Once Upon a Time: Faery Law and Economics

By Julian Dunraven, J.D., M.P.A.

 

What is your favorite fairy tale?  Which character do you relate to most?  Is it a hero, or a villain?  I am quite serious, and the answers might surprise you.  You may scoff, but fairy tales are among our oldest and most venerable stories, many predating recorded history.  Each generation continues to retell them to the next because they encode some fundamental life lessons—important enough that they survive the ages.  However, not all retellings are equal.

According to my students, my own favorite tale and character should be Rumpelstiltskin, as portrayed in the modern retelling of old fairy tales, Once Upon a Time.  They claim he is my doppelgänger in both style and substance.  It is not every day I get compared to a faery imp, so when unrelated people started to make that comparison weekly, I grew alarmed enough to sample the series—and I am glad I did.  Once Upon a Time is an adorable and addictive family show that will delight Disney fans of any age.  Like the original fairy tales it draws upon, the show tries to present moral lessons to its audience.  However, as may be emblematic of our society in general, its portrayal of the heroic and villainous is sometimes confused, if not entirely reversed. 
 

For those of you who have not yet had the pleasure of seeing it, Once Upon a Time is an ABC television series about classic fairy tale characters (especially those from Disney) whom have been sent into our world via a curse, and are unaware of their fairy tale origins.  Rumpelstiltskin, played by Robert Carlyle, is a powerful sorcerer who, in our world, is a meticulously polite attorney, always impeccably dressed in a suit, sporting long hair, a walking stick, flashy jewelry, and ever willing to offer his considerable services—both legal and magical—with the understanding that everything comes at a price.  After seeing his character, I decided that I quite liked such an apt comparison.
 

What began to disturb me, though, was that the show portrayed him as a villain. Yet, in virtually every episode, he ends up saving whichever hapless characters manage to get themselves into trouble, usually due to their own ineptitude or foolish attempts to hide unpleasant truths from one another.  That would normally warrant heroic laurels.  However, it seems real heroes fly to the rescue with no expectation or thought of reward; they dedicate their power and efforts to the good of others simply because other people need them.  Rumpelstiltskin, on the other hand, has the temerity to demand payment for his aid.  The other characters inevitably run to him at the first sign of difficulty, each claiming that they have such deep needs and he has such enormous power, that it is his moral duty to help them.  He invariably refuses, and offers instead an exchange of value: a favor for a favor.  Although they usually accept, the other characters hate this, and spend most of their time attempting to weasel out of their side of the bargains, and vilifying him for expecting payment in the first place.  Perhaps even more offensive to the other characters is the fact that the few people Rumpelstiltskin does help without demanding payment are those few dear to his own heart—not those deemed most important to the greater good of the community. 

It seems strange that the ideas of individual liberty and free market exchanges, once the very foundations of the United States, would today find themselves representing villainy, whereas utilitarianism and communitarian obligation now stand for heroics.  Is this really the lesson the old fairy tales have to teach us?  I returned to the original source material to find out. 
 

There are many versions of the “Rumpelstiltskin,” story in just as many cultures.  It is widely thought to predate recorded history, with origins back in the oral tradition.  Like all such ancient and enduring cultural stories, it is meant to convey a few fundamental life lessons, as well as a few warnings. 

In most versions of the story, an arrogant miller boasts that his daughter is better than all others, as she can spin straw into gold.  The king or chief, hearing this, calls the miller’s bluff.  He seizes the girl, imprisons her in a room full of straw, and tells her that she shall either spin it into gold by the next day to prove her father’s boasts, or face execution.  Devastated, she falls to weeping at her impending demise.  It is at this point some impish creature out of Faery enters the room and inquires at the cause of such distress.  It then offers to help, and promptly spins all the straw into gold, then leaves before dawn.  The next day, the flummoxed chieftain insists upon another demonstration with yet more straw.  The imp once more returns, and repeats its earlier miraculous performance.  Now thoroughly impressed, the king offers to marry the girl and make her his queen if she can but repeat her feat once more.  Again, the fay appears and, this time, offers a deal: he will gladly repeat his transmutation of straw into gold provided she consents to let him raise her first born child.  Giddy at her imminent status elevation, she quickly agrees.  When the new queen gives birth, though, and the fae creature comes to collect, she balks, and asks to be freed from her contract obligations.  Moved to pity, the imp gives her three days in which to guess its name in order to be freed from the bargain.  Just before the third day, a woodsman overhears the creature boasting of its own strange name, one the queen will never guess, and kindly makes haste to inform the queen.  When the queen thus guesses correctly on the third and final day, the creature disappears, never to be seen again.   
     

The tale is meant to be cautionary.  It warns against the dire consequences of arrogant boasting.  It also warns that nothing comes free, and that one must be careful and very clever in negotiations—or else dependent upon luck and the kindness of others.  While the faery is certainly the adversary in these tales, it is by no means villainous.  Rather, it is actually rather generous.  First, it offered miraculous help no one else could have provided.  It offered its services for a fair and honest bargain, to which the girl agreed.  Even when she tried to wriggle out of her obligations, rather than simply enforce the contract it had, it generously granted her a new bargain—and it always remained true to its own word.  The warning in this tale is not aimed at the wily fay, but at the arrogance and impulsiveness of humans—an enduring truth that may explain the story’s universalism and longevity.  

Rumpelstiltskin is not the only ancient faery with lessons to teach humanity, but his behavior is emblematic of most faery interactions.  In all the old fairytales, whenever the fae enter, they represent idealized concepts of either good or evil, but always an aspirational step above mortal humans.  Through their divine blessings, curses, and contests, we frame our own struggles for perfection and illustrate important concepts of ethics, morality, and sometimes just practical advice.  This might be clearest in stories from the Celtic tradition, in which the faeries are nothing short of old deities finding new form in a Christian culture—but still teaching important lessons.
 

In Celtic tradition, the fae all seem to follow a few universal rules, to which Rumpelstiltskin, and his more Celtic incarnations of Tom Tit Tot or Whippitie Stourie, are no exceptions.  It is easy to dismiss these rules as mere cultural fantasy.  However, if one keeps in mind that the fae represent an idealized divine aspect to our cultural stories, the rules that govern such divine beings take on new importance: they represent a culturally enshrined vision of the divine.  How we think the gods interact tells us a lot about how we think our own societies should behave—and indeed, there is much to admire.

Perhaps the first, and most easily recited rule of Faery is that faeries never lie.  Given that they are all practically immortal, this makes sense.  In such a society of eternal beings, anyone dealing dishonestly would quickly find themselves permanently distrusted.  This is not to say the fae are completely honest; they are quite selective with how much truth they reveal in order to gain advantage, and thus favor cunning and cleverness.  Certainly, this is borne out in the tale of Rumpelstiltskin.  Both the human miller and his daughter lie about her abilities, and she lies again in making her contract for aid—but the fae never lies.  His mistake is one of arrogance, in thinking he would not be overheard in his gloating—another important lesson.

The second rule of Faery is an absolute respect for individual sovereignty.  Despite their incredible power, the fae never use force in their mortal dealing unless directly attacked or trespassed upon.  To fall under fae power, one must either enter into their territory or consent to it in negotiation—either way as a result of one’s own will.  The fae might use glamour and clever language to influence that choice, but it remains free all the same.  As in the case of Rumpelstiltskin, a fae may appear with an offer in a time of desperate need, but as they do not create the circumstances of that need, the bargains they offer remain freely chosen opportunities, not forced impositions.  Even in attempting to regain their own property, such as the seal-skins of a selkie, the comb, mirror, or hat or a merrow, or any number of other enchanted items from an endless variety of fae creatures, despite the clear ability to smite a human with their power, the fae are inclined to negotiate rather than use force.

Even so, the concept of property, and negotiations over it, is integral to all fae interactions and fundamentally connected to their idea of sovereignty.  Indeed, even the monarchs of Faery exercise such authority only within the bounds of their own sidhe or hill.  Go but a little further on and some solitary fae crone in her hut will negotiate as shrewdly and exercise all the same authority as a king in his court. The lands of Faery have no discernable government or overarching authority.  Rather, each exercises sovereignty over his own property and labor.  As a semi-divine and immortal bunch that, in various tales, has the power to transmute gold, create bountiful foods, or spawns any number of other objects out of sheer will, money holds no great value for them.  Rather, their currency is in their property, time, and service.  Hence, the ubiquitous favor for a favor that all fae creatures seem to delight in negotiating.
  

What is remarkable about this is that, unlike human reality, the fae never break their contracts.  Indeed, doing so would amount to dealing in bad currency, a dishonesty that would be ruinous in  such a society.  Neither, though, do they resort to theft or force when they cannot get what they want through negotiation.  They seem to recognize that all value must be exchanged for value.  Even in the occasional story of the fae making off with some household item, unless they are recovering what belongs to them in the first place, they always leave something of equal or greater value in exchange. 

For Rumpelstiltskin, a being able to appear and disappear at will, taking a child to raise would be no great feat.  Yet, rather than force his way, he negotiated a miraculous service for the miller’s daughter in exchange for her parental rights.  When she then met his further terms for dissolution of the contract, he departed in peace.  This reverence to individual sovereignty, property interests, and free negotiation is truly astonishing in an entity portrayed with such terrifying power—and something I fear few humans equally equipped would emulate.

Perhaps the strangest and most foreign idea out of Faery is its treatment of gifts.  In almost all stories, the fae give and accept gifts with great caution.  Unlike a contract, whose terms are well defined and finite, a gift caries unspecified and open obligations to the giver.  It imposes a debt burden that must be repaid similarly.  As a result, simply thanking the fae for a gift is a great insult, which frequently results in their abrupt departure and withdrawal of all favors.  It diminishes and dismisses the effort of the gift with mere words.  Instead, the fae demonstrate gratitude by repaying something of value in kind.  Thus, a gift, far from being free, stands as an invitation to an open and ongoing exchange of debt obligations—the fae expression of a relationship, and perhaps more honestly expressed than our own.

All of this should be encouraging to any lover of liberty.  It means that deep within our cultural psyche is a libertarian (and maybe libertine) paradise called Faery.  Many of these ideas could have as easily come from Immanuel Kant, or Adam Smith.  As we discern the shadows of law and economics the old stories reveal about such a place, we can also perceive the outlines of the free society the Western World has attempted create to since the Enlightenment.  Apparently, we have been planting the seeds of it into the minds of our children for many centuries—through the faeries of fairytales.  

All in all, Faery seems to be a vibrantly free land, full of anarcho-capitalists who all govern themselves according to Kant’s categorical imperative in a state humans have always aspired to but have never quite achieved.  Yet the fae exist in our tales to remind us of that ideal.  Rumpelstiltskin, certainly represents this, both in his fairy tale and in Once Upon a Time, but the show vilifies him for it. 

Contrary to the principles of the old stories, ABC presents the wild freedom represented by the fae as exactly why such beings should be feared.  For the characters of Once Upon a Time, any power and ability exercised for one’s own benefit is evil.  Instead, all such ability should be limited to serving only the needs of others—freely.  Concepts of sovereignty, property, and compensation are selfish obstacles to the greater good of the many—and should be set aside to meet their needs. 
 

To this end, the heroes it casts display an unrelenting and ruthless tendency to break any bargain, take anything they need, violate any sovereignty, and even sacrifice any life--so long as they think it serves the greater good—as defined by them.  After witnessing the callous disregard of all rights practiced by heroes such as Prince Charming and Princess Snow White, one can easily see the dangers of monarchs and dictators of all stripes.  Yet their incessant justifications for such vile deeds do not draw upon royal right, but rather sound remarkably close to the old communist creed: from each according to his ability to each according to his need.  If anyone gets hurt along the way, well, the needs of the many outweigh the injuries to the few.  The intent is good, and for that, sacrifices must be made. 

That particular story was told by the USSR and its satellite states.  Although they lasted for less than a century, they used it to justify mass murder and bloodshed on a scale never before seen in human history.   It is not a tale that should be told again as anything but a dire warning.  For ABC, however, it still seems to hold some appeal.  Consequently, Once Upon a Time frequently suffers from an inability to make any clear principled distinction between good and evil at all.  As the final song warns in another modern retelling of old fairytales, Into the Woods, “Careful the things you say, children will listen.”  Despite my initial aversion to being compared to the fay imp, Rumpelstiltskin, I now take it as a great honor.  It seems these strange creatures of our cultural psyche have been trying to teach us about liberty for millennia.  I would much rather children hear that tale than the one of dreary sacrifice and subjugation to the neediest offered by the modern retellings. 

“Come away, O human child!

To the waters and the wild

With a faery, hand in hand,

For the world's more full of weeping than you can understand.”

—William Butler Yeats

The Cyberbullying of Gay Youth

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

By now, most of you have heard the sad story of Tyler Clementi. He was that unfortunate freshman at Rutgers University whose sexual encounter with another man was secretly filmed by his dorm roommate and live streamed over the internet. Mr. Clementi then committed suicide by jumping of the George Washington Bridge, having first posted his plans to his Facebook page. The incident captured the attention of the national press, which has since worked diligently to highlight much of the bullying gay youth endure daily.

The Denver Post is no exception. In yesterday’s front page story, “Young, Gay, Bullied,” the Post focused on the high rates of depression and suicide among young gay students who are bullied by or isolated from their peers. Of particular interest is the relatively recent phenomenon of cyberbullying through blogs, YouTube, Twitter, Facebook, and other online sources. The Post cited several methods of addressing this problem, ranging from additional tolerance education and awareness programs to school administrative punishments to new legislation criminalizing cyberbullying. Such legalistic outcomes, however, would render an already tragic situation truly ghastly.

Do not mistake me. I truly do understand the problem and I do not doubt the plight of these young gay people. During my own time in high school, I was careful not to reveal my bisexuality to more than a handful of trusted friends. I was well liked, and had no desire to sacrifice social status to an identity which would have rendered me an instant pariah. Still, there were always rumors, inevitable suspicions, and occasional confrontations. Some of that was decidedly unpleasant. I was lucky, though. Those friends who did know accepted it without question. Many others would not have cared even if I had told them. And to my family it was a non issue. Not everyone is so fortunate.

Unlike other minority groups, gay students have no natural support network; their parents and siblings are generally straight. Often, families not only have difficulty relating to the problems faced by gay youth, they also actively disapprove of homosexuality. Peers, faced with overwhelming pressure to fit in, will often disassociate from gay students for fear of being labeled with the f- word themselves. Gay people faced with any one of these situations can and do feel incredible isolation and depression. That much is undisputed. Debates among scholars and theologians regarding the causes, nature, and morality of human sexuality, however, can fill volumes. It is not something to be addressed here at the Peoples Press Collective, which limits its scope to issues dealing with individual liberty, the free market, and limited government. Unfortunately, whatever one may think of their intent, many of the proposals listed by the Post to address the cyberbullying faced by young gay people negatively impact all three of those topics.

Focus on the Family correctly points out the danger to the marketplace of ideas and free religious expression with mandatory school programs and penalties specifically tailored to promote tolerance for homosexuality. Many mainstream religious traditions regard homosexual acts as mortal sins. For any public school administration or law to step in to enforce toleration and acceptance of homosexuality would usurp the province of religion to define virtue and thus violate one of the most cherished aspects of the first amendment. According to the Post, Focus on the Family instead would like to see bullying policies that protect all students against all forms of bullying for any reason. Even this, however, goes too far.

Apparently, our society has gotten to the point where at least some believe it is no longer acceptable to make gay people feel excluded or unwanted. Well and good. After all, gay marriage and civil unions are increasingly recognized in the various states and nations of the world. What about stoners though? I recall those semi-dazed individuals who would languish behind the main building of my high school, quietly smoking their marijuana while the rest of us went to class. Many students shunned them and sneered at the foul reek that hung about them. Yet, smoking marijuana for medicinal reasons is now legal in Colorado. California may soon legalize it for any reason. Should we now prohibit any exclusion or derision of such drug use? And what of students who espouse a belief in the doctrines of Stalinist Russia, Nazi Germany, or the KKK? Such beliefs are certainly legal. However, at my high school, anyone who publicly stated such beliefs quickly found themselves without a single friend and excluded from all social functions by their peers. Should such exclusion and public derision be prohibited? I think not.

The first amendment also protects the freedom of expressive association. We can choose with whom to associate. We are also free to state the beliefs and values that hold such associations together and exclude and disapprove of those who refuse to meet those values. Sports and athletics are perhaps the most obvious examples of this. While participation is voluntary, you must accept the rules in order to be included. Failure to play by those rules results in censure and exclusion. Though other human associations may not be so clear about their rules, the basic idea is the same. Politicians soon find themselves excluded from their own parties if they take positions in conflict with the party platform. Dinner guests, likewise, do not often receive a second invitation if they forgo the use of any utensils or decorum. Indeed, such behavior, if it becomes publicly known, can even cause a person to lose his employment.

While most of us appreciate our freedom of association, few people acknowledge the importance of disassociation and publicly expressed disapproval. While exclusion does make people feel terrible, it is the best tool we have to regulate social norms and values in a free society. In this way, everyone is free to choose their own social circles, promote the values which are important to them, and exclude those who do not share such values. The only alternative is to have a governmental authority dictate all values and associations. That is completely unacceptable—but it seems many people are calling for exactly that in an effort to address cyberbullying.

Obviously, any responsible school should have reasonable policies prohibiting bullying on its grounds. Name calling and similar behavior is not only rude, it is disruptive to the educational process and should be sharply corrected. In the event of a physical altercation, the law, in addition to any school policy, can bring severe penalties to the aggressor, though all people have a right to defend themselves and others. However, when school policy or legislation extends beyond the school grounds and classrooms into the social lives and online interactions of students, problems arise.

Unless an overt physical threat is expressed, cyberbullying, while often cruel and rude, is often no more than disdainful speech. Any attempt to limit it can run afoul of the first amendment. It has other unpleasant consequences as well.

By interfering in the social lives and expressions of youth, such policies take away any opportunity students may have to express and enforce their own values, and places that responsibility solely on a governmental authority. The proper response to a bully who is rudely or inappropriately deriding a friend in speech or in any online forum is to exclude the bully from social life. Conversely, if someone expresses legitimate condemnation of unacceptable behavior, the object of such condemnation should be excluded. In this way, students learn to stand up for their own values and regulate their own behaviors. It does wonders for their sense of self worth as well. When the state or school authority criminalizes such behavior and usurps all power to regulate associations and interactions, it teaches our youth to rely not upon themselves and their friends to solve problems, but on official authority. In later life, that produces well trained sheep without any self esteem who follow their employers without question and who expect governmental authority, not individual innovation, to solve all of their problems for them. That is not how a free people should live. That is how slaves and serfs live.

Every time law intrudes into the province of etiquette, these problems arise. As a lawyer, I know it for absolute truth that law is seldom the best solution to any given problem. It is vital to remember that the authority of law ultimately issues from the barrel of a gun. Law is force. It takes away any choice or option and imposes a permanent directive which must be followed lest one lose property, liberty, or even life. Etiquette, on the other hand, is wholly consensual, dynamic, and continually adaptable. Merely by exercising our right to associate and disassociate as we see fit, we express and enforce the values which we want to guide our individual lives.

At times, we will all face situations in which we are rudely or perhaps even unjustly excluded and demeaned by those who do not share our values. Certainly, young gay students face this more often than most, and I have the greatest sympathy for them and what they endure. The solution, however, is not to call for the school authorities or state legislature to enforce tolerance and acceptance of homosexuality, or whatever the case may be, upon everyone else.

Any victim of such ridicule should instead seek out a group of peers who share his values and stand ready to defend them and one another. Other students should express their own support of such individuals while publicly censuring and excluding anyone they believe is behaving rudely or inappropriately toward another individual. As families, friends, and community members, we should be encouraging our youth to express and defend our values. When we see others attacked for values we share, we should live by example and speak out in their defense, censuring and excluding bullies from our own social circles and networks. In this way, free people constantly foster and defend the values they live by—not by law, force, and compliance—but by individual choice, responsibility, and virtue. Moreover, unlike law, which imposes one standard on everyone, etiquette leaves each person free to find their own group of like minded individuals.

Having experienced the hardships bullies can impose first hand, I understand the deep desire people have to protect their children from enduring similar circumstances. As a current practitioner of corporate law with its stringent demands for professionalism, I abhor rudeness of any sort. Here at the PPC, we even created the “Political Breath” page to address issues of etiquette in political activism. However, much as I despise bullying and rudeness, I am unwilling to sacrifice my freedoms for the illusion of acceptance. Government cannot legislate social inclusion. It cannot grant self esteem. It cannot force virtue into human hearts. Only individuals have that power, and as individuals we must take the responsibility to do so.

U.S. Supreme Court Overturns Corporate Political Spending Ban

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

Do you believe the government should determine what the media can broadcast? Do you believe the government should decide which businesses constitute “media” and which do not? This is exactly what the Supreme Court ruled on yesterday in Citizens United v. Federal Election Commission. As Justice Kennedy wrote for the conservative majority:

“The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations-- including nonprofit advocacy corporations-- either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.” 558 U.S. ___ (2010) at 20.

This law, according to the majority opinion, gives rise to “the dangerous, and unacceptable, consequence that Congress could ban political speech of media corporations,” on a whim. Even the People’s Press Collective, as private corporation not classified as traditional media, could have incurred criminal liability for advocating for or against any candidate within the statute’s time frame. Does this frighten you? It should.

The reason for this oppressive law is that it supposedly protects shareholders from being forced to fund political causes with which they disagree. It also prevents the appearance of corruption and quid pro quo arrangements between politicians and corporate interests. Finally, and most importantly, it allegedly prevents the distortion of the election process by the large accumulations of wealth held by corporations.

The Court swiftly dismissed the first two concerns. Corporate shareholders have the option of divesting if they do not like the actions of any particular company. However, even if this were not the case, limiting political speech only in the days immediately prior to an election but at no other time hardly shows a serious concern for shareholder interests. As to quid pro quo arrangements, we already have anti-bribery laws in force. Attempting to go further and prevent mere access or influence is not only impossible, it is an impediment to representative democracy itself. As it is, the law would continue to permit lobbying by those companies wealthy enough to engage in it, but prohibit other companies from engaging in fundamental political advocacy; hardly an equitable arrangement.

In his dissent, Justice Stevens argued passionately, if not plausibly, that the government has a strong interest in preventing the appearance of corruption corporate wealth can create. He further maintained that, as the First Amendment never mentions corporate entities, they should not be entitled to full speech and press protections. In fact, he maintains that corporate speech is adequately protected in the lengthy procedures set up to create 527 groups, PACs, and the cumbersome and expensive filing, reporting, and maintenance requirements such affiliations entail.

The Court maintains, however, that:

“The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day. Prolix laws chill speech for the same reason that vague laws chill speech: People ‘of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.’ The Government may not render a ban on political speech constitutional by carving out a limited exemption through an amorphous regulatory interpretation.” Id. at 7 (internal citation omitted).

The Court goes on to point out that corporations, as affiliations of individuals, have long enjoyed First Amendment protections. Moreover, the text of the First Amendment itself is not limited to individuals, but protects the freedoms of speech and the press in general. The Court, “rejected the premise that the Government has an interest in equalizing the relative ability of individuals and groups to influence the outcome of elections,” and stated that, “The First Amendment’s protections do not depend on the speaker’s financial ability to engage in public discussion.” Id. at 37 (internal citation omitted).

In short, the First Amendment exists to protect the political speech of citizens, as individuals, groups, or corporations. “By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.” Id. at 24.

“The censorship we now confront is vast in its reach. The Government has muffle[d] the voices that best represent the most significant segments of the economy. And the electorate [has been] deprived of information, knowledge and opinion vital to its function. By suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests. Factions will necessarily form in our Republic, but the remedy of destroying the liberty of some factions is worse than the disease. Factions should be checked by permitting them all to speak, and by entrusting the people to judge what is true and what is false.” Id. at 38 (internal citation omitted).

This is as it should be. Despite this, though, the Court still upheld requirements for disclosing donors and issuing disclaimers as to who funds political advertisements. Only Justice Thomas objected to this. He points out the possible chilling effects on speech when activists target political donors with violence and intimidation, saying, “I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in core political speech, the primary object of First Amendment protection.” Id at 6 (Thomas, J., concurring) (internal citation omitted). Thus, he maintains we have still one further step to take on the road to truly free political speech.

As it stands, the Supreme Court has overturned the ban on direct corporate political advocacy. Corporations are still subject to contribution limits in candidate campaigns, as are individuals, and they must still disclose their donors and take credit for any political advertisement they produce. Nonetheless, this decision should be celebrated by anyone who still believes in the First Amendment. Here in Colorado, I am certain some enterprising company will use this decision to overturn our own state ban on direct corporate advocacy, which so closely mirrors federal law. I look forward to that day.

Colorado Supreme Court Upholds Illegals’ Privacy Rights—Correctly

By Julian Dunraven, J.D., M.P.A.

Honorable Friends,

This evening, two of my honorable friends here at the PPC, Ben DeGrow and El Presidente, have called my attention to the Colorado Supreme Court’s decision in The People v. Gutierrez, in which a 4-3 majority ruled that the state violated the 4th Amendment privacy rights of the defendant in seizing his tax records without a proper warrant showing probable cause. The defendant also happened to be an illegal immigrant. Former Congressman Tom Tancredo, as quoted in The Washington Times, is outraged by the decision and would like our honorable friends at Clear the Bench Colorado (CTBC) to add this case to their ever lengthening list of judicial offenses. Holding the judiciary accountable is a laudable goal, but also one that requires a good deal of thought to accomplish in the interest of fairness and justice. It requires more than cursory analysis and gut reactions. It requires asking whether the Court remained faithful to the Constitution. Contrary to Mr. Tancredo’s objections, I believe CTBC can point to this decision as one in which the Mullarkey majority finally acted correctly.

Facts:

First of all, it is important to understand that anyone in this country, legal or otherwise, has 4th Amendment protections. The 4th Amendment is not limited to citizens, but considered one of the basic rights of humankind. The British once made the mistake of applying its protections only to British citizens, and the colonists responded with the American Revolution. For that reason, the 4th Amendment states:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Also, it is important to understand that the U.S. expects all people in this country to pay taxes, regardless of immigration status. To accommodate both legal and illegal immigrants who often lack Social Security Numbers (SSN), they are permitted to file taxes with Individual Taxpayer Identification Numbers (ITIN).

Now that we have clarified those basic points, allow me to give you a few facts about this case. The Weld County Sheriff’s Department investigated an undocumented immigrant named Servando Trejo on charges of identity theft. Trejo admitted to being an illegal immigrant and that he used a false name and SSN to obtain work. He further informed police that he had filed income taxes using an ITIN rather than the false SSN. He then filed his taxes through Amalia’s Tax Service in Greeley. He said that Amalia’s had helped him obtain the ITIN and implied that all illegal immigrants in the area know to use Amalia’s.

The owner of Amalia’s, told investigators that she often prepared taxes for illegal immigrants. She further speculated that most people applying for ITINs were illegal immigrants and that most of her clients using ITINs have SSNs belonging to someone else.

On the basis of this information, the police secured a warrant to search Amalia’s Tax Service for all tax returns filed in 2006-2007 with ITINs which did not match SSNs on wage earning documents such as W2 forms. They speculated that this would be an effective method to fish for those engaged in identity theft, even calling it “Operation Numbers Game.” Unfortunately, the files were not kept by date, but by client. Thus, the police seized all 5000 client files. They proceeded to examine each file, irrespective of the date limitation in the warrant. One file with a mismatch between SSN and ITIN belonged to Ricardo Gutierrez, who was subsequently charged with identity theft. He argued, however, that the police violated his 4th Amendment rights in obtaining this evidence and should be barred from using it. The Colorado Supreme Court agreed with him.

The Right to Privacy and Probable Cause:

The Court’s reasoning is fairly simple. Most people expect their tax records to be fairly confidential. After all, they contain so much information about income, investments, property, family, et cetera as to paint a fairly basic picture of our lives. We do not want just anyone to have access to that. We do not even want any government agency to have access to that at will. Thus, the 4th Amendment, bolstered by Congress’s specific legislation, ensures that our tax papers enjoy the same privacy as we would have in our own home.

Of course, this means that, to invade our privacy, the police need specific warrants. They cannot simply say, “We want all tax records,” and hope they find something interesting. They have to have some reasonable and specific suspicion first, and identify us as particular suspects before they go rummaging about our things. This is the nature of probable cause, and exactly what the police failed to achieve in this case. Instead, they went fishing.

The warrant the police obtained was not limited to their original suspect. They did not even limit themselves to the dates the warrant specified. They examined all files of every individual client despite the fact they had no basis to suspect any of those individuals of wrongdoing. For these reasons, the warrant was overly broad, utterly eviscerating the purposes of the 4th Amendment. No reasonable police officer could have thought such a blatant fishing expedition would be valid. If it were, police might as well start randomly inspecting homes to see if they find any evidence of illegal activity. Dreadful thought.

In the dissent, Justice Coats makes the point that the police did have probable cause to suspect that the owner of Amalia’s knowingly aided and abetted instances of identity theft if she knew some of the SSNs were false. As such, the police could have obtained a warrant to search for mismatched ITINs and SSNs which would indicate a pattern of fraud on the part of Amalia’s. This would have allowed them to conduct the search exactly as they did—but this time without violations of the 4th Amendment.

However, this is not what happened. Neither the police nor the district attorney even suggested any wrongdoing on the part of Amalia’s. They were interested only in fishing for possible but unknown wrongdoing on the part of Amalia’s unidentified clients. Justice Coats fails to recognize that fact and Justice Bender’s majority opinion is correct to distinguish it. Although a search for fraud on the part of Amalia’s Tax Services would have provided the same information as an unspecified search of unknown clients in an attempt to find evidence of wrongdoing, the former has probable cause to support it while the latter is supported by nothing but the arbitrary will of law enforcement. Though the distinction is fine, it is also of vital importance. And that, my honorable friends, is the difference between a republic of laws and the tyranny of a police state.

Child Safety Standards And The Idiocy of ABC

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

I know better. I really do. In truth, I was simply trying to be polite. Nonetheless, I opened the email from my honorable friend, clicked on the link, and suffered through a clip of ABC’s World News with Charles Gibson, a man who somehow manages to look grave while pronouncing utter rubbish.

The clip in question, "Lagging Safety Standards for Baby Products," was not news, but rather an inexcusably fear mongering advocacy piece calling for greater government regulation in response to the recent crib recall. My honorable friend sent it along to me in the hope that I could explain why the federal government does not already set strict safety standards for baby products.

Contrary to ABC’s histrionics over what it sees as a complete lack of regulation, the federal government does indeed impose rather exacting safety standards upon manufacturers and retailers of child products. The Consumer Product Safety Improvement Act of 2008 (CPSIA) stands as just one example of such regulation. This is nothing to celebrate, however. The CPSIA serves only to impose crippling costs on business, and actually undermines the safety of the children it purports to protect. All it successfully does is increase the size, scope, and power of government. Only Mr. Gibson could breathe a solemn sigh of relief over that. Sensible people should be alarmed.

The Economic Costs of Regulation

The economic costs of the CPSIA are fairly obvious. The CPSIA requires that any product intended for the use of children under age 12 must be tested by a third party and certified for safety under standards promulgated by the Consumer Product Safety Commission (the Commission). Other than prohibiting excessive levels of dangerous substances such as lead or phthalates, the CPSIA leaves it to the Commission to define and set safety standards. Once certified, a manufacturer must affix a proper label to each of its products. Even without knowing what additional testing standards the Commission will impose, this third party testing, certification, and labeling requirement imposes enormous expense.

For a large toy manufacturer such as Hasbro, these additional expenses, though irksome, are manageable. The company will simply pass the costs along to consumers, and young parents, struggling to pay bills, will marvel at the outrageous prices of baby products while no doubt cursing the "greedy" corporate executives they mistakenly blame for the cost. The consumer suffers, but the large company may survive with less profit. A small business, however, will suffer even more.

A stay at home mother who designs and creates baby bibs for her own children, then has them manufactured for public sale, will suddenly find her business faced with expensive new testing requirements for every fabric she uses, for every fastening device and material she attaches, and for any pacifier or toy she may include with the sale of such a creation. It makes no difference that she thoroughly researched the safest types of products and materials for use in her designs. She must meet the requirements of the regulations, though the cost of doing so is greater than all the revenue of her small start-up company. The time commitment alone is more than she has as a new mother. So she closes her business. Others like her are prevented from entering the market at all. Government has just set a high wealth barrier to market entry.

Regulation’s Cost to Safety

Perhaps even more worrying than the financial costs of the CPSIA, though, is the damage it does to the cause of child safety. This may seem counterintuitive given that CPSIA is intended to do the exact opposite. Make no mistake, though, the existence of the CPSIA ensures that baby products will be less safe than they would be without the CPSIA.

If the CPSIA and its like did not exist, children would not be in any imminent danger. Rather, the safety of products would be determined by the courts. If a child were injured by any given product, and the parents brought suit against the manufacturer, a judge would look to see whether the manufacturer knew, or should have known, that the product could be expected to cause injury. A judge would hold a manufacture responsible for knowing the best practices of his or her industry. Thus, even if a particular manufacturer was ignorant of a product defect or risk which others in the industry had discovered and corrected, he or she would still be held responsible in tort (and sometimes under criminal law) for failing to maintain best practices. The beauty of this system is that the safety standard is always rising as the industry gains new information. Manufacturers have great incentive to keep up with or exceed best practices as punitive damages can put them out of business and the safest products have great marketing appeal.

The CPSIA changes all that. Under the CPSIA, the Commission sets industry standards by law. That then becomes the minimum safety level, and as long as a manufacturer meets the legal standards for its products, it cannot be held liable for the injuries its products may cause. The industry may, in fact, develop best practices far in excess of the safety standard set by law. However, as these standards are more costly and the law does not require them, many manufacturers will not use them in the production of their goods. While the Commission will attempt to issue regulations modified for industry development, it cannot possibly keep pace. It is but one underfunded government agency charged with setting standards for millions of baby products in the industry. Inevitably, its regulations will lag by many years. That is the sole point ABC correctly reported. The government, acting through the Commission, cannot possibly set safety standards as exacting or as efficiently as the industry itself through the proper operation of our court system and the market.

ABC and Mr. Gibson seem to think government must involve itself in everything we do for our own good—especially to protect the children. As I hope you see here, though, further government regulation of child safety standards actually leaves our children more vulnerable while imposing crippling costs on our small businesses. Just ask yourself: do you want the products your child uses to be subject to the highest standards the market and toy industry can offer? Or do you really want to leave your child’s safety at the bottom of a federal bureaucrat’s inbox?

　

　

　

Hate Crimes: Killing Both Liberty and Equality

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

Stunned. Appalled. Deeply saddened. Angry. I remember feeling all of these emotions as I watched the tragic story of Matthew Shepard’s brutal slaying unfold in the media back in 1998. It was with great satisfaction that I watched the conviction and incarceration of his murderers. I thought that would be the end of it. Unfortunately, I forgot that a terrible emotional tragedy often leads to a terrible legal tragedy.

Yesterday, a friend called to gush happily that President Obama just signed new hate crimes legislation into law, which includes sexual orientation in its protections. He was surprised that I did not share his enthusiasm and wondered how someone who supports gay rights could fail to be pleased by this outcome. In truth, I support equal rights for all individuals. I believe every individual has the right to determine the nature and type of their intimate relations, their associations, and how to use and dispose of their own property without government interference. Because of this, I have often supported gay rights efforts. However, what right does hate crimes legislation protect?

Hate crimes legislation does not protect any right whatsoever. On the contrary, it is a prohibition. But what exactly does it prohibit? Certainly, it does not prohibit any action. Indeed, we already have a comprehensive body of law prohibiting assault, battery, murder, rape, et cetera. Hate crimes legislation does not add to this list. Rather, it criminalizes the thoughts of the defendant committing these already established crimes.

My honorable friend argued that our legal system already imposes greater or lesser punishments based on a defendant’s mental state, so I should not be overly concerned with this addition to our legal process. This is not entirely accurate, though. Consider the following two cases:

In the first case, John and Eric are playing hockey. At the end of the game, John manages to steal the puck right out from under Eric’s nose and score the winning goal. In a fit of blind rage, Eric leaps upon John and beats him to death with his hockey stick.

In the second case, John and Eric have just attended a lively Political Science class at their college, where John expressed several views Eric detested. Determining that John should be taught a lesson, Eric hid in some bushes and ambushed John as he walked back to his apartment. He then proceeded to beat John to death.

Under our legal system, Eric committed murder in both of these cases. However, in the first case, he flew into a blind rage where passion, not reason, guided his actions. Consequently, we impose a lesser penalty than in the second case, where he clearly plotted the crime and intended to commit murder. Thus, our legal system judges the defendant’s mental state of intent. We do not normally criminalize his thoughts.

Now consider the same two cases, but assume that John is gay and Eric is homophobic. Has anything really changed? Is John any more dead, or Eric any guiltier of murder than in the first two cases? No. Under hate crimes laws, however, Eric is guilty of having thoughts and values the government finds objectionable, and so his punishment is increased. This is why hate crimes legislation is so dangerous. It presumes to regulate that which should be beyond the reach of any government: our thoughts and values. That is not where the danger ends, though. Perversely, hate crimes legislation also means that, as a gay man, John’s life is more valuable to society than the lives of other men who may be straight, and thus do not share John’s increased legal protections. This is not Justice. It is patently immoral.

A society of equals cannot exist when the laws unequally value lives. A free society cannot exist where a government has the right to criminalize thought. While I agree that homophobic people are ridiculously small minded and hateful, I cannot bring myself to criminalize their thoughts and values on that subject. I remember all too well the days when homosexuals and anyone sympathetic to them was viewed by governments and society as perverse, deviant, and indeed, criminal. This reasoning applies to any hate crimes legislation, whether it is intended to protect race, religion, ethnicity, sex, or sexual orientation. The right to determine ones own values and thoughts, however objectionable others may find them, is fundamentally necessary to maintain a free society and public discourse. Contrary to what my honorable friend mistakenly believed, anyone who supports gay rights, or indeed any individual rights, should not be celebrating the expansion of hate crimes legislation; they should be trying to repeal these legal abominations entirely.

No group of people can gain acceptance through force of law. They only succeed in destroying their own liberties and becoming the oppressors they once fought. They should instead endeavor to maintain equal rights for all, and rely on persuasion to alter the opinion of their fellow citizens.

If there is such a thing as a Devil, I doubt he ever appears in flames with cloven hooves and frightening horns. It seems to me he would be beautiful and seemingly benign. In our society, the greatest devil of all is the government. Hundreds of smiling men and women, in both Congress and the executive branch, frequently offer to solve all our problems with a seemingly benign law or regulation. All it costs is our liberty and equality, the soul of the United States.

　

　

　

Obama's Affordable Health Choices Act of 2009: What You Don't Know May Kill You

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

Yesterday, the people of Denver demonstrated that they have far more sense than their Congresswoman does when 700 of them rallied on the State Capitol steps to voice their opposition to President Obama’s health care bill.

The President has been working hard in recent weeks to persuade us that such opposition is unfounded. In his recent prime time press conference, he soothingly told us that this legislation would help reduce the costs of health care. He went on to assure us that we would all be able to keep our current health care plans and would not be forced onto government programs. In conclusion, he promised that health policy would be free from congressional meddling, as it would be overseen by a nonpartisan committee of medical experts whose recommendations would have to be accepted or rejected in their entirety by Congress. He said all of this with a straight face. None of it is true.

As a former Constitutional Law instructor, Mr. Obama knows that Congress’s legislative authority cannot be limited in such a way. Had Mr. Obama actually read the text of the bill, he also would have known that it allows people to keep their own health care plans only so long as they stay with their current plans. If they try to change their plans, they are indeed forced onto the government’s program. He certainly knew, though, that the Director of the Congressional Budget Office, Douglas Elmendorf, estimated that the bill actually increases costs of health care and enlarges the federal deficit by billions of dollars.

Denver Representative Diana DeGette, apparently a very credulous person and far too busy to read the 1000+ pages of the bill for herself, has taken the President at his word and maintains that there is a need to pass the bill immediately. Unfortunately, the arguments she uses to support the urgent need for legislation are rooted almost entirely in myths about our health care system; myths Dr. Clifford S. Asness easily and entertainingly debunks in his essay, “Health Care Mythology.” Fortunately, the American people are not so easily duped.

Money Morning and Stephen Hyde both point out some of the most egregious financial problems with this bill. As Hyde asserts, “The bill requires virtually all employers to offer minimum health benefit plans that far exceed anything most of them offer today.” This will necessarily increase insurance costs. As Money Morning shows, it also has a more devastating aspect. Under the legislation, any business that cannot afford to provide the extensive coverage the bill requires will be taxed up to 8% of its payroll. This will almost immediately result in severe wage reductions and layoffs as businesses attempt to defray that cost. This hardly seems like the best idea as the nation struggles for economic recovery. Yet, this is not the worst the bill has to offer.

Peter Fleckstein (aka Fleckman), has diligently combed through the legislation and assembled a brief, line-by-line cheat sheet. His full analysis, “The HC Monstrosity-All 1,018 Pages,” can be found at his blog. While somewhat cursory, Mr. Fleckstein successfully highlights some alarming details in the legislation. To list just a few, the bill provides for:

• Nationwide government access to our private healthcare and financial records, as well as our bank accounts.
• Exemption from judicial review of the prices government sets on health care.
• Government wage controls over physicians, as well as limitations on physician ownership of hospitals and other health care providers.
• Mandates for end of life care and consultations without benefit of legal counsel.
• Government interference in marriage counseling and childcare.
• Government appointed standards and rationing for what treatments we may receive.
• No private option if you leave your current insurance carrier.

These are just a few of the many devilish details hidden within Mr. Obama’s Affordable Health Choices Act. It seems unlikely that any sane person, after reading this bill, could support its passage. That may be exactly why Mr. Obama and the Democratic leadership in the House and Senate wanted to push it through so quickly.

The American people need to know the horrors contained within this bill. Health care represents 20% of our economy. That economy is now suffering a soft depression. If we truly desire health care reform, we deserve much better than what Mr. Obama is offering. This bill’s financial aspects alone have the potential to drive us into an unbearably hard depression, to say nothing of the damage it does to personal liberties. We cannot afford to make such massive changes to such a large portion of our economy with so little knowledge or time to review. All concerned Americans should contact their congress people and demand an end to this abominable and irresponsible legislation.

Berg v. Obama Denied Certiorari

By Julian Dunraven, J.D., M.P.A..

(For earlier posts on this case click here.)

Honorable Friends:

The U.S. Supreme Court has declined to hear Berg v. Obama. Despite this denial, there is still a chance it may be heard by the Third Circuit Court of Appeals, where it is still pending. Berg reports that his brief is due by 20 January 2009. Ironically, that is inauguration day. Though it saddens me to say so, as this case will not even be heard, much less resolved, by the time Obama is sworn into office, I cannot imagine any court would presume to review the qualifications of a sitting president. Thus, I do not expect that there will be any further developments in this case. As such, the question of Obama’s constitutional qualifications falls to the U.S. Senate. The Senate has accepted Obama as fully qualified for office, and he will thus become the next President of the United States on January 20th.

Berg v. Obama Dismissed: Appeal Pending

By Julian Dunraven, J.D., M.P.A.

(Update 13 January 2009: Supreme Court declined to hear the case. Click here for the story.)

(For initial story click here)

Judge Surrick has issued a ruling in Berg v. Obama. The Judge has dismissed the case for lack of standing. Berg is immediately appealing.

According to the Court, the claims,

“…regardless of questions of causation, the grievance remains too generalized to establish the existence of an injury in fact. To reiterate: a candidate’s ineligibility under the Natural Born Citizen Clause does not result in an injury in fact to voters. By extension, the theoretical constitutional harm experienced by voters does not change as the candidacy of an allegedly ineligible candidate progresses from the primaries to the general election.”

According to the Judge, even if Obama does not meet the requirements of the Natural Born Citizen Clause, an individual citizen has no right under the Constitution to bring a case requesting enforcement. Rather, according to Surrick, that power is held by Congress alone.

“If, 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 Plaintiff. Until that time, voters do not have standing to bring the sort of challenge that Plaintiff attempts to bring in the Amended Complaint.”

If this decision holds, then there is no way to enforce the Constitutional requirements for the Office of the President and that portion of our Constitution would be rendered fairly meaningless.

Could Obama Be Disqualified From The Election? The Federal Courts Will Decide

By Julian Dunraven, J.D., M.P.A.

(For updated information on the Motion to Dismiss, click here)

Honorable Friends,

For those of you unaware, Pennsylvania attorney Philip J. Berg has filed suit in the U.S. District Court for the Eastern District of Pennsylvania alleging that Barack Obama is not eligible for the Office of the President because Obama lost his U.S. citizenship when his mother married an Indonesian citizen and naturalized in Indonesia. Berg further alleges that Obama followed her naturalization and failed to take an oath of allegiance when he turned 18 years old to regain his U.S. citizenship status. The case is Berg v. Obama.

It sounds crazy, I know. It becomes even stranger when you realize that Berg is a lifelong Democrat, the former Democratic Chairman of Montgomery County, Pennsylvania, an 8-year member of the state democratic committee, and former Deputy Attorney General of Pennsylvania. This is not a simple crank, and after reviewing the court documents, I believe the case is fairly strong, and has amazing implications.

It revolves around Article II Section 1 of the U.S. Constitution which provides in pertinent part that:

“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.”

To better understand the case, I recommend reading the complaint, Obama’s Motion to Dismiss, Berg’s Response in Opposition to the Motion to Dismiss, and Berg’s Motion for Summary Judgment. You can also read news about the case or donate to the cause by visiting Berg’s webpage.

Of course, the case is still developing and it is doubtful there will be any resolution before the election. If Obama loses the election, the case may be deemed moot and dismissed. If he wins, however, and Berg turns out to be correct, it would mean that we not only elected a man unqualified to hold office under the Constitution – we would have elected an illegal immigrant, who would then be disqualified from serving.

You might be wondering how our officials could have missed something so major. It is easy to do though if you think about it. Obama’s mother certainly used to be an American citizen. When he returned to the U.S. from Indonesia, how many government officials would even think to ask, “While away, did you or your parents happen to renounce your U.S. Citizenship?” It simply would not happen. Our officials would have proceeded as if Obama was a child of a U.S. Citizen. No one would know the truth unless he or his mother willingly revealed the information, or unless they were specifically examining Obama’s background in great detail..

I cannot even imagine the pressure this judge must be feeling, along with the Justices of the Supreme Court who will ultimately hear the appeal. Can you begin to hear the enraged screams of the rioters? Our courthouses will have to turn themselves into fortresses.

El Presidente and I will certainly be keeping a close watch on this fascinating case and provide updates as it develops. For now, however, I will leave you with the most interesting part of Berg’s argument thus far, taken from his Response in Opposition to the Motion to Dismiss and appended below.

* * * * * * * * * *

Even if Obama was, in fact, born in Hawaii, he lost his U.S. citizenship when his mother re-married and moved to Indonesia with her Indonesian husband. In or about 1966, when Obama was approximately five (5) years old, his mother, Stanley Ann Dunham, married Lolo Soetoro, a citizen of Indonesia, whom she had met at the Hawaii University, and moved to Indonesia with Obama. Obama lost his U.S. citizenship, when his mother married Lolo Soetoro, and took up residency in Indonesia. Loss of citizenship, in these circumstances, under U.S. law (as in effect in 1967) required that foreign citizenship be achieved through “application.” Such type of naturalization occurred, for example, when a person acquired a foreign nationality by marriage to a national of that country. Nationality Act of 1940, Section 317(b). A minor child follows the naturalization and citizenship status of their custodial parent. A further issue is presented that Obama’s Indonesian stepfather, Lolo Soetoro, either signed an acknowledgement acknowledging Obama as his son or Lolo Soetoro adopted Obama, giving Obama natural Indonesia citizenship which explains the name Barry Soetoro and his citizenship listed as Indonesian.

Obama admits in his book, “Dreams from my father” Obama’s memoir (autobiography), that after his mother and Lolo Soetoro were married, Lolo Soetoro left Hawaii rather suddenly and Obama and his mother spent months in preparation for their move to Indonesia. Obama admits when he arrived in Indonesia he had already been enrolled in an Indonesia school and his relatives were waiting to meet him and his mother. Lolo Soetoro, an Indonesian State citizen, could not have enrolled Obama in school unless Lolo Soetoro signed an acknowledgement acknowledging Obama as his son, which had to be filed with the Government. Under Indonesian law, when a male acknowledges a child as his son, it deems the son, in this case Obama, as an Indonesian State citizen. Constitution of Republic of Indonesia, Law No. 62 of 1958 Law No. 12 of 2006 dated 1 Aug. 2006 concerning Citizenship of Republic of Indonesia, Law No. 9 of
1992 dated 31 Mar. 1992 concerning Immigration Affairs and Indonesian Civil Code (Kitab Undang-undang Hukum Perdata) (KUHPer) (Burgerlijk Wetboek voor Indonesie) states in pertinent part, State citizens of Indonesia include: (viii) children who are born outside of legal marriage from foreign State citizen mother who are acknowledged by father who is Indonesian State citizen as his children and that acknowledgment is made prior to children reaching 18 years of age or prior to marriage; Republic of Indonesia Constitution 1945, As amended by the First Amendment of 1999, the Second Amendment of 2000, the Third Amendment of 2001 and the Fourth Amendment of 2002, Chapter X, Citizens and Residents, Article 26 states, “(1) Citizens shall consist of indigenous Indonesian peoples and persons of foreign origin who have been legalized [sic] as citizens in accordance with law. (2) Residents shall consist of Indonesian
citizens and foreign nationals living in Indonesia.”

Furthermore, under the Indonesian adoption law, once adopted by an Indonesian citizen, the adoption severs the child’s relationship to the birth parents, and the adopted child is given the same status as a natural child, Indonesian Constitution, Article 2.

The laws in Indonesia at the time of Obama’s arrival did not allow dual citizenship. If an Indonesian citizen married a foreigner, as in this case, Obama’s mother was required to renounce her U.S. citizenship and was sponsored by her Indonesian spouse. The public schools did not allow foreign students, only citizens were allowed to attend as Indonesia was under strict rule and decreed a number of restrictions; therefore, in order for Obama to have attended school in Jakarta, which he did, he had to be a citizen of Indonesia, as the citizenship status of enrolled students was verified with Government records.

Obama was enrolled by his parents in a public school, Fransiskus Assisi School in Jakarta, Indonesia. Plaintiff has received copies of the school registration, attached as EXHIBIT “4”, in which it clearly states Obama’s name as “Barry Soetoro,” and lists his citizenship as Indonesian. Obama’s father is listed as Lolo Soetoro, Obama’s date of birth and place of birth are listed as August 4, 1961 in Hawaii, and Obama’s Religion is listed as Islam. This document was verified by television show Inside Edition, whose reporter, Matt Meagher, took the actual footage of the school record. At the time Obama was registered the public schools obtained and verified the citizenship status and name of the student through the Indonesian Government. All Indonesian students were required to carry government identity cards, or Karty Tanda Pendudaks, as well as family card identification called a Kartu Keluarga. The Kartu Keluarga is a family card which bears the legal
names of all family members.

Since Obama’s birth was legally acknowledged by Lolo Soetoro, an Indonesian citizen, and/or Obama was adopted by Lolo Soetoro, which the evidence attached hereto supports, Obama became an Indonesian citizen and bears the status as an Indonesia natural child (natural-born). For this reason, Obama would have been required to file applications with the U. S. State Department and follow the legal procedures to become a naturalized citizen in the United States, when he returned from Indonesia. If Obama and/or his family failed to follow these procedures, then Obama is an illegal alien.

Regardless of whether Obama was officially adopted, (which required a Court process), by his Indonesian stepfather, Lolo Soetoro, or his birth was acknowledged (which only required the signing of a birth acknowledgement form), by Lolo Soetoro, one of which had to occur in order for Obama to have the name Barry Soetoro and his citizenship status listed as “Indonesian”, in either and/or both cases Obama’s name was required to be changed to the Indonesian father’s name, and Obama became a natural citizen of Indonesia. This is proven by the school records in Jakarta, Indonesia showing Obama’s name as Barry Soetoro and his citizenship as Indonesian. Again, the registration of a child in the public schools in Jakarta, Indonesia was verified with the
Government Records on file with the Governmental Agencies.

The Indonesian citizenship law was designed to prevent apatride (stateless) or bipatride (dual citizenship). Indonesian regulations recognize neither apatride nor bipatride citizenship. In addition, since Indonesia did not allow dual citizenship neither did the United States, Hague Convention of 1930.

In or about 1971, Obama’s mother sent Obama back to Hawaii. Obama was ten
(10) years of age upon his return to Hawaii.

As a result of Obama’s Indonesia “natural” citizenship status, there is absolutely no way Obama could have ever regained U.S. “natural born” status, if he in fact ever held such. Obama could have only become naturalized if the proper paperwork was filed with the U.S. State Department, in which case, Obama would have received a Certification of Citizenship.

Plaintiff is informed, believes and thereon alleges Obama was never Naturalized in the United States after his return. Obama was ten (10) years old when he returned to Hawaii to live with his grandparents. Obama’s mother did not return with him, and therefore, unable to apply for citizenship of Obama in the United States. If citizenship of Obama had ever been applied for, Obama would have a Certification of Citizenship.

Furthermore, Obama traveled to Indonesia, Pakistan and Southern India in 1981. The relations between Pakistan and India were extremely tense and Pakistan was in turmoil and under martial law. The country was filled with Afghan refugees; and Pakistan's Islamist-leaning Interservices Intelligence Agency (ISI) had begun to provide arms to the Afghan mujahideen and to assist the process of recruiting radicalized Muslim men--jihadists--from around the world to fight against the Soviet Union. Pakistan was so dangerous that it was on the State Department's travel ban list for US Citizens. Non-Muslim visitors were not welcome unless sponsored by their embassy for official business. A Muslim citizen of Indonesia traveling on an Indonesian passport would have
success entering Indonesia, Pakistan and India. Therefore, it is believed Obama traveled on his Indonesian passport entering the Countries. Indonesian passports require renewal every five (5) years. At the time of Obama’s travels to Indonesia, Pakistan and India, Obama was twenty (20) years old. If Obama would have been a U.S. citizen, which he was not, 8 USC §1481(a)(2) provides loss of nationality by native born citizens upon "taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state...after having attained the age of eighteen years”, in violation of 8 U.S.C. §1401(a)(1) Since Lolo Soetoro legally acknowledged Obama as his son and/or adopted Obama, Obama was a “natural” citizen of Indonesia, as proven by Obama’s school record attached as Exhibit “4”.