The Betrayal

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DENIES APPEAL OF ANKENY & KRUSE VS. GOV. OF INDIANA
By John Charlton

(Nov. 13, 2009) — Moving in tandem with the Federal 3rd Circuit Court of Appeals in Philadelphia, the Indiana State Court of Appeals, yesterday denied the appeal made by Steven Ankeny and Bill Kruse in their case filed on Dec. 9, 2008, challenging Governor Mitch Daniels, action of certifying the votes of State Electors for U.S. Senators Barack Hussein Obama and John McCain.

While this case was originally denied by Marion Superior Court on March 16, it was appealed on April 13 and has remained under the radar since.

And though the Court of Appeals of Indiana has no authority to define or interpret the meaning of the U.S. Constitution, they went about that task anyhow, in their egregious decision.

Since such arguments might be met in the future, The Post & Email will report and comment on the State Court’s decision.

The Indiana Court of Appeals first explains the background of the argument marshalled by Ankeny & Kruse on the natural born citizenship requirement, on p. 10 of its decision:

Second, the Plaintiffs argue that both President Barack Obama and Senator John McCain are not “natural born Citizens” as required for qualification to be President under Article II, Section 1, Clause 49 of the U.S. Constitution, and that therefore because neither person was constitutionally eligible to become President, “[t]he Governor . . . should [have been] prohibited by order of [the trial court] . . . from issuing any certificate of ascertainment, or any other certified statement, under the State Seal of the State of Indiana . . . .” Appellants‟ Appendix at 13.

Then the Court gives its own view of the history of this controversy:

Before addressing the Plaintiffs‟ specific arguments, we think it helpful to point out the context in which this claim arises. Leading up to the 2008 Presidential Election and in the ensuing months after, a number of lawsuits were filed nationwide challenging both President Barack Obama and Senator John McCain‟s10 status as “natural born Citizens” under Article II of the U.S. Constitution. See, e.g., Berg v. Obama, 574 F. Supp. 2d 509 (E.D. Pa. 2008); Hollander v. McCain, 566 F. Supp. 2d 63 (D.N.H. 2008); Cohen v. Obama, No. 08-2150, 2008 WL 5191864 (D.D.C. Dec. 11, 2008), aff‟d by 2009 WL 2870668 (D.C. Cir. Sept. 8, 2009); Wrotnowski v. Bysiewicz, 958 A.2d 709 (Conn. 2008). As to President Obama‟s status, the most common argument has been waged by members of the so-called “birther” movement who suggest that the President was not born in the United States; they support their argument by pointing to “the President‟s alleged refusal to disclose publicly an „official birth certificate‟ that is satisfactory to [the birthers].” Rhodes v. MacDonald, No. 4:09-CV-106, 2009 WL 2997605, at *1 (M.D. Ga. Sept. 16, 2009), reconsideration denied by 2009 WL 3111834 (M.D. Ga. Sept. 18, 2009).

Then the Court acknowledges that the Apellants in this case advanced a different argument:

The Plaintiffs in the instant case make a different legal argument based strictly on constitutional interpretation. Specifically, the crux of the Plaintiffs‟ argument is that “[c]ontrary to the thinking of most People on the subject, there‟s a very clear distinction between a „citizen of the United States‟ and a „natural born Citizen,‟ and the difference involves having [two] parents of U.S. citizenship, owing no foreign allegiance.” Appellants‟ Brief at 23. With regard to President Barack Obama, the Plaintiffs posit that because his father was a citizen of the United Kingdom, President Obama is constitutionally ineligible to assume the Office of the President.

Then the Court disses the Appelants for relying on the Internet as a source of information:

The bases of the Plaintiffs‟ arguments come from such sources as FactCheck.org, The Rocky Mountain News, an eighteenth century treatise by Emmerich de Vattel titled “The Law of Nations,” and various citations to nineteenth century congressional debate.11 For the reasons stated below, we hold that the Plaintiffs‟ arguments fail to state a claim upon which relief can be granted, and that therefore the trial court did not err in dismissing the Plaintiffs‟ complaint.

Then the Court reinterprets the 14th Amendment and the decision of the Supreme Court of the United States in Minor vs. Happersett:

Section 1 of the Fourteenth Amendment to the U.S. Constitution governs who is a citizen of the United States. It provides that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States . . . .” U.S. CONST. amend XIV, § 1. Article II has a special requirement to assume the Presidency: that the person be a “natural born Citizen.” U.S. CONST. art. II, § 1, cl. 4. The United States Supreme Court has read these two provisions in tandem and held that “[t]hus new citizens may be born or they may be created by naturalization.” Minor v. Happersett, 88 (21 Wall.) U.S. 162, 167 (1874). In Minor, written only six years after the Fourteenth Amendment was ratified, the Court observed that:

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.

Id. at 167-168. Thus, the Court left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen.12

It should be noted, that to read the Happersett decision as “leaving open” an issue, is a novel concept of legal interpretation, because Happersett did no such thing, it cited Vattel’s definition, as the Court itself just quoted.  It left open the issue of who is a citizen, but not of who is a natural born citizen!

Then the Court of Appeals plays games, similarly, with the famous case, Wong Kim Arc:

Then, in U.S. v. Wong Kim Ark, 169 U.S. 649, 18 S. Ct. 456 (1898), the United States Supreme Court confronted the question of “whether a child born in the United States, of parents of Chinese descent, who at the time of his birth are subject to the emperor of China . . . becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the fourteenth amendment . . . .” 169 U.S. at 653, 18 S. Ct. at 458. We find this case instructive. The Court in Wong Kim Ark reaffirmed Minor in that the meaning of the words “citizen of the United States” and “natural-born citizen of the United States” “must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution.” Id. at 654, 18 S. Ct. at 459. They noted that “[t]he interpretation of the constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.” Id. at 655, 18 S. Ct. at 459 (quoting Smith v. Alabama, 124 U.S. 465, 478, 8 S. Ct. 564, 569 (1888)). The Wong Kim Ark Court explained:

The fundamental principle of the common law with regard to English nationality was birth within the allegiance-also called „ligealty,‟ „obedience,‟ „faith,‟ or „power‟-of the king. The principle embraced all persons born within the king‟s allegiance, and subject to his protection. Such allegiance and protection were mutual,-as expressed in the maxim, „Protectio trahit subjectionem, et subjectio protectionem,‟-and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the king‟s dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the king.

This fundamental principle, with these qualifications or explanations of it, was clearly, though quaintly, stated in the leading case known as „Calvin‟s Case,‟ or the „Case of the Postnati,‟ decided in 1608, after a hearing in the exchequer chamber before the lord chancellor and all the judges of England, and reported by Lord Coke and by Lord Ellesmere. Calvin’s Case, 7 Coke, 1, 4b-6a, 18a, 18b; Ellesmere, Postnati, 62-64; s. c. 2 How. St. Tr. 559, 607, 613-617, 639, 640, 659, 679.

The English authorities ever since are to the like effect. Co. Litt. 8a, 128b; Lord Hale, in Harg. Law Tracts, 210, and in 1 Hale, P. C. 61, 62; 1 Bl. Comm. 366, 369, 370, 374; 4 Bl. Comm. 74, 92; Lord Kenyon, in Doe v. Jones, 4 Term R. 300, 308; Cockb. Nat. 7; Dicey, Confl. Laws, pp. 173-177, 741.

Lord Chief Justice Cockburn . . . said: „By the common law of England, every person born within the dominions of the crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled, or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.‟ Cockb. Nat. 7.

Mr. Dicey, in his careful and thoughtful Digest of the Law of England with Reference to the Conflict of Laws, published in 1896, states the following propositions, his principal rules being printed below in italics: “British subject’ means any person who owes permanent allegiance to the crown. „Permanent‟ allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien, who, because he is within the British dominions, owes „temporary‟ allegiance to the crown. „Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth.’ ‘Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality.‟ The exceptions afterwards mentioned by Mr. Dicey are only these two: „(1) Any person who (his father being an alien enemy) is born in a part of the British dominions, which at the time of such person‟s birth is in hostile occupation, is an alien.‟ „(2) Any person whose father (being an alien) is at the time of such person’s birth an ambassador or other diplomatic agent accredited to the crown by the sovereign of a foreign state is (though born within the British dominions) an alien.‟ And he adds: „The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, though at common law nationality or allegiance in substance depended on the place of a person’s birth, it in theory at least depended, not upon the locality of a man‟s birth, but upon his being born within the jurisdiction and allegiance of the king of England; and it might occasionally happen that a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of the crown.‟ Dicey, Confl. Laws, pp. 173-177, 741.

It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.

III. The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established.13

Id. at 655-658, 18 S. Ct. at 459-460.

Which the Court interprets in the following erroneous manner:

Also, as quoted in Wong Kim Ark, Justice Joseph Story once declared in Inglis v. Trustees of Sailors‟ Snug Harbor, 28 U.S. (3 Pet.) 99 (1830), that “Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.” Wong Kim Ark, 169 U.S. at 660, 18 S. Ct. at 461 (quoting Inglis, 28 U.S. (3 Pet.) at 164 (Story, J., concurring)). The Court also cited Justice Curtis‟s dissent in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856):

The first section of the second article of the constitution uses the language, „a natural-born citizen.‟ It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the constitution, which referred citizenship to the place of birth.

Wong Kim Ark, 169 U.S. at 662, 18 S. Ct. at 462 (quoting Dred Scott, 60 U.S. (19 How.) at 576 (Curtis, J., dissenting)).

The Court in Wong Kim Ark also cited authority which notes that:

All persons born in the allegiance of the king are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.

Id. at 662-663, 18 S. Ct. at 462 (quotations and citations omitted). The Court held that Mr. Wong Kim Ark was a citizen of the United States “at the time of his birth.”14 Id. at 705, 18 S. Ct. at 478.

Note the outrageous logic of Footnote 14 here:

14 We note the fact that the Court in Wong Kim Ark did not actually pronounce the plaintiff a “natural born Citizen” using the Constitution‟s Article II language is immaterial. For all but forty-four people in our nation‟s history (the forty-four Presidents), the dichotomy between who is a natural born citizen and who is a naturalized citizen under the Fourteenth Amendment is irrelevant. The issue addressed in Wong Kim Ark was whether Mr. Wong Kim Ark was a citizen of the United States on the basis that he was born in the United States. Wong Kim Ark, 169 U.S. at 705, 18 S. Ct. at 478.

Since Wong Kim Ark did not apply to the NBC issue, the Court of Appeals says it can apply it to the NBC issue!

Which is what they do immediately following this footnote:

Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are “natural born Citizens” for Article II, Section 1 purposes, regardless of the citizenship of their parents. Just as a person “born within the British dominions [was] a natural-born British subject” at the time of the framing of the U.S. Constitution, so too were those “born in the allegiance of the United States [] natural-born citizens.”15

And once again include a footnote to support what they say the authority does not cite:

15 We reiterate that we do not address the question of natural born citizen status for persons who became United States citizens at birth by virtue of being born of United States citizen parents, despite the fact that they were born abroad. That question was not properly presented to this court. Without addressing the question, however, we note that nothing in our opinion today should be understood to hold that being born within the fifty United States is the only way one can receive natural born citizen status.

Hence the Court of Appeals dismisses the Appelants’ argument, holding that historical sources do not bind it to hold Vattel’s definition:

The Plaintiffs do not mention the above United States Supreme Court authority in their complaint or brief; they primarily rely instead on an eighteenth century treatise and quotations of Members of Congress made during the nineteenth century. To the extent that these authorities conflict with the United States Supreme Court‟s interpretation of what it means to be a natural born citizen, we believe that the Plaintiffs‟ arguments fall under the category of “conclusory, non-factual assertions or legal conclusions” that we need not accept as true when reviewing the grant of a motion to dismiss for failure to state a claim. Irish, 864 N.E.2d at 1120. Thus, we cannot say that the trial court erred when it dismissed the Plaintiffs‟ case. 16 See generally McCalment v. Eli Lilly & Co., 860 N.E.2d 884 (Ind. Ct. App. 2007) (holding that the plaintiffs‟ arguments had been sufficiently addressed by Indiana Supreme Court precedent and therefore the trial court did not err when it granted the defendant‟s motion to dismiss for failure to state a claim upon which relief can be granted); see also, e.g., Diaz-Salazar v. I.N.S., 700 F.2d 1156, 1160 (7th Cir. 1983) (noting in its recitation of the facts that despite the fact father was not a citizen of the United States, he had children who were “natural-born citizens of the United States”), cert. denied 462 U.S. 1132, 103 S. Ct. 3112 (1983).

For the foregoing reasons, we affirm the trial court‟s grant of the Governor‟s motion to dismiss.

It is important to note, that by addressing the issue of who is a natural bornn citizen, though the decision of the Indiana State Court of Appeals does not set a constitutional precedent, it has given Steven Ankeny and Bill Kruse the opportunity to appeal their case to the Supreme Court of the United States and seek the determination of such a citizenship status.

Tags: ANKENY & KRUSE VS. GOV. OF INDIANA //