New Jersey Obama Ballot Access Objection
It has been my practice to post research regarding “natural born citizen”, and in this post I make an exception to comment on a recent New Jersey court ruling.
In the Purpura and Moran New Jersey Obama Ballot Access Objection, Obama’s attorney in New Jersey, Ms. Hill, claimed that “candidate” refers to delegates rather than the person seeking the office.
The position is that “During the primary elections, the voters do not vote for a candidate, but rather they vote for the delegates who are candidates for the office of the party delegate…”
Although I am not an attorney, I believe this to be an obvious error.
The process is clearly defined, there should be no confusion.
Petitioners indorse the person named in their petition as candidate for nomination for the office therein named. N.J.S.A. 19:23-7
Petitioners request that the name of the person therein mentioned be printed upon the official primary ballots of their political party as the candidate for such nomination. 19:23-7
A reading of the law indicates that the persons seeking office are to be listed on the Ballot as Candidates for nomination.
Let’s see how the law has been implemented.
Here is the “Official List of Candidates for President For February 2008 Primary Election”
Note that the persons officially listed as Candidates are the persons seeking office.
Here is a “2008 Official Presidential Primary Election Sample Ballot”
http://www.co.hunterdon.nj.us/election/2008presidental/9thDistrictSample.pdf
Note that the persons listed on the official sample Ballot are the Candidates listed on the Official List of Candidates for President For February 2008 Primary Election
Note the Instructions for Voting, “PRESS THE BUTTON TO THE RIGHT OF THE CANDIDATE OF YOUR CHOICE; A GREEN ARROW WILL APPEAR SIGNIFYING YOUR SELECTION.” Please direct your attention to “CANDIDATE OF YOUR CHOICE”
As the above shows, the persons seeking office are in fact listed on the Ballot as Candidates. Voters do in fact cast Ballots for their choice of Candidate for nomination.
The law (19:23-7) has been implemented consistent with our reading of the law which indicates that the persons seeking office are to be listed on the Ballot as Candidates for nomination, and that Voters cast Ballots for a Candidate for nomination.
This demonstrates that Voters to not cast Ballots for delegates.
N.J.S.A. 19:3-3 specifies, “Delegates… to the national conventions of the political parties shall be elected at the primary election…”
Delegates are elected, and pursuant to Party rules allocated and apportioned to appear at the Party’s national Convention, “pledged” to a particular Candidate. During the process of the Convention a Candidate for the General Election is chosen by those Delegates. Delegates are elected to implement these internal Party mechanisms.
Primary Voters cast Ballots for Candidates for nomination, BUT delegates are elected. “Delegate” and “Candidate” are distinct, specified by statute, and can not be conflated.
A provision of 19:23-7 is that “Accompanying the petition, each person indorsed therein shall file a certificate, stating that he is qualified for the office mentioned in the petition…” It is disputed that the Candidate (eg, Clinton, Obama, Kucinich) is not required to certify that they are qualified for the office. Flacks contend that it is the delegates who must certify that they are qualified. This is partially true.
According to 19:23-7, Petitioners shall set forth that the signers thereof are:
- qualified voters of
• the State
• congressional district
• county, or county election district
• municipality
• ward or election districtas the case may be, in which they reside and for which they desire to nominate candidates;
- that they are members of a political party (naming the same),
- that they intend to affiliate with that political party at the ensuing election;
The other part of the truth is, the plain text of 19:23-7, “Accompanying the petition, each person indorsed therein shall file a certificate, stating that he is qualified for the office mentioned in the petition…” As previously shown, the person indorsed on the petition is the Candidate.
Obama is required to certify that he is qualified for office.
The Impossibility of English Common Law & the Federal Govt.
I have discovered an excellent explanation as to why English common law can not be the basis of the Federal govt.
The explanation is found in the Appendix to “Correspondence between George Nicholas Esq. of Kentucky, and the Hon. Robert G. Harper of South Carolina, on the subject of the Alien and Sedition Laws, 1798″
The Appendix is titled, “Observations of Judge Addisons Charge to the Grand Jury On the Liberty-of-the-Press”
Here, heavily paraphrased, is the thrust of the argument:
Could the common law of England become part of the law of the United States by its being part of the law of each of the states, at the time of the adoption of the Constitution?
Although this would be giving efficacy to the inferior instead of the superior, let it be considered.
The law of each state prior to the adoption of the Constitution consisted of the common law of England, the state constitution, and the acts of the state legislature.
The common law of England then was only one of three pillars on which the law of each state was built. It was also the weakest of the three; because it ceased to have any efficacy as law as soon as it was clearly contradicted by either of the others.
If the common law became a part of the law of the United States, because it was part of the law of the individual state, the other two parts of the law of those states must also become a part of the law of the United States, and for the same reason.
But it may be said that these other two parts of the law of each state were dissimilar in the different states, and therefore could not become a part of the law of the United States; whereas the common law of England, in every state being the same, it might become the common law of the United States.
Is the common law of England in every state the same?
The acts of the British parliament are in force in the different states up to different periods; in some to the reign of one king, in others to that of a different king.
Thus the common law of England would be different in these two states.
But the great difference which has been made in the common law in the different states, has proceeded from the changes which have been made in it, by the acts of all the legislatures of the different states, from the time of their first settlement.
Not only is the common law of England different among the states, each state legislature has altered it in different ways; thus the common law of the various states is in no way uniform.
The common law being materially different in all the sates, how can there be any common law in the United States? How shall it be determined which of the states shall be considered as the standard, so far as to make their common law, the common law of the United States? Shall it be a majority of the states; or shall it be those states which contain a majority of the people of the United States? &c &c
Incorporation of the common law into the Federal govt is impracticable.
Has the common law of England been declared to be a part of the law of the United States by the Constitution?
The constitution declares, that “this constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the Authority of the United States, shall be the supreme law of the land.”
The common law of England has not been declared to be a part of the law of the United States by the Constitution.
Therefore, in no way can the Federal govt. be said to be based on, or to have incorporated, the common law of England.
The relevant pages of the original document, as well as a transcript from those images, is available at scribd:
Or go to the Library of Congress
http://memory.loc.gov/cgi-bin/query/r?ammem/fawbib:@field%28DOCID+@lit%28bbf0081%29%29
The Absurdity of the “US Birth = Natural Born” Position
“No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President…” U.S. Const. art. II, § 1, cl 5.
Two circumstances are enumerated, each specifying the requirements applicable in that circumstance.
The circumstances are “at the time of the adoption of this Constitution”, and “all other times”.
The requirements applicable in each circumstance are “citizen” and “natural born citizen”, respectively.
Citizens are added to the United States by naturalization and by birth in the United States. The 14th Amendment defined “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside”.
Art. I, § 8, cl. 4 delegates to Congress the power to “establish a uniform Rule of Naturalization”.
Legislation enabling Art. I, § 8, cl. 4 can add individuals to the set of people termed “citizen”, or remove individuals from the set of people termed “citizen”. The only other way an individual can be termed “citizen” is by birth in the United States.
The term “citizen” is applicable only “at the time of the adoption of this Constitution”
At all other times the requirement is “natural born citizen”.
There is no provision in the Constitution delegating to Congress the power to “establish a Rule of Natural Born Citizenship”. Accordingly, there is no enabling legislation which adds individuals to the set of people termed “natural born citizen”, or remove individuals from the set of people termed “natural born citizen”.
This tells us two things:
1) “natural born citizen” exists without any requirement for enabling legislation
2) the meaning is generally understood
What individuals could be in the set of people termed “natural born citizen”?
Obviously, naturalized citizens can not be included due to reliance on enabling legislation as well as the fact that naturalization produces indivduals termed “citizen” rather than “natural born citizen”
What about all persons born in the United States as per the 14th Amendment? The 14th Amend. defines persons termed “citizen” rather than “natural born citizen”
There must be some other factor.
The noun “citizen” in the first clause is qualified by the adjective “natural born”. This rule is ordinary English, the noun is modified by the adjective such that only those nouns having the specific characteristic are included. Therefore:
1) “Natural born citizen” is more specific than “citizen”
2) “Natural born citizen” is a subset of “citizen”
3) “Natural born” is a specific characteristic appertaining to some citizens but not all
Birth in the United States is a necessary element for “citizen” and is, on its own, sufficient for “citizen”.
“Natural born citizens” are a subset of “citizens”. Therefore birth in the United States is a necessary element for “natural born citizen” but is, on its own, insufficient for “natural born citizen”.
Only some citizens “born in the United States” are “natural born citizens”.
People “born in the United States” are born to parents who are either citizens or aliens.
Which citizens “born in the United States” are “natural born citizens”, the children of citizens or the children of aliens?
It would be irrational to grant to the children of aliens, and deny to the children of citizens, the privilege of eligibility for the Office of President.
“Natural born citizen” must mean citizens born from citizen parents.
The meaning of Article II is self-evident.
Founding Era Article II Eligibility
Article II, Section 1, Clause 5, Constitution of the United States
No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen Years a resident within the United States.
Case 1
A British Subject in and Citizen of one of the Thirteen Colonies becomes, at the signing of the Declaration of Independence, an American Citizen. At the Time of Adoption this American Citizen is eligible to the Office of President provided:
• they are at least thirty-five years old
• have been fourteen years a resident within the United States
Case 2
A British Subject in and Citizen of one of the Thirteen Colonies has a child after the Declaration of Independence. The parents become, at the signing of the Declaration of Independence, American Citizens. The child, born from American Citizen parents, is a natural born Citizen. This natural born American Citizen is eligible to the Office of President provided:
• they are at least thirty-five years old
• have been fourteen years a resident within the United States
Case 3
A British Subject in and Citizen of one of the Thirteen Colonies has a child prior to the Declaration of Independence. This child is a British Subject and a native born Citizen of the Colony. At the signing of the Declaration of Independence this British Subject becomes an American Citizen. At the Time of Adoption this American Citizen is eligible to the Office of President provided:
• they are at least thirty-five years old
• have been fourteen years a resident within the United States
Case 4
An Alien naturalizes and becomes a British Subject in and Citizen of one of the Thirteen Colonies. Upon the signing of the Declaration of Independence, he becomes an American Citizen. At the Time of Adoption this American Citizen is eligible to the Office of President provided:
• they are at least thirty-five years old
• have been fourteen years a resident within the United States
Case 5
An Alien naturalizes and becomes a Citizen of one of the Thirteen States. At the Time of Adoption this American Citizen is eligible to the Office of President provided:
• they are at least thirty-five years old
• have been fourteen years a resident within the United States
Case 6
An Alien naturalizes after the Adoption and becomes a Citizen of the United States. This Citizen is not eligible to the Office of President, they were not a Citizen at the Adoption nor are they a natural born Citizen.
The Grandfather Clause
“No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President;” – Art. II, Sec. 1, Cl. 5
A distinction is made between a “citizen” and a “natural born citizen”, this much is self evident.
The purpose of the grandfather clause is to allow Revolution Era patriots born outside the country to be eligible for the Presidency.
Not just Revolution Era patriots born outside the country, but only those who were citizens at the time of the adoption of the Constitution are eligible.
So what citizens born outside the country would be citizens at the time of adoption? They are those:
I. Foreign born English subjects (however they came to be such) in the several Colonies who became US citizens by the naturalization power of the Declaration of Independance
II. Naturalized by one of the states while under the Articles of Confederation
English subjects naturalized by the Declaration of Independance includes those born in one of the Colonies, as well as those born someplace else as in Case I above. The place of birth is not a factor in their eligibility, it is their naturalization which makes them eligible.
There are natural born citizens, naturalized citizens, and aliens.
If the intended prohibition was “all citizens except naturalized citizens” Article II would have been worded so.
The time of the adoption is the only time naturalized citizens are eligible. They are citizens included in the “citizens at the time of adoption” clause – but they are naturalized citizens, as differentiated from natural born citizens.
Natural born citizens must obviously be born from citizens.[1]
More at http://www.scribd.com/doc/65871038
The meaning of Article II, Section 1, Clause 5 is self evident.
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[1] United States Naturalization Law states that children of aliens naturalize upon the naturalization of their parents. Aside from aliens who else is in country?
Naturalized citizens, who are ineligible except at the time of adoption.
Citizens born from naturalized citizens and citizens born from native born citizens, both of whom are citizens born from citizens, ie natural born citizens.
