealt only with the issue of US Citizenship and not natural born citizenship, Ankeny errantly cited this ruling as demonstrating who a NBC is. Huh? In fact, Wong Kim Ark never contested Happersett with respect to the meaning of NBC per de Vattel's Law of Nations. In effect, Ankeny misrepresented the Wong Kim Ark holding by gratuitously ruling that Wong was a NBC, when, in fact, Wong Kim Ark ruled that Wong was a US Citizen--not an Art II NBC. IN FACT, the Wong Kim Ark distinguished between a child born to one or more alien parents and a child born to citizen parents, noting that only the latter can be described as a "natural born citizen"!

Thus, being a US Citizen is NOT the same as being a "natural born citizen". NBCs are citizens per natural law; others are statutory citizens.

In effect, Ankeny, upon which Malihi relied for his opinion, errantly relied upon flawed or misinterpreted  caselaw as well as English common law to define NBC, this despite the fact that all SCOTUS cases, including Minor and Wong Kim Ark, relied upon American common law.

What is especially disturbing is that Judge Malihi's reliance upon Ankeny's "advisory opinion" mysteriously led him to the unwarranted conclusion that Obama was born in Hawaii and that he was, therefore, a NBC. However, Ankeny never actually RULED that Obama was a NBC or that he was, in fact, born in Hawaii. Never mind that Ankeny blew the constitutional definition of NBC, Obama's birth place was never even examined by Ankeny and defense never admitted any evidence to  that effect. As an advisory opinion, therefore, Ankeny cannot be relied upon as proof of Obama's birth place, much less his status as a "natural born citizen". Even in footnote 15 of that advisory opinion, the Ankeny court cautioned that "while the question of whether someone born out of the United States can be a NBC was not before it, its decision should not be interpreted to mean that being born in the  US is the only way someone can be a NBC".

Exhausted  or boiling yet?

Incorrectly concluding that since Wong was a US Citizen that he was also a NBC is a judicial leap into never-never land. For in the same opinion, Ankeny differentiated between citizen and NBC and admitted that the Wong ruling did NOT discuss NBC.

Willfully tortured obfuscation or woeful judicial incompetence? You decide.

Point: relying on natural law and Law of Nations, the founders were adamant and clear that to prevent usurpation of the Presidency by a person of dual alliegiance, that person must have been born of two US Citizen parents. PERIOD!

SO, SCOTUS has been crystal clear as to who is a NBC: a child born in the US of two US citizen parents, whether naturalized or by birth. Thus, all natural born citizens are citizens of the US, but not all citizens of the US are natural born citizens.

The burden of proof rests upon Obama to prove his elibility without a shadow of doubt, but Malihi ignored that burden of proof, instead conjectured that Obama may be "considered"--not ruled--to have been born in the US and, therefore, a NBC. Again, birth place ALONE is insufficient to meet the Art II NBC requirement.

We can only hope that the GA Sec. of State's due diligence and objective and courageous defense of the Constitution and the Rule of Law will hold sway. Since that's not likely, let the appeal process go forward with all deliberate speed.

(For those readers interested in a more detailed analysis of this subject, I urge you to carefully read Mario Apuzzo's commentary in legal opposition to Malihi opinion. Very astute and clear-headed. http://puzo1.blogspot.com/2012/02/all-that-is-wrong-with-georgia-state.html)