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February 25, 2011

>Arizona’s Proposed Interstate Birth Certificate Compact Law As Now Written Is Both Unconstitutional and Contrary to the Best Interests of the United States

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Arizona’s Proposed Interstate Birth Certificate Compact Law As Now Written Is Both Unconstitutional and Contrary to the Best Interests of the United States

By Mario Apuzzo, Esq.
Written: February 24, 2011
Revised: February 25, 2011

Arizona is considering passing a law that, among other things, would allow a child born in the U.S. to one or two alien parents to be recognized as a “natural born Citizen.” Such a law would be passed in error. Apart from the proposed law being unconstitutional for violating the Supremacy Clause and the Pre-emption Doctrine, a law that recognizes an Article II “natural born Citizen” as including a child born in the U.S. to one or two alien parents would be contrary to what the Founders and Framers designed as a national security safeguard for the Offices of President and Commander in Chief of the Military. In this article, I will address only that part of the proposed law that attempts to define what an Article II “natural born Citizen” is and specifically that part of the law that includes as an Article II “natural born Citizen” a child born in the U.S. to one or two alien parents. In a follow up article, I will address the other parts of the proposed law that I will show are also unconstitutional.

This proposed law is known as SB1308 and is designed to amend Title 36, Chapter 3, by adding what the law calls an interstate compact which concerns U.S. citizenship. The new Article is Article 6, Interstate Birth Certificate Compact 36-361. The proposed law states that the “governor is authorized and directed to enter into a compact on behalf of this state with any of the United States lawfully joined in the compact in a form substantially as follows.”

Article I and III of the new law declare that “[a] person who is born subject to the jurisdiction of the United States is a natural born United States citizen.”

Article II says that “[a]s used in this compact, ‘subject to the jurisdiction of the United States’ has the meaning that it bears in section 1 of the fourteenth amendment to the United States Constitution, namely that the person is a child of at least one parent who owes no allegiance to any foreign sovereignty, or a child without citizenship or nationality in any foreign country.”

Article II also says that “[f]or the purposes of this compact a person who owes no allegiance to any foreign sovereignty is a United States citizen or national, or an immigrant accorded the privilege of residing permanently in the United States, or a person without nationality in any foreign country.”

The proposed law seeks to define an Article II “natural born Citizen” by tying that definition to the 14th Amendment’s “subject to the jurisdiction” clause. It then sets out to define what “subject to the jurisdiction” means. It ties that clause to the child being born to at least one parent who does not have any foreign allegiance. So, the proposed law seeks to tell us what a “natural born Citizen” is by providing us with its own definition of “subject to the jurisdiction” and allegiance. But as we shall see, given how it defines “subject to the jurisdiction” and allegiance, Arizona would allow even a child born to two alien parents to be included as a “natural born Citizen.”

I. The Proposed Law Improperly Connects the Meaning of a Natural Born Citizen to the 14th Amendment

Arizona has improperly tied the meaning of a “natural born Citizen” to the 14th Amendment. The meaning of a “natural born Citizen” has nothing to do with the 14th Amendment. The Framers wrote the clause in 1787 and the 14th Amendment was passed in 1868. There is no indication in the text of the amendment, its history, or in any court decision that suggests that the amendment changed Article II’s “natural born Citizen” clause.

There is a critical difference between a 14th Amendment “citizen of the United States” and an Article II “natural born Citizen.” “Representatives, U.S. Const. Art. I, § 2, cl. 2, and Senators, Art. I, § 3, cl. 3, must be citizens. Congress has the authority “to establish an uniform Rule of Naturalization” by which aliens can become citizen members of our society, Art. I, § 8, cl. 4; the judicial authority of the federal courts extends to suits involving citizens of the United States “and foreign States, Citizens or Subjects,” Art. III, § 2, cl. 1, because somehow the parties are “different,” a distinction further made by the Eleventh Amendment; the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments are relevant only to “citizens.” The President must not only be a citizen but “a natural born Citizen,” Art. II, § 1, cl. 5. One might speculate what meaning Art. IV, § 2, cl. 1, has today.” Sugarman v. Dougall, 413 U.S. 634, 651-52 (1973) (Rehnquist, J., dissenting).

Anytime Congress uses its naturalization powers, it creates a “citizen of the United States” and not a “natural born Citizen.” That is the reason why although a Congressional act or treaty can declare a person to be an “at birth” “citizen of the United States,” doing so does not mean that that person is a “natural born Citizen.” That person would have to satisfy the conditions of being a “natural born Citizen” without being compelled to rely upon the act or treaty to give him or her at most the status of a “citizen of the United States.” The same reasoning extends to the 14th Amendment, which is nothing more than the constitutionalization of Congress’s Civil Rights Act of 1866 and not the People’s amendment of Article II. So any person who is at most made a “citizen of the United States” by the 14th Amendment and who does not otherwise qualify as a “natural born Citizen’ is a “citizen of the United States” but not a “natural born Citizen.”

All the political and legal battles under the Civil Rights Act of 1866 and the Fourteenth Amendment over who has the right to be admitted to membership in America does not change the meaning of an Article II “natural born Citizen,” for these battles have not been about who are “natural born Citizens” under Article II but rather about who are “citizens of the United States” under those laws. There has never been any doubt in our nation as to who the “natural born Citizens” are. As we shall see below, the U.S. Supreme Court has informed us several time throughout our history that a child born in the country to citizen parents is a “natural born Citizen.” This American common law definition of a “natural born Citizen,” based on natural law and the law of nations, has to this day never been changed by the Constitution, Congressional Act, or the U.S. Supreme Court, and continues to prevail as originally written in Article II by the Framers in 1787.

II. The Proposed Law Improperly Re-defines the Meaning of “Subject to the Jurisdiction”

Article II of the proposed law says that “‘subject to the jurisdiction of the United States’ has the meaning that it bears in section 1 of the Fourteenth Amendment to the United States Constitution, namely that the person is a child of at least one parent who owes no allegiance to any foreign sovereignty, or a child without citizenship or nationality in any foreign country.”

But the 14th Amendment’s “subject to the jurisdiction” clause has never been defined in this manner by our federal courts. For example, U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898) found that a child born in the U.S. to parents who were both aliens and who were domiciled and residing in the U.S. and not serving in any foreign diplomatic capacity was born “subject to the jurisdiction” of the United States and therefore a born “citizen of the United States” under the 14th Amendment. Hence, Arizona wants to change the meaning of “subject to the jurisdiction” through an interstate compact. Arizona simply cannot do that, for federal law on the matter is supreme. The Constitution, federal law, and treaties are “the supreme Law of the Land” and therefore trump any conflicting state law. See Constitution Article VI, Clause 2. Such a provision is unconstitutional.

“Subject to the jurisdiction thereof” means “not subject to any foreign power.” Civil Rights Act of 1866. Hence, it is tied to allegiance. Simply being born on the territory and being subject to U.S. laws is not sufficient, for virtually every child born on U.S. soil satisfies that condition by simply being born on the soil (except for children of ambassadors, invading armies, and American Indians as originally believed). Rather, more is needed. While traditionally, citizenship of the child’s parents was needed, Wong Kim Ark changed the law and used domicile and residence of the alien parents as the sufficient link to declare U.S.-born Wong Kim Ark to be a 14th Amendment born “citizen of the United States,” not to be confused with an Article II “natural born Citizen.” Wong’s parents were in the U.S. legally, i.e., with the consent of the U.S. But as far as an Article II “natural born Citizen” is concerned, the natural law/law of nations/common law definition of that term was never changed and prevails today. That definition is a child born in the country to U.S. citizen parents.

III. The Proposed Law Improperly Defines Not Owing Any Allegiance to Any Foreign Sovereignty

Article II of the proposed law also says that “[f]or the purposes of this compact a person who owes no allegiance to any foreign sovereignty is a United States citizen or national, or an immigrant accorded the privilege of residing permanently in the United States, or a person without nationality in any foreign country.”

This provision is designed to allow a child born in the U.S. to be born to different types of parents so that he or she can still be considered a “natural born Citizen.” First, this provision is contradictory. The law would allow a child born in the U.S. to one alien parent to be not only a “citizen of the United States” but also a “natural born Citizen.” If a child is born to an alien parent, then that child acquires through jus sanguinis an allegiance and citizenship in the alien parent’s nation. But this provision says that a person who owes no allegiance to any foreign sovereignty is a United States citizen or national. So first the new law allows not only a “citizen of the United States” but also a “natural born Citizen” to have dual allegiance by being born to an alien parent but then it tells us that a person who owes no allegiance to any foreign sovereignty is a United States citizen of national. These provisions are contradictory.

Second, dual citizenship is not prohibited in the U.S. Hence, under the 14th Amendment or Act of Congress, a “citizen of the United States” could be a person who holds allegiance to not only the U.S., but also to some foreign nation. A prime example is Wong Kim Ark to whom the Court gave U.S. citizenship but at the same time recognized that he also had allegiance to and citizenship with China, the nation of his parents. But yet this provision assumes that a “citizen of the United States” does not have any foreign allegiance.

Third, Article II also says that “an immigrant accorded the privilege of residing permanently in the United States” owes no allegiance to any foreign sovereignty. This is simply not our citizenship and naturalization law. A person who is an immigrant and has the privilege to permanently reside in the United States is a permanent legal resident (LPR) or what is commonly known as a “green card” holder. This person has not yet been naturalized and is therefore not a “citizen of the United States” under the 14th Amendment. This person is an alien under our citizenship and naturalization laws. It is therefore not possible that this person would not owe allegiance to some foreign sovereignty.

Fourth, this provision also says that “a person without nationality in any foreign country” also has no allegiance to any foreign sovereignty. But the fact that someone may have no nationality in any foreign country does not mean that that person has no allegiance to some foreign sovereignty. Simply stated, allegiance and nationality are not the same things. Loss of nationality is a very complex matter and cannot be equated with loss of allegiance without any in depth analysis of all the legal ramifications involved.

IV. The Proposed Law Improperly Allows a Child Born to One or Two Alien Parents to Be Included As an Article II “Natural Born Citizen”

As we have seen, Article II of the proposed law provides that a “natural born Citizen” is a child born in the U.S. to “at least one parent who owes no allegiance to any foreign sovereignty, or a child without citizenship or nationality in any foreign country.” As can be seen, the new law defines a legal permanent resident (LPR) as having no foreign allegiance. Hence, under Arizona’s proposed law, the child’s parents could both be non-U.S. citizens or one could be a non-U.S. citizen and the child would be included as a “natural born Citizen.” We have also seen that a legal permanent resident is still considered an alien under our law. The proposed law also includes as a “natural born Citizen” “a child without citizenship or nationality in any foreign country,” without any reference to the allegiance and citizenship of that child’s parents. Hence, Arizona would therefore include as a “natural born Citizen” a child born in the U.S. to one or two alien parents. But such a definition of a “natural born Citizen” is in error.

Why do we need that the child be born to two U.S. citizen parents? Arizona’s proposed law would defeat the whole purpose of the Framers using the natural law definition of a “natural born Citizen” as the standard to be met by any would-be President and Commander in Chief. There is good reason why the Framers relied upon natural law to provide the definition of a “natural born Citizen.” Under natural law which when applied to nations become the law of nations, a “natural born Citizen” is defined as “those born in the country, of parents who are citizens.” Emer de Vattel, The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758). Vattel explains that it is “our extraction, not the place of birth, that gives us rights.” Id. at Section 216. We can see that under natural law and the law of nations, it is the condition of the parents that is critical to making a “natural born Citizen.” Hence, when applying the natural law definition of “natural born citizen,” we have to look only to the citizenship of the parents of the child at the moment of birth. But nations pass positive laws regarding citizenship which impact on the allegiance and citizenship of individuals born in and out of their territory. Hence, we also have to look to the place of birth when nations pass such positive laws concerning the citizenship status of its citizens born either in or out of its national boundaries. Vattel explains that those laws must be followed when a sovereign nation passes such laws. Id. at Section 215.

Under natural law and the law of nations and how the Framers juxtaposed “natural born Citizen” with “citizen of the United States” in Article I and II of the Constitution, a “natural born Citizen” includes all those born with no foreign allegiance and excludes all those born with foreign allegiance. The purpose of having the natural law national character of “natural born citizen” is to show that a person is born with natural allegiance to only one nation. It was because the “natural born Citizen” status gives a person such a natural character from birth that the Founders and Framers chose that natural law status as having to be the one to be held by a would-be President and Commander in Chief of the Military from the moment of birth. Indeed, it was this national character that for them best kept foreign influence out of the Offices of President and Commander in Chief.

A child born in the U.S. to alien parents inherits at birth a foreign natural allegiance from one foreign parent as he or she does from two foreign parents. This occurs under the doctrine of jus sanguinis (inheriting citizenship from one’s parents or other ascendants). With one foreign parent, he or she acquires positive law allegiance to the U.S. from being born on its territory and natural allegiance to the foreign nation of his or her parent by being born to them. With two foreign parents, he or she acquires positive law allegiance to the U.S. and natural allegiance to the two foreign nations of his or her parents. If the child is born out of the United States, he or she will acquire positive law foreign allegiance from the foreign territory on which he or she may be born. The point is that unless the child is born to two U.S. citizen parents in the U.S. which cuts off any possibility that either natural law foreign allegiance, inherited from alien parents, or positive law foreign allegiance, acquired from birth on foreign soil, will attach to the child, he or she will acquire either a natural foreign allegiance or a positive law foreign allegiance. Any one of these conditions under the natural law definition of a “natural born Citizen,” prevents that child from being considered a “natural born Citizen.”

No U.S. Court has ever ruled that a person born on U.S. soil to one or two alien parents is an Article II “natural born Citizen.” On the contrary, the only definition of a “natural born Citizen” ever found in any U.S. Supreme Court case is a child born in the U.S. to citizen parents. As authority for this definition, there exists the following cases: The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (Chief Justice John Marshall, concurring and dissenting for other reasons, cites and quoted from Emer de Vattel, Section 212 of The Law of Nations); Inglis v. Trustee of Sailor’s Snug Harbor, 29 U.S. 99 (1830); Dred Scott v. Sandford, 60 U.S. 393 (1857) (Daniels, J., concurring); Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (gives the same Vattelian definition); Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879) (not a Supreme Court case but persuasive); Ludlam v. Ludlam, 26 N.Y. 356 (1883) (not a U.S. Supreme Court case but persuasive); United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (not a U.S. Supreme Court case but persuasive); and U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898) (cites and quotes Minor’s Vattelian/American common law definition of a “natural-born citizen”) and Perkins v. Elg, 307 U.S. 325 (1939) (confirmed that a child born in the U.S. to citizen parents, even if those parents are naturalized U.S. citizens, is a “natural born Citizen”); contra the state case of Ankeny v. Governor of the State of Indiana, 916 N.E.2d 678 (Ind. Ct.App. 2009) (declared that “persons born within the borders of the United States are ‘natural born Citizens’ for Article II, Section 1 purposes, regardless of the citizenship of their parents.” But the court never even raised the issue that there was no proof before the court that Obama was “born within the borders of the United States.” In fact, the Ankeny court, while dismissing the plaintiffs’ case, never ruled that Obama was “born within the borders of the United States.” Nor did it rule that he was a “natural born Citizen.” Ankeny mistakenly concluded that the 14th Amendment case of Wong Kim Ark ruled Wong Kim Ark to be a “natural born Citizen” rather than a born “citizen of the United States.” In so ruling, the Ankeny court also incorrectly equated a British “natural born subject” with a U.S. “natural born Citizen” and incorrectly relied upon Wong Kim Ark).

Wong Kim Ark created a new category of a born 14th Amendment “citizen of the United States,” one born in the U.S. to alien parents. It did not in any way amend what an Article II “natural born Citizen” has always been since the Founding. There is plenty of language in the decision which shows that children born in the U.S. to alien parents were “citizens of the United States” while children born to U.S. citizen parents were “natural born Citizens.”

There exists no U.S. Supreme Court decision in which any Justice ever said that a “natural born Citizen” is a child born in the U.S. to one or two alien parents. When defining the clause, they said born in the U.S. to citizen parents. In Minor v. Happersett, the whole Court gave us that definition of a “natural born Citizen” which the whole court also confirmed in U.S. v. Wong Kim Ark.

Also, except for the Naturalization Act of 1790, which was passed by the First Congress and which was repealed by the Third Congress in 1795, the same is true of Congress by process of elimination, i.e., in all its naturalization acts, Congress has never had to tell us that a child born in the U.S. to two citizen parents is a “citizen of the United States.” Since such child is not included in any Act of Congress as needing to be declared a “citizen of the United States,” such child must be a “natural born Citizen.”

There also exists evidence directly from the Founding period which conclusively shows that a “natural born Citizen” was a child born to citizen parents and not to one or two alien parents. In his 1789 essay, A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789), while not using the phrase “natural born Citizen,” Ramsay described the original citizens that existed during the Founding and what it meant to acquire citizenship by birthright after the Founding. The Constitution itself shows that the Framers called the original citizens “Citizens of the United States” and those that followed them “natural born Citizens.”

First, Ramsay told us that there is a difference between a “subject” and a “citizen of the United States” and by the way he describes that difference we surely cannot simply say that for the Founders and Framers a “natural born Citizen” had the same meaning as a “natural born subject.” He said:

“A citizen of the United States, means a member of this new nation. The principle of government being radically changed by revolution, the political character of the people also changed from subjects to citizens. The difference is immense. Subject is derived from the latin words, sub and jacio, and means one who is under the power of another; but a citizen is an unit of a mass of free people, who, collectively, possesses sovereignty. Subjects look up to a master, but citizens are so far equal, that none have hereditary rights superior to others. Each citizen of a free state contains, within himself, by nature and the constitution, as much of the common sovereignty as another. In the eye of reason and philosophy, the political condition of citizens is more exalted than that of noblemen. Dukes and earls are the creatures of kings, and may be made by them at pleasure: but citizens possess in their own right original sovereignty.” Id. at 3 (emphasis in the original).

So we can see that with the American Revolution, the Founders and Framers abandoned the notion of a British common law “natural born subject” and replaced it with the new “political character” which they called “citizen of the United States,” a concept that had its genesis in natural law and the law of nations. And this latter term, which Ramsay said described a “political character,” had a meaning which was tied to the form of government chosen by the Founders and Framers, that form being a constitutional republic. It had a meaning that would serve the best interests of a constitutional republic to be led by a representative form of government rather than a monarchial one.

Second, Ramsay then explained the different ways by which the “high character of a citizen of the United States” is acquired in the new republic. He said concerning the children born after the declaration of independence:

“None can claim citizenship as a birth-right, but such as have been born since the declaration of independence, for this obvious reason: no man can be born a citizen of a state or government, which did not exist at the time of his birth. Citizenship 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.

He added that “[t]he citizenship of no man could be previous to the declaration of independence, and, as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776.” Id. And again, “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.

In referring to birthright citizenship, Ramsay did not use the clause “natural born Citizen.” Rather, he referred to citizenship as a birthright which he said was a natural right. But there is little doubt that how he defined birthright citizenship meant the same as “natural born Citizen,” “native,” and “indigenous,” all terms that were then used interchangeably and all which meant that the child was born to citizen parents.

Ramsay did recognize that future U.S. citizenship could also be gained by naturalization. Hence, it is only reasonable to conclude that his birthright citizenship was not limited to only the children of direct descendents of the original citizens but would also be available to the children of naturalized “citizens of the United States.”

Here we have direct and convincing evidence of how a very influential Founder defined a “natural born Citizen.” Noah Webster, 1828, in explaining how an American dictionary of the English language was necessary because American words took on different meanings than the same word in England, placed David Ramsay among great Founders such as “Franklin, Washington, Adams, Jay, Madison, Marshall, Ramsay, Dwight, Smith, Trumbull…”

For more information on David Ramsay and his influence during the Founding, please see my essay, Founder and Historian David Ramsay Defines a Natural Born Citizen in 1789, accessed at this blog at: http://puzo1.blogspot.com/2010/04/founder-and-historian-david-ramsay.html A copy of David Ramsay’s 1789 dissertation can be found at: http://www.scribd.com/doc/33807636/A-Dissertation-on-Manner-of-Acquiring-Character-Privileges-of-Citizen-of-U-S-by-David-Ramsay-1789

It is also important to understand that Arizona would allow aliens to rear the child who it declares to be a “natural born Citizen.” Aliens become “citizens of the United States” through naturalization which has a very important purpose in the U.S.

“The process of naturalization was specifically designed by Congress to require a foreign national to demonstrate that he or she is familiar with the history, traditions, and institutions of our society in a way that a native-born citizen would learn from formal education and basic social contact. Congress specifically provided that an alien seeking citizenship status must demonstrate ‘an understanding of the English language’ and ‘a knowledge and understanding of the fundamentals of the history, and of the principles and form of government, of the United States.’ 8 U. S. C. § 1423. The purpose was to make the alien establish that he or she understood, and could be integrated into, our social system.

‘Through the system of citizenship classes sponsored by the Immigration and Naturalization Service and the local school system, the alien is aided in preparing himself for citizenship, and every effort is made to give him fundamental and uniform knowledge of our political and social structure. In order that he may intelligently use this fundamental and uniform knowledge and so that he may be a complete and thoroughly integrated member of our American society, the committee [House Judiciary Committee] feels that he should have a basic knowledge of the common language of the country and be able to read, write, and speak it with reasonable facility.’ H. R. Rep. No. 1365, 82d Cong., 2d Sess., 78 (1952) (emphasis added).

See also 8 U. S. C. § 1424, which precludes aliens who manifest certain opposition to our society or form of government from being naturalized. An alien must demonstrate ‘good moral character,’ 8 U. S. C. § 1427 (a)(3), which was intended by Congress to mean a broad “attach[ment] to the principles of the Constitution of the United States, and [disposition] to the good order and happiness of the United States.” H. R. Rep. No. 1365, supra, at 80. See also 8 CFR § 332b (1973), detailing the cooperation between the Immigration and Naturalization Service and local schools conducting citizenship education for applicants for naturalization. The above is sufficient to demonstrate, I believe, that Congress provided that aliens seeking citizenship status prove what citizens by birth are, as a class, presumed to understand: a basic familiarity with our social and political mores and institutions. The naturalized citizen has demonstrated both the willingness and ability to integrate into our social system as a whole, not just into our ‘political community,’ as the Court apparently uses the term. He proved that he has become ‘like’ a native-born citizen in ways that aliens, as a class, could be presumed not to be. The Court simply ignores the purpose of the process of assimilation into and dedication to our society that Congress prescribed to make aliens ‘like’ citizens.

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But the justification of efficient government is an even more convincing rationale. Native-born citizens can be expected to be familiar with the social and political institutions of our society; with the society and political mores that affect how we react and interact with other citizens. Naturalized citizens have also demonstrated their willingness to adjust to our patterns of living and attitudes, and have demonstrated a basic understanding of our institutions, system of government, history, and traditions. It is not irrational to assume that aliens as a class are not familiar with how we as individuals treat others and how we expect ‘government’ to treat us. An alien who grew up in a country in which political mores do not reject bribery or self-dealing to the same extent that our culture does; in which an imperious bureaucracy historically adopted a complacent or contemptuous attitude toward those it was supposed to serve; in which fewer if any checks existed on administrative abuses; in which ‘low-level’ civil servants serve at the will of their superiors — could rationally be thought not to be able to deal with the public and with citizen civil servants with the same rapport that one familiar with our political and social mores would, or to approach his duties with the attitude that such positions exist for service, not personal sinecures of either the civil servant or his or her superior.” Sugarman v. Dougall, 413 U.S. 634, 659-62 (1973) (Rehnquist, J., dissenting).

So, naturalization is a process that serves to integrate an alien into American society. It is reasonable to conclude that a naturalized parent would pass to his or her children those values, attitudes, and knowledge acquired during this integration process. By allowing a “natural born Citizen” to be a child born to and reared by aliens, the Arizona law would remove the requirement that the child’s parents be “citizens of the United States” by birth or by naturalization. By not requiring that both of the child’s parents be citizens at the moment of birth, the proposed law would allow a child born to and reared by aliens to be eligible to be President.

For more information on why the “natural born Citizen” clause requires that both of the child’s parents be U.S. citizens at the time of birth, see my essay published on September 8, 2009, entitled, 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 , accessed at http://puzo1.blogspot.com/2009/09/natural-born-citizen-clause-requires.html

The Arizona proposed law, in how it defines a “natural born Citizen,” also contradicts Arizona HB 2544, which provides that a candidate for President show by competent evidence that he or she “has not held dual or multiple citizenship and that the candidate’s allegiance is solely to the United States of America.” Clearly, if a child is born to one or two alien parents, under the doctrine of jus soli citizenship, that child will be born with dual or multiple citizenships and not have sole allegiance to the United States.

Article VI provides in pertinent part: “B. This compact shall not take effect until the United States Congress has given its consent pursuant to Article I, Section 10, Clause 3 of the United States Constitution.” I do not see any way that the Congress would ever give its consent to any such proposed law which I will explain in a follow up article also contains many other unconstitutional provisions.

As we have seen, Arizona’s proposed law would completely change the American common law definition of an Article II “natural born Citizen.” In doing so, it would allow foreign influence to make its way into the offices of President and Commander in Chief and thereby dilute the safeguards for the survival and preservation of the nation that the Founders and Framers gave us through the “natural born Citizen” clause. This proposed law is therefore detrimental to the national security and best interests of the United States in how it attempts to re-define an Article II “natural born Citizen.” This proposed law is not only unconstitutional but also ill conceived as to its merits. As now written, it should be allowed to suffer a quick death.

Mario Apuzzo, Esq.
February 24, 2011
Revised February 25, 2011
http://puzo1.blogspot.com/
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Copyright © 2011
Mario Apuzzo, Esq.
All Rights Reserved

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February 21, 2011

>Ad – Obama Ineligible! Washington Times National Weekly Edition – page 5

>

Ad – Obama Ineligible! Washington Times National Weekly edition – page 5.

http://www.scribd.com/doc/49213761/Obama-Ineligible-21-Feb-2011-Washington-Times-National-Weekly-edition-pg-5

Citizen maybe, but NOT a “natural born Citizen” of the United States.

Obama is not Article II constitutionally eligible to be the President and Commander of our military. Obama is NOT a “natural born Citizen” to constitutional standards. Obama’s father was NOT a U.S. Citizen. Obama’s father was not an immigrant to the United States. Obama’s father was a foreign national, a British Subject. Obama is the child of an alien father who was sojourning in the U.S. attending college. Obama was born a British Subject via his father and is still such to this day. Obama has never conclusively proved he was born in Hawaii. Obama’s paternal family in Kenya, Kenyan government officials, and newspapers in Kenya say he was born in Kenya. Obama’s maternal grandmother likely falsely and illegally registered him as born in Hawaii to get him, her new foreign-born grandson, U.S. Citizenship.

History shows us that a popularly elected, but ineligible, chief executive in the executive branch of a government can be legally and constitutionally removed from office, e.g., Governor Thomas H. Moodie of North Dakota was a prime example. After he was sworn in and serving as Governor, the North Dakota State Supreme Court ordered Governor Moodie removed from office, after it was determined that he was constitutionally and legally ineligible to serve in the office to which he was popularly elected. http://history.nd.gov/exhibits/governors/governors19.html

Also, two U.S. Senators although popularly elected and sworn in to the U.S. Senate were subsequently removed from office after it was learned that they were NOT constitutionally eligible when they were elected.
Albert Gallatin [U.S. Senator seating unconstitutional and annulled]:
http://en.wikipedia.org/wiki/Albert_Gallatin
James Shields [U.S. Senator seating unconstitutional and annulled]:
http://en.wikipedia.org/wiki/James_Shields

Thus it is very clear that winning a popular election does not trump or nullify the constitution of a state or the U.S. federal constitution. Obama is not constitutionally eligible to be the President and Commander in Chief of the military and should be removed from office and his election, confirmation, and swearing in annulled.

Charles F. Kerchner, Jr.
CDR USNR (Retired)
http://www.protectourliberty.org/
http://puzo1.blogspot.com
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February 15, 2011

>The Citizenship Status of Our 44 Presidents

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The Citizenship Status of Our 44 Presidents
By: Mario Apuzzo, Esq.
February 14, 2011

A famous Holmesian dictum provides that “a page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.). There have been 43 Americans that have served as President (not including Barack Obama). Ten were born before 1787. Until Martin Van Buren (who was born in 1782 or six years after the signing of the Declaration of Independence) became President in 1837 (making him the 8th president), all the Presidents had been born before 1776 to parents who, undoubtedly, at the time considered themselves to be loyal subjects of one of the British Kings. The president following Van Buren, William H. Harrison (the 9th president), was also born before 1776 to parents who were British “natural born subjects.” All Presidents born before July 4, 1776, were born British “natural born subjects.” Those early presidents were naturalized to become “Citizens of the United States” through the Declaration of Independence and by adhering to the American Revolution. These presidents included Washington, Adams, Jefferson, Madison, Monroe, Adams, Jackson, and Harrison. Article II, Section 1, Clause 5, allowing anyone who was a “Citizen of the United States” at the time of the adoption of the Constitution to be eligible to be President, grandfathered these presidents to be eligible. All presidents born after 1787, except for Chester Arthur and Barack Obama, met the “natural born Citizen” criteria, i.e., born on U.S. soil to a mother and father who were themselves U.S. citizens at the time of the President’s birth. Neither Arthur nor Obama were “natural born Citizens” at the time of birth. Arthur was born to an alien father who also made his U.S. citizen mother an alien. Obama was born to a non-U.S. citizen father who never became a U.S. citizen and, being here only on a temporary student visa, was never even an immigrant. There have been 46 Americans that have served as Vice-President (not including Mr. Biden). Ten were born before 1787. All Vice-Presidents born after 1787, except for Chester Arthur, met the “natural born Citizen” criteria. Fourteen Vice Presidents have gone on to be President.

Some believe that John Tyler was our first “natural born Citizen” President. They believe that a President had to be born after the adoption of the Constitution in 1787 in order to be a “natural born Citizen.” Since Tyler was born in 1790 in Virginia, they conclude that he was the first President to be a “natural born Citizen.” I do not agree with this approach to determining who our first “natural born Citizen” President was.

The citizens made the Constitution and their government. The Constitution and government did not make the citizens. The citizens had the unalienable rights to life, liberty, and the pursuit of happiness granted to them by nature and their Creator and not by the Constitution or government. On July 4, 1776, our first Americans declared independence from Great Britain and created the new American community of free and independent states. July 4, 1776 is therefore the critical date which established American citizenship. The Articles of Confederation and Perpetual Union, the first constitution of the United States, which went into use in 1777 and which were formally ratified on March 1, 1781, officially recognized the nation as the “United States of America.” Hence, all those who helped create the new nation became its members and therefore its citizens. These were the first “Citizens of the United States,” which Article II, Section 1, Clause 5 grandfathered to be eligible to be President provided they were born before the adoption of the Constitution.

Hence, anyone born after July 4, 1776 in the U.S. to parents who became “Citizens of the United States” as a result of the Declaration of Independence and by adhering to the American Revolution was born in the country to U.S. citizen parents and therefore a “natural born Citizen.” The First Congress in the Naturalization Act of 1790 even extended the “natural born Citizen” status to persons born abroad to U.S. citizen parents. The Third Congress, through the Naturalization Act of 1795, repealed the 1790 Act and declared such children born abroad to U.S. citizen parents to be considered as “citizens of the United States” and not “natural born Citizens.”

The first President to be born after July 4, 1776 in the U.S. to parents who became “Citizens of the United States” on July 4, 1776 was Martin Van Buren, who was born in 1782 in New York. He was therefore the first President to be a “natural born Citizen.” Tyler was the second President to be born under these birth circumstances which makes him the second President to be a “natural born Citizen.”

Let us now examine how President James Buchanan, who had an Irish father, Woodrow Wilson, who had an English mother, and Herbert Hoover, who had a Canadian mother, were “natural born Citizens.” As we have seen, President Thomas Jefferson, whose mother was born in England, and Andrew Jackson, whose parents were both born in Ireland, were grandfathered to be eligible to be President. Chester Arthur, not being either grandfathered or a “natural born Citizen,” will be treated separately.

When determining whether a child born in the U.S. is an Article II “natural born Citizen,” the question is not whether the parents of the child are foreign born. Rather, the question is whether they are “citizens of the United States” at the time of the child’s birth in the United States. In Minor v. Happersett, 88 U.S. 162, 167-68 (1875), our U.S. Supreme Court, providing the same definition of a “natural born citizen” as did Emer de Vattel in his The Law of Nations, Section 212 (1758), but without citing Vattel, and not in any way referring to the English common law, 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. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens.”

Id., 169 U.S. at 679-80. So as we can see, the Supreme Court told us that a “natural born citizen” is a child born in the country to citizen parents. See also, U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898) (distinguished between a “natural born Citizen” and a “citizen of the United States” and cited Vattel and quoted his definition of “natural born Citizen” as did Minor v. Happersett but relied on the English common law to define a born “citizen of the United States” under the 14th Amendment).

The status of being “citizens of the United States” can be acquired by the parents by either being “natural born Citizens” or by becoming “citizens of the United States” by naturalization under an Act of Congress or treaty or if born in the U.S. under the 14th Amendment. The case of Perkins v Elg 307 U. S. 325 (1939) makes the point and shows how a child born in the U.S. to naturalized parents was declared a “natural born Citizen.” The central question in the Perkins case dealt with whether the Elg child lost her U.S. birth citizenship status because of the acts of her parents and not because of anything she elected to do or some treaty or Act of Congress. But the case is also important in understanding the meaning of a “natural born Citizen.”

Under out naturalization laws, citizenship can be derived from a close relation to a family member. 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.

Marie Elg’s parents emigrated from Sweden to the U.S. in 1906. In that same year, Mr. Elg naturalized and became a U.S. citizen. Under the then existing naturalization laws (Act of 10 February 1855), his wife automatically became a U.S. citizen through the U.S. naturalization of her husband. Hence, when Marie Elg was born in the U.S. in 1907 both her mother and father were U.S. citizens. Marie Elg was therefore a child born in the United States to U.S. citizen parents. The Court found that “[o]n her birth in New York, the plaintiff became a citizen of the United States. Civil Rights Act of 1866, 14 Stat. 27; Fourteenth Amendment, § 1; United States v. Wong Kim Ark, 169 U. S. 649.” Additionally, the lower court found Elg to be a “natural born Citizen.” The U.S. Supreme Court affirmed this finding. The Court therefore gave a child born to naturalized “citizens of the United States” the right to run for President. The U.S. Supreme Court in Elg therefore once again affirmed the American common law definition of a “natural born Citizen” which is a child born in the country to citizen parents, a definition that was confirmed during the Founding by Emer de Vattel in his The Law of Nations, Section 212 (1758). On the other hand, no U.S. Supreme Court decision has found a child born to one or two alien parents to be an Article II “natural born Citizen.”

So as we can see, a “natural born Citizen” can be produced by being born in the U.S. to naturalized parents who are “citizens of the United States.” Also, under our old naturalization laws, once a woman married a U.S. citizen, she herself automatically became a U.S. citizen derivatively from her husband. These laws apply to show that three of the six Presidents listed were “natural born Citizens.” Jefferson was not a “natural born Citizen” but, adhering to the revolution, was a “citizen of the United States.” Under Article II, Section 1, Clause 5, he was grandfathered to be eligible to be President. Jackson, also became a “citizen of the United States” by adhering to the revolution and also grandfathered to be eligible to be President. Buchanan’s father naturalized to become a “citizen of the United States” prior to his son’s birth. Wilson’s mother became a “citizen of the United States” when she married her husband who was a “citizen of the United States.” Hoover’s mother became a “citizen of the United States” when she married her husband who was a “citizen of the United States. So except for Jefferson and Jackson who were grandfathered, all these presidents were born in the U.S. to parents who were at the time of their birth “citizens of the United States.” They were all “natural born Citizens.”

The only exception to all this is Chester Arthur. Chester Arthur (1881-1885), was born on October 5, 1829 in Fairfield, Vermont. His father, William Arthur, when eighteen years of age, emigrated from Co. Antrim, Ireland. His father did not become a naturalized U.S. citizen until 14 years after Chester Arthur’s birth. Chester Arthur’s mother, Malvina Stone, was born April 29, 1802 in Berkshire, Franklin, Vermont. Hence, Chester Arthur was born to a father who was not a U.S. citizen at the time of his birth. Because the citizenship of the wife merged into that of the husband, this made Arthur born to an alien mother and father. He was therefore born with dual citizenship of the United Kingdom and the United States. It is believed that Chester Arthur lied numerous times about his past to hide the fact that when he was born his father was not a U.S. citizen and to therefore obfuscate his ineligibility to hold Vice-Presidential and Presidential office. What is most telling is that Chester Arthur also burned all personal records just prior to his death. Chester Arthur was challenged during his Vice Presidential bid on the ground that he was not born in the United States. No one challenged Chester Arthur on the ground that even if he were born in the United States, he was still not an Article II “natural born Citizen” because of his father’s foreign citizenship at the time of his birth which also made his mother an alien. Hence, the Chester Arthur example is not and cannot be treated as any precedent since the nation was not aware of the truth about his father’s and mother’s non-U.S. citizenship status at the time of his birth. Gregory J. Dehler, Chester Alan Arthur: The Life of a Gilded Age Politician and President, Published by Nova Science Publishers, Incorporated, 2006, ISBN 1600210791, 9781600210792, 192 pages; http://naturalborncitizen.wordpress.com/2008/12/06/urgent-historical-breakthrough-proof-chester-arthur-concealed-he-was-a-british-subject-at-birth/. Also see the research done by attorney Leo Donofrio on the Chester Arthur issue which can be found at http://naturalborncitizen.wordpress.com/2008/12/06/urgent-historical-breakthrough-proof-chester-arthur-concealed-he-was-a-british-subject-at-birth/.

For information and research on the meaning of an Article II “natural born Citizen,” please see the many essays at this blog, http://puzo1.blogspot.com/.

Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg, NJ 08831
Tel: 732-521-1900
Fax: 732-521-3906
http://puzo1.blogspot.com/
© 2011 Mario Apuzzo, Esq.
All Rights Reserved
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P.S.  A copy of this report may be downloaded at SCRIBD.com at this link:
http://www.scribd.com/doc/48894388/The-Citizenship-Status-of-Our-44-Presidents

P.P.S.  Cross link to a report by CDR Charles Kerchner (Ret) on the citizenship status of all 44 presidents:
http://puzo1.blogspot.com/2011/02/list-of-us-presidents-eligibility-under.html

>List of U.S. Presidents – Eligibility under Article II Grandfather Clause (GFC) or Natural Born Citizen (NBC) Clause or Seated due to Election Fraud

>List of U.S. Presidents – and their Constitutional Eligibility under the U.S. Constitution’s Article II, Section 1 “Grandfather Clause (GFC)” or the “Natural Born Citizen (NBC) Clause”, or were they seated unconstitutionally due to Election Fraud. Under the Grandfather Clause the person must have been a Citizen of the United States at the time of the adoption of the U.S. Constitution. Under the Natural Born Citizen (NBC) Clause the person must have been born in the USA to parents who were born Citizens of the United States when the child was born. Under the NBC clause it does not matter if the parents were foreign born but only that they both be U.S. Citizens (either born or naturalized) when the child is born in the USA. Both Chester Arthur and Barack Obama were unconstitutionally seated due to Election Fraud and their lying about their respective nativity stories and hiding and destroying their personal early life records. It has been recently discovered that despite the fact the Chester Arthur’s father ultimately was a U.S. Citizen, he did not naturalize until after his son Chester Arthur was born. Obama’s father was never a U.S. Citizen, never intended to be, was not even an immigrant to the USA nor was he even a permanent resident. Obama’s father was a foreign national sojourning in the USA to attend college. Obama’s father was a British Subject and at birth Obama was also a British Subject governed by the British Nationality Act of 1948. Obama was thus not a “natural born Citizen” of the United States and is constitutionally ineligible to be President and Commander in Chief of our Military.

http://www.scribd.com/doc/48856102/List-of-U-S-Presidents-Eligibility-under-Grandfather-Clause-GFC-or-Natural-Born-Citizen-NBC-or-Seated-due-to-Fraud

CDR Charles Kerchner (Ret)
Lehigh Valley PA USA
http://www.protectourliberty.org
http://puzo1.blogspot.com
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P.S.  Cross link to a report my Mario Apuzzo, Esq., on the eligibility of our 44 Presidents:
http://puzo1.blogspot.com/2011/02/citizenship-status-of-our-44-presidents.html

February 14, 2011

>Ad: Obama is NOT a Natural Born Citizen of the United States – 14 Feb 2011 Wash Times Natl Wkly pg 5

>Ad: Obama is NOT a Natural Born Citizen of the United States – 14 Feb 2011 Wash Times Natl Wkly pg 5. Article II “Natural Born Citizen” Means Unity of Citizenship and Sole Allegiance at Birth – by Mario Apuzzo, Esq.

http://www.scribd.com/doc/48756724/Obama-Not-a-Natural-Born-Citizen-w-Venn-Diagram-14Feb2011-Wash-Times-Natl-Wkly-pg-5

Citizen maybe, but NOT a “natural born Citizen” of the United States.

Obama is not Article II constitutionally eligible
to be the President and Commander of our military. Obama is NOT a “natural born Citizen” to constitutional standards. Obama’s father was NOT a U.S. Citizen. Obama’s father was not an immigrant to the United States. Obama’s father was a foreign national, a British Subject. Obama is the child of an alien father who was sojourning in the U.S. attending college. Obama was born a British Subject via his father and is still such to this day. Obama has never conclusively proved he was born in Hawaii. Obama’s paternal family in Kenya, Kenyan government officials, and newspapers in Kenya say he was born in Kenya. Obama’s maternal grandmother likely falsely and illegally registered him as born in Hawaii to get him, her new foreign-born grandson, U.S. Citizenship.

History shows us that a popularly elected, but ineligible, chief executive in the executive branch of a government can be legally and constitutionally removed from office, e.g., Governor Thomas H. Moodie of North Dakota was a prime example. After he was sworn in and serving as Governor, the North Dakota State Supreme Court ordered Governor Moodie removed from office, after it was determined that he was constitutionally and legally ineligible to serve in the office to which he was popularly elected. http://history.nd.gov/exhibits/governors/governors19.html

Also, two U.S. Senators although popularly elected and sworn in to the U.S. Senate were subsequently removed from office after it was learned that they were NOT constitutionally eligible when they were elected.
Albert Gallatin [U.S. Senator seating unconstitutional and annulled]:
http://en.wikipedia.org/wiki/Albert_Gallatin
James Shields [U.S. Senator seating unconstitutional and annulled]:
http://en.wikipedia.org/wiki/James_Shields

Thus it is very clear that winning a popular election does not trump or nullify the constitution of a state or the U.S. federal constitution. Obama is not constitutionally eligible to be the President and Commander in Chief of the military and should be removed from office and his election, confirmation, and swearing in annulled.

Charles F. Kerchner, Jr., Commander USNR (Retired)
Please if you can, visit this site and help the cause
to increase public awareness of this issue:
http://www.protectourliberty.org/
http://puzo1.blogspot.com
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