BreaktheMatrix Letter to the United States Supreme Court (Sent November 24,2008)
Honorable Chief Justice Roberts and Associate Justices of the Court
United States Supreme Court
One First Street NE
Washington DC 20543
Re: (1) Docket No. 08-570 Philip J. Berg, Petitioner v. Barack Obama, et al, Respondents ("Berg Action"); (2) Docket No. 08A-407 Leo C. Donofrio, Applicant v. Nina Mitchell Wells, New Jersey Secretary of State, et al Respondents ("Donofrio Action")
Honorable Chief Justice and Associate Justices:
This letter is written in support of pending requests by petitioning parties in the Berg Action and Donofrio Action seeking expedited review and hearing of the Constitutional issues raised in those cases. Specifically, the Berg and Donofrio cases frame allegations and arguments that Barack Obama is not a "natural born citizen" of the United States, and is thereby constitutionally ineligible to serve in the office of President. The swearing in of a new President is scheduled to occur on January 20, 2009, and it would constitute both legal travesty and national tragedy if Mr. Obama were to take the oath of office and it thereafter developed that he did not meet the requirements set forth in Article 2 Section 1 of the Constitution. Very simply, we request that the core issues with respect to Mr. Obama's eligibility for office be resolved now-- in advance of his assumption of the highest office in our great nation.
I write this letter as a lawyer with 35 years continuous practice as a member of the Bar of the State of California. In addition to my legal practice, I also serve as Chairman and Chief Executive Officer of Basic Media, Inc., an online media, consulting and social networking company operating under the tradename "BreaktheMatrix." BreaktheMatrix maintains an interactive web--based community of 16,594 members located at www.breakthematrix.com, where we develop and share daily news and commentary about issues of interest to the membership. BreaktheMatrix neither supported nor opposed the candidacy of Mr. Obama for President, and we do not in this letter seek to advocate any specific outcome on the merits with respect to Mr. Obama's eligibility for office. Rather, we write for a narrower purpose-- we urge that this honorable court review and decide the "natural born citizen" issues now to avoid the risk of upset and consequence down the road.
A. The Constitutional Eligibility Requirement for a President: "Natural Born Citizen"
Article 2. Section 1. of the United States Constitution provides:
"No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States."
Both the Berg and Donofrio Actions assert the "natural born citizen" requirement, but the two cases rely on different arguments, as discussed below. At the outset, however, it's important to note that the concepts of "citizen" and "natural born citizen" are distinct one from the other, with "natural born citizens" constituting a limited subset of the broader class of persons who might qualify as "citizens." An obvious example-- a naturalized citizen such as Governor Schwarzenegger of California is indeed a citizen, but the Governor is not a "natural born citizen" eligible to hold the office of President. Citizenship alone does not fulfill the constitutional requirement; and the Donofrio Action asserts that the word "born" constitutes proof positive that status as a "natural born citizen" must be present at birth. We also note that the Berg Action contains allegations that Mr. Obama may have lost his "natural born citizen" status (assuming he ever had it) by actions over the course of his life such that he may not be a "citizen" at all.
Surrogates for Mr. Obama have responded to some of the Berg arguments (but not all) through a website at www.fightthesmears.com. This website is sponsored by "Obama For America" and appears to be funded by the Democratic National Committee (see Donations page at the site). fightthesmears.com has posted a form identified as a "Certificate of Live Birth" for Mr. Obama which purports to establish that he was born in Honolulu, Hawaii on August 4, 1961. The authenticity and significance of this Certificate have been challenged by Mr. Berg and others, and the State of Hawaii has issued a statement that Hawaii holds an original vault version of Mr. Obama's actual birth certificate, the contents of which have not yet been disclosed. Perhaps more importantly, however, fightthesmears.com has included the following language on its website, apparently for the purpose of explaining in detail the basis for its argument that Mr. Obama meets the "natural born citizen" requirement:"
"When Barack Obama Jr. was born on August 4, 1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom's dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same Act governed the status of Obama Sr.'s children. Since Sen. Obama has neither renounced his U.S. citizenship nor sworn an oath of allegiance to Kenya, his Kenyan citizenship automatically expired on August 4, 1982."
The Donofrio Action asserts that this fightthesmears.com "explanation" has the effect of establishing that Mr. Obama is NOT a natural born citizen-- the exact opposite of what fightthesmears.com was apparently seeking to accomplish by posting the information.
B. The Berg Action
The Berg Action seeks review in this Court by Writ of Certiorari with respect to the dismissal of his action in the lower court on the ground that Mr. Berg lacks standing to pursue his case. Mr. Berg asks that Mr. Obama be required to produce an authentic birth certificate and other such documents to establish that the "natural born citizen" requirement is met. This Court has ordered the defendants in the Berg Action to respond on or before December 1, 2008, with Mr. Berg having a right of reply thereafter. By this letter, we request that this Court review the Berg Action on the substantive merits, and not merely in response to the procedural "standing" issue.
"Standing" is an important question in its own right, but this Court might properly recognize that there are at least 17 other cases on file around the country seeking relief similar to that requested by Mr. Berg. Of particular significance is a case entitled Ambassador Dr. Alan Keyes, et al , Petitioners v. California Secretary of State Debra Bowen, et al, Respondents, filed in the Superior Court of California, County of Sacramento on November 13, 2008, action no. 34-2008-80000096 CU-WM-GDS. The Keyes case asserts similar arguments to the Berg Action, and illustrates that Mr. Berg's standing (or lack thereof) is not likely to be significant to the ultimate resolution of the "natural born citizen" issues on the merits. Mr. Keyes was the Presidential candidate of the American Independent Party on the California 2008 ballot, and other Petitioners in the Keyes action are AIP certified California electors. Narrow procedural "standing" should not be viewed as dispositive with respect to the Berg Action claims.
C. The Donofrio Action Raises Issues That Do Not Require Any Extrinsic Evidence or Document Production By Mr. Obama
Mr. Donofrio argues that the facts admitted by Obama surrogates establish WITHOUT MORE that Mr. Obama is not eligible for the office of President. Mr. Donofrio asserts that the words ". . . or a Citizen of the United States, at the time of the Adoption of this Constitution . . ." provide the key to proper understanding of the Constitutional eligibility issues. Mr. Donofrio points out that most, if not all, of the framers of the Constitution were, at birth, born as British subjects, and the chosen words of the framers make clear that they drew a distinction between themselves-- persons born subject to British jurisdiction-- and "natural born citizens" who would NOT be born subject of British jurisdiction or any other jurisdiction other than the United States. According to Mr. Donofrio, the framers included a grandfather clause in Article 2. Section 1. to allow any of them to become President. The framers, however, did not want citizens with divided loyalty to become President in the future-- particularly citizens with loyalty to the hated British Empire. Mr. Obama (obviously) was not a "Citizen at the time of the Adoption of this Constitution" and is not subject to the grandfather clause.
The Donofrio argument frames a core issue of constitutional interpretation and law that can be resolved without resort to any Obama birth documents or other extrinsic evidence. We urge that this Court review the matter.
Very truly yours
Richard D. Williams
of Kelly Lytton & Williams LLP
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Quote comment from Dr. Edwin Veiera Jr. PHD and constitutional scholar.
Dr. Edwin Vieira Jr.
"Any and every American must have “standing” to demand—and must demand, both in judicial fora and in the fora of public opinion—that Obama immediately and conclusively prove himself eligible for “the Office of President.”
Utterly imbecilic as an alternative is the judge’s prescription in Berg v. Obama that,
[i]f, through the political process, Congress determines that citizens, voters, or party members should police the Constitution’s eligibility requirements for the Presidency, then it is free to pass laws conferring standing on individuals like [Berg]. Until that time, voters do not have standing to bring the sort of challenge that [Berg] attempts to bring * * * .
Recall that this selfsame judge held that Berg has no constitutional “Case[ ]” because he has no “standing,” and that he has no “standing” because he has no “injury in fact,” only a “generalized” “grievance.” This purports to be a finding of constitutional law: namely, that constitutionally no “Case[ ]” exists. How, then, can Congress constitutionally grant “standing” to individuals such as Berg, when the courts (assuming the Berg decision is upheld on appeal) have ruled that those individuals have no “standing”? If “standing” is a constitutional conception, and the courts deny that “standing” exists in a situation such as this, and the courts have the final say as to what the Constitution means—then Congress lacks any power to contradict them. Congress cannot instruct the courts to exercise jurisdiction beyond what the Constitution includes within “the judicial Power.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173-180 (1803).
In fact, though, a Congressional instruction is entirely unnecessary. Every American has what lawyers call “an implied cause of action”—directly under Article II, Section 1, Clause 4 of the Constitution—to require that anyone standing for “the Office of President” must verify his eligibility for that position, at least when serious allegations have been put forward that he is not eligible, and he has otherwise refused to refute those allegations with evidence that should be readily available if he is eligible. That “Case[ ]” is one the Constitution itself defines. And the Constitution must be enforceable in such a “Case[ ]” in a timely manner, by anyone who cares to seek enforcement, because of the horrendous consequences that will ensue if it is flouted.
What are some of those consequences?
First, if Obama is not “a natural born Citizen” or has renounced such citizenship, he is simply not eligible for “the Office of President” (Article II, Section 1, Clause 4). That being so, he cannot be “elected” by the voters, by the Electoral College, or by the House of Representatives (see Amendment XII). For neither the voters, nor the Electors, nor Members of the House can change the constitutional requirement, even by unanimous vote inter sese (see Article V). If, nonetheless, the voters, the Electors, or the Members of the House purport to “elect” Obama, he will be nothing but an usurper, because the Constitution defines him as such. And he can never become anything else, because an usurper cannot gain legitimacy if even all of the country aid, abets, accedes to, or acquiesces in his usurpation.
Second, if Obama dares to take the Presidential “Oath or Affirmation” of office, knowing that he is not “a natural born Citizen,” he will commit the crime of perjury or false swearing (see Article II, Section 1, Clause 7). For, being ineligible for “the Office of President, he cannot “faithfully execute the Office of President of the United States,” or even execute it at all, to any degree. Thus, his very act of taking the “Oath or Affirmation” will be a violation thereof! So, even if the Chief Justice of the Supreme Court himself looks the other way and administers the “Oath or Affirmation,” Obama will derive no authority whatsoever from it.
Third, his purported “Oath or Affirmation” being perjured from the beginning, Obama’s every subsequent act in the usurped “Office of President” will be a criminal offense under Title 18, United States Code, Section 242, which provides that:
[w]hoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States * * * shall be fined * * * or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined * * * or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, * * *, or an attempt to kill, shall be fined * * * or imprisoned for any term of years or for life, or both, or may be sentenced to death.
Plainly enough, every supposedly “official” act performed by an usurper in the President’s chair will be an act “under color of law” that necessarily and unavoidably “subjects [some] person * * * to the deprivation of [some] rights, privileges, or immunities secured or protected by the Constitution * * * of the United States”—in the most general case, of the constitutional “right[ ]” to an eligible and duly elected individual serving as President, and the corresponding constitutional “immunit[y]” from subjection to an usurper pretending to be “the President.
Fourth, if he turns out to be nothing but an usurper acting in the guise of “the President,” Obama will not constitutionally be the “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States” (see Article II, Section 2, Clause 1). Therefore, he will be entitled to no obedience whatsoever from anyone in those forces. Indeed, for officers or men to follow any of his purported “orders” will constitute a serious breach of military discipline—and in extreme circumstances perhaps even “war crimes.” In addition, no one in any civilian agency in the Executive Branch of the General Government will be required to put into effect any of Obama’s purported “proclamations,” “executive orders,” or “directives.”
Fifth, as nothing but an usurper (if he becomes one), Obama will have no conceivable authority “to make Treaties”, or to “nominate, and * * * appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not * * * otherwise provided for [in the Constitution]” (Article II, Section 2, Clause 2). And therefore any “Treaties” or “nominat[ions], and * * * appoint[ments]” he purports to “make” will be void ab initio, no matter what the Senate does, because the Senate can neither authorize an usurper to take such actions in the first place, nor thereafter ratify them. One need not be a lawyer to foresee what further, perhaps irremediable, chaos must ensue if an usurper, even with “the Advice and Consent of the Senate”, unconstitutionally “appoint[s] * * * Judges of the Supreme Court” whose votes thereafter make up the majorities that wrongly decide critical “Cases” of constitutional law.
Sixth, and perhaps most importantly, Congress can pass no law while an usurper pretends to occupy “the Office of President.” The Constitution provides that “[e]very Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States” (Article I, Section 7, Clause 2). Not to an usurper posturing as “the President of the United States,” but to the true and rightful President. If no such true and rightful President occupies the White House, no “Bill” will or can, “before it become a Law, be presented to [him].” If no “Bill” is so presented, no “Bill” will or can become a “Law.” And any purported “Law” that the usurper “approve[s]” and “sign[s],” or that Congress passes over the usurper’s “Objections,” will be a nullity. Thus, if Obama deceitfully “enters office” as an usurper, Congress will be rendered effectively impotent for as long as it acquiesces in his pretenses as “President.”
Seventh, if Obama does become an usurper posturing as “the President,” Congress cannot even impeach him because, not being the actual President, he cannot be “removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors” (see Article II, Section 4). In that case, some other public officials would have to arrest him—with physical force, if he would not go along quietly—in order to prevent him from continuing his imposture. Obviously, this could possibly lead to armed conflicts within the General Government itself, or among the States and the people.
Eighth, even did something approaching civil war not eventuate from Obama’s hypothetical usurpation, if the Establishment allowed Obama to pretend to be “the President,” and the people acquiesced in that charade, just about everything that was done during his faux “tenure in office” by anyone connected with the Executive Branch of the General Government, and quite a bit done by the Legislative Branch and perhaps the Judicial Branch as well, would be arguably illegitimate and subject to being overturned when a constitutional President was finally installed in office. The potential for chaos, both domestically and internationally, arising out of this systemic uncertainty is breathtaking.
The underlying problem will not be obviated if Obama, his partisans in the Democratic Party, and his cheerleaders and cover-up artists in the big media simply stonewall the issue of his (non)citizenship and contrive for him to win the Presidential election. The cat is already out of the bag and running all over the Internet. If he continues to dodge the issue, Obama will be dogged with this question every day of his purported “Presidency.” And inevitably the truth will out. For the issue is too simple, the evidence (or lack of it) too accessible. Either Obama can prove that he is “a natural born Citizen” who has not renounced his citizenship; or he cannot. And he will not be allowed to slip through with some doctored “birth certificate” generated long after the alleged fact. On a matter this important, Americans will demand that, before its authenticity is accepted, any supposed documentary evidence of that sort be subjected to reproducible forensic analyses conducted by reputable, independent investigators and laboratories above any suspicion of being influenced by or colluding with any public official, bureaucracy, political party, or other special-interest organization whatsoever.
Berg v. Obama may very well end up in the Supreme Court. Yet that ought to be unnecessary. For Obama’s moral duty is to produce the evidence of his citizenship sua sponte et instanter. Otherwise, he will be personally responsible for all the consequences of his refusal to do so.
Of course, if Obama knows that he is not “a natural born Citizen” who never renounced his American citizenship, then he also knows that he and his henchmen have perpetrated numerous election-related frauds throughout the country—the latest, still-ongoing one a colossal swindle targeting the American people as a whole. If that is the case, his refusal “to be a witness against himself” is perfectly explicable and even defensible on the grounds of the Fifth Amendment. Howsoever justified as a matter of criminal law, though, Obama’s silence and inaction will not obviate the necessity for him to prove his eligibility for “the Office of President.” The Constitution may permit him to “take the Fifth;” but it will not suffer him to employ that evasion as a means to usurp the Presidency of the United States."
© 2008 Edwin Vieira, Jr. - All Rights Reserve
Posted by: Danney at November 30, 2008 05:26 PM
On January 20, 2009, Barack Hussein Obama II will be sworn in as the 44th president of the United States of America, becoming the first Halfro-American to hold that position. If this does not occur, it will be due to some circumstance other than this natural born citizen issue. The "opinion" coming from the Supreme Court, or whoever, will unanimously hold that Obama is a natural born citizen. It will be confirmed that he was born on American soil to an American citizen. The attempts to degrade his natural born status due to his father's status will be dismissed as not being relevant to the spirit of the Constitution.
The "natural born citizen" requirement was included in an attempt to insure that no one becomes president who might have loyalties to another country due to their birth as a foreign national. Exactly how much more of a factor was Obama, Sr. in Obama junior's life other than, as Dr. Laura would say, being the sperm donor? Obama did spend about 8 of his younger years in a foreign country. There was nothing he could have done as a minor to have altered his citizenship status while in that foreign country. The people, who very likely, had the greatest influence on him during his youth were his grandparents. They were living in Kansas and his grandfather was in the US Army at the time Obama's mother was born. Obama is a distant relative of George, Dick and Hillary, which is something that SHOULD be held against him, but unfortunately, does not disqualify him.
I do not believe that there is any legal or acceptable way to keep Obama from becoming president at this point. He does represent a great danger to this country, but that does not make him unique among the former contenders for the White House or set him apart from its current or previous occupants. He is dangerous because he believes being president puts him in the position to do great benevolent acts for people, and then there is that thing about pledging allegiance to Israel, which again does not make him unique.
It should not be all that difficult for you to find issues that will serve the interest of Break The Matrix and it membership far better than this one. It looks like the next Secretary of State is going to be Senator Clinton. Hopefully, you were not so busy with this matter that you did not call the number I provided last week for BTM members to use to voice their objections.
"And what is this liberty, whose very name makes the heart beat faster and shakes the world?" -- Frederic Bastiat
The Supreme Court will not act on this. If they did, the next suit before them would be representing a US soldier demanding President Bush show us the declaration of war from Congress that allows him to be a commander-in-chief of combat forces in Iraq and Afghanistan.
And, Mr. President, don't give us that War Powers Act BS. That is about as valid proof for meeting a constitutional requirement as a Certificate of Live Birth.
Paragraph 5 states "...Certificate of Live Birth..."
This is actually a 'Certification of Live Birth' which is not the same thing as a 'Certificate of Live Birth'. In fact if the site had a Certificate and not a Certification then this would be a totally dead issue.
However, this entity that is President-elect, as it stands now, is shrouded in the shadows and refuses to step into the light about his birth.
My son wants to join the military and to do so requires a Photo ID (state issued) and a CERTIFICATE OF LIVE BIRTH; however the presumed Commander in Chief does not have to show such identification to be the President? What the heck is wrong with this picture?
DanielC
If you really want the correct answer to this question watch this video.
http://www.lewrockwell.com/vance/vance156.html
"And what is this liberty, whose very name makes the heart beat faster and shakes the world?" -- Frederic Bastiat
R
I don't know if the letter above will carry any weight (although superbly written!), but this is not a political question, and sooner or later it seems that it must be settled as a matter of law. The Supreme Court doesn't have to hear the case, but each one of the other lawsuits will have to be disposed at some federal court, and they can't all be thrown out on the standing issue (especially Keyes, as he theoretically could have lost the presidency because Obama was elected). I think it is good to keep pressing this issue. If nothing else, it reminds people that we still do have a Constitution, regardless of how little attention we seem to pay to it these days.
Tom Mullen
www.tommullen.net
www.myspace.com/skepticsongs
"Question with boldness even the existence of a God" - Thomas Jefferson
Sorry, but based on what I know of our politicians, I have little faith that this will go anywhere, rgardless of whether Obama is Natural Born, or not.