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

March 20, 2011

>The ‘Independent.ie’ Calls the Birthers “An Ardent Group of Radicals”

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The ‘Independent.ie’ Calls the Birthers “An Ardent Group of Radicals”
By Mario Apuzzo, Esq.
March 20, 2011

I just read the following article at Independent.ie. Its web site says that it is “Ireland’s number one news and information portal.” It adds that it “provides up to the minute news content and services to a global audience.” Independent.ie is part of Independent News & Media PLC, a leading international newspaper and communication group. Its web site has this to say about the group:

“Independent News & Media PLC [INM] is a leading international newspaper and communications group, with its main interests in Australia, India, Ireland, New Zealand, South Africa and the United Kingdom. Spanning four continents, 10 major markets and 22 individual countries, INM has market-leading newspaper positions in Australia (regional), India, Indonesia, Ireland, New Zealand and South Africa. In the United Kingdom, it publishes the flagship national title, The Independent, as well as being the largest newspaper group in Northern Ireland.

Across these regions, the Group publishes over 200 newspaper and magazine titles, delivering a combined weekly circulation of over 33 million copies, with a weekly audience of over 100 million consumers and includes the world’s largest read newspaper, Dainik Jagran, in India. The Group has established a strong and growing online presence, with over 100 editorial, classified and transactional sites.”

Now for an excerpt from the March 20, 2011 article:

“THE people of Moneygall can expect more than the usual madness when President Barack Obama swings by in May — specifically lots of snooping and sniping from supporters of the “birther” movement, an ardent group of radicals who claim Obama is not a natural-born US citizen — and thus has no legitimate claim on the Oval Office.

Obama, who has been knocking down claims that he was really born in Kenya and/or that he is a Muslim and/or a British subject since the start of his campaign, recently stirred the pot when he started making fun of the president wasn’t-born-here crusade.

Last weekend, at the Gridiron Club dinner, Obama had everyone in stitches when he instructed the band to play Bruce Springsteen’s Born in the USA instead of Hail to the Chief. And last Thursday, when the president addressed guests at the St Patrick’s Day lunch on Capitol Hill, he went out of his way to tease those who “are still bent on peddling rumours about my origins”, before putting his Moneygall ancestry squarely in play. “Today, I want to put all those rumours to rest,” he laughed. “It is true my great-great-great-grandfather really was from Ireland. It’s true. Moneygall, to be precise. I can’t believe I have to keep pointing this out.”

But Obama might be forced to change the tenor of his tune by the time he hits Offaly. Last Thursday, potential 2012 presidential candidate Donald Trump amped up the conspiracy theories saying he finds it “strange” that nobody knew Obama as a child in Hawaii.

“He grew up and nobody knew him. You know? When you interview people, if ever I got the nomination, if I ever decide to run, you may go back and interview people from my kindergarten. They’ll remember me,” Trump said on Good Morning America. “Nobody ever comes forward. Nobody knows who he his until later in his life. It’s very strange. The whole thing is very strange.”

Read more: http://www.independent.ie/lifestyle/independent-woman/celebrity-news-gossip/us-diary-obama-irish-trip-wont-help-him-with-birthers-2586480.html#ixzz1H9UqdfjI

Now let us examine just what is wrong with this insidious article. Just what may a “birther” be? A “birther” is a person who wants to see our Constitution’s Article II, Section 1, Clause 5 “natural born Citizen” clause respected and protected by our nation.

It was the fear of foreign influence invading the Office of Commander in Chief of the military that prompted John Jay, our first U.S. Supreme Court Chief Justice, to write to George Washington the following letter dated July 25, 1787: “Permit me to hint, whether it would be wise and seasonable to provide ‘a strong check’ to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen (underlying “born” in the original). Jay’s recommendation did make it into the Constitution. Article II, Section 1, Clause 5 of the Constitution provides in pertinent part: “No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President. . .” In this clause and in Articles I, III, and IV, the Founding Fathers distinguished between “Citizen of the United States” and “natural born Citizen.” Per the Founders, while Senators and Representatives can be just “Citizens of the United States,” the President must be a “natural born Citizen.”

The Founders and Framers put their ultimate trust in “the Laws of Nature and of Nature’s God” and not in the laws of mankind and human political and legal institutions. The Declaration of Independence, preamble. The “natural born Citizen” clause is a manifestation of this trust. Through this clause, the Founders sought to guarantee that the ideals for which they fought would be faithfully preserved for future generations of Americans. The Founders wanted to assure that the Office of President and Commander in Chief of the Military, a non-collegial and unique and powerful civil and military position, was free of all foreign influence and that its holder has from birth sole and absolute allegiance, loyalty, and attachment to the United States. Indeed, the Founders and Framers demanded that a would-be President, born after the adoption of the Constitution, be born with sole allegiance to and unity of citizenship in the United States. The “natural born Citizen” clause was the best way for them to assure this birth circumstance.

Basically, the birthers make two different arguments which have their basis in the definition of a “natural born Citizen.” So what is this definition? Natural law and the law of nations which became American common law provide that a “natural born Citizen” is a child born in the United States (or equivalent) to a U.S. citizen father and mother. This definition was included in the immensely important and influential 18th century treatise of Emer de Vattel, The Law of Nations, Or, Principles of the Law of Nature, bk 1, c. 19, secs. 212-217 (London 1797) (1st ed. Neuchatel 1758) (1759 first English translation), and confirmed by the following U.S. Supreme Court cases:

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.

Inglis v. Sailors’ Snug Harbor, 28 U.S. 99, 3 Pet. 99, 7 L.Ed. 617 (1830): the Court, which included Chief Justice John Marshall, held that a child born after July 4, 1776, in New York to British subjects was himself a British subject.

Dred Scott v. Sandford, 60 U.S. 393 (1857): Justice Daniels concurring cited Vattel and The Law of Nations and provided his definition of “natural born citizens.”

Slaughter-House Cases, 83 U.S. 36, 21 L.Ed. 394, 16 Wall. 36 (1872): In explaining the meaning of the Fourteenth Amendment citizenship clause, stated in dicta that “subject to the jurisdiction thereof,” “was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”

Minor v. Happersett, 88 U.S. 162, 167-68 (1875): Providing the same Vattelian definition without citing Vattel, and not in any way referring to the English common law as a source for the definition of a “natural born Citizen,” 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 (emphasis supplied). Minor did not cite Vattel but as can be seen the Court’s definition of a “citizen” and a “natural-born citizen” are taken directly out of Vattel’s The Law of Nations, Section 212.

Elk v. Wilkins, 112 U.S. 94 (1884): This was a decision of the U.S. Supreme Court written by Justice Gray. Justice Gray stated: “Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes, (an alien though dependent power,) although in a geographical sense born in the United States, are no more ‘born in the United States and subject to the jurisdiction thereof,’ within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.” Hence, the Court rejected mere territorial jurisdiction (e.g., a child born on U.S. soil to alien parents) and rather required complete, political jurisdiction (e.g., a child born on U.S. soil to U.S. citizen parents) in order for a child to be entitled to birthright citizenship. This meant being born with full and complete jurisdiction in the United States and not being born with a qualified or partial jurisdiction such as arises when a person is born with an allegiance to a nation other than the United States which occurs by being born in the United States to one or two alien parents.

U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898): This was another U.S. Supreme Court decision written by Justice Gray which held that a child born in the United States to alien parents who were domiciled and residing in the United States and not employed in any foreign diplomatic service was born “subject to the jurisdiction” of the United States and therefore a Fourteenth Amendment born “citizen of the United States.” Here, he distinguished between a “natural born Citizen” and a “citizen of the United States.” On “natural born Citizen,” he cited and quoted from Minor v. Happersett which as we have seen relied upon Vattel and quoted his definition of “natural born Citizen.” But in defining the new born “citizen of the United States” under the 14th Amendment, he relied on the English common law to define such a citizen. In giving the nation a new type of born “citizen of the United States,” one born in the United States with allegiance to not only to the United States but also to a foreign power, the Court per Justice Gray abandoned the position that it had taken in Elk that birthright citizenship under the 14th Amendment meant being born with complete and absolute jurisdiction to the United States which also meant being born with sole allegiance to the United States. In rendering his decision, Justice Gray disregarded the intended rule under the 14th Amendment that “natural born citizens” and naturalized citizens are equal in every respect except that only the former are eligible to be President. Under Justice Gray’s holding, after birth naturalized citizens have to take an oath of allegiance renouncing all foreign allegiance before being admitted to American membership but his born “citizens of the United States,” who are born with foreign allegiance, do not. His holding also allows persons to become born “citizens of the United States” without the consent of the nation while requiring it for those who become naturalized “citizens of the United States” after birth. In any event, Justice Gray did not alter the meaning of a “natural born Citizen,” but rather just provided for a new type of born dual allegiance “citizen of the United States.” Not being “natural born Citizens” under natural law because of being born with foreign allegiance, and rather becoming “naturalized born Citizens of the United States” under positive laws such as the 14th Amendment and 8 U.S.C. Section 1401(a), it is the latter citizens, along with those who under other Congressional Acts or treaties become naturalized “citizens of the United States” after birth, who go on to procreate and become the parents of “natural born Citizens.”

This definition of a “natural born Citizen” was also confirmed by Rep. John Bingham. In the House of Representatives on March 9, 1866, when commenting on the Civil Rights Act of 1866, which was the precursor to the 14th Amendment, he confirmed Vattel’s definition as the standard for defining a “natural born Citizen” when he proclaimed: “[I] find no fault with the introductory clause, which is 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. . . . ” John A. Bingham, (R-Ohio) US Congressman, March 9, 1866 Cong. Globe, 39th, 1st Sess., 1291 (1866), Sec. 1992 of U.S. Revised Statutes (1866).

So as we can see, the original and only definition of a “natural born Citizen” includes all those who were not born with any foreign allegiance and excludes all those born with foreign allegiance. In order to acquire this birth status, the definition of a “natural born Citizen” contains as necessary elements both U.S. place of birth (jus soli) and U.S. parentage (jus sanguinis), for birth allegiance and citizenship may attach to a child from either one of these sources. One “birther” argument focuses on Obama’s alleged place of birth. These concerned Americans want nothing more than to be assured that their President and Commander in Chief was born in Hawaii as he says he was. There exists a substantial amount of evidence that gives them enough concern to want to know for sure that their putative President was in fact born in Hawaii. This evidence may be reviewed at, A Catalog of Evidence – Concerned Americans Have Good Reason to Doubt that Putative President Obama Was Born in Hawaii , http://puzo1.blogspot.com/2010/05/catalog-of-evidence-concerned-americans.html . Despite this great amount of evidence, Obama to this day refuses to release to the public a valid copy of his long-form, hospital generated birth certificate which would but an end to the place of birth controversy. Nor is he willing to allow his alleged birth hospital, Kapi’olani Maternity & Gynecological Hospital (now called Kapi’olani Medical Center for Women and Children) to publicly confirm that he was born there.

Another “birther” argument focuses on Obama’s parentage. They argue that Obama fails to meet the “natural born Citizen” eligibility test because when he was born in 1961 (wherever that may be), he was not born to a United States citizen mother and father. At his birth, his mother was a United States citizen. But under the British Nationality Act of 1948, his father, who was born in the British colony of Kenya, was born a Citizen of the United Kingdom and Colonies (CUKC) which by descent under that same law made Obama himself a CUKC. Prior to Obama’s birth, Obama’s father neither intended to nor did he become a United States citizen. Being temporarily in the United States only for purpose of study and with the intent to return to Kenya, his father did not intend to nor did he become even a legal resident or immigrant to the United States. So under this 1948 statute, foreign allegiance attached to Obama at the moment of his birth. Our own laws recognized this foreign allegiance attaching to Obama. The point is clearly made when we consider that while John McCain was born in Panama to U.S. citizen parents, our Senate still considered him a “natural born Citizen.” This recognition by our own Senate of a foreign-born child as a “natural born Citizen” shows the power and influence that the citizenship of parents has in matters of citizenship and naturalization, creating enough allegiance to the United States to trust that person to be President and Commander in Chief of the Military even though born in a foreign country.

The U.S. State Department has confirmed that Obama was born with dual allegiances. Leventhal cites FactCheck.org to state, “Obama was originally both a U.S. citizen and a citizen of the United Kingdom and Colonies from 1961 to 1963 given that his father was from Kenya, which gained its independence from the British Empire in 1963. Upon independence, Obama became both a U.S. and Kenyan citizen from 1963 to 1982 [sic should be 1984], and solely a U.S. citizen after that.” The entry “The Obama Birth Controversy” was written by Todd Leventhal, the chief of the Counter-Misinformation Team for the U.S. Department of State.

Obama may be a born “naturalized citizen of the United States” under the 14th Amendment or a Congressional Act (if he was born in Hawaii). But he is not an Article II “natural born Citizen of the United States,” for upon Obama’s birth his father was a British subject and Obama himself by descent was also the same. Hence, Obama was born subject to a foreign power and with foreign allegiance. Obama lacks the birth status of natural sole and absolute allegiance and loyalty to the United States which only the President and Commander in Chief of the Military and Vice President must have at the time of birth. Being born subject to a foreign power, he lacks sole allegiance and unity of citizenship to the United States from the time of birth which assures that required degree of natural sole and absolute birth allegiance and loyalty to the United States from birth, a trait that is constitutionally indispensable in a President and Commander in Chief of the Military. Like a naturalized citizen, who despite taking an oath later in life to having sole allegiance to the United States cannot be President because of being born subject to a foreign power, Obama too cannot be President.

The “natural born Citizen” clause serves a critical purpose today as it always has and must be enforced in every Presidential election. The President has immense power, both civil and military. The clause assures the American people that their President does not have any allegiances, loyalties, or attachment to any nation other than the United States. In our nuclear world, it will avoid having a President who may hesitate to act quickly and decisively in a moment of crisis due to some internal psychological conflict of allegiance or loyalty. It will avoid any foreign nation expecting and pressuring the President to act in their best interest instead of that of America. The clause also gives the American people the best chance that they will not be attacked or have their fundamental form of government altered from within the Office of President. Knowing the President is a “natural born Citizen,” the American people will trust their President with their lives. Finally, such a President can expect that the military will give him or her full trust and obedience. Read more at Why the “Natural Born Citizen” Clause of Our Constitution Is Important and Worth Preserving , http://puzo1.blogspot.com/2009/08/why-natural-born-citizen-clause-is.html .

What the Independent.ie “news” organization fails to understand is that a majority of Americans are “birthers,” concerned about any one of these issues or all of them. Looking for answers to these legitimate questions can hardly qualify these concerned Americans as “radicals.” Rather, these are concerns that are important to many Americans, and this news organization should study and understand them before publishing such reckless and irresponsible statements about a majority of Americans.

Mario Apuzzo, Esq.
March 20, 2011
http://puzo1.blogspot.com/

Copyright © 2011
Mario Apuzzo, Esq.
All Rights Reserved
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P.S. Posted by CDR Kerchner (Ret)
Update with data from a new survey released today — 20 March 2011:
Only 9% of those surveyed in a recent poll believe that Obama has shown that he is constitutionally eligible to be the President:
http://www.wnd.com/index.php?fa=PAGE.printable&pageId=276865

A Catalog of Evidence – Concerned Americans Have Good Reason to Doubt that Putative President Obama Was Born in Hawaii
http://puzo1.blogspot.com/2010/05/catalog-of-evidence-concerned-americans.html
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March 2, 2011

>The States Have a Right and Duty to Assure Their Citizens That a Presidential Candidate Is an Article II “Natural Born Citizen"

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The States Have a Right and Duty to Assure Their Citizens That a Presidential Candidate Is an Article II “Natural Born Citizen”

By Mario Apuzzo, Esq.
March 2, 2011

The Founders and Framers did not set up a monarchy in the new nation that they created. Rather, they created a republic. A republic is a state in which all the people, except those disqualified by law, have a say and opportunity to participate in the administration of the nation and its government and elect representatives to operate their government. Republican government is a government by the people. It is operated by representatives chosen by the people. So through their representatives, the people administer their government. Black’s Law Dictionary 1171 (5th ed. 1979). It therefore becomes critical in a republic with a self-representative form of government that, for the sake of their well-being and self-protection, the people know for whom they are voting and that, in the case of the President, that that person is eligible under Article II of the Constitution to assume the powers of that office should he or she win the election. After all, citizens, who under our form of government are to consent to their government’s existence, should know in advance that their vote will count and not be cast for a person who will not qualify for the Office of President or worst yet, that their vote will be cast for someone who should take by usurpation the great and singular powers of that office while not being eligible to do so.

Hence, running for the Office of President under the 1st Amendment, which guarantees political free speech, is one thing. But winning the election and taking the power of that office under Article II, which does not involve political free speech, is another.

In the Kerchner v. Obama/Congress case, the plaintiffs sued Barack Obama as President Elect before Congress confirmed him as Article II eligible under the 20th Amendment and as President after being sworn in by Chief Justice John Roberts. Hence, at those stages of the political process, Obama had exhausted his free speech rights to run for the Office of President. Plaintiffs sued Obama because he never conclusively proved that he was born in Hawaii and because he is not and cannot be an Article II “natural born Citizen,” given that his father was not a U.S. citizen when Obama was born wherever that may be.

Despite the Kerchner and the many other law suits that plaintiffs filed against Obama and others, the courts have allowed Obama to game our honor system.

If no one else is going to protect its citizens, then the States have every right and duty to do so.  States have a right and duty to protect the life, liberty, and property of their citizens. If Congress and the courts, because of political inconvenience, refuse to protect a State’s citizens, then the States must do so by utilizing the 9th and 10th Amendments, their police powers, and their power to run fair elections. That includes making sure through an election process that comports with the Constitution and their own state election laws that the person who will be taking the great civil and military power of the Office of President and Commander in Chief of the Military is eligible to hold that office because he or she meets the “natural born Citizen,” 35-years-age, and 14-years-residency requirements of Article II, Section 1, Clause 5 of our Constitution.

The Founders and Framers knew that under English common law (e.g. Calvin’s Case, 7 Coke, 1, 6 James I) and statutes and the municipal laws adopted by many nations, natural allegiance and political and military obligations attach to a child from either being born on its territory or being born to at least one of its citizens. The Founders and Framers knew that the first citizens, who they called “Citizens of the United States,” were born with natural allegiance to Great Britain or to some other foreign sovereignty. The British “natural born subjects” threw off their allegiance to Great Britain through the Declaration of Independence and by adhering to the American Revolution. Others naturalized to become “citizens of the United States.” Being born subjects of foreign powers, the Framers in Article II, Section 1, Clause 5 grandfathered these “Citizens of the United States” to be eligible to be President. But for those to be born after the adoption of the Constitution who would aspire to become President, the Framers demanded that they be born with no foreign allegiance. They called these persons “natural born Citizens.”

To have a person (a future President) born with natural allegiance and political and military obligations solely to the United States, they relied upon natural law and the law of nations definition of a “natural born Citizen,” as codified by Emer de Vattel in Section 212 of The Law of Nations (London 1797) (1st ed. Neuchatel 1758), which is a child born in the country to citizen parents. So, the Framers reserved the special citizenship status of “natural born Citizen” for the Office of President for those born after the adoption of the Constitution. They relied on natural law to provide the clause’s definition. Founder David Ramsay in his 1789 essay, A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789), provides us with insight into the thinking of the Founders and Framers and confirms that they reserved future birthright citizenship to only those born to citizen parents. 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 The U.S. Supreme Court has confirmed this original definition of a “natural born Citizen’ through several of its cases. For a list of these cases, see my article entitled, Arizona’s Proposed Interstate Birth Certificate Compact Law As Now Written Is Both Unconstitutional and Contrary to the Best Interests of the United States , accessed at http://puzo1.blogspot.com/2011/02/arizonas-proposed-interstate-birth.html . Through these cases, this definition has become the American common law definition of a “natural born Citizen.”

A great majority of Americans satisfy this definition and are therefore “natural born Citizens.” As to the definitions of all other future “Citizens of the United States,” the Framers relied on Congress to provide those through its Article I, Section 8, Clause 4 naturalization powers. And Congress has used that power throughout our history, passing various naturalization acts and even the Civil Rights Act of 1866 which in 1868 was constitutionalized when the 14th Amendment was passed. Anyone who is a “citizen of the United States” under these positive laws but who was not born in the U.S. (or its equivalent) to U.S. citizen parents (father and mother) is a “citizen of the United States,” but not a “natural born Citizen” as intended by the Founders and Framers.

This all means that the States can implement an election process by which they seek to make sure that any person who desires to possess the power of the President and Commander in Chief of the Military meets the natural law/ law of nations/American common law definition of a “natural born Citizen” which as we have seen is a child born in the U.S. (or its equivalent) to U.S. citizen parents (father and mother).

That the candidate produces his or her long-form, hospital generated birth certificate, if available, satisfies the requirement of birth in the U.S. That the candidate provides the identity and citizenship status of the candidate’s parents, if known, satisfies the citizen parent requirement.

The “natural born Citizen” requirement might seem a bit onerous, but the requirement only applies to the singular and all-powerful office of the President and Commander in Chief of the Military and the office of Vice-President, the elections to which come up only every 4 years. More important, the Framers specifically included it in the Constitution for the best interests of the nation. Hence, despite how much political detractors pooh-pooh the “natural born Citizen” clause, scream that Obama’s citizenship is a non-issue, or even expressly state or imply that those who question Obama’s citizenship are at best delusional or at worst racially motivated, it is well worth making sure that a Presidential candidate meets that definition given the critical important role the President and Commander in Chief of the Military plays in the survival and preservation of our nation, its people, and their Constitution.

Mario Apuzzo, Esq.
March 2, 2011
http://puzo1.blogspot.com/
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Copyright © 2011
Mario Apuzzo, Esq.
All Rights Reserved

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

February 9, 2011

>Biased Media Reporting on the Meaning of an Article II "Natural Born Citizen"

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Biased Media Reporting on the Meaning of an Article II “Natural Born Citizen,” by Mario Apuzzo, Esq.

I just read an article at Multi-American written by Leslie Berestein Rojas on February 8, 2011, entitled, “First Arizona anti-birthright citizenship bills falter in state Senate,” at http://multiamerican.scpr.org/2011/02/first-arizona-anti-birthright-citizenship-bills-falter-in-senate/. The article says: “State Senate legislation in Arizona that sought to deny automatic U.S. citizenship to children born to undocumented immigrants failed to register enough support in a committee hearing late yesterday, leading its sponsor to pull the two bills, at least for now.” The article then says that the Arizona Daily Star reported: “There were also several children who spoke against the bill, including 12-year-old Heide Portugal who said she was born in this country but her parents were not and that a measure like this, had it been in effect, would have denied her citizenship.” This writer did not state her personal opinion as to what type of U.S. citizenship this child has.

This article was then reported today, February 9, 2011, at Hispanically Speaking News, with the title, “Anti-14th Amendment Bills Fail in Arizona,” found at http://www.hispanicallyspeakingnews.com/notitas-de-noticias/details/anti-14th-amendment-bills-fail-in-arizona/5109/ . The title of the article and the following comment by the reporter struck me: “Several children spoke critically about the bill, including 12-year-old Heide Portugal, a natural-born citizen, who pointed out that if this bill had been in effect at the time of her birth, she would have been denied citizenship.”

First, let us examine who Hispanic Speaking News is. According to its own web site, “[t]he Hispanically Speaking News (HS News) site, found at http://www.hs-news.com/, is an online daily news site and virtual cultural center where we create and publish valuable, timely and culturally sensitive content in a visually charged manner. Our niche news site is here for you, in English and Español, with relevant news about and for Hispanics with hyper local content for our launch market – Chicago. There is daily news coverage, original content, cultural commentary, and an ever-growing Hispanic-centric bloggers network, all peppered with some spicy wit to keep you engaged, informed and connected. Our goal is to become your trusted, “GO-TO”, on-line source for all things Hispanic and to elevate the voice of our community; create new influence makers and engage in passionate and reasoned debate around relevant issues.” So as we can see, the owners of the site tell us that the site is a “niche news site.” 

Second, let us examine the content of the “news” reported in this article. Just the title of the article, “Anti-14th Amendment” tells you what side the reporter is on. Indeed, the reporter is already telling us that what Arizona proposes to do is unconstitutional. More important, the reporter, without telling the reader that it is only his or her opinion, tells us that a child born in the U.S. to alien parents is a “natural born Citizen.” But let us examine the reporter’s “opinion.” If this Arizona child was a “natural born Citizen,” under our Constitution, no government could deny her U.S. citizenship. Neither the States nor Congress nor any court has the power to deny a “natural born Citizen” his or her sovereign citizenship. Let us not forget that the citizens made the Constitution and the government and that the Constitution and government did not make the citizens. That is why the Framers used the term “natural” and called birthright citizens “natural born Citizens” and those who are not “citizens of the United States,” showing that this membership status does not derive from positive law or any government but rather from nature. Since time immemorial, “natural” has always included both the place of one’s birth and the parents to whom one is born. There simply cannot be a “natural birth” with one of those elements missing. For this fundamental reason, American federal common law, which is based on natural law and the law of nations, has always defined a “natural born Citizen” as someone born in the country to U.S. citizen parents. See Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (a “natural-born citizen” is a child born in the country to citizen parents) and U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) (a child born in the U.S. to alien parents who are domiciled here and not working in any foreign diplomatic capacity is born “subject to the jurisdiction” of the U.S. and therefore a born 14th Amendment “citizen of the United States; the case also cited the Minor decision and quoted its definition of a “natural-born citizen”). If someone needs a Congressional Act, treaty, or even the 14th Amendment to be a “citizen of the United States,” then that person is not an Article II “natural born Citizen.” Our U.S. Supreme Court should intervene on the side of any “natural born Citizen” whose citizenship rights may be challenged by any government.

On the other hand, when someone is not born a “natural born Citizen,” then Congress can intervene under its naturalization powers granted to it under Article 1, Section 8, Clause 4 of the Constitution. It is then that Congress can create for or deny someone citizenship rights or even impose conditions to be completed after a person’s birth in order to maintain any citizenship status Congress may grant at the time of birth. Since as early as the Naturalization Act of 1790, Congress has exerted its naturalization powers over persons born either in the United States or abroad. Congress’s power over citizenship, however, became limited in 1868 by the 14th Amendment and how the courts interpret that amendment’s “subject to the jurisdiction thereof” clause. Congress has, however, great power under the 14th Amendment which it can exert by defining “subject to the jurisdiction thereof” through Section 5 of that very amendment which allows it to enforce the provisions of the amendment. Also, Congress has great power in matters involving citizenship and immigration under the “plenary power doctrine,” which greatly limits someone’s ability to bring any judicial challenges to Congressional action in this special area.

As we can see, our “news” reporting media outlets are real busy taking a stand on the meaning of an Article II “natural born Citizen.” Here we have the “news” reporter adding his or her personal opinion that this child born in the United States to alien parents is a “natural born citizen.” This type of reporting is designed to prejudice the reading public. It should be combated. When we read or listen to “news” reporting, we have to be careful to distinguish what is the reporter’s mere recitation of confirmed “facts” versus what is the reporter’s personal opinion. Persons interested in learning what the meaning of an Article II “natural born Citizen” is should conduct their own independent research so that they can come to their own conclusion based on reasoned study rather than on what someone, including our own government or a court of law, in a conclusory manner tells them it means.

Mario Apuzzo, Esq.
February 9, 2011
http://puzo1.blogspot.com/
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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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