TRUMP DENIED EFFECTIVE ASSISTANCE of COUNSEL

August 19, 2015

©2015 jbjd

When it comes to his ‘idea’ that one way to begin fixing current immigration problems is to re-define ‘birthright citizenship’; Republican Presidential candidate Donald Trump proves, once again, he has absolutely no idea what he is talking about.

Donald Trump said Tuesday that he doesn’t think people born in the U.S. to undocumented immigrants are American citizens.

“I don’t think they have American citizenship and if you speak to some very, very good lawyers — and I know some will disagree — but many of them agree with me and you’re going to find they do not have American citizenship.

Donald Trump: Birthright babies not citizens.

I am guessing that one of those “very, very good lawyers” he refers to, is Ann Coulter, who hypes the same drivel in her book Adios, America and, at least when it comes to Trump’s forays into immigration ‘policy,’ is an unabashed fan. First, a little background.

On Monday, August 17, responding to questions about talk of ending ‘birthright citizenship,’ Republican Presidential candidate Carly Fiorina told NBC’s Kelly O’Donnell

 “It would take passing a constitutional amendment to get that changed. It’s part of our 14th Amendment. So honestly, I think we should put all of our energies, all of our political will into finally getting the border secured and fixing the legal immigration.”

http://www.nbcnews.com/politics/2016-election/where-gop-2016-candidates-stand-birthright-citizenship-n411946

Ms. Coulter was interviewed by syndicated radio host Mike Gallagher the next day:

“I have turned against her [Carly Fiorina) as of yesterday with the hot, hot hate of a 1000 suns.

…yesterday among the attacks I saw on the magnificent Donald Trump immigration plan was, you know, everybody wants to get rid of anchor babies.

You can read the section of my book. It’s very short. It’s not from the 14th Amendment.

The 14th Amendment, you’ll all remember, came after the Civil War, remember what the Civil War was about? That was freeing the slaves. It wasn’t about allowing illegal aliens to run across the border, drop a baby and say, “Ha ha, you missed me, I’m a citizen now.”

Do you think the framers of the 14th Amendment, that’s what they were hoping to do? She [again referencing Ms. Fiorina] said both she and Chris Christie, I saw, saying on TV yesterday, “Well, of course you’d need a Constitutional amendment to do that, that’s crazy.”

http://www.realclearpolitics.com/video/2015/08/18/coulter_on_carly_fiorina_i_have_turned_against_her_with_the_hot_hot_hate_of_a_thousand_suns-comments.html

And I would bet Mr. Trump paid dearly for Ms. Coulter’s advice. But neither knows what he or she is talking about.

As I have tried to explain – see, for example, SENSE and non-SENSE, AGAIN with the 14th AMENDMENT!, jbjd’s FRENEMIES LIST – the 14th Amendment to the Constitution did not confer U.S. citizenship on anyone; under the Constitution, only Congress may define what constitutes ‘citizenship’ (Art. I, sec. 8. Clause 4). Thus, any attempt to define who is a citizen, through the Amendment process first would have to specifically modify that delineated power in Art. I

Rather, the 14th Amendment, implicitly assuming the fact that slaves, whether natural born or naturalized, were citizens of the U.S., merely re-stated that fact. For effect, it also clarified that, by definition being a citizen of the U.S. also means, being a citizen of the state in which one resides. (Prior to the 14th Amendment, some states and the District of Columbia denied the status of ‘citizenship’ to slaves.) But the sole purpose of mentioning the citizenship status of natural born and naturalized people was to serve as a preamble to the heart of the Amendment: all citizens of the U.S. (and therefore, the states and D.C.) are entitled to equal protection and due process.

In so doing, the 14th Amendment now extended the Due Process entitlement already found in the 5th Amendment, which had applied to the federal government; to the states and D.C. https://www.law.cornell.edu/constitution/amendmentxiv Thus, inasmuch as Congress defines all people born in the U.S. as citizens under the law; then, any newly initiated program, whether Executive or Legislative in origin, which calls for the involuntary deportation of these citizens requires due process. This means, even if the ‘plan’ floated by Mr. Trump was implemented, the Judicial branch would be inundated with and drowned to a halt by the petitions of citizens facing such deportation.

(There’s also this: Art. I, sections 9 and 10 of the Constitution already prohibit Congress from passing ex post facto laws, that is, laws which criminalize conduct after the fact. Thus, criminalizing being in this country, having been born here, would first require amending the Constitution so as to eliminate the prohibition against ex post fact laws.)

So much for taking ‘legal’ advice on immigration, from someone with a vested financial interest in selling her books.

UPDATED 08.19.15: Here is an interesting treatise on the subject, produced with our taxpayer money by the Congressional Research Service (“CRS”). http://fpc.state.gov/documents/organization/147254.pdf An interesting finding is that, the common law definition of the disputed terms, as incorporated into the 14th Amendment, prevailed until ‘codified’ in 1898, in U.S. v. Wong Kim Ark. That is, whoever is born here – with limited exceptions such as children of diplomats – and subject to the jurisdiction thereof – this excluded native Americans not ‘citizenized’ by treaties with the U.S. – is a citizen of the U.S. and the state of residence. Subsequent laws extended citizenship to all Indian tribes, regardless of treaty status. ADMINISTRATOR

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My mind is a terrible thing to waste.

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CONNED

March 1, 2012

©2012 jbjd

Until recently, the facts which had long ago formed my opinion of Arizona Sheriff Joe Arpaio were rather vague.  I recalled that while in office, he had developed policies and procedures which he intended would humiliate detainees awaiting trial in the several county jails in Maricopa County under his jurisdiction. But even unable to immediately recall the specific facts which were the basis of that opinion; my best recollection was that I had concluded he was an incompetent public official who, assuming his election to the office of Sheriff by the citizens of Maricopa County resulted from a lawful process; should nonetheless be removed from office by appropriate state or federal authorities.

Recently, I learned that, some months ago, Mr. Arpaio had initiated some kind of investigation into the authenticity of the birth certificate released by President Obama in April 2011, the results of which investigation he would unveil at a press conference scheduled on March 1. Actually, a reader of this blog told me. My first thought was, ‘This guy – Arpaio – is a piece of work.’ At the same time, I was relieved to think that most of his ‘supporters’ would, at last, share my sentiment, now realizing it takes a special kind of con to both hint that the investigation he headed had uncovered shocking facts related to the authenticity of that document (which facts are now in his sole possession and are worthy of a press conference) and yet, at this same time, delay, for whatever reason, the release of these facts.

My reader asked my opinion of this latest wrinkle in the birther bonanza. I replied by predicting what would be Arpaio’s ‘magic key’ to unlocking the whole birth certificate puzzle. The reader asked whether I thought he – the reader – should send Mr. Arpaio some of the work he had completed on the nature of that same document. I said no, suggesting that his – the reader’s – work which would otherwise survive public scrutiny would be irredeemably tainted by any such association with Mr. Arpaio; and, besides, he – Arpaio – would likely steal his work.

I decided to write this article predicting what Arpaio could possibly say at the press conference he scheduled on March 1 (tomorrow). And, as a prerequisite, I began to research both the history of the sheriff’s tenure in office and, the circumstances of his latest foray into the public’s consciousness. Sadly, I discovered not only that people are actually hopefully anticipating he might dispel questions as to the Constitutional eligibility of President Obama, once and for all; but also that the same circus of characters – WND/Western Center for Journalism; and artIIsuperpac – have not only joined but also are producing the spectacle.

First, a little about the man, in his own words. I intentionally link here to the site called Maricopa County Sheriff’s Office, a ‘.org’ and not a ‘.gov site.’ excerpted immediately below.  Note the flavor of the narrative presented by Mr. Arpaio, in stark contrast to the facts contained in the additional information which follows, provided by AZ law enforcement officials; the courts; and the U.S. Department of Justice. (I have placed in ‘bold’ those items relating to topics which are further referenced below in those less fawning narratives.)

In 1992, Arpaio successfully campaigned to become the Sheriff of Maricopa County. Since then he has been reelected to an unprecedented five 4-year terms. During his tenure as Sheriff of Maricopa County, Arpaio has consistently earned high public approval ratings.

With over five decades experience in law enforcement, Arpaio knows what the public wants, “The public is my boss,” he says, “so I serve the public.” He has served them well by establishing several unique programs.

Arpaio has between 7500 – 10,000 inmates in his jail system. In August, 1993, he started the nation’s largest Tent City for convicted inmates. Two thousand convicted men and women serve their sentences in a canvas incarceration compound. It is a remarkable success story that has attracted the attention of government officials, presidential candidates, and media worldwide.

Of equal success and notoriety are his chain gangs, which contribute thousands of dollars of free labor to the community. The male chain gang, and the world’s first-ever female and juvenile chain gangs, clean streets, paint over graffiti, and bury the indigent in the county cemetery.

Also impressive are the Sheriff’s get tough policies. For example, he banned smoking, coffee, movies, pornographic magazines, and unrestricted TV in all jails. He has the cheapest meals in the U.S. too. The average meal costs between 15 and 40 cents, and inmates are fed only twice daily, to cut the labor costs of meal delivery. He even stopped serving them salt and pepper to save tax payers $20,000 a year.

Another program Arpaio is very well known for is the pink underwear he makes all inmates wear. Years ago, when the Sheriff learned that inmates were stealing jailhouse white boxers, Arpaio had all inmate underwear dyed pink for better inventory control. The same is true for the Sheriff’s handcuffs. When they started disappearing, he ordered pink handcuffs as a replacement.

Arpaio has started another controversial program on the website WWW.MCSO.org. Mugshots of all those arrested (about 300 per day) are posted on the Sheriff’s website as they are booked and processed into jail. Just under a million hits daily come into the website, making it one of the most visible law enforcement sites on the internet.

In addition to these tough measures, the Sheriff has launched rehabilitative programs like “Hard Knocks High,” the only accredited high school under a Sheriff in an American jail, and ALPHA, an anti-substance-abuse program that has greatly reduced recidivism.

As chief law enforcement officer for the county, Arpaio continues to reduce crime with hard-hitting enforcement methods. His deputies and detectives have solved several high-profile murder cases, including numerous child murders. The posse, whose ranks have increased to 3,000 members under Arpaio, is the nation’s largest volunteer posse. Posse men and women help in search and rescue and other traditional police work as well as in special operations like rounding up deadbeat parents, fighting prostitution, patrolling malls during holidays, and investigating animal cruelty complaints. The posse’s contributions are invaluable and essentially free to taxpayers.

But then, there is this article by Bill Louis, a former El Mirage assistant police chief.

Sheriff Arpaio failed victims of El Mirage, by Bill Louis,

I have first-hand knowledge of the incredible level of neglect on the part of Sheriff Joe Arpaio. I find it difficult to refrain from comment after seeing his “apology” to the victims of the dozens of serious sex crimes and child molestations that he failed to investigate in El Mirage.

His callous comment of “if there were any victims” shows his arrogance and the insincerity of his so-called apology. Arpaio knows full well there were many victims and he knows their identities. In 2008 the sheriff received a full written account of all the cases his office failed to investigate in El Mirage.

The Maricopa County Sheriff’s Office had provided police services in El Mirage for three year. In mid-2007, the new leadership of the El Mirage Police Department took over.

A sheriff’s deputy chief called then El Mirage Police Chief Mike Frazier and told him to get the evidence from the El Mirage cases out of their property impound. The deputy chief also told Frazier he was returning all the police reports (several boxes) from the time period when the Sheriff’s Office had been responsible for providing police services in El Mirage. That deputy chief told the El Mirage police administration that all the reports were “complete” and could just be “filed away.” A few weeks later the boxes of police reports were returned to El Mirage.

At that time, I was the newly hired assistant police chief. For quality control purposes I directed the El Mirage detectives to conduct a random sampling of the serious criminal cases (sex crimes and child molestations) that had been returned from Arpaio’s office. (We were already in the process of reviewing several death investigations Arpaio’s staff had mishandled.)

The cursory review showed that none of the sex crime and molesting cases had been completed. Most had not had any follow up done after the first-responder’s contact.

I ordered a full review of the returned cases. To my dismay our full audit showed that none of the cases had been completed.

We knew the task of re-investigating three years of neglected criminal cases would tax our limited El Mirage police resources. At our request, the El Mirage city manager approved special funding and we temporarily hired some retired Phoenix detectives to re-investigate the neglected cases.

After months of extra work, the El Mirage Police Department staff finally completed the re-investigation of the neglected cases. A comprehensive report was completed including an overview and summary of each case. The report included information about every victim.

This report and a cover letter were sent to Sheriff Joe Arpaio. Although this was the professional and ethical manner to handle this situation, Arpaio had the audacity to criticize the El Mirage police department for preparing this report. He chastised us for “creating a public record” of his negligence. (This is the same Joe Arpaio who publicly questioned whether there really were any victims.)

Many months after we finished re-investigating the cases an Arizona Republic reporter uncovered this negligence by Arpaio and requested a public records request for the El Mirage Police report and the letter to the sheriff. When Arpaio’s negligence on these cases was made public in a subsequent news report, Arpaio announced he was launching an “internal investigation” into the matter.

That was nearly three years ago and Arpaio apparently still has not concluded his internal investigation.

http://www.azcentral.com/members/Blog/WestValleyVoices/150373

There is also this decision in Graves v. Arpaio, handed down by the federal court in 2008. Here’s how the ACLU describes the case.

The ACLU went to trial against Arpaio in August 2008 arguing that deteriorating conditions within each of the jail’s five facilities that house pre-trial detainees – people who have been arrested but not yet tried or convicted – necessitate federal court oversight to ensure that Arpaio and other county officials maintain safe and humane conditions and provide the thousands of detainees held there basic levels of medical and mental health care.www.aclu.org/prisoners-rights/ninth-circuit-court-appeals-orders-sheriff-arpaio-fix-unconstitutional-conditions-m

(The Graves case piggy-backed onto oversight proceedings begun in 1977 with a class action alleging that the civil rights of pretrial detainees held in the Maricopa County jail system had been violated. In a decision several years in the making; the parties entered into a consent agreement with respect to pre-trial detainees, to fix condition in the jail. However, in 1998, Defendant Sheriff Joe filed suit to set aside that agreement as invalid, as a matter of law, under the 1997 federal Prison Litigation Reform Act (“PRLA”), which prohibits court oversight of ‘prisons’ absent specific findings of fact as to the conditions which violate Plaintiffs’ Constitutional and civil rights. Defendants lost that case; and appealed. This took several years. At some point, parties agreed that, the Petition to Vacate the Consent Degree would be withdrawn, without prejudice. Instead, they would engage in Discovery and then submit their proposed findings of fact to the court. If ongoing violations could be established then, these would become part of a new ‘legal’ ruling; and any conditions which were part of the earlier consent agreement but which now would not constitute violations under the new standard, would be dismissed.)

I accessed the actual decision in Graves from the web site of the National Institute of Correction:

We are an agency within the U.S. Department of Justice, Federal Bureau of Prisons. The Institute is headed by a Director appointed by the U.S. Attorney General. A 16-member Advisory Board, also appointed by the Attorney General, was established by the enabling legislation (Public Law 93-415) to provide policy direction to the Institute.

Here’s how the NIC describes the 2008 case:

ANNOTATION: These Findings of Fact and Conclusions of Law and Order address the termination of prospective relief for violating the civil rights of pretrial detainees in Maricopa County jails; termination based on the Prison Litigation Reform Act (PLRA). Termination is granted for some provisions while other provisions remain in effect. Prospective relief is needed for: overcrowding; temperature indoors; housekeeping; health care screening and access; prescriptions; intake areas; recreation time outside; adequate food; visual observation; incident reporting; and reporting requirements.

Graves begins with this explanation.

Termination of Prospective Relief Under the PLRA

Congress enacted the PLRA to prevent federal courts from micromanaging prisons by mere consent decrees and to return control of the prison system from courts to “the elected officials accountable to the taxpayer.” Gilmore v. California, 220 F.3d 987, 996 (9th Cir. 2000). “[N]o longer may courts grant or approve relief that binds prison administrators to do more than the constitutional minimum.” Id. at 999. The PLRA requires that prospective relief regarding prison conditions “extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” 18 U.S.C. §3626(a)(1). Relief must be narrowly drawn, extend no further than necessary to correct the violation, and be the least intrusive means necessary to correct the violation. Id. Further, courts must “give substantial weight to any adverse
impact on public safety or the operation of a criminal justice system caused by the relief.” Id.

Given these legal qualifiers; the court specifically found several conditions evidencing that Sheriff Arpaio was doing less than the Constitutional minimum to correct violations to Plaintiffs’ rights under both the 8th and 14th Amendments.

The Eighth Amendment requires that prisoners be confined in conditions that protect their mental and physical health and draws its meaning from evolving standards of decency that mark the progress of a maturing society. The Eighth Amendment requires that the temperature of the areas in which pretrial detainees are held or housed does not threaten their health or safety. The Eighth Amendment requires that prisoners be provided basic elements of hygiene, sanitation, and safety, including freedom from unreasonable threat of injury from fire and from vermin and rodent infestation. The Eighth Amendment requires that the Maricopa County Jails provide a system of ready access to adequate medical, dental, and mental health care; medical staff competent to examine prisoners and diagnose illnesses; timely treatment for prisoners’ medical problems or referral to others who can; and an adequate system for responding to emergencies. The Eighth Amendment requires that the Maricopa County Jails not be deliberately indifferent to prisoners’ serious medical, dental, and mental health needs, including conditions that are likely to cause serious illness and needless suffering in the
future. The Eighth Amendment requires that pretrial detainees be provided food that is adequate to maintain the pretrial detainees’ health and that is prepared under conditions that do not threaten their health and well being.

The Fourteenth Amendment requires that conditions of confinement for pretrial detainees not constitute punishment, i.e., not impose some harm that significantly exceeds the inherent discomforts of confinement and is excessive in relation to the legitimate governmental objective. The Fourteenth Amendment requires that the temperature of the areas in which pretrial detainees are held or housed must not constitute punishment. The Fourteenth Amendment requires that pretrial detainees be held and housed in conditions that do not constitute punishment, i.e., confinement conditions may be unpleasant, but not excessively unpleasant in light of the legitimate governmental objectives those conditions serve. The Fourteenth Amendment requires that Maricopa County Jails provide pretrial detainees with access to care to meet their serious medical, dental, and mental health needs, which means that in a timely manner, a pretrial detainee can be seen by a clinician, receive a professional clinical judgment, and receive care that is ordered. The Fourteenth Amendment requires that the Maricopa County Jails not withhold or delay medical, dental, or mental health care unless doing so is reasonably related to a legitimate governmental objective. Budgetary constraints do not justify delay in treatment for a serious medical need. The Fourteenth Amendment requires that the taste and appearance of food provided to pretrial detainees not constitute punishment, i.e., not be more distasteful than is inherent in institutionalized confinement.

Here are just some of those findings. (This was an 83-page decision, which I read in its entirety. I spent hours editing the excerpts below, limited to those conditions which require prospective remediation. But I wanted you to see the conditions imposed in some cases, for years, by Sheriff Arpaio on pretrial detainees, meaning, people arrested and awaiting trial, or, in other words, INNOCENT UNDER THE LAW.)

Pretrial detainees who have court appearances while housed in Maricopa County Jails are transported from a housing unit to the court holding cells located in the old Madison jail facility where they may remain for as long as eight hours in crowded, dirty conditions. Although overcrowding itself does not violate pretrial detainees’ constitutional rights, if it is not reasonably related to legitimate governmental objectives and it causes risk of harm to pretrial detainees’ safety and health, it does violate pretrial detainees’ constitutional rights.

At times, the court holding cells are so overcrowded that pretrial detainees do not have room to sit or adequate access to toilet and sink facilities.

Overcrowding in the court holding cells causes sanitation problems and health risks to pretrial detainees.

Although there is no posted maximum occupancy in the intake holding cells, the maximum number of inmates that should be held in each cell is approximately thirty to thirty-five. Often, substantially more than thirty-five pretrial detainees are held in one cell. At times, intake holding cells are so overcrowded that there is not room for all inmates to sit on benches, and at times there is not room for all inmates to sit anywhere, even on the floor. At times, inmates sleep on the concrete floor, and sometimes there is not enough room for inmates to sleep on the floor without coming into physical contact with other inmates. At times, the intake holding cells are too crowded for inmates to move to use the toilet and sink.

Ambient temperatures in some of the Towers cells and peripheral areas have exceeded 85° F. Air temperatures in excess of 85° F. greatly increase the risk of heat stroke and other heat-related illnesses for pretrial detainees who are taking psychotropic medications. Defendant Arpaio does not have a list of all pretrial detainees taking psychotropic medications and cannot readily determine where pretrial detainees taking psychotropic medications are housed. Detention officers generally do not know which pretrial detainees are taking psychotropic medications. 90. Defendant Arpaio does not ensure that pretrial detainees taking psychotropic medications are housed at temperatures that provide healthful living conditions.

Cells are not consistently cleaned and sanitized prior to occupancy by pretrial detainees thereby causing an unconstitutional health risk.

The Maricopa County Jails booked more than 93,000 pretrial detainees from June 1, 2007, through May 31, 2008. It houses approximately 8,000 pretrial detainees daily. Some pretrial detainees remain in the Maricopa County Jails for days, and others for years. Many of the pretrial detainees in the Maricopa County Jails have alcohol and drug addictions, physical injuries, and chronic diseases, such as diabetes, asthma, hypertension, seizure disorders, and Parkinson’s disease. Many pretrial detainees have physical conditions, including dental care needs, caused or exacerbated by their living conditions before incarceration, such as illegal drug use, homelessness, inadequate health care, and inadequate nutrition. It is estimated that twenty percent of the pretrial detainees housed in the Maricopa County Jails are seriously mentally ill. Many of these have schizophrenia, bipolar disease, anxiety disorders, attention deficit disorder, and other serious chronic mental illnesses.

All pretrial detainees entering the jail system, with the exception of self surrenders, are processed through the 4th Avenue jail. All incoming detainees receive a screening when they arrive and prior to booking. It takes eight minutes on average to complete this process. The intake technicians often ask pretrial detainees the screening questions very quickly in a noisy environment that lacks privacy and is not conducive to pretrial detainees giving thoughtful responses to very personal questions. Although the 4th Avenue jail has clinical facilities to allow pretrial detainees following their initial pre-intake screening to proceed to a post-intake area and have a more comprehensive evaluation done by a clinician, a secondary screening at booking often does not occur. The number of pretrial detainees who receive the more comprehensive screening is significantly less than the number of pretrial detainees with serious medical needs who are booked.

During the intake screening, health personnel are instructed to check for a history of substance abuse or intoxication, diabetic care, seizure medications, and wound care. However, the intake screening often does not capture basic and necessary information from detainees, including an adequate history from those suffering from chronic diseases.Screening also is intended to identify persons with mental illnesses, who are to be scheduled for appropriate follow-up consistent with their level of need. Mental health screening questions include mental health treatment history, prescription medications, outpatient treatment provider, history of suicide attempts and self-injury, and current thoughts of suicide, in addition to subjective observations of the pretrial detainee’s appearance and behavior noted. However, many pretrial detainees with serious mental illness are not identified and assessed by a mental health clinician during the intake process. However, incoming pretrial detainees with chronic medical problems, such as diabetes, hypertension, and HIV disease, often do not receive their medications in a timely manner. Many people do not know the name or address of their pharmacy, or they might not have a pharmacy because they were prescribed medication in prison.

Systemic deficiencies in the screening process significantly impair continuity of care and result in failure to identify pretrial detainees with immediate medical needs.

Sometimes pretrial detainees receive medical care because their family members, attorneys, or clergy have requested it. Pretrial detainees seeking medical care must complete sick call request forms and hand them to nursing staff, usually the Licensed Practical Nurse administering medications in the morning. Sick call requests are to be triaged by nurses within twenty-four hours, seven days a week, without actually seeing the pretrial detainees who have submitted the sick call requests. Although the nurses administering medications are expected to talk to pretrial detainees submitting sick call requests and to record additional information for triaging and treatment, they do not consistently do so well. Some pretrial detainees are not literate at all. They have difficulty communicating about their health care needs in writing on the sick call request forms. Pretrial detainees frequently are denied access to adequate medical, mental health, and dental care because they do not receive a timely in-person assessment of the urgency of their need for treatment.

Clinicians at the Maricopa County Jails often cannot provide a professional medical judgment because Correctional Health Services does not have a medical record and information system capable of timely providing health care professionals with the information they need to diagnose and treat pretrial detainees appropriately, including laboratory results and results of specialty consults. Correctional Health Services does not maintain a list of pretrial detainees with chronic diseases and cannot readily determine where they are housed and what medications have been prescribed for them. Correctional Health Services does not maintain a list of pretrial detainees on prescription medications. Detention officers often do not know which pretrial detainees in their custody are on medications that may have adverse side effects. Detention officers often do not know which pretrial detainees in their custody are taking psychotropic medications and may suffer heat-related illnesses if subjected to temperatures exceeding 85° F. Correctional Health Services does not maintain a list of pretrial detainees identified as seriously mentally ill and cannot readily determine where they are housed and what medications have been prescribed for them.

Detention officers often do not know which pretrial detainees in their custody have been identified as seriously mentally ill. There is no jail policy requiring that mental health staff be notified or involved in the disciplinary process of mentally ill detainees, and mental health clinical staff are not consulted about disciplinary actions against mentally ill detainees.  Some pretrial detainees have been punished for behavior related to serious mental illness. The vast majority of seriously mentally ill pretrial detainees are not housed in the Lower Buckeye psychiatric unit, and seriously mentally ill pretrial
detainees may be placed in segregation at other housing facilities without detention staff’s knowledge that the pretrial detainees are seriously mentally ill. Lockdown for twenty-three hours per day, alone or with cellmates, can be seriously detrimental to the condition of a seriously mentally ill pretrial detainee. Although seriously mentally ill pretrial detainees require more supervision when placed in segregation, they usually receive less.

Thorazine is an antipsychotic medication with potentially severe and permanent side effects, including extremely painful involuntary muscle spasms of the neck, tongue, eyes or other muscles, a profound restlessness and constant movement of the feet and legs, drug-induced Parkinsonism (a resting tremor with some muscle rigidity), and tardive diskenesia (potentially permanent and disfiguring involuntary movements around the face). Although Correctional Health Services witnesses testified they would not prescribe thorazine as a first line of treatment, in fact, Correctional Health Services has
prescribed thorazine for many psychotic, and even some not psychotic, pretrial detainees without justification for its use. Correctional Health Services psychiatrists sometimes prescribe thorazine as a sleep aid. Some of the seriously mentally ill pretrial detainees are housed in the psychiatric unit at the Lower Buckeye jail, and the most seriously mentally ill of those are housed in cells that do not permit psychiatrists and pretrial detainees to have visual contact while communicating or to have private therapeutic communications. Mental health staff frequently provide cell-side treatment without privacy in other housing units as well. In some cases, this detriment to therapeutic treatment is necessary to preserve the safety and security of staff and pretrial detainees; in some cases, it is not.

Many of the pretrial detainees housed at the Lower Buckeye jail psychiatric unit need hospital level psychiatric care. Many of the pretrial detainees housed at the Lower Buckeye jail psychiatric unit are maintained in segregation lockdown with little or no meaningful therapeutic treatment, which results in needless suffering and deterioration. Although mental health staff are on site twenty-four hours a day, seven days a week, psychiatrists are not. Therefore, acutely psychotic pretrial detainees, pretrial detainees on suicide watch, and pretrial detainees in restraints or on forced medications, are being treated after hours and on weekends without the personal supervision of a psychiatrist.

Providing pretrial detainees’ prescription medications without interruption is essential to constitutionally adequate medical care. Lapses in medication for certain medical conditions, e.g., HIV, seizure disorders, diabetes, organ transplants, can be life threatening even if the lapse is only a few days. In addition to inconsistencies in obtaining necessary prescription
information during the intake process, Correctional Health Services does not consistently ensure that all pretrial detainees actually receive all prescribed medications as ordered. Prescription orders are recorded in pretrial detainees’ individual paper records, but Correctional Health Services is not able to generate a list of pretrial detainees in each housing facility to whom prescription medications are to be administered. Licensed Practical Nurses administer medications to pretrial detainees on “pill passes” through the jail housing facilities twice a day. During the pill pass, the pill nurse has the individual medical records of pretrial detainees who are to receive medication at a facility, which may number in the hundreds, and he or she records those who come forward when pill pass is called and receive medication. During the pill pass, the pill nurse also receives sick call requests from pretrial detainees and is expected to determine the urgency of any of the sick call requests.

The pill nurse does not have a list of which pretrial detainees are supposed to come for medication. The pill nurse does not know whether a pretrial detainee who is supposed to receive medication is at court, recreation, church, or sleeping. It may take the pill nurse several days to determine that a pretrial detainee has missed or continues to miss his or her prescribed medications. If a pretrial detainee does not come to pill pass to receive medication, when it is noticed, the pill nurse may enter into the pretrial detainee’s medical record that he or she refused medication, even if the pill nurse does not know in fact why the pretrial detainee did not come to the pill pass. Some “evening” pill passes have been conducted as early as 3:00 p.m. even though some of the prescribed medications are to be taken at bedtime and are known to cause drowsiness.

Most pretrial detainees are taken to the 4th Avenue Intake area upon arrest. During the pre-booking stage, pretrial detainees undergo a very short medical screening, are searched, and have their photographs taken. At this point, pretrial detainees are accepted into intake at the 4th Avenue jail and placed in an “identification” holding cell where they are held until they are interviewed by pretrial services. After the pretrial service interview, pretrial detainees typically are placed in “court” holding cells to await their initial court appearance. The booking process from pre-booking through the initial court appearance typically takes two to four hours. After pretrial detainees go to their initial court appearance, they are placed in a “classification” holding cell. Each intake identification and classification holding cell consists of a concrete floor, two concrete benches, one uncovered toilet, and one sink. The classification process typically takes two to six hours. After classification, pretrial detainees typically receive jail clothing within two to four hours. After receiving jail clothing, pretrial detainees are placed in holding cells to wait to be transported to their assigned jail housing units. It typically takes two to three hours to be transported to a housing unit. The jail intake process should take no more than twenty-four hours.

Defendant Arpaio’s records regarding a pretrial detainee’s length of stay in intake document when a pretrial detainee begins the intake process and when he or she is assigned to a housing unit, but they may not indicate how long a pretrial detainee waited in a holding cell to be transported to a housing unit. The records also may not indicate how long a pretrial detainee was physically located at the 4th Avenue Intake if he or she was taken to a hospital or to the United States Immigration and Customs Enforcement. From June 1, 2007, through May 31, 2008, 93,065 pretrial detainees were booked into the 4th Avenue Intake. Of these, 21,987 (24%) were in intake more than twenty-four hours, 1,910 were in intake more than forty-eight hours, and 358 inmates were in intake more than seventy-two hours. 293. Regardless of the length of time a pretrial detainee remains in the intake process, Defendant Arpaio does not provide the pretrial detainee with a bed and blanket unless the pretrial detainee is placed in an isolation cell.

As previously found, intake holding cells often are overcrowded, without room for all inmates to sit, sleep, or move to use the toilet and sink. At times, the intake holding cells are extremely dirty, and the sinks and toilets unsanitary and inoperable. At times, the intake holding cells do not have toilet paper, and pretrial detainees are not provided with toilet paper when they request it. At times, the intake holding cells do not have soap for pretrial detainees to wash their hands after using the toilet. During intake, inmates usually have no access to a shower until they receive their jail uniforms.Some inmates have not been permitted to take a shower in intake before putting on their jail uniforms. When inmates are brought into intake, usually little is known about their mental and physical conditions, sexual orientation, and security threat levels. During intake, repeat offenders charged with serious violent crimes may be placed in holding cells with individuals charged with DUI or criminal speeding. There are no panic buttons or intercom systems in the intake holding cells. Pretrial detainees placed in intake holding cells usually can communicate with a detention officer only when the door is opened to move pretrial detainees in or out of a holding cell. Although security cameras record activity within intake holding cells, detention officers do not continuously watch the security cameras. Security staff provide only minimal visual and audio supervision of the intake holding cells. Detention officers do not conduct routine security walks on a regular basis in the intake areas. Detention officers do not continuously monitor the intake holding cells.

The intake incident reports do not include every incident that occurs in the intake holding cells, even some that require pretrial detainees to receive medical treatment. Defendant Arpaio does not consistently take reasonable measures to guarantee the safety of the pretrial detainees during the intake process.

Maricopa County Jails employ one dietician, who is responsible for ensuring that basic nutritional needs of pretrial detainees are met according to the National Research Council’s recommended dietary allowances. In 2003, the Maricopa County Jails dietician wrote that, in his professional opinion, the activity level of Maricopa County Jail inmates fell between sedentary and lightly active, which indicated that they would require an average of 2400 to 2500 calories daily. Maricopa County Jails wrongfully deny opportunity for most pretrial detainees to have a minimum of four hours outdoor exercise per week, which exercise would take pretrial detainees above a sedentary lifestyle. The United States Dietary Guidelines recommend that males ages 19-30 with a sedentary activity level have 2400 calories daily and that males ages 19-30 with a moderately active lifestyle should have 2600-2800 calories daily. The Maricopa County Jails dietician currently plans menus that he estimates would provide approximately 2400 to 2500 calories daily. Maricopa County Jails do not comply with its policies requiring inmates to be served 2900 calories daily.

Maricopa County Sheriff’s Office Policy DG-1 requires that a written nutritional analysis be prepared annually by a qualified nutritionist/dietician to compare the nutritional values of meals served against national standards. The Maricopa County Jails dietician prepared the annual analysis for the February 2007 menu, but to do so, he substituted specific fruits and vegetables for the items identified only as “fruit” and “vegetable” without knowing what foods actually were served to any pretrial detainees. When the Maricopa County Jails dietician prepared the annual analysis for the June 2008 menu, he learned that Maricopa County Jails kept a sample of meals served for the previous thirty days for quality assurance purposes, and he used those samples to determine what foods had been served to at least some of the pretrial detainees.
Maricopa County Jails provide pretrial detainees two meals each day: a sack meal in the morning and a warm meal in the late afternoon or early evening. Pretrial detainees may purchase additional food from the Canteen, which earned a net profit of $5,144,507.99 in fiscal year 2007.

The morning meal is served to each pretrial detainee in a transparent plastic bag referred to throughout the record as a “Ladmo bag.” The menu for each Ladmo bag in May 2008 and June 2008 is:
2 hoagie rolls (3-oz. each)
5 oz. meat or 4 oz. peanut butter
1 snack item
2 condiment packets or 2 jelly
2 pieces fresh fruit
1 milk
385. The menu for each dinner meal in May 2008 and June 2008 includes:
1 dinner roll (2 oz.)

It is impossible to determine from the menus the nutritional or caloric value of items identified only as “meat,” “fresh fruit,” “vegetables,” “dessert,” or “snack item.” The Maricopa County Jails dietician’s opinion is that there is no nutritional difference among different fruits, vegetables, meats, and starches, and it is unnecessary to distinguish a cup of lettuce from a cup of green beans, a banana from an apple, or a hot dog from turkey. The Maricopa County Jails dietician’s opinion is that French fries, diced potatoes, rice, and macaroni are of equal nutritional value. The Maricopa County Jails dietician’s opinion is that one ounce of beef has the same nutritional value as one ounce of turkey. The Maricopa County Jails dietician’s opinions regarding nutritional equivalents are not credible, and the Court does not believe them.

Maricopa County Sheriff’s Office Policy DG-1 requires that menus of meals actually served be retained for five years to verify the provisions of a nutritionally adequate diet. During the relevant time period, Defendant Arpaio did not keep menus of meals actually served. Pretrial detainees often receive food that is different than that stated on the Maricopa County Jails monthly menus, and not all inmates ordered to receive the same diet actually receive the same food at the same meal. Although Maricopa County Sheriff’s Office Policy DG-1 requires that any substitutions in the planned menu be of equal nutritional value and properly documented, not all substitutions are documented, and none of the menu substitutions from April through May 2008 were approved by the Maricopa County Jails dietician. The snack item included in a Ladmo bag usually is pre-packaged cookies, a snack cake, a Twinkie, cheese and crackers, or a candy bar.

A Ladmo bag may include an artificially flavored drink instead of milk. The fruit provided in the Ladmo Bags often is overripe or bruised and frequently inedible. The bread provided in the Ladmo Bags frequently is moldy and entirely or in part inedible. In 2003, the Maricopa County Jails dietician wrote that Maricopa County Jails receive “a tremendous amount of donated food, which arrives on a daily basis,” and the “calorie content of the menu will change on a daily basis, depending on the types of meats and deserts [sic] and fruit donated.” Maricopa County Jails currently receive a large volume of donated food, which is fed to inmates. Maricopa County Jails staff do not know who donated the food, the circumstances under which it was donated, or the age of the food. Extra meals are prepared and transported to jail facilities to replace meals containing moldy or spoiled food items. Inmates must request a replacement meal before leaving the serving line, but often are not allowed time to inspect their meals before leaving the serving line. If inmates are not permitted to obtain edible food to replace inedible portions of their meals, they have not been provided with all of the food included in the Maricopa County Jails dietician’s nutritional analysis.

Defendant Arpaio cannot establish what edible food inmates actually received during much of the relevant period. Defendant Arpaio cannot establish that pretrial detainees are served adequate nutrition. The Maricopa County Jails dietician’s opinion that pretrial detainees are served adequate nutrition is not supported by the evidence, is contrary to evidence, and is unworthy of belief. The Court does not believe it.

Food served to pretrial detainees is prepared either at the Maricopa County Sheriff’s Office Food Factory or at the smaller Estrella jail kitchen. The warm evening meals often contain a meat and sauce or gravy product referred to as “cook/chill” because it is cooked in 300-gallon tanks, pumped into two gallon bags, and chilled, to be reheated before serving. The evening meals usually contain a starch, such as potatoes, rice, or beans, which have been found to include small rocks.

http://nicic.gov/Library/023393

Thus, the ACLU proved that the sheriff routinely abused pre-trial detainees at Maricopa County Jail by feeding them moldy bread, rotten fruit and other contaminated food, housing them in cells so hot as to endanger their health, denying them care for serious medical and mental health needs and keeping them packed as tightly as sardines in holding cells for days at a time during intake. Id.

The decision in Graves was upheld on appeal in 2010; Plaintiffs were awarded $1.2 million in attorney’s fees.

“Today’s ruling is further confirmation that even a man who likes to brag about being the toughest sheriff in the nation has to follow the U.S. Constitution,” said Margaret Winter, Associate Director of the ACLU National Prison Project and lead counsel for the detainees. “Sheriff Arpaio’s unconscionable treatment of the thousands of pre-trial detainees in his custody has gone on far too long.” Id.

Still, notwithstanding this horrific trail of brutal dehumanization deemed unConstitutional by the courts; Sheriff Arpaio is proud to ‘stand’ on his record of flaunting the Constitution. And, evidently, millions of people endorse unConstitutional conduct as carried out by him. On the other hand, these same people eagerly await word on Thursday from this ‘piece of work,’ that he has found the Rosetta Stone which will once and for all remove from office the “Usurper” they are convinced only got there by violating the Constitutional eligibility requirements for the job.

Of course, he won’t. Too much money at stake for these hucksters by engaging in the truth. So, what is this release of details which, in words couched by Mr. Arpaio (but emphasized by jbjd), “could be a shock”? Simply this. Under the U.S. Code; the (facsimile of an) image entitled “Birth Certificate” and bearing the name Barack Obama which was released by the WH on April 2011 is part of a real political ad campaign, the content of which, whether true, is protected under the 1st Amendment to the Constitution. See, for example, DE-CODER RINGS (1 of 2) and DE-CODER RINGS (2 of 2); and be sure to read the Comments.

(However, beginning in earnest the 2012 Presidential campaign by launching that ad from the WH could be said to be a violation of campaign finance laws.)

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Freedom costs.


jbjd’s FRENEMIES LIST

February 3, 2012

©2012 jbjd

For the first time in ages, I got sick. And, for the first time in longer than that, I was too sick to go to work. In fact, I was so sick I didn’t even take advantage of being home; to work on my blog. But that was before I decided to put aside the music playlist I was compiling to peruse the blogosphere to sample materials related to these nationwide ballot challenges. Now, I am so angry that, I am actually angrier than I am sick. Fingers crossed, I will feel better if I write.

I have decided to compile a frenemies list from among those on-line characters spewing their interminable fixes to the glitches implicated either directly or tangentially in undermining our electoral system. The bizarre ‘cures’ championed, accepted by too many unwitting citizens as true, are doing more damage to our political system than was already accomplished in the past by sheer apathy. Because those of us who know better and who truly want our government to work as we presume the Founders intended; and who have been exercising our considerable energies (and finite monetary resources) to educating those of our fellow citizens without access to our information or facts or powers of analysis, often with only psychic remuneration; now are additionally compelled to expend our finite resources de-programming those same citizens who have been indoctrinated with this poisonous tripe.

Here’s how Urban Dictionary defines the word “frenemy“:

An enemy disguised as a friend.The type of “friend” whose words or actions bring you down (whether you realize it as intentional). The type of friend you ought to cut off but don’t cuz…he’s nice… good…you’ve had good times with him. He’s good people you can count on to bring you down again sometime in the near future.The friend you may or may not have cornered about his quicksand-like ways and keep around rationalizing “its in the past”…. The person who will continue to bring you down until you demand better for yourself.

So, who has aroused my ire to the point of becoming the first frenemy on my brand new list, the person who whether intentionally or through a personal character flaw is leading you astray under the guise of helping you to find your way?

Leo Donofrio, Attorney at Law.

And what precisely after all of this time has put me into a ‘I’ve-had-it-up-to-here’ stance with respect to Mr. Donofrio’s seemingly endless deluge of fecal matter-cum-legal critique? That *!*!*!* 200+-page amicus brief he assembled and is submitting to every ballot challenge forum he can find, from the GA OSAH hearing to the IL election commission.

(Note: For the purpose of this article, I am intentionally omitting any discussion as to the propriety of submitting such a brief in the first place.)

At first, I only intended to dismiss the brief as irrelevant, by specifically pointing to Leo’s reliably faulty analyses of so many other issues in the past few years. (Note: I am not charging here that everything Leo writes is legally unsound, but only that assuming it is unsound is safer than a detrimental reliance on its validity.) For example, more than 3 years ago, I drafted those military complaints after seeing those many failed attempts by Plaintiffs to address the issue of Presidential eligibility through the federal courts, whose cases were tossed out on procedural grounds. Looking for a way to get around the ‘standing’ problem they encountered, I found the the Federal Declaratory Judgment Act, which led to the idea that people seeking redress in federal court could ask for a Declaratory Judgment, using state National Guard Plaintiffs subject to federal recall. Naturally, when drafting the military complaint, I cited to the applicable federal law. Yet, Leo criticized my proposal as un-Constitutional, absurdly arguing federal courts could not issue declaratory judgments! Now, it’s true, the Constitution explicitly says, the authority of the federal court is restricted to deciding “cases” and controversies.”  http://www.law.cornell.edu/wex/controversy  But, of course, the Federal Declaratory Judgment Act provides a mechanism for obtaining the court’s opinion within the framework of this restriction.  (His rationale in this instance represented a common flaw that appears in Leo’s reasoning: he looks narrowly to the ‘plain language’ in a passage without considering its practical meaning in the larger legal and political context.) (FYI, here is the Federal Rule of Civil Procedure on Declaratory Judgments. http://www.law.cornell.edu/rules/frcp/rule_57 For a comprehensive explanation as to when the federal court may issue declaratory judgments, see http://www.law.cornell.edu/anncon/html/art3frag21_user.html)

Then, there was the time he argued that he had found a federal law allowing a member of the security division of the Executive branch to withhold ‘secrets’ from the President, the boss of the Executive, based on a determination, this is in the public interest. I spent hours explaining, especially on CW’s blog, this is not what the law means. For definitions of the terms contained in this section of the law, you have to look at another section of the law. And those definitions spelled out, the law Leo claimed applied to the President applied only to contract employees. (Or you can use your common sense!) Indeed, I intended to make my case that any ‘legal’ work produced by Mr. Donofrio is irrelevant; by searching through years of internet postings, in which I refuted such tripe; and even began such a search. But I found the task overwhelming. (Readers of the CW blog familiar with this exchange might look it up and send here; I will post.)

I also figured Leo likely had only reached the 200-page milestone by incorporating into this amicus brief much of that same flawed ‘legal’ reasoning I had already de-bunked over the years. That’s when I decided to skim the brief. And, sure enough, this document contains many of those ‘legal’ arguments conjured up only in Leo’s imagination, which arguments even if they could be said to validate his personal private machinations; nonetheless still detract from the practical approach required to engage an active citizenry in shoring up our electoral system so as to ensure, only the candidate who is a NBC, can be elected for the job.

PLEASE, LEST YOU ARE TEMPTED AT THE OUTSET OF MY ANALYSIS TO COMPARE, CONTRAST, OR CHALLENGE RESPECTIVE CREDENTIALS WHICH HAVE BEEN MADE PUBLIC BY US ON-LINE PUNDITS; STOP! I have asked readers to consider our respective legitimacy only by examining on-line track records based on criteria that include reliability of analysis, and accurate reporting of facts, a feat which can be accomplished even absent full access to the particulars in his or her CV. (Let’s start with this fact. The legal and political analyses of issues related to presidential eligibility which I began in 2008 in response to voter concerns, led me to recommend at that time, given existing state laws, the mechanism for keeping Barack Obama out of the WH was to keep his name off the state election ballot. Leo only accessed this mechanism for redress of the eligibility dilemma, 3 1/2 years after the fact.) CHALLENGING BO’S ELIGIBILITY TO GET ONTO THE GENERAL ELECTION BALLOT AS THE DEMOCRATIC CANDIDATE FOR POTUS)

Leo begins the amicus brief with his assumptions of these facts: 1) Barack Obama was born in HI; and 2) his father was a British subject at the time of his birth. Then, based on these assumptions, he argues, Barack Obama is not a NBC because Minor v. Happersett defines only those citizens born in the U.S. of 2 U.S. citizen parents are NBCs.

No, it does not. And I have explained several times, it does not. For example, see SENSE and non-SENSE, relying on such sources such as the Legal Information Institute of Cornell University School of Law. Nor does Minor in any way limit the definition of NBC to only those people born in the U.S. of 2 U.S. citizen parents.

The decision from the lower courts which was appealed to the Supreme Court in Minor was quite narrow:

The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States and of the State of Missouri, is a voter in that State, notwithstanding the provision of the constitution and laws of the State, which confine the right of suffrage to men alone.

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0088_0162_ZO.html

Thus, the main focus of this case was not on citizenship; in fact, everyone involved in the case already agreed, based on the wording of the 14th Amendment, she was a citizen. Rather, the question presented to the high court was whether privileges and immunities connected to  citizenship included the right to vote. The lower courts had ruled, it did not. Minor disagreed; that’s why she appealed. But before the high court could issue what would then become a legal “fact” with respect to voting as a privilege and immunity of citizenship; it first had to determine whether those “persons” now classified in the 14th Amendment as (having always been) citizens with a right to privileges and immunities, (historically) included women. If yes; the court would then determine whether voting had historically been treated as a privilege and immunity of citizenship, so as to determine whether it would be a privilege and immunity of citizenship, now. For this analysis, the court looked back at the history of women-qua-persons-who-would-have-been-considered-citizens pre-14th Amendment. Determining Minor was always considered a citizen (and thus, would have enjoyed the privileges and immunities of citizenship) even before the formalization of that designation in the 14th Amendment, was easy. As the court pointed out, given her specific set of circumstances – she was a woman born in the U.S. of 2 U.S. citizen parents – the literature was consistent. Thus, at a minimum, she was a citizen entitled to the same privileges and immunities of all citizens. Then, the court ‘just’ had to consider whether voting was one of these privileges and immunities which had historically been attached to such citizenship.

But you didn’t stop there.

Referring again to the Minor court, you wrote, “Their holding was that natural-born citizens were citizens at birth who do not require the 14th Amendment to establish their membership in the nation.” No, it was not; the holding in Minor had absolutely nothing to do with citizenship. Remember, the lower courts all agreed, Minor was both a citizen of MO and of the U.S.; and that voting wasn’t a privilege and immunity with respect to such citizenship. Minor appealed to the high court on the narrow grounds, she believed voting was a privilege and immunity tied to her citizenship under the 14th Amendment.

Here’s the holding in Minor, again, closely correlated to the narrow question asked:

Being unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon any one, and that the constitutions and laws of the several States which commit that important trust to men alone are not necessarily void, we AFFIRM THE JUDGMENT.

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0088_0162_ZO.html

As for your statement that the court [said] Minor was a citizen before the 14th Amendment, well, of course, it could not say otherwise, since everyone who was a U.S. citizen before the 14th Amendment was still a citizen after its passage; and no one who wasn’t already a U.S. citizen was made a citizen by this Amendment. The court actually said,

There is no doubt that women may be citizens. They are persons, and by the fourteenth amendment “all persons born or naturalized in the United States and subject to the jurisdiction thereof” are expressly declared to be “citizens of the United States and of the State wherein they reside.” But, in our opinion, it did not need this amendment to give them that position. Before its adoption the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several States, yet there were necessarily such citizens without such provision. There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an [p166] association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association.

Id.

Read the legislative history; the 14th Amendment did not confer a new status of citizenship on anyone not already a citizen before its passage, whether native, natural born, or naturalized. It merely had to find that   http://www.law.cornell.edu/anncon/html/amdt14a_user.html#amdt14a_hd1

And then, you really went off the deep end. “The Court determined it was necessary to define the class of natural-born citizens, and the definition remains current legal precedent.”

Leo, for goodness sake, get a grip. The court explicitly only set out to confirm that the word “citizen” appearing in the 14th Amendment also meant women who ‘belonged’ to this country before the 14th Amendment officially codified they were citizens. Because once it confirmed that women had always been considered ‘citizens,’ from the founding of this country and, therefore, that all of the privileges and immunities attached to such citizenship, beginning at that time, should apply now under the 14th Amendment; it could then figure out whether voting had been treated as a privilege or immunity of that citizenship. It made no difference to the analysis rendered by the court whether Minor could be said to be a native, natural born, or naturalized citizen but only whether she could be said to have been a citizen even before that word was codified in the 14th Amendment; and only because the rights enumerated in the 14th Amendment were limited to citizens. Yes, by reasoning that Minor was a citizen before the 14th Amendment the court also confirmed, the amendment did not confer new citizenship status or rights but merely ‘codified’ s status which already existed with respect to Minor. However, it did not, as you would suggest, confirm, in dicta, that the only “citizens” who were citizens before the 14th Amendment were NBCs; rather, it only confirmed that, at least, NBCs (like Minor) were citizens before the 14th Amendment.

Thus, consistent with the lower courts, the Supreme Court agreed, Minor was a citizen according to the language in the 14th Amendment. Then, examining the implications of citizenship before the 14th Amendment, the court found, in fact, Minor rightly could be considered a citizen before the 14th Amendment. But, alas, having examined the historical privileges and immunities ancillary to citizenship before the 14th Amendment; it also agreed, voting appears not to have been one of those privileges and immunities of citizenship. Thus, the court did not have to enforce a right to vote in MO. (Interestingly, the court  virtually invited the electorate to cure this mistake.)

We have given this case the careful consideration its importance demands. If the law is wrong, it ought to be changed; but the power for that is not with us. The arguments addressed to us bearing upon such a view of the subject may perhaps be sufficient to induce those having the power, to make the alteration, but they ought not to be permitted to influence our judgment in determining the present rights of the parties now litigating before us. No argument as to woman’s need of suffrage can be considered. We can only act upon her rights as they exist. It is not for us to look at the hardship of withholding. Our duty is at an end if we find it is within the power of a State to withhold.

Id.

In sum, with respect to the 14th Amendment and citizenship, NO U.S. CITIZENS, REGARDLESS OF WHETHER THEY SATISFIED THE CITIZENSHIP REQUIREMENTS IN THEIR INDIVIDUAL STATES OR THE DISTRICT OF COLUMBIA, NEEDED THE 14TH AMENDMENT TO ESTABLISH THEIR U.S. CITIZENSHIP. BOTH THOSE CITIZENS WHO WERE CITIZENS ON THE BASIS THAT THEY WERE BORN HERE OF 2-CITIZEN PARENTS; AND THOSE CITIZENS WHO WERE CITIZENS ON THE BASIS THAT THEY WERE BORN HERE OF NON-CITIZEN PARENTS; AND THOSE CITIZENS WHO WERE CITIZENS ON THE BASIS THAT THEY WERE NATURALIZED HERE,WERE ALREADY CITIZENS OF THE NATION BEFORE THE 14TH AMENDMENT, EVEN IF THESE SAME U.S. CITIZENS FAILED TO QUALIFY AS CITIZENS OF INDIVIDUAL STATES UNDER THE LAWS OF THOSE INDIVIDUAL STATES OR THE DISTRICT OF COLUMBIA. THUS, ALL OF THESE CITIZENS WHO WERE ALREADY CITIZENS OF THE NATION BEFORE THE 14TH AMENDMENT, WERE MENTIONED IN THE 14TH AMENDMENT ONLY FOR THIS NARROW PURPOSE: TO MAKE SURE THAT EVERYONE NOW KNEW, BEING CITIZENS MEANS, BEING ENTITLED TO THE SAME DUE PROCESS, EQUAL PROTECTION, AND PRIVILEGES AND IMMUNITIES AS ALL OTHER CITIZENS FROM NOW ON.

Got that now? And the only reason the court even reached the analysis of Minor’s citizenship was so as to confirm the word “citizen” and “person” as used in the new 14th Amendment necessarily meant even before the 14th Amendment, women who were similarly situated, that is, women born here of 2 citizen parents, but only because Minor was a woman born here of 2 citizen parents. Once it determined the threshold issue, that is, the new Amendment did, indeed, apply to the woman named in the present case; it stopped the ‘citizen’ aspect of its analysis and reached the voting qua “privileges and immunities” of citizenship core of the case. The Minor court only ruled, for the first time, under this new right vested in citizens by the 14th Amendment, voting cannot be said to be a “privilege or immunity.” It did not rule that only citizens born here of 2 citizen parents are NBCs.

Then, Leo contradicted himself.

The Minor Court’s construction of the natural-born citizen clause was the independent ground by which the Court avoided construing the 14th Amendment’s citizenship clause.Therefore, such construction is precedent, not dicta, despite Presidential eligibility not being an issue in that case. The Court determined it was necessary to define the class of natural-born citizens, and the definition remains current legal precedent.

As I have stated, the Minor court did, in fact, undertake a legal and historical analysis which, as a threshold issue, determined that, as the word “citizen” was used in the new 14th Amendment; Minor was a citizen even before the 14th Amendment. Thus, having considered the issue of Minor’s pre-14th Amendment citizenship (status) in order to “construe” that the word “citizen” in the 14th Amendment means her; the court cannot be said to be simultaneously “avoiding construing the 14th Amendment’s citizenship clause.” It did construe the 14th Amendment’s guarantee to equal privileges and immunities of all citizens, to mean all “persons” who have ‘belonged’ to this country even before the 14th Amendment, including women. At this same time, it did avoid an exhaustive exploration of all of the possible iterations of  ‘women belonging to a country’ which also might rightly have triggered the designation “citizen” that appears in the 14th Amendment and, thereby implicated the “privileges and immunities” clause. And it avoided an exhaustive consideration of these ancillary issues because in the present case, it did not have to reach these issues in order to render its ruling on the case before the court.

Finally, Leo again raises the specter of Vattel. For goodness sake, give up that ghost! DEFINITION on DEMAND

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Freedom costs.


AGAIN with the 14th AMENDMENT!

July 31, 2011

© 2011 jbjd

Members of President Obama’s junta have again successfully fomented confusion among the masses by their invocation of the 14th Amendment as affording legal justification to Order our way out of the most current ‘crisis’ involving the debt ceiling.  As is the case when considering so much of the man’s conduct; asking whether this is ‘legal’ posits the wrong question.  Rather, here is the more accurate inquiry:  if he issues an Executive Order to raise the debt ceiling, which order is predicated on the 14th Amendment, in legal terms, is there anything those who object to his conduct, can do about it?  And, the answer is, ‘no.’

Basically, issuing an EO is a political move; even if asked to weigh in, the courts, for the most part, will not.  http://topics.law.cornell.edu/wex/executive_power All the President has to do is, declare the situation is an “emergency.”  http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001621—-000-.html

(For some interesting reading, see John Dean, former Counsel to the President (Nixon):

While our constitution contains no express provision for “emergency” or “crisis” situations, such a provision is not necessary. The U.S. Supreme Court made clear in Ex Parte Milligan, following the Civil War, that “the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence.” Or as one commentator has added, “self-preservation is the first law of any nation.”

http://writ.news.findlaw.com/dean/20020607.html)

So, given that, in general, the President can issue an EO to cover just about anything; and that, generally, there’s nothing anyone can do to stop him; I only looked into the 14th Amendment excuse so as to determine whether this might provide him with the patina of legitimacy that would placate citizens not fond of such unilateral Presidential action, who are otherwise apt to be sufficiently outraged as to register their dissent at the polls.  Because so many people, including Nancy Pelosi, Steny Hoyer, Jim Clyburn, Barbara Boxer, and Tom Coburn, purport to think, the Amendment does give the man an ‘honest’ way out.

From the outset, the most pertinent question as to what is the significance of section 4 of the 14th Amendment as it applies to the debt ceiling issue was this:

While the enactment of that section seems incontrovertibly tied to any debt that was incurred relative to the Civil War; can “debt” be defined as occurring outside of the Civil War context?

And, the answer from the Supreme Court is, yes.

The Fourteenth Amendment, in its fourth section, explicitly declares: ‘The validity of the public debt of the United States, authorized by law , … shall not be questioned.’ While this provision was undoubtedly inspired by the desire to put beyond question the obligations of the government issued during the Civil War, its language indicates a broader connotation. We regard it as confirmatory of a fundamental principle which applies as well to the government bonds in question, and to others duly authorized by the Congress, as to those issued before the amendment was adopted. Nor can we perceive any reason for not considering the expression ‘the validity of the public debt’ as embracing whatever concerns the integrity of the public obligations.

PERRY v. UNITED STATES, 294 U.S. 330 (1935),

Perry tried to redeem a U.S. bond for an amount of gold to which, under the original terms of the purchase, he was entitled.  In the meantime, Congress, with the power to ‘control’ the value of money; had lowered the rate of exchange.  Perry, directly impacted by Congress’ act, had standing to sue in federal court.  The SCOTUS agreed, Perry was entitled to the full value of his bargain with the U.S.

But, again, it is immaterial to the analysis that 4/14 could presently be used, when the President can issue an EO, anyway.

Interestingly, in reviewing this situation, I came across references to the ‘fact,’ President Truman had used 4/14 to issue an EO that raised the debt ceiling.  Here from Jim Clyburn:

“I believe that something like this will bring calm to the American people and will bring needed stability to our financial markets,” Clyburn added, noting that President Harry Truman did it once during his presidency after Congress was unable to pass a bill to raise the debt ceiling.

Read more: http://www.politico.com/news/stories/0711/60038.html#ixzz1TRF8RrrY

Rep. Clyburn once again proves, in relation to his daughter, Mignon, a Commissioner on the FCC; that acorn could only have fallen from this tree. If we are to believe his claims of being a college graduate; we can only wonder at the educational standards in the palmetto state.  Because President Truman never never never invoked authority under the 14th Amendment to raise the debt limit by Executive Order.  Never.  However, he did issue an EO to integrate the armed services, citing as his authority, the 14th Amendment.

Adding insult to injury, Mr. Clyburn likened issuing an EO to raise the debt ceiling, to the Emancipation Proclamation!  (azgo, thanks for this RCP link.) As usual, he only has a fraction of an idea what he is talking about.  The Emancipation Proclamation did not free the slaves; well, not all the slaves, that is.  Just those behind Confederate lines.  And then, only in those states that hadn’t surrendered to the Union by January.  (The EP was issued 4 months earlier, in September.) http://www.pbs.org/wgbh/aia/part4/4p2967.html Of course, the 13th Amendment (and subsequent amendments and Congressional action) solidified the edict of freedom for all.

And it was a comment by Kristen from VA, under this article in RCP, which for me summed up the meaning of 4/14 insofar as it could relate to present day practice viz a viz raising the debt limit by EO.

The 14th Amendment compels Obama to pay interest on EXISTING debt.  “The validity of the public debt of the United States, authorized by law,  … shall not be questioned.”

It does not permit him to issue NEW debt.   That is a power delegated by the States solely to the federal Congress under Article I, Section 8 of the U.S Constitution.   “The Congress shall have the Power … To borrow money on the credit of the United States”

Finally, why this omnibus misdirection when it comes to the otherwise rudimentary Presidential authority to issue an EO?  ‘Check’ the usual suspect topics, such as high unemployment; low growth; and who profited from the stimulus payoffs and the ‘mandatory purchase of private health insurance’ sleight of hand.


SENSE and non-SENSE

July 1, 2011

UPDATE:  Please read my Comment below, containing an excerpt from the Supreme Court’s ruling in the Slaughterhouse Cases, which emphasizes this point with relation to the 14th Amendment’s language on citizens.  In short, if the 14th Amendment can be said to be conferring citizenship rather than merely codifying those definitions already understood in law and practice then, it does so only by establishing the distinction between the rights accruing to citizens as citizens of the U.S.A. which rights are now uniform; versus the rights of citizens as citizens of the states (in which they reside), which vary according to the state.  

© 2011 jbjd

No legally binding definition exists of the phrase “natural born citizen” as written in Article II, section 1 of the U.S. Constitution; and no such definition will be forthcoming until a federal appeals court, including the U.S. Supreme Court, rules, this is the definition, in the holding of a case or controversy directly on point, that is, one which requires the court to formulate such definition so as to reach resolution of the matter properly before the court.

I have said this a ‘million’ times, with only slight variation, since I began blogging in 2008. And, as I have also indicated, for a couple of reasons, at this point, that is, now that President Obama has been elected; I couldn’t care less whether he is a NBC; and I have been saying this for a long time, too. What difference does it make whether he is a NBC when we enacted no laws that required our state Electors to elect only a President who is Constitutionally eligible for the job!  (This would explain my insistence that present calls for Impeachment cannot be predicated only on his Constitutional ineligibility for office.) And, regardless of the absence of documentary evidence available in the public record that, he is even a C, which status certainly was well defined and accepted by the aforementioned legal authorities even before this definition was codified in the 14th Amendment for the purpose of qualifying who is entitled to “privileges and immunities”; it appears true that, millions of my fellow citizens who voted for (Electors for) the man, could not have cared less whether he is a NBC, either, even before his election.

Thus, I have steered clear of substantively addressing the ‘legal’ arguments out there which insist, a binding definition of NBC exists.

However, obviously, this recognition of the status quo, that is, no legally binding definition exists of NBC; and my present indifference to Obama’s Constitutional eligibility for office; have had little to do with my continuing efforts to identify a mechanism for determining whether he is a NBC, for those people who want to know. Indeed, my mission has always focused on the larger issue of understanding how our government, in general; and particularly our electoral system works and, where it does not work, how we might fix it.  (Yes, in so doing, I figured out how to spark the court case that could result in a legally binding definition of NBC but, that is not the focus of this post.)

And it is because my focus is on fixing what is broken in our system that, notwithstanding I have refused to enter the ‘legal definition of NBC’ fray in the past; for the moment, I changed my mind.  Because now, 3+ years into our national discussion about Constitutional eligibility; about to dive into a new general election cycle; we are still being sidetracked by such folly.  So, responding to a comment from long-time “jbjd” reader, Mick; I decided to weigh in, once and for all, on the case most often cited to sustain this drivel.

From Mick:

Again, a circular firing squad you present. If there is no judiciable definition of natural born Citizen, as you say, then how can the Secretary of State of any state verify whether a POTUS candidate is eligible? As usual, many words in this post saying nothing, except the whining about someone stealing your “work”. How about this definition, straight from SCOTUS in Minor v. Happersett: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.” Pretty plain to most people with any sense.

Here is my response.

Mick: The legal case you mention – Minor v. Happersett – does not rest on defining what is meant by the term “natural born citizen.”  Indeed, the case is not at all concerned with distinguishing from among “natural born citizen”; or “native citizen”; or “naturalized citizen.” Rather, this is a (state) voting rights case to determine only whether MO law can rightly prohibit women from voting, brought under the “rights and privileges” clause of the 14th Amendment. In other words, is suffrage a “right” or “privilege” that now must be protected for female citizens otherwise prohibited under state law from voting on account of their gender?  But as a threshold matter, the court must first determine whether the word “citizen” as this is used in the 14th Amendment; means women, too.

Thus, the court conducts an extensive analysis (non-binding dicta) of the legal posture of historical authorities, both in common law, statutes, and state constitutions, with respect to the meaning of citizen, as this applies  generically.  It acknowledges, these authorities have always been consistent in saying, the child born in this jurisdiction, of citizen parents is a natural born native citizen; but inconsistent on whether the same can be said of children born here of non-citizen parents. Both of Ms. Minor’s parents were citizens at the time of her birth.  The court wrote, therefore, there was no need to “reach” the question as to whether she would still be a native natural  born citizen if her parents were not citizens.

Here is the whole quote from that same passage you excerpted in your comment. Now, see if this makes more sense.

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.

Then, having determined, Ms. Minor is by all other means, a citizen; the court similarly conducts an extensive analysis (non-binding dicta) of the legal posture of historical authorities, both in common law, statutes, and state constitutions, with respect to the meaning of citizen, as this applies  to women.  And, it concludes, women were always historically considered citizens (who satisfied the uniformly accepted threshold requirement of birth in this jurisdiction to citizen parents).  Thus, the word “citizen” in the 14th Amendment as this relates to the “privileges and immunities” clause, means, women, too.  (The court makes clear that, as she is a natural born native citizen, her citizenship, and impliedly the citizenship of all women and men similarly situated, (though not necessarily the citizenship of people born here to non-citizen parents, or who achieved citizenship through naturalization because, as the court had already pointed out, the authorities had heretofore been mixed as to whether these were citizens and, it would not resolve that issue here) was not newly conferred by the 14th Amendment but only newly codified as entitling them as citizens to the same “privileges and immunities” as all citizens of the several states. That is, the 14th Amendment does not create a new definition of citizen.)

Then, having determined, Ms. Minor is by all other means, a citizen; and that, citizen means, women; the court similarly conducts an extensive analysis (non-binding dicta) of the legal posture of historical authorities, both in common law, statutes, and state constitutions, with respect to whether suffrage can be said to be a “right” or “privilege” under the 14th Amendment.  And that’s where Ms. Minor’s case fails. Because voting in the several states had always been largely exclusive to men.  Even when it was not exclusive to citizens.

Besides this, citizenship has not in all cases been made a condition precedent to the enjoyment of the right of suffrage. Thus, in Missouri, persons of foreign birth, who have declared their intention to become citizens of the United States, may under certain circumstances vote. The same provision is to be found in the constitutions of Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Minnesota, and Texas.  Id.

In other words, Ms. Minor was entitled to all of the privileges and immunities of all citizens; and voting wasn’t one of those privileges and immunities.

Finally, you ask, how can the Secretary of State of any state verify whether a candidate for President is eligible for the job?  S/he cannot.  Because, right now, no law says, s/he must, even in those states that require candidates to be qualified for office to appear on the ballot.  Yep; even in those states where the legislature has already acted, no SoS had promulgated rules and regulations defining such ballot eligibility, let alone identifying whose job will be, to check.

In conclusion, Mick, no legally binding definition exists of the phrase “natural born citizen” as written in Article II, section 1 of the U.S. Constitution; and no such definition will be forthcoming until a federal appeals court, including the U.S. Supreme Court, rules, this is the definition, in the holding of a case or controversy directly on point, that is, one which requires the court to formulate such definition so as to reach resolution of the matter properly before the court.  And, absent a legally binding definition of NBC; no state with a law requiring candidate eligibility to appear on the ballot, has even (attempted) to enact rules and regulations to define NBC for the sole purpose of determining ballot eligibility.

Make sense?  ADMINISTRATOR

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For those of you who will not read the whole case, here is a syllabus, prepared by the court.

Syllabus

SUPREME COURT OF THE UNITED STATES


88 U.S. 162

Minor v. Happersett


Argued: February 9, 1875 — Decided: March 29, 1875


ERROR to the Supreme Court of Missouri; the case being thus:

The fourteenth amendment to the Constitution of the United States, in its first section, thus ordains; [n1]

“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. No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States. Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction, the equal protection of the laws.”

And the constitution of the State of Missouri [n2] thus ordains:

“Every male citizen of the United States shall be entitled to vote.”

Under a statute of the State all persons wishing to vote at any election, must previously have been registered in the manner pointed out by the statute, this being a condition precedent to the exercise of the elective franchise.

In this state of things, on the 15th of October, 1872 (one of the days fixed by law for the registration of voters), Mrs. Virginia Minor, a native born, free, white citizen of the United States, and of the State of Missouri, over the age of twenty-one years, wishing to vote for electors for President and Vice-President of the United States, and for a representative in Congress, and for other officers, at the general election held in November, 1872, applied to one Happersett, the registrar of voters, to register her as a lawful voter, which he refused to do, assigning for cause that she was not a “male citizen of the United States,” but a woman. She thereupon sued him in one of the inferior State courts of Missouri, for wilfully refusing to place her name upon the list of registered voters, by which refusal she was deprived of her right to vote.

The registrar demurred, and the court in which the suit was brought sustained the demurrer, and gave judgment in his favor; a judgment which the Supreme Court affirmed. Mrs. Minor now brought the case here on error.

1. The word “citizen” is often used to convey the idea of membership in a nation.

2. In that sense, women, of born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment to the Constitution as since.

3. The right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the fourteenth amendment, and that amendment does not add to these privileges and immunities. It simply furnishes additional guaranty for the protection of such as the citizen already had.

4. At the time of the adoption of that amendment, suffrage was not coextensive with the citizenship of the States; nor was it at the time of the adoption of the Constitution.

5. Neither the Constitution nor the fourteenth amendment made all citizens voters.

6. A provision in a State constitution which confines the right of voting to “male citizens of the United States,” is no violation of the Federal Constitution. In such a State women have no right to vote.

****************************************************************************************************************************************************

NOTE TO READERS:  Those trusted legal sites on which I have been relying for much of the research I conduct on your behalf have, up to now, provided unlimited access to their voluminous holdings, for free.  But I donate money to those sites, anyway; because it’s the right thing to do.  After all, someone at the other end of the computer is working hard to compile and maintain the library and operate the site.  I pass on the results of this research, without charge, to you; but, this does not mean, the work is free. It only means, up to now, I could maintain the quality of the blog by absorbing all of the cost.  This is becoming prohibitive; and I will not sacrifice quality.  Please, hit one of the PayPal buttons in the sidebar of the blog; because it’s the right thing to do.


MICHELLE GOLDBERG HAMMERS ANOTHER NAIL in the MSM COFFIN

June 4, 2011

© 2011 jbjd

Granted, Michelle Goldberg has her own web site; has written a couple of books which, according to her, were well researched and appear to be selling well (id.); and writes a column for the Daily Beast. But assuming she means what she says in her recent diatribe, “Why Birthers Won’t Die,” that is, taking on face value that she is not writing just for provocation or brainwashing then, I cannot emphasize enough: when it comes to issues related to establishing Barack Obama’s Constitutional eligibility for POTUS, Ms. Goldberg has demonstrated she has absolutely no idea what she is talking about.

It’s not just the fact she repeats the fallacy, the hard copy of the electronic image President Obama calls a birth certificate and recently ‘released’ to the press, is actually a long form birth certificate, that makes any information coming from her suspect.  (I will write another article focusing on the lunacy of anyone’s continued bona fide belief, photocopying any electronic image adds to its authenticity.) Obama’s Director of Communications, Daniel Pfeiffer, posted this image on the WhiteHouse.gov blog. Ms. Goldberg even links her readers to that image effectively reasserting its authenticity.  But Pfeiffer’s job is to shape the President’s message and not to communicate news, which is the job of the Press Secretary (notwithstanding Robert Gibbs, Director of Communication of Obama’s Presidential campaign and former Press Secretary for President Obama often conflated those 2 positions).  Unlike Ms. Goldberg, Mr. Pfeiffer was doing a good job, by shaping the message.

Or that, she uses Mr. Corsi’s refusal to buy into this lie (that a bona fide birth certificate has been released) as a weapon against his motives and intellect.  In spades.

Much of Where’s the Birth Certificate? rehashes old, debunked stories meant to cast doubt on Obama’s birth in Hawaii. But the book also claims that even if Obama was born in the United States, he still might not be a “natural-born citizen” because of his father’s foreign citizenship, which would make him ineligible for the presidency. To make this argument, Corsi dredges up a constitutional theory popular in white supremacist and anti-immigrant circles, making an invidious distinction between those granted citizenship by the 14th Amendment and those who were citizens under the Constitution as originally written.

What?  Only those identified with “white supremacist and anti-immigrant circles” espouse that a bona fide difference exists between the terms “natural born citizen” in Article II, section 1 of the Constitution; and the term “citizen” as used in the 14th Amendment?  (Of course, I reject claims by Corsi or anyone else that citizens of non-citizen parents are not natural born citizens; and this only makes sense, since I maintain that no ‘legal’ definition of NBC exists absent a ruling by a federal appellate court, in a case on point.)

Worse, adding insult to injury, Ms. Goldberg justifies her political stereotyping using flawed reasoning, thereby additionally exposing her Constitutional  ignorance.

But Corsi’s ideas about the 14th Amendment, if taken seriously, wouldn’t just affect the children of immigrants—they could disqualify all black people from the presidency. “Obama defenders who want to define him as a natural-born citizen because he is native-born and a citizen under the 14th Amendment are engaged in an effort to redefine Article 2, Section 1, away from its original natural law meaning,” Corsi writes. The original meaning, of course, did not encompass black people. That’s why we needed the 14th Amendment in the first place.

Let me point to the absurdity of just one segment of this drivel:  Ms. Goldberg’s mistaken focus on Corsi’s phrase, “effort to redefine Article 2, Section 1, away from its original natural law meaning,” to mean that, Mr. Corsi rejects Obama’s Presidency based on his race.  She reasons, it is this focus on race which motivates Corsi to object to any attempt to steer the conversation toward 14th Amendment inclusion of blacks as eligible to become President, and away from the original intent, which clearly excluded blacks. But whether he is racist; she doesn’t know her Constitution and, based on her ignorance, obviously misconstrued the ‘plain meaning’ of Corsi’s words.

The phrase “natural born citizen” is listed in Article II, section 1, as a condition of Presidential eligibility.  And, the word “citizen” is listed in Article I, sections 2 and 3, as the eligibility requirements for Representative and Senator, respectively, put there almost 100 years before the 14th Amendment.

No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.

No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States and who shall not, when elected, be an inhabitant of that state for which he shall be chosen.

Get it?  The Drafters used the word “citizen” in 2 (two) different contexts of eligibility for office, one to be President; and the other to be a member of Congress. (Technically, the wording for President applies to eligibility; whereas the term for Congress applies to actual holding of the position.  This makes sense since members of Congress are elected directly – perhaps the Drafters did not trust the average citizen to choose the right person for the job – whereas Presidents are chosen by Electors who, it would appear safe to predict at the time, could not be anticipated to elect a President they were not certain was eligible for the job .) Since the Drafters used these 2 (two) different phrases, the tenets of statutory construction require that, we must assume, therefore, the Drafters meant 2 (two) different things.  “When Congress includes a specific term in one section of a statute but omits it in another section of the same Act, it should not be implied where it is excluded.” Arizona Elec. Power Co-op. v. United States, 816 F.2d 1366, 1375 (9th Cir. 1987); see also West Coast Truck Lines, Inc. v. Arcata Community Recycling Ctr., 846 F.2d 1239, 1244 (9th Cir. 1988), cert. denied, 488 U.S. 856 (1988). http://www.lectlaw.com/def2/s104.htm

See, contrary to Ms. Goldberg’s wishful projection; Corsi wasn’t at all waxing nostalgic, harkening back with longing to a time in our history when no blacks were counted as citizens and thus, could not be elected President (or Representative or Senator).  Rather, his use of the phrase “original natural law meaning” referenced the requirement of eligibility for President in Article II – natural born citizen – as opposed to, say, the original requirement in Article I for holding the office of U.S. Representative or U.S. Senator – citizen – which excludes the modifier, natural born.  Both of which applications of the term “citizen” he undoubtedly would agree should presently be read to include all citizens now Constitutionally defined as such, through the 14th Amendment.  Even those whose skin color is black.

In other words, even assuming a preference for color; Corsi just wants people to stop conflating “citizen” with “natural born citizen.” Get it?

But that excerpt points to my biggest objections to Ms. Goldberg’s hit piece on Mr. Corsi: her disingenuous diatribe against the man for what she paints as a racially motivated focus on the 14th Amendment. Those of you who have dissected the information on this blog probably already ‘get’ that she reverses cause versus effect. In fact, the eligibility argument only arose because Obama raised it by calling himself a “native” citizen and not “natural born.”  Indeed, he set up this false dichotomy, way back in 2007, when he – or perhaps more accurately, his campaign’s Director of Communications, Robert Gibbs – wrote “Fight the Smears,” the propaganda piece I have argued they would never have made public had he stolen the D nomination before the D Corporation Presidential Nominating Convention.  And in that same electronic advertising campaign, he posted the red herring argument about the 14th Amendment, couching it in racial terms, perhaps to misdirect the attention of astute citizens who otherwise might have noticed, he had conflated the 2 (two) Constitutional terms; and suspected a likely reason to be, he was trying to mask his ineligibility.

Want to see the evidence that supports my hypothesis, Ms. Goldberg?  IF DROWNING OUT OPPOSING FACTS IS “un-AMERICAN” THEN IGNORING UNPLEASANT FACTS MUST BE un-AMERICAN, TOO; or  TOO IGNORANT TO LEAD Of course, I am only a blogger.  (Then again, so was Dan Pfeiffer, in the context of posting that electronic image of the ‘document’ entitled, “Certificate of Live Birth” on the White House blog.)

Granted, maybe I am holding Ms. Goldberg to too high a journalistic standard.  After all, in the context of writing for the DB; she wears the hat of “columnist,” arguably absolving her from the profession’s constraints of both accurate and impartial reporting.

(In the interest of full disclosure, I am reporting that, evidently, Mr. Corsi’s book endorsed the work originating here on “jbjd” focused on filing citizen complaints of election fraud with state A’sG in those states with existing laws requiring candidate eligibility for office in order to access the ballot.  However, I have not read his book.)


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