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We Have Come Full Circle
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My Latest Article Posted on the Post & Email News Site
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There is no Difference between the Two Parties
An Open Letter to Senator Jon Kyl (R-AZ)
Sunday, December 13th, Senator Kyl (R-AZ) took to the Senate floor to tell us all about three important taxes included in the Senate’s health care legislation (H.R. 3590), and yet he failed to mention the two most important taxes in the bill. While Senator Kyl admonished his Democratic colleagues about the “burden [of] a litany of new taxes…in total 12 new taxes in this bill,” he singled out three of those 12 taxes: 1) a new tax on the chronically ill, 2) a new tax on Health Savings Accounts and 3) a new tax on medical devices. Yet, he neglected to mention the two most important taxes: 1) that every individual and family and 2) that every business will be required to buy an approved health care plan for themselves or for their employees or face a tax. Not once did Senator Kyl mention that the provision compelling citizens and businesses to make a purchase for themselves or on their employees’ behalf or face a tax is un-Constitutional. Nowhere in our United States Constitution has the Congress been empowered to make citizens make private purchases or businesses provide goods or services to their employees or face a tax. At no time in the entire 233 year history of this country under our Constitution has such a compulsion to make a purchase or face a tax ever occurred. These are unprecedented taxes, and yet, Senator Kyl and the entire United States Congress have remained mute on this issue.
There are many who argue that as bad as the Republicans have been on fiscal issues over the past 8 years, there is a difference between the two parties. Where? Where is that difference? The Representatives of both parties are only granted any authority they have through the U.S. Constitution, and yet neither party’s Representatives uphold those guarantees to the American people found in our Constitution. If the Republicans are so different from the Democrats, then why can’t a Senator from a rather conservative State, Arizona, speak to the Constitutional protections afforded his constituents in the U.S. Constitution? Why is Senator Kyl, when speaking specifically about the subject of taxes in the Senate health care bill, mute on its most basic un-Constitutional mandate, i.e., the compulsion to purchase an approved health care plan or face a tax?
I offer the obvious answer. The power derived from taxation and subsequently federal expenditures empowering Congress far outweighs any Constitutional protections you and I should enjoy. If Senator Kyl wasn’t afraid of losing some of the power he and his fellow Senators abuse, he would feel no compulsion to protect Democrats and their bill’s mandates to purchase health insurance or face a tax. If Senator Kyl was true to his conservative beliefs, he would be shouting from the top of Capitol Hill how the Constitution provides for a limited government that has no authority to compel citizens to make a private purchase or compel businesses to provide a service to their employees. But that isn’t what Senator Kyl is doing. No he’s fine with talking about specific taxes on various people and industries, but he fails to give the true power of limited government in part through limited taxation back to the people by illuminating the Constitutional protections the people are guaranteed.
Senator Kyl, I’m ashamed to have you as my Senator. I’m ashamed at myself for voting for you last year thinking you would somehow be different from your Democratic colleagues. You are simply a lighter version of your opponents, and you certainly are not a Senator of the people, fighting for the people, ensuring that the people are guaranteed their Constitutional protections. Both parties represent just more of the same, and neither party is willing as of yet to protect the people and uphold the Constitution.
Senate Health Care Bill Also Lacks Constitutional Authority
Before the House of Representatives had even released their health care bill a few weeks ago, I had written my Congressman explaining that all 5 of the health care bills being written and re-written in the Congress lacked Constitutional authority. One of the reasons I knew this was the case was that I knew the Congress would attempt to use its Article I, Section 8 enumerated power to regulate commerce. I wrote my Congressman in part saying:
But I know others have argued that if it is not a power that exists under the “general welfare” clause, then it certainly is a power derived from the commerce clause of the enumerated powers. To which, I consult those same Federalist Papers, but once again upon reading several of the Federalist Papers, <sic> the arguments seem to indicate that some of the States were participating in unfair trade practices with each other at the time of the drafting of the Constitution. Therefore, the commerce clause was included as an enumerated power in order to allow the Federal Government (i.e. the Legislative Branch) the power to make regular commerce between the States. And when I think of the enumerated power of making commerce regular between the States and how that relates to health care legislation, I conclude that the Constitutional power seems to lend itself to allowing private Insurance companies to provide their health insurance products across State lines [but not compel citizens to buy said products]…
So sure enough when I began reading the health care bill now coming out of the Senate, we find the following commerce clause citation beginning on page 320 of the legislation:
(1) IN GENERAL.—The individual responsibility requirement provided for in this section (in this sub section referred to as the ‘‘requirement’’) is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2).<snip>
(2) EFFECTS ON THE NATIONAL ECONOMY AND INTERSTATE COMMERCE.—The effects described in this paragraph are the following:
(A) The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased.
Let’s pause right there and see what the Senate is saying. Leave it to liberal Democrats to take the immediate leap from having the ability to regulate commerce between the States to result in their now new found supposed power to compel the purchase of what they have decided to regulate. I should at least pause here and say that at least the Senate unlike the House of Representatives tried to find the Constitutional authority to compel individuals to purchase health care. The House Bill (HR 3962) did not bother to attempt to seek or articulate Constitutional authority. Never before in the history of our Country has a citizen of the United States been required to make a private purchase or face a tax. So let’s look further into the bill and see what the consequences will be for the Senate’s new found power to regulate health insurance commerce.
First the Senate attempts to show us that they are serious about their Constitutional authority to require us to purchase health care insurance by citing a Supreme Court case. On page 324 of the bill, you will find the following:
(3) SUPREME COURT RULING.—In United States v. South-Eastern Underwriters Association (322 U.S. 533 (1944)), the Supreme Court of the United States ruled that insurance is interstate commerce subject to Federal regulation.
But once again, they make a major leap from being able to regulate insurance as interstate commerce and then compelling a United States citizen to purchase health care. And they make this giant leap by immediately following the paragraph cited above with the following paragraph:
IN GENERAL.—Subtitle D of the Internal Revenue Code of 1986 is amended by adding at the end the following new chapter:
I will spare you the legalese of the next few sections, but it essentially says that beginning in 2013 (conveniently after the next Presidential election), all individuals and any qualifying dependents of said individuals will be required to provide “minimal essential coverage.” Failure to do so will result in a penalty. But what will that penalty be? Well it takes them several pages to detail the penalty, and they certainly are incapable of using clear and concise language, but here is the convoluted section where they get to the penalty you will pay. And when they say penalty, they really mean a federal income tax as stated on pages 325 and 326:
(1) IN GENERAL.—If an applicable individual fails to meet the requirement of subsection (a) for 1 or more months during any calendar year beginning after 2013, then, except as provided in subsection (d), there is hereby imposed a penalty with respect to the individual in the amount determined under subsection (c).<snip>
(c) AMOUNT OF PENALTY.— (1) IN GENERAL.—The penalty determined under this subsection for any month with respect to any individual is an amount equal to 1⁄12 of the applicable dollar amount for the calendar year. (2) DOLLAR LIMITATION.—The amount of the penalty imposed by this section on any taxpayer for any taxable year with respect to all individuals for whom the taxpayer is liable under subsection (b)(3) shall not exceed an amount equal to 300 percent the applicable dollar amount (determined without regard to paragraph (3)(C)) for the calendar year with or within which the taxable year ends. ‘‘(3) APPLICABLE DOLLAR AMOUNT.—For purposes of paragraph (1)— ‘‘(A) IN GENERAL.—Except as provided in subparagraphs (B) and (C), the applicable dollar amount is $750.
(B) PHASE IN.—The applicable dollar amount is $95 for 2014 and $350 for 2015.
Now if that was all perfectly clear to you, then congratulations, you too can become a U.S. Senator. Yes it is clear that you will pay $750.00 by the year 2016, but it really does not matter because the United States Congress has no authority to tax a United States Citizen for not making a private purchase. The authority to regulate commerce between the States does not allow the government to add an income tax for failure to make a private purchase.
Congress’ authority to tax an individual’s income comes from the XVI Amendment to the U.S. Constitution. The XVI Amendment to the U.S. Constitution states in full the following:
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.
As I have argued before, if the members of Congress would have simply taken a basic accounting class, they would be familiar with the concept of a balance sheet that features both incomes and expenses. The XVI Amendment above clearly gives them the right to tax incomes, but it certainly does not grant them the power to tax expenses. Health Insurance is an expense. I don’t know how to describe this to the Congress because they seem to have such a difficult time understanding this concept. When you pay for something, in this case health insurance, it comes out of the expense column of the budget. The last time I checked the health insurance companies do not pay you and then give you health care as an income item on a balance sheet would require. But maybe the Congress does not understand this concept because they never actually have to pay for anything, so they don’t view payments for things as expenses hence our 12 trillion deficit. Maybe if we could get them all to take an accounting class we could solve two problems: 1)show them they have no Constitutional authority to compel a U.S. citizen to purchase health care and 2)solve our country’s massive deficit as they may start to understand expenses eventually have to be paid. Oh well, we can dream can we not?
Once again the United States Congress has overreached on its Constitutional authority attempting to set another precedent against our Constitutional rights and protections. I know that I’ll be calling both of my Senators tomorrow, and I encourage all of you to do the same. If we do not adamantly insist that our Constitutional protections be adhered to, we will find ourselves one day without any Constitutional protections at all. I just hope that day has not already arrived, and that it is not too late.
Update: You can find a more comprehensive article on this same issue that I wrote for The Post & Email. I based the article for The Post & Email from this piece and is entitled Congress Hath Not the Authority.
There is no Intellectual Honesty in Speaker Pelosi’s House
The one thing that truly annoys me is when there is no intellectual honesty. I don’t care if it comes from the left or the right, I will not tolerate a lack of intellectual honesty. If you were silly enough, like I was, to watch 8 hours of C-SPAN on Saturday covering the 4 separate committee health care debates on the house floor, you did not witness a debate on the health care legislation. What you saw was proselytizing a progressive point of view and republican point of view, but you saw very little of actual debate on the Constitutionality of the bill.
First I’d like to know why all bills don’t begin with the language that cites the portion of the Constitution granting the authority to the Congress to even put forth the bill. Wouldn’t it be nice if every piece of legislation first had to cite the authority they have to produce the legislation? But I digress. The point is if Nancy Pelosi’s house exercised any intellectual honesty whatsoever on the merits of this bill, we wouldn’t see it being supposedly debated on the house floor on a Saturday afternoon and early evening when no constituent could contact his or her house member via telephone. The phones in Congress were not being manned on Saturday. I contacted 3 Democratic Arizona Representatives on Saturday afternoon and none of their phones were answered by a human and all of their voice mails were full. If Nancy Pelosi’s house had any intellectual honesty, then she certainly wouldn’t be bringing a bill to the floor of the house only two days after the first successful terrorist attack on this nation since 9-11. People were rightfully distracted by the tragedy and travesty at Fort Hood, and did not expect a Congress with any compassion or moral ethic to take over 1/6 of the economy by passage of a bill on a wholly partisan vote two days after a massacre on a military installation. But that’s exactly what Speaker Pelosi’s House did.
Speaker Pelosi’s House has been asked on two separate occasions that I am aware of in just the past two weeks regarding the Constitutionality of the legislation. On the first occasion, Democrat Patrick Leahy was asked if the bill was Constitutional. Representative Leahy stated that no one questions the Constitutionality of the bill. Really Representative Leahy, then why were you just being asked the question, clearly someone is questioning its Constitutionality. On the second occasion, Speaker Pelosi laughed and did not answer the question. Think about that for a moment. I don’t care what your political affiliation, if you are a U.S. House of Representatives member, you have sworn an oath to protect and defend the Constitution. If a member of the media asks you about the Constitutionality of your bill, why would your first reaction be to say nobody questions it or to laugh? Of course there are Constitutional questions regarding the legislation Representative Leahy, the problem is, you simply don’t care sir. But Speaker Pelosi laughing, that is simply an insult to all Americans. There is nothing funny Speaker Pelosi about our Constitution. It is the people’s only guarantee against the tyranny of government. But after calling Speaker Pelosi’s office, I’m not convinced her nor her staff have any fear continuing their tyrannical regime against the people of America. If you think my language is too strong here, let me share with you my experience with the Speaker’s office this morning.
I contacted Speaker Pelosi’s office to ask a specific question regarding the Constitutionality of the bill with respect to the section on “Individual Responsibility.” That section begins on page 297 of the original 1990 page bill. In that section it states that you will purchase a government approved health care insurance plan or risk a tax of 2.5% of your adjusted gross income. First, the 16th Amendment of the Constitution which grants the Congress the Constitutional right to tax individuals only grants them authority to tax an income. The purchase of a health care plan is not an income. For the members of Congress that did not pass a basic accounting class, a purchase is noted in the expense column of a balance sheet not the income column. Never in the history of our country has a citizen been forced to make a private purchase or risk a tax. And please don’t give me the example of car insurance as that is a false analogy. You are not taxed by the federal government if you fail to purchase automobile liability insurance. If you do not purchase it, you may lose your privilege to drive that vehicle, but you will not pay a tax on your federal income tax return. Very different from being forced to make a purchase or risk a tax. So I contacted Speaker Pelosi’s office to pose this very simple question.
Six calls ensued within less than 5 minutes all resulting in the same conclusion – they transferred me to voicemail without even telling me they were transferring me to voicemail. First call: a gal answered the phone and I said I had a quick question that the media had posed to Speaker Pelosi which she had failed to answer. Without responding to me at all, the female who answered the phone immediately transferred me to voicemail. I called back and a gentleman answered the phone. I said I had just called and had a question but that the person answering the phone before transferred me to voicemail. I explained that a voicemail can’t answer a question and began to ask my question. I was transferred to voicemail before I even completed my question again with no spoken words by the man who answered the phone. He just transferred me to voicemail without saying a word. I called back a third time and this was the most successful call of the six. I think the gentlemen who answered the call stayed on the line with me about 90 seconds before he transferred me to voicemail. I explained to him that it was my third call and that I simply wanted an answer to a simple question. I told him in the section on “Individual Responsibility” I wanted to know what Constitutional authority. He interrupted me and said are you citing an email or the actual bill. I explained I was citing the original bill posted online 8 days before the vote as the final bill was not posted online before the vote. I then stated from page 297 of the original bill, and I began reading verbatim from the bill. I got one sentence out that had the word tax in it, and he transferred me without saying a word to voicemail. I called back 3 more times. Each time I either got out the words I have a question, or this is my X call and I just have a simple question, and without saying a word, the person answering the phone would abruptly transfer me to voicemail.
Now I fully understand that maybe the folks that answer the phone in the Speaker’s office are not able to speak on behalf of the Speaker and are not allowed to answer my question, but could they at least tell me that. Is it too much to ask the Speaker’s Office to have a conversation with the American people and provide them with information, any information, even if that information is I can’t help you, I have to transfer you to voicemail? I can only describe the way my phone calls were treated as the act of arrogant leaders that rule more as a monarchy than a Constitutional Republic. I’m sorry Speaker Pelosi but you are not a Queen, you are an elected official in a Constitutional Republic and you have a duty to uphold the Constitution and to treat the American people with at least a modicum of civility and intellectual honesty. But the Speaker’s House doesn’t appear to give one iota of respect to our Constitution nor to the idea of intellectual honesty. I ask those of you who support Speaker Pelosi and this health care bill is this how you would want your legitimate concerns about legislation to be treated? If so, I suggest you move to a country where they would be happy to treat you in this manner. Cuba and Venezuela immediately come to mind. Maybe you can hop the next plane with one of your favorite celebrities or Congressperson on their next trip to these wonderful locations.
Would it Matter if it was Widely Known that Barack Obama Didn’t Write Dreams?
As the media, and now the arts community continues to fawn over Barack Obama, I begin to wonder if it would even matter if Barack Obama were exposed for not having authored Dreams From My Father. Two things must be mentioned when considering the question. First, as a result of Dreams From My Father and the Audacity of Hope, Barack Obama has been touted by some as the greatest political writer of our time. On the other hand, there is growing evidence that Barack Obama did not write Dreams From My Father and that it was either ghost written entirely or at the very least co-authored by William Ayers. So the question remains, does it matter?
Sally Law writing for The New Yorker had this to say about the newly fueled controversy in her article “Bill Ayers, Ghost Writing Mastermind?”:
…is it any wonder, then, that “Dreams from My Father” is the latest Obama project to be targeted by the right wing? Since the Presidential campaign, rumor has circulated among certain constituencies that Bill Ayers was the real author of “Dreams,” but recent comments (read: jokes) made by Ayers have fueled the fire.
It is obvious in Law’s piece that she refuses to accept any notion of the premise that Ayers wrote or at least contributed to Dreams From My Father. Why wouldn’t an author, a supposedly, authentic journalist not at least look at the question on its merits? More importantly, Ms. Law never once mentions in her article that the recent fueling of the fire by Ayers was predated by an important fact that came out a week or so earlier, i.e., respected author Christopher Andersen as reported by WND wrote in his book Barack and Michelle: Portrait of a Marriage :
…Obama was faced with a deadline with the Times Books division of Random House to submit his manuscript after already having canceled a contract with Simon & Schuster. Confronted with the threat of a second failure, his wife, Michelle, suggested he seek the help of “his friend and Hyde Park neighbor Bill Ayers.”
Obama had taped interviews with relatives to flesh out his family history, and those “oral histories, along with a partial manuscript and a truckload of notes, were given to Ayers,” writes Andersen.
The author quotes a neighbor in the Hyde Park area of Chicago where Obama and Ayers lived, who says of the two, “Everyone knew they were friends and that they worked on various projects together.”
“It was no secret. Why would it be? People liked them both,” the neighbor said, according to Andersen.
In fairness to Sally Law, the mainstream media has not widely reported the admissions in Andersen’s book; however, it is unlikely that Sally Law having followed the recent Ayers’ suspect admissions of writing Dreams From My Father was completely unaware of excerpts from Andersen’s book “fueling” the renewed controversy. So why would she leave such a critical piece of information out of her article? One possible answer is because it legitimizes the claim that Barack Obama had help writing Dreams From My Father which dispels the notion that Obama is a brilliant writer which bolstered his credentials to make his Presidential run and secure his eventual victory.
It is this type of disingenous reporting that creates a climate that attempts to make the public believe these types of criticisms are simple conspiracy theory or rightwing nuthouse stuff. But Christopher Andersen is no right winger. He has always been characterized as a thoughtful author, and his book about the Obama marriage is overall very favorable to the Obama family. Why supress the portion of his book that makes it seem plausible that Ayers contributed to Dreams From My Father? Of course, the answer is obvious. Sychophants must protect Obama at all costs, but are they really protecting him in the end?
If you think I may be overstating the media’s reaction to Obama’s authorship of Dreams of My Father take this quote from Rocco Landesman, the newly appointed President of the Natural Endowment of the Arts, where he wrote less than ten days ago:
This is the first president that actually writes his own books since Teddy Roosevelt and arguably the first to write them really well since Lincoln. If you accept the premise, and I do, that the United States is the most powerful country in the world, then Barack Obama is the most powerful writer since Julius Caesar.
I would argue, they are not protecting Barack Obama by covering up the authorship of his book or by overstating his credentials, and this is why this issue does matter. By covering up the authorship of Dreams From My Father, the media continues to present the façade of Obama’s credentials. If he really wasn’t the sole author of Dreams From My Father, then he may also not be the brilliant politician the media has made him out to be. And if this critical point is a façade, then much of his qualifications for the position he holds are a sham. I argue that we see that façade and sham on display every day throughout his Presidency. He has spent the first 10 months of his Presidency continuing to campaign which is what a presidential candidate spends his time doing rather than leading which is how an actual President spends his time. The media can continue to cover for his shortcomings, but the nation will continue to see through the veil of deception and his Presidency will continue to be a four year campaign resulting in nothing positive for the improvement of our nation over the same period of time.
Orwellian Death of a Dream
In George Orwell’s book 1984, there was a division of government called “The Ministry of Truth.” One of the purposes of this division of government was to rewrite past news articles so that they comported with the truth of the present. For example, if in March of 1984, the government predicted that unemployment would be say 7.8% in the fall of that same year and the actual figure happened to be 9.8%, then there were government workers who would go back to the March forecast and change the figure from 7.8% to 9.9% or some figure thereabouts. This allowed the government to show that it was always accurate in all of its measures. The main character in the book, Winston, worked for the government and was one of those Ministry of Truth writers charged with changing the facts of the past. Upon being captured by the Thought Police, for crimes against the government, Winston’s character was told to repeat “a party slogan dealing with the control of the past…” The slogan went like this: “[w]ho controls the past controls the future: who controls the present controls the past.” (p. 313).
Well it may have taken 25 years, but alas, we finally find ourselves living in Orwellian times. Of course The Ministry of Truth is not necessarily a branch of government but rather a combination of some in government and some in the 4th Estate otherwise known as the media. And the past is not always altered, although sometimes it is, but the modern day media no longer need source information when making statements of fact regarding the past which ultimately when spread as truth in the present ends up affecting the future. Case in point, this week’s negligence in the media attributing statements to Rush Limbaugh that were never uttered eventually resulting in his loss to be a part of a group interested in purchasing the St. Louis Rams.
On several news networks, one of note on CNN by Mr. Rick Sanchez, statements were attributed to Mr. Limbaugh that he never uttered that characterized him as a racist. Now, I understand that the charge of racism holds less and less weight these days given it is thrown around as a pejorative against anyone who would dare disagree with liberal progressivism in this country, but for some of us, we still view racism as a serious charge and a charge that should never be made or implied lightly nor unfairly. Some of us to this day understand that racism is one of the most grave aspects of an uneducated and uninformed mind, and to be a racist means you will cause pain at many levels to another human being due to a perceived mindset regarding a large class of people. There can be no tolerance for racism in any society, but there also can be no tolerance for making a charge of racism against another without any merit. Such an act should be viewed by all of us as absolutely and utterly intolerable.
Unfortunately for Mr. Sanchez and CNN as well as other news networks and individuals in our society, the intolerable has become tolerable, and worse, promoted. The culmination of which has resulted in the group that Mr. Limbaugh was a member of, intent on buying the St. Louis Rams, has now revoked Mr. Limbaugh’s membership. All of this resulting in the Orwellian death of a dream of an American citizen. But this isn’t any man. This is a man that many of us consider a great American patriot, a man who has spoken truth to power for the past two decades against an ever increasing in size federal government and ever decreasing in viewership and integrity media. As a fellow American, I surely do not wish to live in these Orwellian times. I only hope that the media and the government will choose to abandon these times as well and return us to sanity where we can reside and live in the promise that this country was founded upon, individual liberty and freedom backed by truth and honesty in part supported by our First Amendment rights. Shame on you Rick Sanchez and all the others. And may God continue to Bless you Rush Limbaugh.
Let Us Expose the Phonies – A Case Study on Andy Martin
In the comments section of Leo Donofrio’s blog post entitled Obama Opposed the Born Alive Infant Protection Act And Won The Nobel Peace Prize, a few commentators have discussed exposing the phonies surrounding the birth certificate controversy so that the proper focus can be placed on Barack Obama’s British citizenship at birth and the potential problem that implies for natural born citizen status. This article will focus on one potential phony known as Mr. Andy Martin.
Andy Martin is a self proclaimed “Internet Powerhouse,” and lists his occupations as: “Internet writer/columnist/investigative journalist.” Interestingly, he does not list as one of his occupations, attorney, but that does not imply that he is not an attorney, but simply that he does not see that presently as one of his primary occupations. He does, in some of his posts, refer to himself as a public interest lawyer. In September of 2008, Andy Martin announced that he was launching an investigation into Obama’ time spent in Hawaii. In a post on the day of the announcement, Martin stated the following:
(NEW YORK)(September 23, 2008) Andy Martin has an invitation for those who want to join in the effort to research and investigate the “Lost Obama.” “Join me in Hawaii.” Martin will lead a research team in Hawaii October 15-22.
We have a plethora of leads for Obama in Hawaii, and we have numerous stories with a Hawaii angle,” says Martin. “We have been forced to do the job the mainstream media refuse to do. The Internet rules!
ContrarianCommentary.com is making available free participation in this research expedition. We are not collecting a penny from anyone. People who want to join us and share the research effort can make their own travel arrangements and hotel accommodations in Hawaii.
As Andy Martin counted down the time until his Hawaiian investigation would begin, he claimed that he had received threats. In an October 14, 2008 post he stated:
NEW YORK NEWS CONFERENCE: Obama investigation team in Hawaii receives threats
“We have no way of gauging the seriousness of these threats,” says Andy Martin. “We will be taking precautions. Obama associates with violent people and his authoritarian personality lends itself to violent supporters.”
On October 15, 2008, Andy Martin and his “research team” landed in Hawaii. The next day Mr. Martin informed his readership of the following:
(HONOLULU, HI)(October 16, 2008) First the good news. Our new fighting camp in Honolulu is fully operational. We have set up our communications, computers, printers and everything else within 24 hours of arrival. We are already out in the field doing our Obama research.
One national television network has already requested to cover this mission and we expect to liaison with them shortly.
The following day, October 17th, Andy Martin announced that he was filing a lawsuit in the Hawaii First Circuit Court. His lawsuit (CIVIL NUMBER: 08-1-2147-10 BIA) was against both the Governor of Hawaii, Linda Lingle, and the Director of the Department of Health, Chiyome Fukino. The following day, October 18th, Andy Martin wrote a blog post providing the details to his Hawaiian lawsuit. Martin’s lawsuit in summary alleged the following:
EMERGENCY MOTION FOR ORDER TO SHOW CAUSE
Plaintiff ANDY MARTIN (“Plaintiff”), pro se, respectfully moves this Court on an emergency basis for an Order to Show Cause (“OSC”) directing the defendants to show cause on or before October 22, 2008 at a hearing before this Court why the relief requested by the Plaintiff should not be granted.
1. This lawsuit does not involve complicated or disputed facts.
2. Time is of the essence because Plaintiff would like to write columns and articles about the Birth Certificate before November 3, 2008.
3. Plaintiff is physically present in Hawai’i and is available to appear before the Court in person at any hearing on or before October 22, 2008.
4. There is intense national interest in access to an officially certified copy of the birth certificate in question as well as any related supporting information which the defendants may have in their possession.
5. A proposed OSC is attached to this Emergency Motion.
At this point, Mr. Martin was on the right track in his pursuit of information; however, it appears he did not seek the correct venue (as will be discussed later in this article). As we have discovered through Leo Donofrio’s blog and the initial research by blogger MissTickly (AKA TerriK), Hawai had clear open information laws that Mr. Martin could have studied and utilized to pursue the information he was requesting. In addition, Mr. Martin was in Hawaii for a week and could have taken the opportunity while he was there to go to the sites where the records were located and request public information (such as index files). From Mr. Martin’s posts on his blog, we do not see evidence that Mr. Martin pursued the open records laws of Hawaii; rather, he summarily filed a lawsuit while he was physically in Hawaii. Had Mr. Martin (and maybe he did) visited the Hawaiian Department of Health website, he would have discovered a link on the front page under Popular Links entitled: Certified Copies of Vital Records – Birth & Death Certificates. In following these links he would have discovered that access to vital records was restricted by Hawaii Revised Statute §338-18. In fairness to Mr. Martin, we do not know if the Certified Copies of Vital Records was one of the Popular Links back in October of 2008, and, interestingly, the Wayback Machine archives for www.hawaiia.gov/doh do not appear in the archives. In fact, only one archive for the year 2007 appears in the Wayback Machine and no archives for the year 2008. By contrast, all archives appear in the Wayback machine for the State of Arizona’s Department of Health Site for the year 2007 and January through July for the year 2008. At this point is it fair to assume that Mr. Martin should have known about Hawaii Revised Statute §338-18? It seems that if he wished to bring forth a successful lawsuit familiarization with this statute would have been critical.
The next day, October 19, 2008, rather than focus on the lawsuit he had just filed, Mr. Martin chose to switch gears and announced a three part series concerning the results of is Hawaiian investigation. His announcement read in part as follows:
Sunday, October 19, 2008
Andy Martin’s explosive new series on Barack Obama’s Hawai’ian history. Martin’s investigative team in Honolulu finds the dramatic truth about who Barack Obama really is. Martin says his revelations are a “sad story,” but an essential element in understanding the soul of the presidential candidate. The series is sure to ignite a firestorm on the Internet, and further embarrass the mainstream media that have been avoiding any searching inquiry into Obama’s past.
The Obama investigation in Hawai’i
Obama’s Hawai’i Years: The truth finally revealed
Starting Monday, October 20th
On October 20, 2008, Mr. Martin was a busy man. He informed his readers of activity on his lawsuit where he stated that the “Hawai’i Supreme Court [was] asked to issue [an] emergency writ opening secret Obama birth files” and that an “Emergency Petition in Hawai’i Supreme Court seeks to expedite release of Barack Obama’s family records.” In addition to his lawsuit activities, Mr. Martin was also ready to begin releasing the results of his research. In his second blog entry on this day, Mr. Martin made the following sensational claim:
Monday, October 20, 2008
High Noon in Hawaii: Barack Obama and Andy Martin collide in the Aloha State
Chicago crusader Andy Martin stands on the verge of “taking down” the Obama campaign.
Martin says Obama is using his grandmother as a pretext, and that Obama really fears the secret truths about him that are about to be disclosed.Barack Obama and Andy Martin confront each other in Honolulu
Andy Martin’s investigative team provokes a “suspension” of Obama’s campaign and a desperate trip to Hawai’i by the presidential candidate
The drama builds to a Hollywood “High Noon” confrontation between good and evilANDY MARTIN
Executive Editor
ContrarianCommentary.com
First, it should be noted that Mr. Martin has no proof that his activities in Hawaii prompted Mr. Obama to travel there. Barack Obama’s officially stated reason for his trip was that his Grandmother was very ill. It was believed at the time that she may not be with us much longer, and in fact, Barack Obama’s Grandmother did pass away a few days after Mr. Obama had visited her in Hawaii. Mr. Martin utilizes a timeline of circumstantial evidence to prove he was responsible for Barack Obama’s trip to Hawaii.
I will spare you further quotes from the three part series; however, in this three part series, Mr. Martin comes to the final conclusion that Barack Obama was fathered by Frank Marshall Davis rather than Barack Obama Sr., a claim that Mr. Martin once again offers with no substantial proof thereof and has yet to prove to this day. Throughout his blog posts and in particular in part one of his three part series, Mr. Martin promotes his book on Barack Obama The Man Behind the Mask. Is Mr. Martin really interested in seeking the truth about Mr. Obama or is he padding his book sales and his pocket? Mr. Martin makes speculative arguments regarding Barack Obama’s biological father that may be true, but the may has to be greatly emphasized. Anyone can speculate about a situation and come up with some sort of sensational claim that cannot be definitively refuted, but to make a sensational claim without any concrete evidence is simply wrong on the part of the accuser. Mr. Martin claims that this is one of the reasons why release of the vault copy birth certificate is so important, but to leap to conclusions and place wild accusations in the public domain without the release of said birth certificate bearing the results of Mr. Martin’s theories is not legitimate journalism and is not sound investigative practice.
After the sensationalism of Barack Obama’s birth, Mr. Martin returns to his lawsuit which is supposed to be heard on November 7, 2008 and later Mr. Martin informs his readership that the court date was set for November 18, 2008. Within his blog post on Tuesday, October 28, 2008, Mr. Martin begins soliciting contributions for his legal work in Hawaii. Originally, Mr. Martin had hoped to argue his case without being physically present in Hawaii, but once he became aware of the court’s requirement that he appear in person, he began soliciting contributions for his Hawaii case presumably to pay for his future plane trip(s) and lodging in Hawaii.
On November 18, 2008, the court date for the law suit, Mr. Martin made the following statements in his blog post:
(HONOLULU)(November 18, 2008) Aloha from Hawai’i.
A Honolulu circuit judge heard vigorous arguments in the lawsuit filed by Obama author Andy Martin. Martin is seeking access to Barack Obama’s original, typewritten 1961 birth certificate. The judge reserved judgment.
“We had about a half-hour hearing,” Martin states. “Both the Attorney General and I vigorously presented our respective positions. The Court gave no indication of when or how the ruling could come or what the result will be.
He then goes on to state that he is going to begin a “National Conversation on the Future of America” seeking “to begin a dialog and discussion on how people who reject the regime of Barack Obama will continue to manifest their opposition.” Andy Martin supposedly does launch his “national conversation” which we will discuss later, but first he obtains the results from his Hawaii lawsuit.
On November 21, 2008, Mr. Martin receives the following disposition of his case: “Hawai’i court blocks release of Barack Obama’s birth certificate,” and he claims that he “hopes to appeal [the] Honolulu court decision.” Mr. Martin follows up with a post that states Hawaii has not followed its own laws and asks the court to reconsider its flawed ruling. Mr. Martin indicates, for the first time, in this blog post that he is aware of Hawaii’s Uniformed Information Practices Act (UIPA) when he states the following:
3. The Court decided a nonexistent standing issue
Plaintiff sought access to a historic document on two grounds: (i) a Health statute vesting as court with authority to direct release, and (ii) the Hawai’i UIPA. Both the statute, which vests the court with discretion to hear requests for access, and the UIPA, provide for review by this Court. There is thus a statutory grant of standing to seek review of a denial of access.
There is no “standing” issue in this lawsuit. Plaintiff does not need to show “injury” to seek access to a historic Hawai’i record. The AG’s claim was complete nonsense. Why the Attorney General sought to garbage-up the record with bogus standing claims is a question that should concern the court. Why the Court threw in standing as an afterthought as a basis for dismissal, when there is no such issue, is bizarre.
Andy Martin may have finally been on the right course here, yet he failed to follow up his own discovery by seeking the information directly from the DOH under Hawaii’s UIPA. As Leo Donfrio has brought to our attention through his blog, Hawaii Revised Statute 338-18(d) could have been pursued to first substantiate through index data that Barack Obama has a vital record in Hawaii and then by applying 92F-12(a)(15) arguments could have been made that Barack Obama no longer has a privacy right to prevent requests to records. Did Mr. Martin pursue the sound and available UIPA to find the truth about Mr. Obama’s birth? No. Mr. Martin could have utilized Hawaii’s Office of Information Practices (OIP) for rulings regarding any requests denied him under Hawaii’s UIPA rather than immediately pursuing litigation. Instead, while on travel in Hawaii to supposedly expose the truth about Barack Obama, Mr. Martin rushed through a lawsuit and never pursued the clear and legal avenues Hawaii’s UIPA had to offer Mr. Martin. It should be noted that it is not a requirement to go through the OIP before bringing a lawsuit, but Mr. Martin did not do himself or the public any service by rushing through his lawsuit without extensive research of Hawaii’s legislative acts and statutes and making the appropriate requests to the appropriate officials. Now, the question is why? Why did Mr. Martin not follow the UIPA and get at the truth?
As mentioned earlier, Mr. Martin began his national conversation campaign and of course took contributions for his travel and lodging expenses to Washington D.C. With his trip to Hawaii behind him, his call for contributions to continue his lawsuit and the promotion of his book The Man Behind the Mask makes it difficult to attribute pure motivations to Mr. Martin’s work when so many donations are being asked for and accepted. However, on December 8, 2008, to his credit Mr. Martin attempts to expose Mr. Berg (the first lawyer to bring a lawsuit regarding Barack Obama’s birth) as a huckster just looking for donations. It could be the proverbial “pot calling the kettle black,” but at least Mr. Martin seems to understand that one shouldn’t be profiting off of lawsuits that don’t follow the proper venue. We can only wonder if Mr. Martin sees the irony in his own claims. Had he simply followed Hawaiian law and made appropriate requests to the appropriate Hawaiian officials under the UIPA, he could have been much more effective in Hawaii. Instead he chose to supposedly research an unsubstantiated allegation of the true father of Barack Obama.
Interrupting Mr. Martin’s national crusade is the news and indictment of the Governor of Illinois, Rod Blagojevich. Mr. Martin, a local of Chicago, provides his analysis of this matter and makes an appeal in a blog post from December of 2008 to be appointed to Barack Obama’s old Senate seat. Andy Martin discusses in detail throughout many blog posts in December his thoughts on the Blagojevich matter. As we all know, Roland Burris was later appointed by Blagojevich to the Senate seat. Mr. Martin is now running for the Republican nomination for the 2010 election for that seat. In late December of 2008, Mr. Martin returns to his stated mission of a national conversation. He holds press conferences in San Francisco and San Diego regarding current events with relation to Mr. Obama and President George W. Bush. In particular he becomes interested in the events in Gaza and writes extensively on this subject. Then, he later moves on to Caroline Kennedy’s bid for replacement to Hillary Clinton’s Senate seat.
In February of 2009, we find out from Mr. Martin in a blog post that Hawaii denied his motion back in January and that Mr. Martin will be appealing to an Intermediate Court. While Andy Martin was very busy discussing current affairs in December and January he has provided few details of his court case, and he has failed to provide the court transcript he promised back in November. On February 12, 2008, he begins a two-part series claiming that Barack Obama is an “Affirmative Action President” and that his presidency has already failed. Then on February 25, 2009, he officially announces his candidacy for the 2010 election for U.S. Senate. In early March, Andy Martin seems to get back on the birth certificate brigade and announces that he will be holding a national conference in Washington D.C. on April 3rd and 4th. On Saturday, March 28, 2009, Andy Martin announces that the “Hawai’i court [was] asked to expedite Obama birth certificate appeal.”
On April 13, 2009, we still do not have an update as to his national conferences held in Washington D.C. in early April, but we now see Andy Martin shift back to a Hawaiian focus. He encourages the nation to boycott Hawaii and he begins his renewed efforts through the courts in Hawaii. He writes:
April 13, 2009
Dear Supporter:
Great news!
We have made tentative reservations to go back to Hawai’i: (1) to continue our research about Barack Obama’s personal history; (2) to help Hawai’ians understand why we are recommending an economic boycott of the state and (3) to file new lawsuits seeking access to public and school records concerning Barack Obama’s history.
The State of Hawai’i has been stonewalling our requests for documents and violating Hawai’i state law. More lawsuits are probably necessary. However biased the local courts may be, they have unquestioned jurisdiction over the vital information and historical documents we need. So we have to sue in Hawai’i.
We have seven days to pay for the new travel reservations, at which point they will cancel out.
This is our first preliminary letter to update you and advise you if you wish to either (1) financially support the new investigative trip or (2) join the team in Hawai’i or (3) do both.
If funded, “Operation Aloha Obama II” will launch in Honolulu on May 9th and conclude on May 14th.
So here we find Andy Martin soliciting the public for more money. In the same blog post he makes the claim that his October 2008 trip to Hawaii and subsequent investigation was “spectacularly successful.” Really Andy? What successes do you proclaim? His October 2008 investigation in Hawaii produced no tangible results. His lawsuits to date have produced no tangible results. His lawsuits have not followed information available to him through the UIPA if he would have just pursued the proper avenues to obtain information. And yet, now, Mr. Martin would like the public to provide him with further funds for another trip to Hawaii which can be assumed will not produce any results based on his record to date. He’s failed to report on his Washington D.C. trip which was supposed to be a national conversation on the subject matter of Barack Obama’s birth, and yet in every instance Andy Martin has failed to produce substantiated tangible results. He claims to be holding yet another news conference in New York on April 18th, and yet we find all Mr. Martin does is travel around the United States quite a bit and producing nothing of substance backed by proof that we can use to get at the truth. Then, on April 21, 2009, Mr. Martin announces a new project where he will be making a movie based on his book The Man Behind the Mask and his Hawaii investigation from the previous year. Not surprisingly, he renews his call for contributions from the public to help him achieve his new endeavor (can also be read scheme). Do you see a pattern here? Every few weeks, or months, Mr. Martin launches a new project or scheme to gain public funding for his work. It would be one thing if his former projects had produced results, but they have not. On April 30, 2009, Mr. Martin claims his Hawaii movie project is gaining momentum, and his new claim to obtain money from the public is to “run ads in Honolulu media seeking Obama testimony and memorabilia.” Ah Andy, yet another scheme to garner funds from the public?
So what becomes of this wonderful Hawaii movie project? On May 4th, Mr. Martin solicits more help from the public first stating that he “ran a highly successful first round of local advertising in Honolulu” and “[d]epending on the availability of financial support, [they] will run more ads.” He also claims in this blog post that “[b]ecause of my reputation for lawyerlike thoroughness, even our competitors are closely watching our pre-production activity for the Obama movie.” His lawyerlike thoroughness? This from a man that has produced absolutely nothing from his lawsuit in Hawaii. This from a man who failed to follow the UIPA with requests to the appropriate government officials that may have produced some results. This from a man that failed to ask for Opinion Letters from the OIP because he couldn’t because he never made the appropriate requests to Hawaiian individuals to produce the information he supposedly is so lawyerlike after in his Hawaiian lawsuit.
On May 7th, Mr. Martin finally follows up on that Washington National Conference he supposedly held on April 3rd and 4th in Washington D.C. He posts a YouTube video that is supposed to be a preview to the entire conference which he promises to post in a few days. Clicking on the link (today) to the YouTube video preview he provides yields no video, just a statement that the video was removed by the user. He reminds us that his movie project in Hawaii will begin in just two days. In the same post he states:
Other actions and events:
In addition to movie production, we will be conducting news conferences and other activity in Hawai’i. Most of last year’s Obama critics have flamed out; like a patient and persistent tortoise we keep focused on going forward with our campaign to seek the truth and find the facts about BHO. The facts are not always as exciting as some of the lies that are published about Obama, but lies only help him. Only the truth can bring him down.
God bless you all. We are doing a good job; we need your support. If you have not yet backed Operation Aloha Obama II, you can make an online donation at:
http://www.CommitteeofOneMilliontoDefeatBarackObama.com
or mail a check to us at P.O. Box 1851, New York, NY 10150-1851.
Our next report will come to you from Honolulu.
“Most of last year’s Obama critics have flamed out,” Mr. Martin? Or have your public contributors “flamed out” because you have yet to produce for them any results based in fact, so you have to come up with another scheme and make another plea for public donations.
On May 12, 2009, Andy Martin finally shows us at first some tangible evidence that he understands Hawaii’s UIPA, but then as seems to be the case with Mr. Martin he seeks to immediately proceed to lawsuits instead of attempting to have the OIP help him in the matter. He writes:
Dear Governor Lingle:
On April 3rd I sent you a letter stating you had failed to comply with the UIPA. I have not had any response to that letter.
If you would like to have a member of your staff contact me today at my local cell phone in Honolulu (see above), I would be happy to try and resolve this matter without a lawsuit.
Otherwise, I will file suit on Wednesday seeking to compel you to comply in full and in good faith with the UIPA.
I was at Justice Recktenwald’s installation yesterday, and I enjoyed your remarks.
Respectfully submitted,
ANDY MARTIN
First, we might ask, why is Mr. Martin pursuing Governor Lingle on this matter? Why not ask the Hawaii Department of Health and in particular Dr. Fukino’s office for the records since they seem to be a more appropriate party in which to make the requests. Why not go to the OIP for assistance when Governor Lingle failed to respond? Mr. Martin fails to follow any logical procedure in dealing with the UIPA, thus he fails to get any answers. Granted maybe Governor Lingle was obligated under the UIPA to inform Mr. Martin that her office did not hold the records he was requesting. In fairness to Governor Lingle, it is impossible for us to know if Mr. Martin actually made the above stated request. If he did make this request, why did he wait over a month to follow up with Governor Lingle when the UIPA clearly states he should have received a response in 10 days.
On May 18, 2009, Martin claims he will be producing two reports on his trip to Hawaii and then makes the claim that his trip was a “major success.” He claims in this first report that he paid $600.00 (the money to do so the result of a generous public benefactor) for UIPA requests for records. He then states that the AG’s office promised to begin providing documents in two weeks, thereby, removing Mr. Martin’s need to file a lawsuit to obtain this information. Let’s see if Mr. Martin ever received his documents from the Attorney General’s office. Of course he did not. In his second report of his two part series, he states he will be letting us know how our support and our activity in Hawaii is changing the perceptions of Mr. Obama. In his second report published May 20, 2009, Mr. Martin reverts back to his claim that Frank Marshall Davis is Barack Obama’s biological father. Mr. Martin writes:
When we returned to Honolulu in “Operation Aloha Obama II” to film “Obama: The Hawai’i Years,” we tested the Frank Marshall Davis hypothesis all over again.
When you plug the Kenyan Obama’s name in as “father” in Barack Obama’s family tree, nothing makes sense, and nothing adds up. When you substitute Frank Marshall Davis’ name, all the pieces of the puzzle fit neatly together. The “dreams” in “Dreams From My Father” were Frank Marshall Davis’ dreams. Barack Obama came to Chicago because Chicago was both the residence and spiritual home that Frank had been forced to abandon.
Interesting, in previous posts last year, Mr. Martin claimed it was fact that Frank Marshall Davis was Barack Obama’s father, now it is simply his hypothesis.
By May 26, 2009, Mr. Martin is back to focusing on his court case in Hawaii and states that an “Obama birth certificate brief [has been] filed in Hawaii’ appellate court” (No. 29643). He appears to provide the full text of the law suit in this blog post. He does make an important point in this suit where he states: “Hawaii officials waived secrecy by publicly disseminating incomplete information about a historical document.” He is close but not completely accurate. Under 92F-12(a)(15), Mr. Martin has a case regarding Hawaii office holder’s official actions and how the privacy of supporting documents may now be made pubic, but he certainly does not make that clear in his lawsuit and does not cite 92F-12(a)(15). The fact that he understands he has a legitimate case is supported by the following allegation in his complaint:
With due respect, public officials are not free to manipulate records under their control, playing cat-and-mouse with the public by discussing the document while saying “I can see it but you can’t.” Such behavior constituted a waiver under Hawai’i law.
But, again, he fails to detail the statutes that help make his case instead showing court cases of precedents that support his actions. After attempting to garner the public’s trust with his renewed legal efforts in Hawaii, Mr. Martin goes back to letting the public know what has become of the video of his Washington D.C. conference held on April 3rd and 4th. On May 29, 2009, he tells us that:
The full video of the Washington Birth Certificate Conference should be posted on the Internet shortly. I apologize for the delay in posting but there were, as always, budgetary problems.
The Washington Conference video will provide a valuable reference point. You can see some of the original documents at:
http://nationalconferenceonobama.blogspot.com/
From this blog post, I discovered that Mr. Martin’s activities were tracked via another BlogSpot site he had created to inform the public on this conference. On that site, he also asks for monetary contributions to his efforts. For the most part, the conference is centered around exposure of Mr. Obama’s original long form or vault copy birth certificate as well as Mr. Martin’s theory of Frank Marshall Davis as Barack Obama’s father. Mr. Martin began late last year after his October trip to Hawaii to refer to Frank Marshall Davis as being Barack Obama’s father as fact. Now in 2009, he describes it as a theory or hypothesis. In a YouTube video produced by Illuminati Productions, Andy Martin discusses the bases for his belief that Frank Marshall Davis is Barack Obama’s father comes from interviews he conducted with people that knew Frank Marshall Davis. It is a far leap to present this as factual evidence. For now, it is simple supposition and speculation that is not confirmed.
So what has become of Andy Martin? He continues his run as the Republican candidate for the 2010 Illinois U.S. Senate race. To date he has not produced the video of his Washington D.C. conference and claims that the Obama Administration is thwarting that effort. In his August 6, 2009 blog post he claims the Washington D.C. conference tape was stolen. His court case in Hawaii appears to be in the final judgment phase with no favorable judgments nor tangible documents being produced in his favor. I had to find this link to the Hawaii court cases myself as he has never provided a link in any of his blog posts so that the public could easily follow the proceedings. He has never produced that transcript he promised from his Hawaiian November 2008 court appearance. He has yet to produce his movie on the Hawaii years. And as recently as August 6, 2009 he renewed his request for contributions, this time to fund a second Washington D.C. conference.
We began this blog post by attempting to figure out if Andy Martin is one of the phonies out there — simply sucking off of the public teat asking for donations and contributions to pursue his work in the birth certificate controversy. Andy Martin is certainly one of those phonies. Although he does admit in some of his blog posts that regardless of Barack Obama’s place of birth, Barack Obama is not a natural born citizen because his father held British citizenship at birth as did Barack Obama. Instead of pursuing this thoughtful line of attack, Mr. Martin repeatedly theorizes on another father for Barack Obama which would then make Barack Obama a natural born citizen. Mr. Martin claims as a tagline to be “factually correct; not politically correct,” and yet he hasn’t produced a single fact from his investigations, conferences and law suits that can be substantiated. Andy Martin claims to be a journalist. Journalists ensure that their facts are in order before making wild accusations and diverting public attention to unsubstantiated claims. Mr. Martin lives in the realm of unproved hypotheses and is happy to take your money as he continues to obfuscate the important issues of Barack Obama’s natural born citizen status. Mr. Martin is happy to take your money in the name of investigative journalism, yet he appears to practice “yellow journalism” more than anything else. Yellow journalism “exploits, distorts, or exaggerates the news to create sensations and attract readers.” There can be no better description of Andy Martin than that.
Why Did Lawrence B. Solum Miss A Critical Point in the Natural Born Citizen Issue?
Hat Tip: Blogger ConstitutionallySpeaking from a post on the Natural Born Citizen Blog
In September of 2008, Lawrence B. Solum, a John E. Cribbet Professor of Law at the University of Illinois College of Law, wrote a research paper entitled “Originalism and the Natural Born Citizen Clause.”[i] The main focus of the legal paper regards enigmatic areas of natural born citizenship and how an Orginalist or New Originalist would treat the natural born citizen clause in Article II of the United States Constitution.
Professor Solum believes there is an enigmatic area of the natural born citizen clause which comes to light when we have a candidate such as John McCain who was born to American citizens outside of the territory of the United States. Professor Solum writes:
What is the legal significance of what we can call “the natural born citizen clause”? There is general agreement on the core of settled meaning.2 Anyone born on American soil whose parents are citizens of the United States of American is a “natural born citizen.” Anyone whose citizenship is acquired after birth as a result of “naturalization” is not a “natural born citizen.” But agreement on these paradigm cases does not entail that the clause has a clear meaning. The clause becomes enigmatic once we focus on persons who are born outside the territory of the United States to parents who are American citizens. Are they “natural born citizens,” eligible for the presidency? Or do they fall into a constitutional twilight zone, neither “natural born” nor “naturalized,” but nonetheless citizens. (Ibid p. 1)
Professor Solum makes three very important points in this paragraph of his legal paper:
- He argues that there is general agreement that “[a]nyone born on American soil whose parents are citizens of the United States of America is a ‘natural born citizen’.”
- He argues that “[a]nyone whose citizenship is acquired after birth as a result of ‘naturalization’ is not a ‘natural born citizen’.”
- He concludes that there are individuals who fall between these two standards, i.e., individuals who cannot satisfy the general agreement of the definition of natural born citizen and individuals whom are citizens but they did not receive their American citizenship via naturalization such as John McCain. He describes these individuals as enigmatic to the natural born citizen clause.
The bulk of the paper goes on to discuss how Originalists or New Originalists will handle this conundrum. This article wishes to first focus on the point already made by Professor Solum and discover whether or not President Obama fits Professor Solum’s description of an enigmatic natural born citizen.
We know that Barack Obama was born in 1961, and as a result of his father being governed by the British Nationality Act of 1948, President Obama was also governed by that same act at birth. In accordance with the British Nationality Act of 1948, President Obama was a British citizen at Birth. Through inheritance from his mother, President Obama was also a U.S. citizen at birth; hence, he possessed dual citizenship at birth. In Professor Solum’s legal paper he is clear that anyone born on American soil whose parents (plural, not singular) are U.S. citizens are natural born citizens. Since Barack Obama at birth cannot meet the generally accepted interpretation put forth by Professor Solum, then Barack Obama would fall under Professor Solum’s enigmatic persons with respect to the natural born citizen clause.
Interestingly, Professor Solum never mentions Barack Obama nor Barack Obama’s birth circumstances in his legal paper. Why? Professor Solum resides and teaches in Chicago, Illinois. Surely Professor Solum is well aware of President Obama’s history and birth status. It is common knowledge that President Obama’s father was not a U.S. citizen when President Obama was born, yet Professor Solum doesn’t seem to note the importance of this fact when discussing the natural born citizen clause and originalism. In fairness to Professor Solum, let’s look at more of his legal paper to see if he would qualify President Obama as a natural born citizen without any enigma surrounding that qualification.
As Professor Solum goes on to state in his legal paper:
This Essay explores the contribution of originalism as a theory of constitutional interpretation to the controversy over the meaning of the natural born citizenship clause. Part II of the Essay explains the relevance of originalist constitutional theory to the controversy with special reference to the New Originalism—the view of constitutional meaning that emphasizes public meaning of the constitutional text at the time each provision was framed and ratified. Part III argues that that the clause creates a problem for public meaning originalism—the phrase “natural born citizen” may not have had a widely shared public meaning in the late eighteenth century; the solution to this problem could be the notion of a “term of art,” in particular, the idea that the meaning of “natural born citizen” derives from the English concept of a “natural born subject.” Part IV considers the possibility that the original meaning of the natural born citizen clause is subject to an irreducible ambiguity. Part V concludes with reflections on the exemplary significance of the natural born citizen clause for constitutional theory. (Ibid p. 2)
Without sifting through the arguments for original intent and the New Originalism, let’s review Professor Solum’s conclusion to his paper and determine if President Obama continues to be an enigma to Article II of the U.S. Constitution. Professor Solum concludes:
The phrase “natural born citizenship” is semantically inaccessible to modern readers. Because this phrase violates the rule of compositionality, it must be understood as an idiom or term of art. For this reasoning, gleaning the meaning of the phrase requires us to investigate linguistic practice to recover the original meaning–the meaning of “natural born citizen” at the time of constitutional utterance. When we look for public meaning, we may discover that the division of linguistic labor in the late 19th century takes us to the shared understandings of those learned in the law. We may need to look to eighteenth century linguistic practice to make sense of a phrase that would otherwise be either mysterious or radically ambiguous. For this reason, the natural born citizen clause may illustrate what we might call the “inescapability of originalism.” Some constitutional provisions only make sense after we turn our attention to the way language was used when they were framed and ratified—there is good reason to believe that the natural born citizen clause is one of these. (Ibid p. 12)
In summary, he concludes that natural born citizen as used in Article II of the U.S. Constitution is a term of art and illustrates the “inescapability of originalism.” In getting to this conclusion, Professor Solum looks at the relevance of Constitutional Theory and cites the following:
[I]f one is not burdened by the label of “originalist,” then [McCain’s eligibility for the presidency] is a pretty easy question. The “natural born citizen” requirement manifests a distrust of the foreign-born that, in a nation of immigrants, can only be derided as repugnant. I both “reject” it and I “denounce” it! It’s still part of the Constitution, however, and therefore we need to try to figure out what it means. My frankly normative move would be to limit the damage by limiting the scope of “foreign-born.” There’s no plausible way to read the provision to permit Schwarzenegger and other naturalized citizens to become President. There is a ready (if not 100% clearly the original) way to read it to permit Americans born abroad to U.S. parents to become citizens.6 (Ibid p. 3)
In this argument, he cites Michael Dorf, so the words above are not Professor Solum’s but rather Dorf’s; however, it seems clear from the passage that the argument above tends to lend itself to an affirmation of John McCain’s natural born citizen status. However, Professor Solum concludes as we saw earlier that the natural born citizen clause is bound by originalism, consequently, we cannot attribute Dorf’s conclusions to Solum’s. But we can ask under Dorf’s interpretation whether or not President Obama would be a natural born citizen, and the conclusion we must come to resides potentially in the negative.
Michael Dorf’s argument discusses foreign-born and a distrust of foreign-born, but what of foreign-inheritance. As is widely assumed, the Article II natural born citizen clause was included in the Constitution to prevent foreign influence in the highest office in the land, the Presidency. Is not a man with a foreign father that very influence which should be avoided? And in that avoidance, do we not strengthen Professor Solum’s “core of settled meaning” that a natural born citizen is born on U.S. soil to parents who are citizens of the United States?
Unfortunately, Professor Solum does not make his thoughts known on this subject because he does not address President Obama’s circumstances in his legal paper. I have one question for Professor Solum, why was President Obama’s birth circumstances not addressed in his legal paper? I have posed this question to Professor Solum via the following email, and I await a response:
From: [Redacted for Privacy Purposes]
Sent: Thursday, October 08, 2009 5:04 PM
To: [Redacted for Privacy Purposes]
Subject: A follow up question Regarding Research Papers Series No. 08-17Dear Professor Solum,
I have an additional question for you regarding your Research Papers Series No. 08-17 and your article entitled “Originalism and the Natural Born Citizen Clause.” In writing your paper, you mention that “[t]he meaning of the natural born citizen clause became politically salient when John McCain became the Republican nominee for President in September of 2008…” I wonder why you did not come to this same conclusion when Barack Obama became the Democratic nominee in August of 2008. You stated in your paper that “[t]here is general agreement on the core of settled meaning.2 Anyone born on American soil whose parents are citizens of the United States of American is a ‘natural born citizen’.” Professor Solum, I make the assumption that you are aware that President Obama was not born to parents (plural, not singular) who were citizens of the United States. As President Obama readily admitted on his website Fight The Smears before the September 2008 Draft of your article:
FactCheck.org Clarifies Barack’s Citizenship Read this Article
“When Barack Obama Jr. was born on Aug. 4,1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.‘s children.
Since Sen. Obama has neither renounced his U.S. citizenship nor sworn an oath of allegiance to Kenya, his Kenyan citizenship automatically expired on Aug. 4,1982.”
Professor Solum, as you can see from the above quote, the British Nationality Act of 1948 governed Barack Obama’s citizenship making him through inheritance from his father a British citizen at birth. Certainly President Obama’s birth circumstances represent an enigma to the Article II natural born citizen clause as he does not fit your “core of settled meaning.” Can you please advise as to why you did not include Barack Obama in your legal paper on the subject of “Originalism and the Natural Born Citizen Clause.” I find it curious that you would make such an omission.
Should Professor Solum reply to my email and agree to make his reply public, I will provide his reply in this post. For now, we await his reply.
[i] Journal Article
Originalism and the Natural Born Citizen Clause
Solum, Lawrence B.
SSRN eLibrary
2008
SSRN
originalism, natural born citizen, president, presidency, constitution, constitutional theory, term of art, compositionality, original public meaning, new originalism, semantic originalism, John McCain
English
He's Not My President? 