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

December 16, 2010

Would the Founders and Framers Have Allowed the Son of a British “Natural Born Subject” Father and U.S. Citizen Mother Be President and Commander in Chief of the United States in 2009?

Sometimes it helps to break down a problem into its simple form in order to understand it better. Consider this.

We are in the time period after the Constitution is adopted in 1787. A man is born in a British colony as a British “natural born subject.” He comes to America just to study, with the intent to return to that British colony upon completion of his studies. While in America, he impregnates an American citizen. The two then marry and have a child who, let us assume for sake of argument, is born in one of the United States in 1961. The British man then finishes his studies and goes back to his native land, leaving both his wife and son in America. The wife eventually divorces this man.

Query: Would the Founders and Framers, who wanted to assure the preservation of the new constitutional republic which they built with blood, sweat, and tears shed in a war with Great Britain, and who wrote in the Constitution that after its adoption only a “natural born Citizen” is eligible to be President, have allowed the child of that British “natural born subject” father and American citizen mother to be eligible to be President and Commander in Chief of the Military in 2009?

Your comments and analysis are welcomed.

Mario Apuzzo, Esq.
http://puzo1.blogs.com
December 16, 2010
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December 1, 2010

Obama May Be a Born Naturalized Citizen but Not a Natural Born Citizen

In America, there are only two types of citizens. One type is a naturalized citizen which the Constitution, treaties, and Congressional Acts call a “citizen of the United States.” The other type is a natural born citizen which Article II calls a “natural born Citizen.” “The Constitution of the United States recognizes the division of the people into the two classes named by Blackstone – natural born and naturalized citizens.”  Rep. Wilson Cong. Globe, 39th Cong., 1st Sess. 1116 (1866). Only a “natural born Citizen” is eligible to be President under Article II, Section 1, Clause 5. A naturalized citizen, whether naturalized at birth or after birth, is not so eligible. The “natural born Citizen” clause is nothing more than the people of the United States expressing their power of self-preservation. 

A naturalized citizen, whether at birth or after birth, is made by positive law, to wit, the 14th Amendment which makes born naturalized citizens and treaties or acts made by Congress, which makes both born and after-born naturalized citizens under its Article I, Section 8, Clause 4 power to make uniform the laws of naturalization.

A natural born citizen is made by nature and not by any positive law such as the 14th Amendment, treaties, or Congressional acts. The overwhelming majority of citizens are natural born citizens. If a person needs the 14th Amendment, a treaty, or Congressional act to make him or her a citizen, then that person cannot be a natural born citizen. Also, Congress or a court could for some social or political reason enact some law denying a natural born citizen that very status but to do so would be contrary to the law of nature and also unconstitutional.

Examples of a naturalized citizen are:

1. A naturalized citizen of the United States so created by electing and adhering to the American Revolution. This person is among the early Presidents who were born before July 4, 1776 in the British colonies to British subject parents and therefore were born British subjects. This person is also among those who were born out of the British colonies but who either naturalized there or were simply inhabiting them. He or she naturalized through the effects of the Declaration of Independence and by electing to adhere to the American Revolution and by so doing the Constitution called him or her a “citizen of the United States.” He or she was the first and original American citizen and he or she gained that status by transferring his or her allegiance for one foreign power to the United States during the revolution. This person was born either in the British colonies or out of them and therefore out of the United States.

2. A naturalized at birth born citizen of the United States under a Congressional Act or treaty which it calls a “citizen of the United States.” In Article I, Section 8, Section 4, the Framers gave Congress the power to naturalize persons. Hence, this citizen is created directly by the power of Congress to naturalize persons. This person, like a born citizen of the United States under the 14th Amendment, is naturalized at birth and needs no further naturalization. This person is born abroad and has one or two U.S. citizen parents. Under a treaty, there could be other factual scenarios. Except for a naturalization act it passed in 1790 which read “natural born citizen,” but which it changed in 1795 to read “citizen of the United States, Congress has always used this power to create naturalized citizens or who it has called “citizens of the United States” “at birth” but never a natural born citizen. Again, this person is born out of the United States.

3. A naturalized citizen under a Congressional Act which the 14th Amendment in 1868 confirmed to be a “citizen of the United States.” This citizen is created directly by the power of Congress to naturalize persons. This person is born out of the United States to alien parents and is naturalized in the United States after birth. Before the 14th Amendment was passed, this person was also born in the United States to alien parents and also naturalized after birth. Hence, before the 14th Amendment, this person was born either in the United States or out of it. If born in the United States and a minor, he or she naturalized when his or her father naturalized, or on his or her own right if an adult. Since the 14th Amendment, this person is born out of the United States. This type of citizen includes Governor Arnold Schwarzenegger who was born in Austria to a non-U.S. citizen father and mother and who naturalized in the United States after birth under a Congressional Act.

4. A born citizen of the United States under the 14th Amendment and Congressional Act which they both call a “citizen of the United States.” This citizen is created indirectly by the power of Congress to naturalize persons which it expressed in the Civil Rights Act of 1866 and then which it constitutionalized by way of the 14th Amendment. We have evidence in the Congressional debates on this Act that the Act’s intended effect was to naturalize persons “born in this country.”  In the Congressional debates on the Civil Rights Act, Senator Edgar Cowan “ask[ed] whether [the Act] will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?”  Senator Lyman Trumbull replied:  “Undoubtedly. . . . [T]he children of an Asiatic is just as much a citizen as the child of a European.”  Cong. Globe, 39th Cong., 1st Sess. 498.  Indeed, Congress proposed the 14th Amendment and it was passed to ensure the Act’s validity and indefinite survival.  That this Congressional Act was elevated to constitutuional status by the 14th Amendment does not change the fact that this type of citizenship is granted by operation of positive law rather than by nature.  The 14th Amendment, regarding children born in the United States, and given current interpretation of the “subject to the jurisdiciton thereof” clause, did nothing more than amend our naturalization laws and extend naturalization at birth to children born in the United States to alien parents.  Congress has even confirmed its naturalizing power over this citizen through 8 U.S.C. Section 1401(a) and (b). This person is naturalized at birth and needs no further naturalization. This person is born in the United States to one or two alien parents and is born “subject to the jurisdiction of the United States.” Vattel recognized this type of “at birth” naturalized citizen when he stated:  “Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalises the children of a foreigner.”  Emer de Vattel’s  The Law of Nations, or Principles of the Laws of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, bk. 1, c. 19, sec. 214 (original French in 1758 and first English in 1759, and other subsequent French and English editions).  This could be putative President Obama, who was born to a U.S. citizen mother and a British father, if he was born in Hawaii, a fact which he has yet to conclusively prove. This is also Governor Bobby Jindal, who was born in the United States to a non-U.S. citizen father and mother. He was naturalized at birth under the 14th Amendment and needed no further naturalization. Again, this person is born in the United States.

The Constitution, including the presidential eligibility grandfather clause of Article II, Section 1, Clause 5, and the Congressional eligibility clauses of Article I, Section 1 and 2; Congressional Acts; and treaties call all these naturalized citizens, whether citizens “at birth” or “after birth” and whether born in or out of the United States, “citizens of the United States.”

An Article II “natural born Citizen” is:

1. A child born in the United States (or its equivalent) to a father and mother both of whom are either “natural born Citizens” or “citizens of the United States.” Emer de Vattel’s The Law of Nations, or Principles of the Laws of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, bk. 1, c. 19, sec. 212 (original French in 1758 and first English in 1759, and other subsequent French and English editions) (“The natives, or natural-born citizens, are those born in the country, of parents who are citizens.”); David Ramsay, A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789) (concerning the children born after the Declaration of Independence, “[c]itizenship is the inheritance of the children of those who have taken part in the late revolution; but this is confined exclusively to the children of those who were themselves citizens….” Id. at 6; “citizenship by inheritance belongs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring….” Id. at 7; citizenship “as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776….” Id. at 6); The Naturalization Act of 1790 and 1795 (in both acts early Congresses provided that, regardless of whether the child was born in or out of the United States, any child born to alien parents who later naturalized before the child reached twenty-one years of age was derivatively naturalized at the time of their parents’ naturalization and thus “considered as “citizens of the United States,” and thereby left out of such need for naturalization only children born in the United States to citizen parents); The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (Chief Justice John Marshall, concurring and dissenting for other reasons, cited Vattel and provided his definition of natural born citizens, stated “The natives or indigenes are those born in the country of parents who are citizens.”); Speaker of the House of Representatives, Langdon Cheves (1814) (“The children have a natural attachment to the society in which they are born: being obliged to acknowledge the protection it has granted to their fathers, they are obliged to it in a great measure for their birth and education. … We have just observed that they have a right to enter into the society of which their fathers were members. But every man born free, the son of a citizen, arrived at years of discretion, may examine whether it be convenient for him to join in the society for which he was destined by his birth); Inglis v. Sailors’ Snug Harbor, 28 U.S. 99, 3 Pet. 99, 7 L.Ed. 617 (1830) (a majority of the Court which included Chief Justice John Marshall found on principles consistent with Vattel’s jus sanguinis and not on the English common law rule of jus soli, that simply being born in New York, after July 4, 1776 and before September 15, 1776, when the British took possession of New York, was not sufficient to establish one’s status as an American citizen, for a child of minor years is incapacitated from making any citizenship election but rather followed the citizenship held or chosen by the father); Massachusetts and South Carolina, The New Englander, Vol. III, 413-414, 434-435 (1845). (“The expression ‘citizen of the United States’ occurs in the clauses prescribing qualifications for Representatives, for Senators, and for President. In the latter, the term ‘ natural born citizen’ is used, and excludes all persons owing allegiance by birth to foreign states; in the other cases, the word ‘citizen’ is used without the adjective, and excludes persons owing allegiance to foreign states, unless naturalized under our laws. The discussions in the convention furnish no indication that there was any other distinction present in the minds of its members. (*Judge Washington, See 4 Wash. Circuit Court Reports, 516). . . . It is the very essence of the condition of a natural born citizen, of one who is a member of the state by birth within and under it, that his rights are not derived from the mere will of the state. For the state and the citizen spring at once and together from the ordinance of nature, and from this natural relation between them result the essential rights and essential duties of both. The highest and most solemn enactment, even the fundamental, organic law of a state, does not by its proper force as positive law create, but only acknowledges this relationship”);  Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) (Daniels, J. concurring) (cited and quoted Vattel and said: “The natives, or natural-born citizens, are those born in the country, of parents who are citizens”); Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (provided the same Vattel definition without citing Vattel, stated: “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”); Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879) (provided the same Vattelian definition and cited Vattel); United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (provided the same Vattelian definition and cited Vattel); and U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) (quoted the same definition of “natural born Citizen” as did Minor v. Happersett); Alexander Porter Morse, Natural-Born Citizen Of The United States: Eligibility For The Office Of President, Albany Law Journal Vol. 66 (1904-1905) (“Those resident in the United States at the time the Constitution was adopted were made citizens. Thereafter the president must be taken from the natural-born citizens. If it was intended that anybody who was a citizen by birth should be eligible, it would only have been necessary to say, “no person, except a native-born citizen”; but the framers thought it wise, in view of the probable influx of European immigration, to provide that the president should at least be the child of citizens owing allegiance to the United States at the time of his birth”); Breckenridge Long, Is Mr. Charles Evans Hughes a “Natural Born Citizen” Within the Meaning of the Constitution?” Chicago Legal News, Vol. 146, p. 220 (1916) (there is a distinction between a “native born” and “natural born;” a “citizen of the United States” is not the same as a “natural born Citizen;” a “natural born Citizen” is one made by the laws of nature and not by operation of law and from the moment of birth owes allegiance exclusively to the United States; a person who is born with dual or conflicting allegiances and citizenships, naturally caused by being born in the country to an alien father which causes the person to acquire one allegiance and citizenship by jus soli and the other by jus sanguinis, respectively, which birth circumstance causes a foreign power to be able to lay a claim of allegiance or jurisdiction over that person, cannot be a “natural born Citizen;” a child born in the United States to an alien father may become a “citizen of the United States” by becoming a citizen by naturalization either upon his father naturalizing before the child reaches majority or through his own naturalization application thereafter); and Perkins v. Elg, 307 U.S. 325 (1939) (the Supreme Court declared a child who was born in the United States to citizen parents a “natural born citizen”).

If one satisfies the definition of a “natural born Citizen,” that person will have natural unity of citizenship and sole allegiance to the United States. The overwhelming majority of citizens are natural born Citizens. One cannot be a natural born citizen if he or she at most falls into one of the naturalized categories listed above (naturalized at birth or after birth) and therefore fails to meet the definition of a “natural born Citizen.” One is required to be a “natural born Citizen” under the Constitution only if one is born after the adoption of the Constitution and one wants to be President or Vice President. Congress only has the power to naturalize. The Constitution does not give Congress any power to create a “natural born Citizen.”  Under the Constitution, Congress has no power over this person’s citizenship status because he or she is born in the country to citizen parents all of which makes him or her a natural born citizen. If we accept that natural law and the law of nations prescribe that being born in a foreign country to U.S. citizen parents (who were “natural born Citizens” or “naturalized citizens”) serving the armies of the state is the equivalent of being born in the United States, this is John McCain because he was born to a U.S. citizen father and mother who were in Panama serving the armies of the United States. Emer de Vattel’s  The Law of Nations, or Principles of the Laws of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, bk. 1, c. 19, sec. 217. This cannot be Mr. Obama because even though he might be born in Hawaii (which he has yet to conclusively prove), he was born to a British father who by right of descent under the British Nationality Act of 1948 passed his British citizenship to his son, Mr. Obama, who consequently was also born a British citizen. So Obama’s foreign natural birth allegiance is compounded by his father being a British subject when Obama was born and he also being born a British citizen. At age 2, Mr. Obama even became a citizen of Kenya whose citizenship he retained to at least the age of 23. The Founders and Framers simply would not accept a person born with such foreign natural allegiance to be an Article II “natural born Citizen” and eligible to occupy the singular and all-powerful Office of the President and Commander in Chief of the Military. Finally, as we have seen, Obama’s ineligibility to be President is dictated not by foreign law but rather by U.S. law grounded on natural law and the law of nations. 

Mario Apuzzo, Esq.
November 30, 2010
Amended December 4, 2010
http://puzo1.blogspot.com/
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