We've always said that wingnuts never, ever give up. And that would be especially true of the wingnuttiest of the current crop, the Birthers -- because their theory has been so manifestly disproven so many times that you'd think they might have
November 29, 2010

UPDATE: The Supreme Court rejected the claim today without comment. [H/t marionetta]

We've always said that wingnuts never, ever give up. And that would be especially true of the wingnuttiest of the current crop, the Birthers -- because their theory has been so manifestly disproven so many times that you'd think they might have a clue by now. But no.

Now they're expanding their theory. They're arguing that Obama, per the constitutional requirement that he be a "natural born citizen", is disqualified from such status because his father was a British subject of Kenyan birth.

What's really funny about this theory is that these fetishists of all things from the Founding Fathers would thus have disqualified one of the leading founders, Thomas Jefferson, from the presidency.

What's perhaps not so funny about it is that the Supreme Court has this case on its docket.

Unsurprisingly, the wingnuts at WorldNetDaily are all over the story:

The Supreme Court conferred today on whether arguments should be heard on the merits of Kerchner v. Obama, a case challenging whether President Barack Obama is qualified to serve as president because he may not be a "natural-born citizen" as required by Article II, Section 1, Clause 5 of the U.S. Constitution.

Unlike other eligibility cases that have reached the Supreme Court, Kerchner vs. Obama focuses on the "Vattel theory," which argues that the writers of the Constitution believed the term "natural-born citizen" to mean a person born in the United States to parents who were both American citizens.

"This case is unprecedented," said Mario Apuzzo, the attorney bringing the suit. "I believe we presented an ironclad case. We've shown standing, and we've shown the importance of the issue for the Supreme Court. There's nothing standing in their way to grant us a writ of certiorari."

There really shouldn't be much to worry about here, truthfully: the lower courts have all tossed out this suit, and indeed the Third Circuit Appeals court ordered Apuzzo to explain why he shouldn't be sanctioned for filing a frivolous lawsuit (an order that was later vacated.

On the other hand, considering that these appeals were tossed not on the merits of the case but on the lack of standing that Charles Kerchner actually had in filing the suit, and the fact that the Roberts Court has shown a disturbing tendency to liberalize standing when it suits the conservative wing, maybe we shouldn't be so blithe.

And what's the basis of their theory? Back to WND:

Apuzzo is arguing the "Vattel theory," which asserts that the term "natural-born citizen" as used in the Constitution was defined by Swiss writer Emer de Vattel. Vattel, whose work, "The Law of Nations," was widely known and respected by the founding fathers, used the term to mean an individual born of two citizens.

According to Apuzzo, Congress and the courts have addressed the question of who can be an American citizen, for example regarding former slaves, Asian immigrants, and American Indians. However, the term "natural-born citizen" has never been altered.

"The courts and Congress have never changed the definition," said Apuzzo. "The founding fathers understood that the commander-in-chief of the armed forces needed to have two American citizens as parents so that American values would be imparted to him."

Apuzzo said the Supreme Court had clearly accepted Vattel's definition of "natural-born citizen" in "dicta," or statements made in opinions on cases addressing other matters. He cited Supreme Court Chief Justice John Marshall's opinion in the 1814 "Venus" case, in which Marshall endorses Vattel's definition.

This is pretty odd reasoning. Especially when you consider that the same standard would have disqualified Thomas Jefferson -- whose mother, Jane Randolph Jefferson, was born in London, England:

According to the Jefferson family bible, she was born 9 February 1721 (o.s.) in Shadwell parish, Tower Hamlets, London. The parish register of St. Paul's, Upper Shadwell, notes her baptism on 25 February 1721 as the daughter of Isham Randolph (1687-1742), "mariner" of Shakespeare's Walk (literally around the corner from the church), and Jane Rogers (1698-1760).

None of this has slowed Kerchner -- a retired Naval Reserve commander who lives in Pennsylvania -- and his attorney, Mario Apuzzo, whose blog is something of an Information Central for the case. Here, for instance, are the questions Apuzzo is arguing before the court:

1. Whether petitioners sufficiently articulated a case or controversy against respondents which gives them Article III standing to make their Fifth Amendment due process and equal protection claims against them.
2. Whether putative President Obama can be an Article II “natural born Citizen” if he was born in the United States to a United States citizen mother and a non-United States citizen British father and under the British Nationality Act 1948 he was born a British citizen.
3. Whether putative President Obama and Congress violated petitioners’ Fifth Amendment due process rights to life, liberty, safety, security, tranquility, and property and Ninth Amendment rights by Congress failing to assure them pursuant to the Twentieth Amendment that Obama qualified as an Article II “natural born Citizen” before confirming his electoral votes and by Obama refusing to conclusively prove that he is a “natural born Citizen.”
4. Whether Congress violated petitioners’ rights under the Fifth Amendment to equal protection of their life, liberty, safety, security, tranquility, and property by investigating and confirming the “natural born Citizen” status of presidential candidate, John McCain, but not that of presidential candidate, Barack Obama.

As Eric Zorn observes, these folks seem to think the Supreme Court is going to validate their effort to have a sitting president declared ineligible. Lotsa luck with that. But then, these are people with a real Magical Thinking problem.

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