Natural Born Citizen – A Place to Ask Questions and Get the Right Answers

September 21, 2009

How to Try An Eligibility Case Against the Putative President Barack Obama

Filed under: Apuzzo,constitutional eligibility president,Kerchner — puzo1 @ 12:26 am

In response to my recent article, Simply Saying Something Is So Does Not Make It So” — Judge Land, Rhodes v. Obama, I received some inquiries on whether the computer-imaged Certificate of Live Birth (COLB) can be presented to the Court for it to authenticate. I have also been asked whether one can present that document to the Court and argue that it is not valid because Obama or his agents have altered its serial number by blackening it out. Hence, with such COLB not being valid, there is no evidence existing of any kind as to where Obama was born. These questions deserve a response. So as to provide a service to the public, litigants, and the courts, the public should be informed as to how a case against Obama should proceed in a court of law. Hence, I have written this article.

Our nation is now debating whether our currently sitting Putative President, Barack Obama, is an Article II “natural born Citizen.” Depending on who has the burden of proof, this means that there must first be a showing that he is or is not a “citizen of the United States” under the Fourteenth Amendment or some Act of Congress and then ultimately a showing that he is or is not an Article II “natural born Citizen.” Before the Court will entertain any issue about documents and evidence, the plaintiff has to first have a comprehensive complaint filed with the Court that raises all possible factual and legal issues to be argued and proven. The plaintiff then has to properly serve that complaint upon all defendants, in both their individual and official capacities, whatever may be the case. Given that the defendants will most likely, rather than file an Answer, file a motion to dismiss the complaint on various threshold issues (not the merits), the plaintiff will also have to prove to the Court that it has subject matter jurisdiction (e.g., standing) and have to overcome other threshold issues (e.g. immunity) before the Court will allow any argument on documents or discovery in general. An exception to that general rule is if the plaintiff needs documents or other discovery to prove to the Court that it has standing or that the defendant is not, for example, immune (the issues yet to be decided by the Federal District Court of New Jersey in the Kerchner et al v. Obama et al suit).

Unless exempt by court rule from having to do so, a party must by court rule provide discovery of various information and documents (name individuals who have information and what that information is, list and provide documents to be used during trial, state what damages are claimed, and list if there are any insurance agreement that may be used to satisfy any possible judgment) to the other party without awaiting a discovery request. There are strict time limits on providing this preliminary information to the other party. With a defendant initially filing a motion to dismiss the complaint, this automatic discovery obligation may be put on hold until the Court rules on that dismissal motion. If necessary, a party can file a motion to have this automatic discovery obligation stayed pending the Court’s ruling on the motion to dismiss. If the Court denies the defendants’ motion to dismiss and is therefore satisfied that it has jurisdiction and that the plaintiff has prevailed on all other threshold issues, the Court will require that the defendant file an Answer and also allow the automatic discovery and other forms of discovery (depositions, interrogatories, production of documents, physical and mental examinations, and requests for admissions) to proceed.

The Court does not do the work of the litigating parties in this regard. The Court is a neutral party and cannot engage in developing or defending a case on behalf of any litigant. It is up to a party to bring relevant and admissible evidence and controlling and relevant law to the Court. Depending on who has the burden of proof, the party is expected to produce for the Court evidence that a document (the computer-imaged COLB or the underlying original Certificate of Live Birth, if that is the type of birth record that exists) is either false or authentic. That is initially done by utilizing an expert who renders a report containing his/her findings and opinions and the factual basis therefore. The proposed expert must be sufficiently qualified in the subject matter. A party must also use an expert witness to prevail on any other issue which is beyond the common knowledge of and to assist the trier of fact. The expert must render a legally sufficient report to the adversary or else the expert will upon a party’s motion be precluded by the Court from testifying in Court. During the discovery phase, the adversary party will expect the party proposing to produce the expert for trial to provide it with a copy of that expert’s report and all types of other information (documents and non-documentary) regarding that expert’s qualifications and the basis for his/her opinions. This is done with interrogatories and a notice to produce documents. The adversary party will also normally take that expert’s deposition for the purpose of finding fault and weakness in his/her opinion which will then serve the basis for a motion for summary judgment and/or pre-trial motion to strike his/her report and opinion, for the adversary party has the right to attack by appropriate pre-trial motions the report and opinion as legally insufficient given the rules of evidence and current state of scientific knowledge. If the Court denies the adversary’s pre-trial motions to strike the report and opinion, the adversary will still have an opportunity to do so during trial.

Usually after discovery is completed (it can be before) and before the matter actually goes to trial, any party can file with the Court a motion for summary judgment, arguing that the operative facts are not in dispute and that as a matter of law that party deserves to win the case. The Court decides this motion based on admissible evidence and legal arguments contained in legal briefs that the parties present to the Court. Depending on what issue the moving party has asked the Court to decide, the plaintiff or defendant can either win the whole case or just one or more issues it deems ultimately important to winning the whole case. If neither of the parties files any motion for summary judgment (the facts may be or may be perceived to be in dispute) or if it is denied by the Court, the case will move forward to be disposed of by a trial.

Assuming the Court preliminarily (pre-trial) accepts an expert’s report as legally sufficient, the expert will be allowed to testify in Court as to the opinions and their factual foundation as contained in his report. The adversary party has the opportunity to cross examine the expert to test the truth and basis of his/her opinions. Following the expert’s testimony, the adversary party can always make trial motions to have the expert’s testimony stricken as inadmissible under the applicable evidence standard. If the offering party is able to withstand all trial attacks by the adversary, the expert’s testimony will be accepted by the Court and will be ultimately weighed and assessed by the trier of fact.

The trier of fact can be either the trial judge or a jury, depending on whether the law allows a jury trial for the type of case that is before the Court and whether or not at least one party has timely requested a jury trial when it is allowed. If the jury is the trier of fact, the judge will instruct the jury at the end of the case presentations by both the plaintiff and defendant to accept the expert’s opinion as evidence. If the judge is the trier of fact, he/she will simply accept that evidence. While the judge will instruct the jury that it must accept the expert’s testimony as evidence, the judge will also instruct the jury (or will simply do so itself if the judge is the trier of fact) that only the jury will ultimately determine whether the expert was credible (believable) or not and whether to accept or reject his/her underlying opinion. It is during secret jury deliberations that the jury determines the expert’s credibility and whether to accept or reject his/her opinion. If the judge is the trier of fact, he/she would do his/own analysis, study, weighing, and contemplation regarding the expert’s credibility and whether or not to accept his/her opinion. The expert’s opinion, along with all other admissible factual evidence and legal arguments presented by the parties to the judge and/or jury, will allow the plaintiff to ultimately either win or lose the case.

Hence, we can see that we cannot get the Court to so easily consider the computer-imaged COLB (assuming that this computer image even exists in the real world, I guess one could bring a lap top to the Court, bring up the image [real or Photoshopped forgery?], and show it to the Court) or any other Birth Certificate and expect it to take some action on it that is favorable to the plaintiff. Given what I have outlined above, we can just imagine what kind of response we would get from a competent judge. We have to bring competent and admissible evidence to the Court that the COLB or any other birth certificate is not valid in and of itself or if so valid then not valid for the purpose for which Obama has offered it or is now offering it (again depending on who has the burden of proof).

Regarding the blacked-out serial number contained on the first computer-released COLB, after receiving objections regarding that blacked-out number, Obama did cause to be internet published nine (9) digital photographs (not scanned images) of the same or different version of his COLB which did not have the sequence number blacked out. We do not know whether those digital photographs were of the same “COLB” that was initially published by Obama or of another COLB. The below quote from “Dr. Polarik” which appeared on FreeRepublic.com (h/t TheObamaFile.com) explains the sequence of events:

“It is a statement of fact, and admission therewith, that the OBama Campaign, aka Obama for America, did create a minimum of three (3) false identification document copies and distributed said copies to the Daily Kos, Factcheck, and Politifact; and, additionally, posted the original false identification document on Obama’s own website, ‘My.BarackObama.com’ and also on a separate website known as, ‘Fight The Smears.’ Furthermore, two months after the creation and distribution of these false identification documents, Obama for America, in collusion with Factcheck,org [sic], a subsidiary of the Annenberg Public Policy Center, owned by the Annenberg Foundation and funded by billionaire George Soros, created and posted nine (9) photographs of what they further alleged was the same, false identification document that they had earler [sic] alleged was a scanned facsimile of Obama’s original birth certificate — thus compounding their earlier offenses with further violations of the same statutes.”

As I have explained above, “Dr. Polarik” or some other expert would have to render an expert’s report that is preliminarily legally acceptable as to form and factual basis by a Court and then testify in that Court as to his/her opinions and the factual basis for those opinions. Of course, Obama would have his own expert do the same. The trier of fact will ultimately decide which expert to believe, basing its decision on that expert’s testimony and all other competent and admissible evidence that both parties present to the Court.

Since the Obama eligibility question has both a factual and Constitutional legal component, with a jury trial, after the jury finds what the facts are, the Court and not the jury will render a legal opinion, with both parties being given the opportunity to present legal briefs to the Court in which each argues why their client should win on the facts and the law. If the trial judge is the trier of fact, the Court will give the parties an opportunity to present to it their respective findings of facts and conclusions of law. The trial judge would then ultimately decide what are the facts and the law and render a decision accordingly. Either party can then appeal the final decision of the trial Court to the Circuit Court of Appeals, provided the appeal is filed within 30 days from the day the trial Court enters judgment. While an appellate court will rarely disturb a jury’s factual findings, it will normally review a trial court’s legal conclusions de novo (from anew). An appeal directly to the U.S. Supreme Court may also be explored or done after an appeal to the Circuit Court is exhausted. Only after exhausting such a procedural and legal process can our justice system appropriately decide the factual question of Obama’s birth location and the Constitutional legal question of whether he is an Article II “natural born Citizen.” But before any of that can be done which would allow the Court to decide whether plaintiff’s case has any underlying merit, the plaintiff has to first prove to the trial Court (the first Court) that it has jurisdiction and, assuming the defense raises such issues, that there do not exist any other threshold issues that give the Court grounds to dismiss the complaint (e.g. justiciability, political question, separation of powers, abstention, and more).

I hope this information brings more understanding and perspective to the procedural, evidence, and legal problems that must be overcome to be able to utilize the computer-imaged COLB and/or the original long-form Certificate of Live Birth or any other alleged Birth Certificate in a Court proceeding and to be able to bring to justice the ultimate question of Obama’s Article II eligibility to be President and Commander in Chief.

Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg, New Jersey 08831
9-20-09

September 18, 2009

“Simply Saying Something Is So Does Not Make It So” — Judge Land, Rhodes v. Obama

On September 16, 2009, the Hon. Clay D. Land of the United States District Court in Georgia dismissed Captain Connie Rhodes, M.D.’s action against Obama and the military, finding that the court had to abstain (when a court declines to hear a matter because of comity and respect for the unique military decision-making process) from deciding the case because for the court to exercise its jurisdiction would be an inappropriate intrusion into military matters. In his opinion, Judge Land said that Obama’s “ ‘short-form’ birth certificate has been made publicly available which indicates that the President was born in Honolulu, Hawaii on August 4, 1961. . . .” In deciding the abstention issue, even though there has not yet been any discovery allowed in the case, the Court commented on the underlying merits of the evidence presented by the plaintiffs on the question of Obama’s place of birth. In discussing what evidence the plaintiffs rely upon to show that Obama was not born in Hawaii as he claims, Judge Land address the Lucas Smith Kenyan Birth Certificate and said the following in Footnote 5:

“One piece of evidence Plaintiff’s counsel relies upon deserves further discussion. Counsel has produced a document that she claims shows the President was born in Kenya, yet she has not authenticated that document. She has produced an affidavit from someone who allegedly obtained the document from a hospital in Mombasa, Kenya by paying ‘a cash ‘consideration’ to a Kenyan military officer on duty to look the other way, while [he] obtained the copy’ of the document. (Smith Decl. Para. 7, Sept. 3, 2009). Counsel has not, however, produced an original certificate of authentication from the government agency that supposedly has official custody of the document. Therefore, the Court finds that the alleged document is unreliable due to counsel’s failure to properly authenticate the document. See Fed. R. Evid. 901.”

Obama wants to be President and Commander in Chief. He therefore has to show that he is eligible for the position. This means he has to conclusively prove, among other things, that he is an Article II “natural born Citizen.” Given that his father was not a U.S. citizen and his U.S. citizen mother was too young when Obama was born and therefore could not transmit U.S. citizenship to him should Obama be born out of the United States, Obama must first conclusively prove that he was born in the United States and was subject to its jurisdiction when born, thereby making him a Fourteenth Amendment born “citizen.” Once he conclusively proves that fact, he must then conclusively show that he is a “natural born Citizen” under Article II, a showing that he cannot make because his father was a British subject/citizen when Obama was born and Obama himself was born a British subject/citizen.

On the threshold question of place of birth, Obama has posted on the internet a computer image of an alleged Hawaiian Certificate of Live Birth (COLB) (not a Hawaiian long-form Birth Certificate). Regarding the place of birth issue, Judge Land said that he could not accept the Lucas Smith Kenyan Birth Certificate as reliable because plaintiffs’ counsel did not “produced an original certificate of authentication from the government agency that supposedly has official custody of the document.” But let us consider what Obama has produced to show that he was born in Hawaii. We know that he posted on his web site the image of a Certification of Live Birth (COLB) as proof that he was born in Hawaii. But we also know that numerous people have questioned the authenticity of this computer image. There have been allegations by some “experts” that the electronic image is a forgery. Many people have demanded that Obama produce to some official government authority for inspection an actual piece of paper which was used to produce the on-line image of the COLB. Many people have demanded to see the real long-form birth certificate so that conflicting information (including but not limited to statements made by Obama’s own family, Kenyan government officials, and African newspapers) regarding his place of birth can be put to rest. Numerous people have demanded that Obama release to the public the many other documents (education, travel, and employment) which can corroborate his birth place claim but he has refused to do so. Neither Obama nor the State of Hawaii nor any governmental entity or official has provided this information to the American public.

Judge Land found that because Obama overcame a “grueling” primary campaign and a “formidable opponent” [McCain] in the general election, “ample opportunity existed for discovery of evidence that would support any contention that the President was not eligible for the office he sought.” But what Judge Land described is a political process that works well when a candidate does not hide virtually all his important papers (including his real birth certificate). Indeed, we must also remember that there is also a legal process to any election which must be respected for that election to have any legitimacy in a Constitutional Republic. Given our standard of what the rule of law means, are we to simply accept an internet image of a document that, given the existing contradictory evidence, does not in itself conclusively prove that Obama was born in Hawaii and which in no way erases the many doubts that still exist regarding the place of Obama’s birth?

I understand that when a party presents a document to a court of law as evidence, that party must satisfy the rules of evidence for that court to receive that document into evidence. A judge confronted with such a document is bound by the law to apply the rules of evidence when deciding whether or not to accept that document into evidence. I therefore cannot fault Judge Land for his decision to refuse to consider the Smith Kenyan Birth Certificate. I am also not suggesting that this birth certificate has been shown to be authentic. But what Judge Land ruled regarding the Smith Kenyan Birth Certificate raises a much more important point. Judge Land was not willing to accept the Smith Kenyan Birth Certificate because as he said counsel did not “produced an original certificate of authentication from the government agency that supposedly has official custody of the document.” But he automatically and without question in effect accepted Obama’s on-line image of an alleged “short-form” birth certificate (the COLB) without Obama or anyone on his behalf producing the same “original certificate of authentication from the government agency that supposedly has official custody of the document.” Why did Judge Land not apply the same evidence standard to Obama’s on-line COLB as he did to the Smith Kenyan Birth Certificate? I understand that Obama was not attempting to introduce the internet image of his COLB or the paper version thereof into evidence and so Judge Land did not have to rule on the admissibility of that evidence. Nevertheless, if we are committed to learning what is the truth regarding Obama’s place of birth, should we not expect Judge Land in his comments to treat all documents equally until each document’s reliability can be sufficiently confirmed?

Should not the Court have been much more concerned with the question of whether a person occupying the Office of the President and Commander in Chief is truly born where he says he was than it was with the question of whether the Smith Kenyan Birth Certificate was authentic and therefore admissible into evidence? Something is wrong when a Court does not accept the Smith Kenyan Birth Certificate because there is no government agency certification as to its authenticity but it accepts an unconfirmed, on-line electronic image of a document that is not even a birth certificate as the only piece of hard evidence that allegedly shows that the President was born in Hawaii. Just like Judge Land rejected the Smith Kenyan Birth Certificate because no one presented “an original certificate of authentication from the government agency that supposedly has official custody of the document,” should he not also have reject Obama’s internet-posted COLB since he also never provided any such authentication document to the American people or to any competent government agency? Should we not be more concerned with making sure that the computer image of the COLB which Obama presented to the public and the actual paper version thereof and the long-form birth certificate are authentic than with making sure that the Smith Kenyan Birth Certificate presented in a court proceeding is authentic? I believe the answer is obvious. In short, is Obama’s evidence as to where he was born any better or even worse than that of Captain Rhodes’ evidence?

Why have some allowed such a double standard to exist? Why should anyone protect Obama to the point that he or she is willing to risk the nation’s very survival? What is so wrong in confirming whether something is true, especially when one can suffer devastating consequences if it is false? Is the price for knowing the truth about Obama’s birth place and whether he is an Article II “natural born Citizen” so heavy that we just have to accept things the way we are told they are? Let us hold Obama to the same Alice in Wonderland standard Judge Land used in the Rhodes case-“simply saying something is so does not make it so.” And let us also remember that the emperor could have no clothes.

Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg, New Jersey 08831
9-18-09

September 13, 2009

Why For McCain But Not For Obama?

Senator McCain was either born in the Panama Canal Zone or in Panama proper. Neither of these locations is located in the United States. He claims he was born in the Panama Canal Zone. Hence, let us analyze his citizenship status with the assumption that he was born in that location. McCain cannot be a U.S. “citizen” under the Fourteenth Amendment which requires that a born “citizen” be born in the United States and be subject to the jurisdiction thereof. Since the Constitution does not provide any source for McCain to be a U.S. citizen, we must look to Congressional Acts for any such basis. Additionally, even if McCain were to be declared a “citizen” under the Fourteenth Amendment or any Congressional Act, he would still have to prove that he was an Article II “natural born Citizen.”

Some have raised the question whether under the Act of August 4, 1937, Sec. 1, 50 Stat. 558, codified at INA Section 303(b) (8 U.S.C. 1403), McCain may be declared an Article II “natural born Citizen.” Before we examine Section 303(b), we must first look at Act of May 24, 1934, Sec. 1, 48 Stat. 797, ch. 344, which granted citizenship to the foreign born children of U.S. citizen mothers or fathers. This law became effective in 1934. McCain was born on August 29, 1936. Hence, it would appear that this statute applied to him. But upon close examination, we can see that it does not provide him with citizenship. While Section 1993 of this law granted U.S. citizenship to children born oversees to U.S. citizens, it granted citizenship only to children who were born out of the United States and out of its jurisdiction. Hence, those born in the Canal Zone (an unincorporated territory) and not in Panama (which was out of United States jurisdiction) did not qualify for citizenship because while the Canal Zone was physically located out of the territory of the United States, it was not out of the jurisdiction of the United States. Hence, when McCain was born on August 29, 1936 in the Canal Zone, this statute did not grant him U.S. citizenship and there existed no other statute that could do so. In other words, Senator McCain was not a U.S. citizen under any Congressional Act when he was born. Gabriel J. Chin, “Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship.” (Chin implicitly recognizes that a Fourteenth Amendment “citizen” is not the same thing as an Article II “natural born Citizen”). Not being a born “citizen” under any Act of Congress, he surely cannot argue that he is a “natural born Citizen” under any such Act.

The next statute to examine is INA Sec. 303 which provides:
“(a) Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States.

(b) Any person born in the Republic of Panama on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States employed by the Government of the United States or by the Panama Railroad Company, or its successor in title, is declared to be a citizen of the United States.”

First, we know that McCain was born on August 29, 1936. This statute did not go into effect until 1937. The problem for McCain using INA Sec. 303(b) to gain “natural born Citizen” status is therefore that the Act did not exist when he was born and can only help him retroactively. But “natural born Citizen” status must be established at the time of birth. Apart from want of constitutional authority and the fact that the children were not born “in the country,” this could be another reason why the Third Congress in the 1795 Act removed the words “natural born” from the 1790 Act, which had created “natural born citizens” retroactively.

Second, by using this statute to be declared a “natural born Citizen,” McCain would be gaining the status by statute. We know that “natural born Citizen” status cannot be so gained, for Congress has the constitutional power to naturalize persons but not to make them “natural born Citizens.” Even the Foreign Affairs Manual at 7 FAM 1131.6-2(d) recognizes the distinction between being a “natural born Citizen” under the Constitution and being declared a “natural born citizen” under a Congressional Act: “the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes.” The manual commits error here, for the act only gives “citizen” status and in suggesting that anyone could be a “natural born citizen” by statue. Except for the repealed 1790 Act, Congress has never made any such attempt.

Third, the text of the statute confers only the status of “citizen” and not “natural born Citizen.” Article II mandates that one be a “natural born Citizen” and not only a “citizen” to be eligible to be President.

The question then is what other avenue exists for McCain to be declared an Article II “natural born Citizen.” According to Vattel, being physically born out of the country did not necessarily mean that one was not born “in the country.” E. Vattel, The Law of Nations, Or, Principles of the Law of Nature. Sec. 215-217. Vattel explained that if a child was born “in the armies of the state,” that child was “reputed born in the country; for a citizen, who is absent with his family on the service of the state, but still dependent on it, and subject to its jurisdiction, cannot be considered as having quitted its territory.” Vattel, Sec. 217. Since this child would have been born in the foreign “armies of the state,” he would normally not be granted citizenship in the country in which he was physically born. Additionally, the country on whose soil the child might be born might adhere to a jus sanguinis system of conferring citizenship (meaning that born on its soil alone would not confer citizenship and therefore allegiance and loyalty on the child). Being born under those conditions, this child would therefore be born with sole allegiance to the country of his parents and would qualify as a “natural born citizen” of that country. Hence, it can be argued that McCain is a “natural born Citizen” under federal common law that emanated from the law of nations which had its source in natural law, as described by Vattel and all of which the Framers accepted as our federal common law during the Founding. In such case, “natural born Citizen” status is not created by Congress but rather by law that already existed among civilized nations and was, indeed, jus gentium. It is this law (natural law that became the law of nations and which became U.S. federal common law) from which the Founders extracted the meaning of “natural born Citizen.” Reliance on common law to make McCain was also utilized by Tribe and Olson in drafting their position paper which is the basis of Senate Resolution 511. See also Chin, “Why Senator John McCain Cannot Be President” (also recognizes common law citizenship that existed during the Founding). This argument is McCain’s best chance for “natural born Citizen” status. This argument also brings good news for members of our military who are serving and defending our country from abroad, who may give birth to children there, and who may want those children to be eligible to be President.

Chin, in his article, “Why Senator John McCain Cannot Be President,” said about Senator McCain: “In a government of laws, not of people, rules apply equally to all. . . . In addition, no legitimate system of laws can dispose of this question by saying it does not matter whether Senator McCain is a natural born citizen; inconvenient laws cannot be ignored simply because one expects to get away with it. It cannot be that because he is a major party’s nominee, he is, therefore a citizen at birth. Senator McCain must find a sound legal basis to be a natural born citizen. The implications of that legal principle must be equally available to every person similarly situated.”

Commenting on McCain’s philosophy on how the judiciary should function, Chin quoted McCain as saying: “‘When applying the law the role of judges is not to impose their own view as to the best policy choices for society but to faithfully and accurately determine the policy choices already made by the people and embodied in the law.'”

McCain, like Obama, has been sued over the question of whether he is an Article II “natural born Citizen.” McCain produced his birth certificate for those who challenged him. Congress fully investigated and researched his status, with the Senate passing Resolution 511 (which is legally flawed) in which it declared him to be a “natural born Citizen.” The courts also expeditiously addressed the issue. Surely, the same standard as applied to McCain applies to Obama. Surely, Congress should have dealt with Obama as it did with McCain. Surely, we would also expect the courts to deal as promptly with Obama’s case as they did with McCain’s. But why was it so easy to apply these principles to McCain but so hard to apply them to Obama? Has Obama found “a sound legal basis to be a natural born citizen?” Not even close. Is he not “similarly situated” as was McCain? Other than McCain just being a candidate for President and Obama going on to win that Office, he surely is.

We are still waiting for the Court to decide Obama’s and Congress’s motion to dismiss the Kerchner et al. complaint for, among other things, lack of standing and government immunity. Let us hope that the Court will, indeed, “faithfully and accurately” determine what our Founding Fathers intended when they wrote the “natural born Citizen” clause and apply that finding to Obama so that our nation may know whether he is eligible to be President and Commander in Chief of the Military. Let us hope that the Court acts to support and defend the Constitution in this historic case by finding that the plaintiffs have standing and that the defendants are not immune from suit.

Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg, NJ 08831
9-12-09

September 11, 2009

Mombasa Kenya History and Geography

Here is an interesting post at Free Republic about the governmental jurisdictions controlling Mombasa over the years. Mombasa is now part of the country of Kenya. In 1961, when it is alleged that Obama was born in Mombasa, Kenya was not a separate country yet. It was part of the British Protectorate of East Africa, and was not part of Zanzibar as the Obots claim online in blogs to confuse issues. In 1961 what is now Kenya and what is now Zanzibar were both part of the British Protectorate of East Africa. Read the post at Free Republic for more details. Also, links are provided there to some neat historical maps.

http://www.freerepublic.com/focus/f-news/2334186/posts

Charles Kerchner

September 8, 2009

The Natural Born Citizen Clause of Our U.S. Constitution Requires that Both of the Child’s Parents Be U.S. Citizens At the Time of Birth

When interpreting the Constitution, we must decide whether we will look to the document as an original and static one whose meaning has already been established at a given time by the People and its Framers or one that is living and which can be changed over any given time by a court of law. See the address of Justice Antonin Scalia to the 2008 Annual National Lawyers Convention on November 22, 2008, at the Mayflower Hotel, in Washington, D.C. http://www.fed-soc.org/publications/pubid.1193/pub_detail.asp. (advocates originalism rather than living constitutionalism). I submit that Article II’s “natural born Citizen” clause has a fixed and knowable meaning which was established at the time of its drafting and should therefore be interpreted through the eyes of the original Framers that drafted and ratified the clause so as to determine what they intended the clause to mean (original intent theory). I also submit that we should interpret the “natural born Citizen” clause in a way that reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be (original meaning theory). This is not living constitutionalism but rather originalism or textualism as applied to interpreting the Constitution. It is this latter approach that I will utilize in this article.

E. Vattel stated in 1758, as translated into English in 1797: “The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see, whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for if he is born there of a foreigner, it will be only the place of his birth, and not his country.” E. Vattel, The Law of Nations or Principles of Natural Law, Sec. 212 Citizens and natives. In Footnote 1 at the end of Sec. 212, Vattel stated that “as a general rule” the child inherits his father’s citizenship, or his mother’s but only if she is not married.

The first thing that we have to understand about what Vattel wrote is that he made a distinction between a “citizen” and a “natural born Citizen.” A citizen is simply a member of the civil society who is bound to the society by certain duties and subject to its authority. “Citizens” also participate equally in all the advantages the society has to offer. On the other hand, a “natural born Citizen” means much more than just “citizen.” Vattel required that for a child to be a “natural born citizen,” or what he called in French in his 1758 first edition of The Law of Nations or Principles of Natural Law, les naturels, ou indigenes (the “natives or indigines”-The Venus, 12 U.S. (8 Cranch) 253 (1814)), the child must be born in the country to both parents who are also citizens of the same country.

In the original French, Vattel wrote: “Les naturels, ou indigenes, sont ceux qui sont nes dans le pays de parents citoyens,” meaning the “natives or indigines” are those born in the country of citizen parents. Both the Framers and later English translators of Vattel’s treatise replaced the words”natural born Citizen” for the words “natives or indigenes.” From Madison’s notes, we see that there were some delegates who were concerned about foreigners. For example, from Max Farrand’s transcripts of Madison’s notes (August 9 and August 13, 1787), there is the following concerning the House of Representatives eligibility requirements: “Mr. Gerry wished that in future the eligibility might be confined to Natives.” The word “native” occurs multiple times in the notes for these two days. (The phrase “natural born citizen” was not used here by the delegates.). The word “native” was a synonym for the phrase “natural born citizen.” The delegates had already used the term “natural born citizen” when proposing the requirements for President, Vice President, and either House of Congress and later used the word “natives” when referring to eligibility requirements for the House of Representative. There is further evidence of this in at least three works: Blackstone’s “Commentaries on the Laws of England” (see Book the First: The Rights of Persons; Chapter the Tenth: Of People, Whether Aliens, Denizens or Natives.), translations of Quintilian’s “Institutio Oratoria”, and the 1797 English edition of Vattel’s “The Law of Nations or Principles of Natural Law.”

In the beginning of his definition, Vattel required that the children be born of “parents” who are citizens. The use of the word “parents” refers to both mother and father. If he required only one parent such as the father, he would have said “of fathers who are citizens” and not “of parents who are citizens.” He did later refer to “fathers,” but only because wives automatically acquired the citizenship of their husbands the same way children did. This rule was carried into our own naturalization laws, wherein citizenship can be derived from a close relation. Historically, a number of U.S. laws have provided for the automatic naturalization of children or wives (not husbands) of naturalized U.S. citizens. In some periods of our history, these laws provided that married women derived citizenship from their husband and had no control over their status. Under the Act of 10 February 1855, a woman automatically became an American upon marrying a U.S. citizen or following the naturalization of her foreign husband. Kelly v. Owen, 74 U.S. 7 Wall. 496 (1868). The 1922 Married Women’s Act (or the Cable Act) finally severed the link between naturalization and marital status for most women. Hence, if Vattel meant to focus only on “fathers,” he would have used “fathers” throughout his definition and never mentioned “parents” when he first defined “natural born Citizen,” for there would not have been any need to use the word “parents” when “fathers” would have sufficed. Hence, Vattel would have focused on the citizenship of the father since that citizenship would determine that of both the mother and child. It is also noteworthy that Vattel had no problem allowing the child to inherit the citizenship of the mother when the mother was not married to the child’s father. Given that Vattel in effect really focused on the citizenship of both the child’s father and mother in defining a “natural born Citizen,” Vattel’s definition of a “natural born Citizen” does not violate the equal protection guarantee embedded in the Fifth Amendment’s Due Process Clause. Miller v. Albright, 523 U.S. 420 (1998); Nguyen v. INS, 533 U.S. 53, 121 S.Ct. 2053; 150 L.Ed.2d 115 (2001).

There is other evidence in his treatise that shows that Vattel meant to refer to both the child’s mother and father in his definition of a “natural born citizen.” When defining what a country is in Section 122, he stated the “term signifies the state, or even more particularly the town or place, where our parents had their fixed residence at the moment of our birth…. A man ought to preserve gratitude and affection for the state to which he is indebted for his education, and of which his parents were members when they gave him birth….” In commenting on the citizenship status of children born at sea at Section 216, he stated that a child born abroad a foreign vessel that is docked in a port belonging to their own nation is reputed born in the country, provided “she [the mother] and her husband have not quitted their native country to settle elsewhere.” In commenting upon vagrants in Section 219he stated: “Vagrants are people who have no settlement. Consequently those born of vagrant parents have no country, since a man’s country is the place where, at the time of his birth, his parents had their settlement (Section 122), or it is the state of which his father was then a member…” Given that Vattel in effect really focused on the citizenship of both the child’s father and mother in defining a “natural born Citizen,” Vattel’s definition of a “natural born Citizen” does not violate the equal protection guarantee embedded in the Fifth Amendment’s Due Process Clause. Miller v. Albright, 523 U.S. 420 (1998); Nguyen v. INS, 533 U.S. 53, 121 S.Ct. 2053; 150 L.Ed.2d 115 (2001).

The Framers were very familiar with William Blackstone. We can also see in the writings of Blackstone that the allegiance of both parents to the King was needed to avoid dual allegiance in the child. Blackstone wrote:

“When I say, that an alien is one who is born out of the king’s dominions, or allegiance, this also must be understood with some restrictions. The common law indeed stood absolutely so; with only a very few exceptions: so that a particular act of parliament became necessary after the restoration, for the naturalization of children of his majesty’s English subjects, born in foreign countries during the late troubles. And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. Yet the children of the king’s embassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England’s allegiance, represented by his father, the embassador. To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain (emphais in the original).”

William Blackstone, Commentaries 1:354, 357–58, 361-62 (1765). We can see that even the English Parliament gave importance to a child having both parents be “in the allegiance of the king,” which under English common law meant the parents would have been “natural born subjects.” By having both parents be “natural born subjects,” the child would not have been born with any other conflicting allegiance other than the one that attached from the foreign soil. Parliament was willing to live with any allegiance attaching to the child from the foreign soil but not with any that may attach by descent from one of the parents, the latter one being by nature a much more stronger one. It was only later in time that the rule was made less restrictive and allowed for just the father to be a “natural born subject.”

There is historical evidence that the Founders borrowed from the Dutch much more heavily than from the British when making the new nation. During the revolutionary period Dutch law provided for citizenship by jus sanguinis. There is considerable evidence that the Framers were also influenced by the citizenship law of Holland. “The American colonists had become familiar with the rights of citizenship possessed in other countries, both from the fact that some of them resided in Holland for a time, before they came to America, and from the further fact that the New York colony was essentially Dutch in its original settlement and government.” John S. Wise, A Treatise on American Citizenship (1906). In Holland, “[c]itizenship could be acquired in several ways. Probably the most common was birth. Some towns accepted everyone as citizen who was baptized in a local church. But more commonly it was required that one’s parents were citizens too. . . .” R. Po-chia Hsia & Henk F. K. van Nierop, Calvinism and Religious Toleration in the Dutch Golden Age 161(2002). “One’s parents” would necessarily included one’s mother and father. This Dutch law is consistent with Vattel’s definition of what is a “natural born citizen.”

Apart from the heavy Dutch influence upon the Founders, when the Framers drafted the Constitution, they relied heavily upon Vattel to guide them. Citizenship was a topic that affected U.S. relations with other nations. Given that citizenship affects “the behavior of nation states with each other” (Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Founders would have looked to the law of nations to define it for the purposes of the new nation. The law of nations definition on citizenship also gave uniformity to the subject area, which the Framers wanted to achieve for citizenship laws as they did for naturalization laws. Gibbons v. Ogden, 22 U.S. 1, 36 (Wheat) (1824). They would therefore have referred to and accepted Vattel’s law of nations definition to give meaning to what an Article II “natural born Citizen” was.

The meaning of a “natural born Citizen” as expressed by Vattel, including that both parents of the child must be citizens at the time of the child’s birth in order to make the child a “natural born Citizen,” was carried forward in American history following the Founding. The standard provided by Vattel has not changed in our jurisprudence and is still valid today as it was during the Founding. Also, the Fourteenth Amendment has not changed the meaning of a “natural born Citizen.” Legislative activity by the early Congresses provides insight into the question of whether Vattel required one or two parents to be citizens. There are Congressional acts that were passed after the Constitution was adopted that give us insight into what the Framers of the Constitution meant by “natural born Citizen.” The 1790 Congress, many of whose members had been members of the Constitutional Convention, passed the Naturalization Act of 1790 (1 Stat.103,104) which provided that “And the children of citizens of the United States that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens.” This phrasing followed the literal terms of British statutes, beginning in 1350, under which persons born abroad, whose parents were both British subjects, would enjoy the same rights of inheritance as those born in England; beginning with laws in 1709 and 1731, these statutes expressly provided that such persons were natural-born subjects of the crown.” The Naturalization Act of 1790 declared these children to be “natural born Citizens,” but only retrospectively. See Weedin v. Chin Bow, 274 U.S. 657 (1927). It is interesting to note that George Washington was president of the Constitutional Convention and President of the United States when this bill became law and if he had disagreed with the two U.S. citizen-parent requirement, he could have vetoed this bill. One would then at first think that this legislation strongly suggests that the Framers of the Constitution understood this phrase to refer to citizenship acquired from both of the child’s parents at birth, regardless of whether or not that birth had taken place in the United States. This statute shows what role the parents played in the minds of the early founders.

While only retrospectively, the First Congress was willing to declare a child born out of the United States to two United States parents a “natural born Citizen.” This was not consistent with what Vattel wrote in The Law of Nations of Principles of Natural Law, at Sec. 215. Children of citizens, born in a foreign country, where he declared these children just “citizens” and not “natural born citizens”: “It is asked, whether the children born of citizens in a foreign country are citizens? By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (Sec. 212); the place of birth produces no change in this particular, and cannot of itself furnish any reason for taking from a child what nature has given him; I say ‘of itself,’ for civil or political laws may, for particular reasons, ordain otherwise. . . .” (emphasis supplied). Clearly, Vattel addressed the question of whether these children are “citizens,” not “natural born citizen.” He does not address the question of whether they are “natural born citizens” because according to his own definition, a child had to be born “in the country” in order to be a “natural born citizen.” Being born abroad and therefore not “in the country,” such a child could not be a “natural born citizen.”

In this connection and as an aside which applies to the question of whether Senator McCain is an Article II “natural born Citizen,” it should be noted that according to Vattel, being physically born out of the country did not necessarily mean that one was not born “in the country.” Vattel explained that if a child was born “in the armies of the state,” that child was “reputed born in the country; for a citizen, who is absent with his family on the service of the state, but still dependent on it, and subject to its jurisdiction, cannot be considered as having quitted its territory.” Vattel, Sec. 217. Since this child would have been born in the foreign “armies of the state,” he would normally not be granted citizenship in the country in which he was physically born. Additionally, the country on whose soil the child might be born might adhere to a jus sanguinis system of conferring citizenship (meaning that born on its soil alone would not confer citizenship and therefore allegiance and loyalty on the child). Being born under those conditions, this child would therefore be born with sole allegiance to the country of his parents and would qualify as a “natural born citizen” of that country.

While the 1790 act naturalized all “persons” and so included women, it also declared that “the right of citizenship shall not descend to persons whose fathers have never been resident in the United States….” This prevented the automatic grant of citizenship to children born abroad whose mother, but not father, had resided in the United States. Citizenship was inherited exclusively through the father. As we have seen above, Congress did not remove the inequity until 1934. This focus on the father as the source of citizenship (but not meaning that the status of the mother was not considered) is consistent with what Vattel wrote in Section 212 of The Law of Nations. This is further evidence that the Framers relied upon Vattel in defining citizenship for the new Republic.

In 1795 the Congress passed the Naturalization Act of 1795 which removed the words “natural born” from the term “natural born citizen” and thereby just left “citizens” as the status to be given to children born out of the United States. The fact that the 1790 Act as written was short lived and was only retrospective shows that Congress just wanted to make certain persons born abroad during the early years of the Republic “natural born Citizen” so that they could be eligible to be President. This sort of special allowance was comparable to the grandfather clause of Article II which allowed a “citizen” to be President provided that he was such at the time of the adoption of the Constitution which the Framers in 1790 knew occurred in 1789. It seems that the Third Congress passed this amendment to the 1790 Act to clarify for those living at that time who was and who was not a “natural born Citizen” per the Framers intent at that time, since the 1790 Act had introduced confusion into that subject regarding the use of those special words as found in Article II. United States v. Wong Kim Ark, 169 U.S. 649, 714 (1898) (Fuller, C.J., dissenting) (statute “passed out of abundant caution to obviate misunderstandings” about the citizenship status of foreign-born children of Americans). It is again important to note that George Washington was also President in 1795, making him aware of this change by the Third Congress. If he disagreed with the clarification and change in the wording in the new 1795 Act, he would have vetoed it. The 1790 and 1795 Acts are contemporaneous evidence of who the Framers meant to include as “natural born Citizens.” Pryor, The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty, 97 Yale L.J. 881 (1988).

Subsequent Supreme Court cases have stated that in interpreting the Constitution, we must look to the common law that the Framers accepted at the time of the Founding. There is strong historical evidence that the Framers in constituting the new Constitutional Republic rejected the English common law and accepted the new federal common law which emanated from the law of nations. On this subject, see my article included at this blog entitled, The Law of Nations or Principles of Natural Law as U.S. Federal Common Law Not English Common Law Define What an Article II Natural Born Citizen Is. Indeed, as we will see below, our Supreme Court adopted that definition when defining a “natural born Citizen” and thereby incorporated it into U.S. federal common law.

The definition and two-parent requirement has been reiterated by the Supreme Court and other courts in the cases of The Venus, 12U.S. 253(1814), Shanks v. Dupont, 28 U.S. 242 (1830), Scott v. Sandford, 60 U.S. 393 (1856), Minor v. Happersett, 88 U.S. 162 (1875) , Ex parte Reynolds, 20 F. Cas. 582 (C.C.W.D. Ark 1879), United States v. Ward, 42 F. 320 (1890); Wong Kim Ark, 169 U.S. 649 (1898), and Ludlam, Excutrix, & c., v. Ludlam, 26 N.Y. 356 (1863). It has also been confirmed by renowned legislators, including Senator Trumbull, the author of the Civil Rights Act of 1866, and Representative John A. Bingham, the architect of the 14th Amendment to our Constitution.

In the case of The Venus 12 U.S. 253, 289 (1814), Justice John Marshall said: “Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says ‘The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives or indigenes are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.’”

Dred Scott v. Sandford, 60 U.S. 393 (1857), did not directly deal with Article II “natural born Citizen.” But there are parts of the Dred Scott decision that are relevant to the question of what is a “natural born Citizen.” The case clearly defined “natural born citizen.” While as repugnant as slavery was and still is, no court or amendment has over turned the meaning of “natural born citizen” from Dred Scott. The main point is that in deciding what a “citizen” was in 1857, both the majority and dissent went back to 1787 to examine what the Framers and the people of that time considered a “citizen” to be. The Court said that the Constitution must be understood now as it was understood at the time it was written. The judges did not disagree that one had to look back to the Founding Fathers. What they disagreed on is what the public opinion was at that time as to whether a freed slave was a citizen. In this regard, we know that the case was overruled by the Thirteenth Amendment. As to the “natural born Citizen” clause, the Court said: “The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As society cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights. Again: I say, to be of the country, it is necessary to be born of a person who is a citizen; for if he be born there of a foreigner, it will be only the place of his birth, and not his country. . . .” Dred Scott v. Sandford, 60 U.S. 393, 476-77 (1857). As can be seen from the quoted language, the Court actually removed from the Vattel’s definition the reference to “fathers” and “father” and replaced it with “parents” and “person,” thus showing that it is not just one parent (the father) that needs to be a citizen, but the “parents,” i.e., both mother and father. Also, both Vattel and the Court stated that “if he be born there of a foreigner, it will be only the place of his birth, and not his country.” The controlling language is “a foreigner.” In the English language, the letter “a” is an indefinite article meaning one. Hence, the use of the word “a” shows that only one is required. We know that a child has both a mother and father and the “a” would necessarily refer to either the mother or father. Surely, if the child were born of one parent who was not a citizen, he would be “born there of a foreigner,” who would be either his foreign mother or father. As can be seen, it is our United States Supreme Court that has made this reading and interpretation of Vattel. This understanding of Vattel is not only correct but also binding upon us.

Chief Justice Waite, in Minor v. Happersett, 88 U.S. 162 (1874), stated: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.” Here we can see that the U.S. Supreme Court in all three of these cases adopted Vattel’s definition of what a “natural born Citizen” is, and specifically repeated his two U.S.-parent test. Dred Scott even removed the word “father” and replaced it with the word “parents.”

The Civil Rights Act of 1866 (Act of April 9, 1866) first established a national law that provided: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.” Civil Rights Act of April 9, 1866 (14 Stat. 27). Not being subject to a foreign power includes being free from any political and military obligations to any other nation and not owing any other nation direct and immediate allegiance and loyalty. The primary author of this Act was Senator Trumbull who said it was his intention “to make citizens of everybody born in the United States who owe allegiance to the United States.” Additionally, he added if a “negro or white man belonged to a foreign Government he would not be a citizen.” In order for this requirement to be satisfied, clearly both parents of the child must be U.S. citizens, for if one is not, the child would inherit the foreign allegiance and loyalty of foreign parent and would thereby “belong to a foreign Government.” Rep. John A. Bingham, who later became the chief architect of the 14th Amendment’s first section, in commenting upon Section 1992 of the Civil Rights Act, said that the Act was “simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen” (emphasis supplied). Rep. Bingham said “parents.” He did not say “one parent” or “a mother or father.”

Now let us turn to the Fourteenth Amendment. Senator Trumbull, when commenting on that Amendment declared: “The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.” Sen. Howard added: “the word jurisdiction, as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.” On May 30, 1866, Senator Howard continued: “This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Govern- of the United States, but will include every other class of persons.” Congressional Globe, 39th Congress, 1st Session, May 30, 1866, P. 2890, col. 2. Again, only if the both parents of the child were citizens at the time of birth could the child be subject to the complete jurisdiction of the United States, not owe allegiance to any foreign power, and not be a person “born in the United States who are foreigners [or aliens].”

There then followed Supreme Court cases that discussed citizenship under the Fourteenth Amendment. In The Slaughter-House Cases, 83 U.S. 36, 73 (1873), in discussing the meaning of the Fourteenth Amendment’s citizenship clause said: “[t]he phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” Even the dissenting opinion affirmed that the citizenship clause was designed to assure that all persons born within the United States were both citizens of the United States and the state in which they resided, provided they were not at the time of birth subjects of any foreign power. Again, only if both parents of the child were citizens at the time of birth could the child not be considered a citizen or subject of a foreign State born within the United States, be subject to the complete jurisdiction of the United States, and not be subject to any foreign power.

In Elk v. Wilkins, 112 U.S. 94 (1884), the Supreme Court specifically addressed what is meant by “subject to the jurisdiction thereof,” and held: “The persons declared to be citizens are ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof.’ The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.” Only if the child’s both parents were citizens at the time of birth could the child be “completely subject to their [U.S.] political jurisdiction and owing them direct and immediate allegiance.

U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), did not address what an Article II “natural born Citizen” is. Rather, the Supreme Court there gave a new, divergent, and incorrect interpretation of the “subject to the jurisdiction” clause of the Fourteenth Amendment and vetoed the will of the People and their Legislature to declare Wong a U.S. “citizen” under the unique circumstances of that case. While the case did approvingly cite Minor v. Happersett, since the case only dealt with what is a Fourteenth Amendment “citizen,” the case cannot in any event be used to explain what the Founders meant by Article II’s “natural born Citizen” clause. Justice Antonin Scalia, during his address to the 2008 Annual National Lawyers Convention on November 22, 2008, at the Mayflower Hotel, in Washington, D.C., gave three reasons in ascending order (the last being the most compelling) which would serve justification for overturning a prior case: how wrong was it, i.e., was it blatantly and malicious improperly decided ; how well has the public accepted the case; and did the decision cast the Court as a policy maker rather than an interpreter of the law. Given that the Wong Court did not give Congress and the Executive the wide deference that they deserve in exercising its immigration and naturalization powers (Nguyen v. INS, 533 U.S. 53, 121 S.Ct. 2053; 150 L.Ed.2d 115 (2001) and the Scalia factors, the Wong decision is a prime candidate for reversal.

We have seen that the citizenship status of the parents of a child determines whether that child is born a “natural born Citizen.” Why should we want the child’s parents to be citizens? Alexander Hamilton explained what happens to a person when he or she becomes a citizen of the country: “But there is a wide difference between closing the door altogether and throwing it entirely open; between a postponement of fourteen years, and an immediate admission to all the rights of citizenship. Some reasonable term ought to be allowed to enable aliens to get rid of foreign and acquire American attachments; to learn the principles and imbibe the spirit of our government; and to admit of a probability at least, of their feeling a real interest in our affairs. A residence of not less than five years ought to be required. ” Alexander Hamilton, The Works of Alexander Hamilton, (Federal Edition), vol. 8 > EXAMINATION OF JEFFERSON’S MESSAGE TO CONGRESS OF DECEMBER 7, 1801 1 > paragraph 827. Additionally, the development in the formative years of a child’s minority of a relationship between citizen parents and their child is essential to the child’s ties and allegiance to the United States. Nguyen v. INS, 533 U.S. 53, 121 S.Ct. 2053; 150 L.Ed.2d 115 (2001) (addressing the importance of the tie between a child and his U.S. citizen father before the child’s 18th birthday as a crucial ingredient in the child attaching and owing allegiance to the United States and that the U.S. government has a “profound” important interest and objective in promoting that link; showing that a child must meet all statutory preconditions [would also mean constitutional requirements] no matter how much one may deem them to be unfair or onerous in order to be bestowed U.S. citizenship). But we have seen that United States Supreme Court case law, the early 1790 and 1795 Naturalization Acts, legislative history of the Civil Rights Act of the 1866, and the Fourteenth Amendment all conclusively show that Vattel was understood to say that both parents had to be citizens in order for a child to be a “natural born Citizen.” The Founders, our Supreme Court, Congress, and framers of the Fourteenth Amendment all adopted Vattel’s law of nations definition and two-parent requirement and made it part of Article II, United States citizenship federal common law, the Civil Rights Act of 1866, and the Fourteenth Amendment, respectively. It also would not make sense to allow just one U.S. citizen parent to be sufficient, for each parent has just as much influence as the other on his or her child.

The purpose of Article II’s “natural born Citizen” clause is to exclude foreign influence from the Office of President and Commander in Chief. It “cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interposes a barrier against those corrupt interferences of foreign governments . . .” Joseph Story, Commentaries on the Constitution 3:Sec 1472-73 (1833). Remember that Vattel said that if a child is born on a nation’s soil to a non-citizen father (meaning parents), that place “will be only the place of his birth, and not his country.” Article II’s “natural born Citizen” clause looks only to the moment of birth and not thereafter. This interpretation is consistent with Jay’s underlining the word “born” in his 1787 letter to General (later President) Washington. In other words, to meet that special Presidential eligibility requirement, one must be born a “natural born Citizen” and cannot acquire that status later in life. Under the British Nationality Act 1948, when Obama was born in 1961 his father was a British subject/citizen and Obama himself was a British subject/citizen by descent from his father. Under the British Nationality Act 1981, today Obama can still be a British Overseas Citizen (BOC). See my April 7, 2009 article on this topic at this blog entitled, Obama, the President of the U.S., Is Currently Also a British Citizen. Hence, when Obama was born he failed to meet the two-U.S.-citizen-parent test which caused him to be born subject to a foreign power. See my article at this blog entitled, Being Born Subject to a Foreign Power, Obama Cannot be President and Military Commander. It is inescapable that Obama is not and cannot be an Article II “natural born Citizen” and is therefore not eligible to be President and Commander in Chief of the Military.

Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg, NJ 08831
9-8-09
Amended on 12-20-09
Amended on 12-21-09

Next Page »

Create a free website or blog at WordPress.com.