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

May 19, 2010

A U.S. Constitution Article II “natural born Citizen” Is Not the Same As an English Common Law “natural born subject”

I have already written an essay explaining that the Founders and Framers relied upon natural law, the law of nations, and Emer de Vattel, Sec. 212, for their Article II definition of a “natural born Citizen” and not upon the English common law. That essay is entitled, ‘The Law of Nations or Principles of Natural Law’ as U.S. Federal Common Law Not English Common Law Define What an Article II Natural Born Citizen Is . This essay will address the related specific question of whether the Framers gave to the “natural born Citizen” clause the same meaning that the English common law gave to a “natural born subject.”

Article II, Section 1, Clause 5 of the Constitution of the United States provides in the 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 . . .” The Constitution itself does not define the clause “natural born Citizen.” For that we must look elsewhere.

We know one of the key founders of our nation, Thomas Jefferson used the term “natural born Citizen” in his writings in 1777. Also, see this essay by John Greschak for a detailed investigation of the use of the term “natural born Citizen” in the English language in colonial and earlier times. And, as mentioned in my prior essay, Emer de Vattel (1714-1767) did provide a definition of that term in Vol.1, Chapter 19, Section 212, of his legal treatise, The Law of Nations or Principles of Natural Law as follows:

“The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.”

For the definition of a “natural born subject”, William Blackstone (1723-1780), frequently cited for English Common Law, defined a “natural born subject” as follows:

“The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject. The thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors.
***
The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien.” William Blackstone, Commentaries 1:354, 357–58, 361—62.

As we can see, for children born within the King’s dominions and allegiance, they were considered “natural born subjects” without any consideration for the citizenship of their parents. On the question of what the Framers meant when they inserted the “natural born Citizen” clause in Article II, putative President Obama supporters argue that the Framers simply used the “natural born Citizen” clause in place of the English common law “natural born subject” clause. Hence, they argue that the clauses mean the same exact thing. In practical terms, they therefore argue that in the mind of the Framers mere birth on United States soil without any reference to the citizenship of the child’s parents (with exceptions for children of diplomats and of invading soldiers) made one a “natural born Citizen.” In support of their argument, they cite language in United States v. Wong Kim Ark, 169 U.S. 649 (1898). The quote is:

“‘And if, at common law, all human beings born within the ligeance of the king, and under the king’s obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States in all cases in which there is no express constitutional or statute declaration to the contrary.’ ‘Subject’ and ‘citizen’ are, in a degree, convertible terms as applied to natives; and though the term ‘citizen’ seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, ‘subjects,’ for we are equally bound by allegiance and subjection to the government and law of the land.’ Id. 258, note.” United States v. Wong Kim Ark, 169 U.S. 649, 664-65 (1898). (quoting Chancellor Kent’s Commentaries). I submit that both Wong Kim Ark and Obama’s supporters are wrong in concluding that a “natural born Citizen” is the same thing as an English common law “natural born subject.”

The Framers did not use the definition of an English common law “natural born subject” to define a “natural born Citizen.” The text of the Constitution itself reveals that there is a difference between a “citizen” and a “subject.” The historical context in which the Framers wrote the Constitution would not have motivated them to rely on the English common law to define who would be eligible to be President and Commander in Chief of the Military of the new nation. The way the English common law defined a “natural born subject” and the Constitution itself reveal that for the Framers these two clauses did not have the same meaning. Additionally, there is direct evidence from the Founding period that shows that the Founders and Framers did not give the same meaning to the two clauses.

Let us start with the text of the Constitution to see if it distinguishes between a “citizen” and a “subject” and if it does let us consider the meaning of the terms during the Founding era and what any contemporaneous court decisions said regarding the terms. “The language of the Constitution recognizes a distinction between “citizens” and “subjects.” For example, Article III, section 2 differentiates “citizens” of the several states from “citizens” or “subjects” of foreign states. In the framing era, these terms reflected two distinct theories of the relationship between individual members of a political community and the state. In feudal or monarchical constitutional theory, individuals were the subjects of a monarch or sovereign, but the republican constitutional theory of the revolutionary and post-revolutionary period conceived of the individual as a citizen and assigned sovereignty to the people. The distinction between citizens and subjects is reflected in Chief Justice John Jay’s opinion in Chisholm v. Georgia, [2 U.S. (2 Dall.) 419 (1793) the first great constitutional case decided after the ratification of the Constitution of 1789: [T]he sovereignty of the nation is in the people of the nation, and the residuary sovereignty of each State in the people of each State . . . .[A]t the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects (unless the African slaves among us may be so called) and have none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty. . . . Sovereignty is the right to govern; a nation or State-sovereign is the person or persons in whom that resides. In Europe the sovereignty is generally ascribed to the Prince; here it rests with the people; there, the sovereign actually administers the Government; here, never in a single instance; our Governors are the agents of the people, and at most stand in the same relation to their sovereign, in which regents in Europe stand to their sovereigns. [Id. 471-72 (Jay, C.J.)].

Jay’s articulation of the opposition between subjects and citizen confirmed by Justice James Wilson’s opinion in Chisholm. Wilson noted that with the exception of Article III, the Constitution refers to “citizens” and “persons,” and not subjects: “[t]he term, subject, occurs, indeed, once in the instrument; but to mark the contrast strongly, the epithet ‘foreign’ is prefixed.’” Lawrence B. Solum, Originalism and the Natural Born Citizen Clause, Michigan L.Rev. 9-10 (working draft created on April 18, 2010) (footnotes omitted). “Justice Wilson explained that “[i]n one sense, the term sovereign has for its correlative, subject, In [sic] this sense, the term can receive no application; for it has no object in the Constitution of the United States. Under that Constitution there are citizens, but no subjects. ‘Citizen of the United States.’ ‘Citizens of another State.’ ‘Citizens of different States.’ ‘A State or citizen thereof.’” (footnotes omitted). Id. at 456 (Wilson, J.). Additionally, Article III, Sec. 2 refers to “foreign States, Citizens or Subjects.”

Solum continues in his essay: “Both Jay and Wilson’s opinions suggest that usage in the founding era reflected a significant conceptual distinction between the words “subject” and “citizen”—a distinction that was strongly associated with the ideas about the nature of sovereignty. The term “citizen” reflects the notion that individual citizens are sovereign in a republic, whereas the term “subject” reflects feudal and monarchical conceptual of the monarch as sovereign and the individual as the subject, owing a duty of allegiance and duty to the monarch. This conceptual distinction may be relevant to the original understanding of the phrase “natural born citizen” which was used instead of “natural born subject,” the phrase that served as a term of art in English legal usage. The notion of a natural born subject may reflect a feudal understanding of political obligation: those born in the kingdom owed a natural duty of allegiance to their king and were his natural subjects. Given a republic theory of popular sovereignty, citizens are sovereign and the notion of a “natural born subject” would be anathema. This leaves a gap in the theory of citizenship—a gap that the Constitution fills with the concept of a natural born citizen.” Id. at 10-11.

In his earlier version of this essay, Solum stated: “Anyone born on American soil whose parents are citizens of the United States is a “natural born citizen.” In this updated version, Solum explains that some readers misread what he wrote. Now he concludes that “[b]ased on my reading of the historical sources, there is no credible case that a person born on American soil with one American parent was clearly not a “natural born citizen.” I agree with Solum’s previous statement but disagree with his current one. See my essay 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 for my reasons. Additionally, Solum does not cite what those “historical sources” are. What is also strange is that while the debate over Obama’s “natural born Citizen” status is currently raging, Solum, while now taking a position which benefits Obama does not even acknowledge that the issue exists. His essay is all about analyzing the eligibility of John McCain who was born in Panama to two United States citizen parents who were in military service which circumstances present a more defensible case per Vattel Sec. 217 than that of Obama whose place of birth has not been confirmed and who was born in 1961 to only one United States citizen parent (18 years old at the time of his birth).

In order to understand what the Framers meant by terms they inserted in the Constitution, we have to consider the historical context in which they wrote. They had recently won a revolution with Great Britain and now had the task of constituting a new nation, including identifying who the original citizens were and who the future citizens were going to be. The definition of “natural born subject” as found in the English common law simply did not work for the Framers. Great Britain was a monarchy and the new nation was a Constitutional Republic with a representative government. Great Britain did not have a President to be democratically elected by the people but the new nation did. Great Britain was not concerned with foreign influence making its way into the hereditary monarchy but the Framers were concerned about the Office of President being attacked from within and without with foreign influence infecting not only the voters but also the political leaders themselves. The Framers understood that citizenship and allegiance went together. Vattel’s born-in-country-to-two-U.S.-citizen-parents formula was the best way for them to assure that only a person with undivided allegiance and loyalty to the United States would be eligible to be President and Commander in Chief of the Military. This test was not tied to the physical territory alone, which the Framers understood and which Lord Coke explained did not assure anyone’s natural allegiance when he said “liegance, and faith and truth, which are her members and parts, are qualities of the mind and soul of man, and cannot be circumscribed within the predicament of ubi.” (p. 76). Calvin’s Case (1608) (7 Coke, 1, 6 James I.) Coke believed that liegance was a function of natural law which he maintained was part of the common law of England. Daniel J. Hulsebosch, “The Ancient Constitution and the Expanding Empire: Sir Edward Coke’s British Jurisprudence,” Law and History Review Fall 2003 (18 May 2010). The Founders learned from Vattel that under the law of nature, the condition of a child follows the condition of his parents and not the place of his birth. Emer de Vattel, The Law of Nations; or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, Sections 212-215 (1758 French) (1759 first English translation). Hence, their test combined both the soil with the allegiance of the child’s parents into the child at the time of birth. For the Founders, this was the best way to assure sole and absolute allegiance in the new-born child. Charles Pinckney, who was the first delegate at the Constitutional Convention to raise the issue of presidential qualifications, in a statement made in the U.S. Senate in 1800, said that the “natural born citizen clause” was designed “to insure … attachment to the country.” The Records of the Federal Convention of 1787 (Farrand’s Records), CCLXXXVIII, Charles Pinckney in the United States Senate, March 28, 1800, p. 387. http://lcweb2.loc.gov/cgi-bin/query/D?hlaw:10:./temp/%7Eammem_jwJ2 . These citizenship concepts provided the basis for their definitions of the original citizens and the citizens of future generations.

The English common law did not distinguish between a “natural born subject” and a naturalized subject. “The English common law provided that an alien naturalized is “to all intents and purposes a natural born subject.” Co. Litt. 129 (quoted and cited in United States v. Rhodes, 27 F.Cass. 785, 790 (1866).). Under English common law, once a person became naturalized, he or she was deemed to be a “natural born subject.” Hence, under English common law a naturalized citizen was considered a “natural born subject.” Hence, giving the “natural born Citizen” clause the same meaning as a “natural born subject” would have allowed a naturalized citizen to be eligible to be President of the new Republic. But Article II, Section 1, Clause 5 mandates that only a “natural born Citizen” is eligible to be President. The clause is written as “No person except . . . shall be eligible . . .” which means that one must be a “natural born Citizen” in order to be eligible to be President, with no exceptions. The way we have interpreted the “natural born Citizen” clause since the beginning of the Republic, a naturalized citizen is not eligible to be President. But assuming the “natural born Citizen” clause had the same meaning as a “natural born subject,” with the Constitution as written it would not have conveyed in any manner that a naturalized citizen was not eligible to be President. No where do we find in the Constitution any direct statement that a naturalized citizen is not eligible to be President. To reach this conclusion, we have always relied upon the “natural born Citizen” clause itself which we have compared with the fact that the Framers prescribed in Article I that naturalized citizens were eligible to be Senators (“nine Years a Citizen of the United States”) and Representatives (seven Years a Citizen of the United States”) . The manner in which the Framers provided that Senators and Representatives needed to be “Citizen of the United States” for only a certain amount of years shows that the naturalized citizen class was included within “Citizens of the United States” and not within “natural born Citizens.” This shows that naturalized citizens were not part of “natural born Citizens.”

Hence, equating the meaning of a “natural born Citizen” to a “natural born subject” would have allowed naturalized persons to be President, a result that we have rejected from the beginning of the Constitutional Republic. Such a meaning would have created an exception to the “natural born Citizen” clause which would have eviscerated the clause itself. Additionally, since Congress has the power under Article I, Section 8, Clause 4 to make uniform the naturalization laws, such a meaning would have given Congress the power to decide who could be President by simply changing the naturalization requirements. The Framers, fearing that Congress would allow foreign influence to creep into the office of President if it were given the power to select the President, did not give Congress such power.

A letter that John Jay wrote to then-General Washington (transcription can be viewed here) also provides evidence that the Framers did not equate a “natural born Citizen” with a “natural born subject.” We have seen that if a “natural born Citizen” meant the same thing as a “natural born subject,” a naturalized citizen would have been eligible to be President of the new Republic. Giving the two clauses the same meaning would have produced a clear contradiction and a condition which the Framers rejected. We know that the Founders considered a naturalized citizen to be only a “citizen of the United States” (able to be President under Article II’s grandfather clause and Senator or Representative under Article I) and not a “natural born Citizen,” which status was required of a would-be President for births after 1787. How the English common law converted naturalized persons into “natural born subject” retroactively to the time of birth can explain why John Jay underlined the word “born” when recommending to General Washington in his famous letter of July 25, 1787 that it was both “wise and seasonable” for the purpose of providing a “strong check” against foreign influence invading the new national government that the Constitution “declare expressly that the Command in chief of the American army shall not be given to, nor devolve on, any but a natural born citizen” (underlining the word “born”). Jay’s underlining of the word “born” is evidence that he rejected a naturalized citizen as being eligible for that office. This is further evidence that the Founders rejected the meaning of a “natural born subject” which was not necessarily tied to the time of actual birth. Not being a “natural born Citizen,” the Founders did not permit naturalized citizens to be President. The Framers, after 1787 (when the grandfather clause expired and Article II required a child to be a “natural born Citizen” and not only a “Citizen of the United States”) did not allow naturalized citizens to be President, for they would have been included in the class of “Citizens of the United States” and not in the class of “natural born Citizens.” This rejection of a naturalized citizen as equivalent to a “natural born Citizen” was consistent with the law of nations. Emer de Vattel, The Law of Nations; or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, Sections 212-214 (1758 French) (1759 first English translation). The Fourteenth Amendment citizenship clause as originally intended (not the way that it has come to be interpreted by giving “subject to the jurisdiction thereof” a territorial meaning rather than an allegiance and political one) also made the same recognition.

Further evidence that the Founders and Framers did not consider the two clauses as meaning the same thing can be found in the writings of David Ramsay, who published A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789). David Ramsay (April 2, 1749 to May 8, 1815) was an American physician and historian from South Carolina and a delegate from that state to the Continental Congress in 1782-1783 and 1785-1786. He was one of the American Revolution’s first major historians. Ramsay “was a major intellectual figure in the early republic, known and respected in America and abroad for his medical and historical writings, especially for The History of the American Revolution (1789)…” Arthur H. Shaffer, Between Two Worlds: David Ramsay and the Politics of Slavery, J.S.Hist., Vol. L, No. 2 (May 1984). In his 1789 essay, 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.” He said 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. He added that “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. He continued that 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. Here, Ramsay referred to “natural right,” which ties into the Framers’ use of the clause “natural born Citizen.” By focusing on citizenship that occurs by “natural right,” Ramsay distinguished citizenship that occurs naturally versus citizenship that occurs by operation of law. But Ramsay also explained that there is an “immense” difference between a British “subject” and a United States “citizen,” with the former being “under the power of another” and the latter being “a unit of mass of free people, who, collectively, posses sovereignty.” He informed that “Republics, both ancient and modern, have been jealous of the rights of citizenship.” He then explained that the “original citizens” of the United States were those who were parties to the Declaration of Independence and thereby adhered to the revolutionary cause. It is evident from his writing that in defining a “citizen of the United States” and a “natural born Citizen,” Ramsay did not look to English common law but rather to natural law, the law of nations, and Vattel, Sec. 212. Ramsay’s dissertation presents valuable evidence of how the Founding generation defined the original citizens and the future generation of citizens which the Framers called “natural born Citizens.” It is valuable because it is evidence of the public meaning of these terms at the time they were framed and ratified, if not among the general population then at least among those learned in the law. For further information on David Ramsay and the “natural born Citizen” clause, see my essay entitled, Founder and Historian David Ramsay Defines a Natural Born Citizen in 1789.

A “natural born subject” under English common law if born within the domain and allegiance of the King did not need any connection to citizen parents. But Jefferson in 1799 wrote the citizenship laws of Virginia which provided as follows:

A Bill Declaring Who Shall Be Deemed Citizens of This Commonwealth: May 1779

Papers 2:476–78

Be it enacted by the General Assembly, that all white persons born within the territory of this commonwealth and all who have resided therein two years next before the passing of this act, and all who shall hereafter migrate into the same; and shall before any court of record give satisfactory proof by their own oath or affirmation, that they intend to reside therein, and moreover shall give assurance of fidelity to the commonwealth; and all infants wheresoever born, whose father, if living, or otherwise, whose mother was, a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this commonwealth, until they relinquish that character in manner as herein after expressed: And all others not being citizens of any the United States of America, shall be deemed aliens…. And in order to preserve to the citizens of this commonwealth, that natural right, which all men have of relinquishing the country, in which birth, or other accident may have thrown them, and, seeking subsistance and happiness wheresoever they may be able, or may hope to find them: And to declare unequivocably what circumstances shall be deemed evidence of an intention in any citizen to exercise that right, it is enacted and declared, that whensoever any citizen of this commonwealth, shall by word of mouth …openly declare to the same court, that he relinquishes the character of a citizen,…such person shall be considered as having exercised his natural right of expatriating himself, and shall be deemed no citizen of this commonwealth from the time of his departure. The free white inhabitants of every of the states, parties to the American confederation, paupers, vagabonds and fugitives from justice excepted, shall be intitled to all rights, privileges, and immunities of free citizens in this commonwealth, and shall have free egress, and regress, to and from the same, and shall enjoy therein, all the privileges of trade, and commerce, subject to the same duties, impositions and restrictions as the citizens of this commonwealth…. ” http://press-pubs.uchicago.edu/founders/documents/a4_2_1s4.html. His citizenship law of 1783 was similar to his 1779.

As we can see from his law, Jefferson provided different criteria for two different classes of citizens. For the first class, who were adults and already in existence, he provided one requirement (jus soli would be sufficient). He grandfathered these adults to be the first citizens. But for those who were infants and to be born in the future, he provided a different requirement. For this latter group, only jus sanguinis tied to both parents would be sufficient to make them citizens. It is important to understand the historical context in which Jefferson wrote his citizenship law because the Framers wrote within the same historical context when they drafted the grandfather clause in Article II, Section 1, Clause 5. This historical context was one of a new state rising from revolution. It is the historical context of the “infant state” (Jefferson in the 1783 citizenship laws) which is the genesis for the Framers distinction in Article II and other sections of the Constitution between a “Citizen of the United States” and a “natural born Citizen,” a distinction that our United States Supreme Court carried forward throughout American history. It is only because Jefferson and the other Founders were creating citizenship for a new state having just emerged from revolution that they had the need to first identify who were the first citizens and who were going to be the future citizens. The Framers also grandfathered the first citizens as did Jefferson. They called these persons “citizens of the United States.” These would have been the adults already in being at the time that the Constitution was adopted in 1787. These were adults who were either born or naturalized in the colonies or states or simply inhabiting there and adhered to the Revolution. But the Framers provided that for those persons who were infants after 1787, they would have to be “natural born Citizens” in order to be eligible to be President. The historical evidence, United States Supreme Court cases, and Congressional Acts show that this second generation citizens, like Jefferson’s second generation citizens, would come into being as “natural born Citizens” but only if they descended from persons already citizens of the United States.

English statutes also considered children born abroad to parents who were “natural born subjects” to be themselves “natural born subjects.” Again, Blackstone explained that by some modern English statutes: “[A]ll children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.” As can be seen, these statutes granted “natural born subject” status to such children regardless of, with the exceptions noted, in which type of service the parents were engaged. Jefferson wrote for citizenship in Virginia and so in his 1779 law he did not require that the child be born in the State. The Framers wrote for national citizenship and they did require birth in the United States to be considered an Article II “natural born Citizen.” Note that the Naturalization Act of 1790 (Act of March 26, 1790, ch. 3, Sec. 1, 1 Stat. 103, 103-04 (1790)), itself a naturalization act passed by the First Congress under its naturalization powers of Article I, Section 8, Clause 4, only provided that “children of citizens of the United States” born “out of the limits of the United States” were “considered as natural-born citizens . . . .” By passing this law and using this language, the First Congress, which included twenty members who had been delegates to the Constitutional Convention eight of whom were members of the Committee of Eleven that drafted the “natural born Citizen” clause, told us that these children were not in fact “natural born Citizens” but rather only made such through Congress’s naturalization powers. The Constitution only gave Congress the power to make uniform the naturalization laws which did not include the power to define a “natural born Citizen.” These children were only given the rights of “natural born Citizens” and were not actually “natural born Citizens.” The Third Congress confirmed that these children born abroad to United States citizen parents did not have actual Article II “natural born Citizen” status (to be distinguished from such status being granted by a naturalization act of Congress) when in 1795 it changed their status from being “natural born citizens” to “citizens of the United States.” If these children were Article II “natural born Citizens,” Congress would not have had the power to take away through any statute their constitutional “natural born” status. Unlike the Fourteenth Amendment which contains the jurisdiction and the necessary and proper clauses, Article II does not provide Congress with any way to define a “natural born Citizen.” It should be noted that a valid constitutional argument can be made that a child born abroad to United States citizen parents who are serving the armies of the state or even in some other government service are Article II “natural born Citizens,” for they “are reputed born in the country.” Vattel, Sec. 217. Children born abroad under such circumstances will most likely not attach their allegiance to the foreign country in which they may be born and rather through their relationship with their United States citizen mother and father become loyal only to the United States.

A “natural born subject” under English common law could never renounce his or her allegiance. Mannie Brown explained the “old common-law doctrine Nemo potest exuere patriam by quoting Lord Coke in Calvin’s Case: “Ligeance is a true and faithful obedience of the subject due to his Sovereign. This ligeance and obedience is an incident inseparable to every subject; for as soon as he is born he oweth by birth-right ligeance and obedience to his Sovereign.” Mannie Brown, Expatriation of Infants, University of Toronto Press 97 (1939). But as we have seen above, in his 1799 citizenship law Jefferson wrote that a person could exercise his “natural right of expatriating himself” “whensoever” he saw fit to do so. Jefferson included in his law a right in a person to relinquish his citizenship in a manner prescribed by law. This right was known as the right to expatriate which was not only alien to English common law but forbidden by it. Jefferson’s idea that a person could renounce allegiance to the country of his or her birth was so accepted by early Congresses and society that Congress codified this right by passing the Naturalization Act of 1795 (1 Stat. 414, c. 20), which provided persons naturalizing in the United States to absolutely renounce and abjure all allegiance to any foreign prince or state and to support the Constitution. Over the years, there continued a debate in the courts whether an American citizen could expatriate himself or herself. The matter was finally settled in 1868, when Congress passed the Expatriation Act of 1868 and Representative Woodward of Pennsylvania proclaimed that by doing so Congress had driven feudalism from our shores.

Jefferson’s views on a person having a right to expatriate reveal that he looked to natural law and the law of nations and Vattel rather than the English common law on questions of citizenship. In a letter dated June 12, 1817, to Dr. John Manners, Jefferson made his views on whether the English common law applied to such questions well known:

“To Doctor John Manners.

Monticello, June 12, 1817.

SIR

Your favor of May 20th has been received some time since, but the increasing inertness of age renders me slow in obeying the calls of the writing table, and less equal than I have been to its labors.

My opinion on the right of Expatriation has been, so long ago as the year 1776, consigned to record in the act of the Virginia code, drawn by myself, recognizing the right expressly, and prescribing the mode of exercising it. The evidence of this natural right, like that of our right to life, liberty, the use of our faculties, the pursuit of happiness, is not left to the feeble and sophistical investigations of reason, but is impressed on the sense of every man. We do not claim these under the charters of kings or legislators, but under the King of kings. If he has made it a law in the nature of man to pursue his own happiness, he has left him free in the choice of place as well as mode; and we may safely call on the whole body of English jurists to produce the map on which Nature has traced, for each individual, the geographical line which she forbids him to cross in pursuit of happiness. It certainly does not exist in his mind. Where, then, is it? I believe, too, I might safely affirm, that there is not another nation, civilized or savage, which has ever denied this natural right. I doubt if there is another which refuses its exercise. I know it is allowed in some of the most respectable countries of continental Europe, nor have I ever heard of one in which it was not. How it is among our savage neighbors, who have no law but that of Nature, we all know. . . . ” http://yamaguchy.netfirms.com/7897401/jefferson/1817.html. We can see how Jefferson was clear in stating the right to expatriate, like the right to life, liberty, and to pursue happiness, was a natural right that came from God and not from the English common law. He also explained that the English common law was adopted by the states and was applied by them on local issues. But when it came to the national government, he stated that no such law was adopted. Hence, the right to expatriate could have come only from natural law rather than the English common law. As Jefferson applied natural law to the question of expatriation, he would have also applied it to defining a “natural born Citizen.” These historical writings show that Jefferson surely would not have considered a “natural born Citizen” to have the same meaning as an English common law “natural born subject.”

All this leads us to the inescapable conclusion that the Founders and Framers did not give the “natural born Citizen” clause the same meaning that the English common law gave to a “natural born subject.” For further information explaining that the Framers did not rely upon English common law but rather natural law, the law of nations, and Vattel to define a “natural born Citizen,” see my essay entitled, ‘The Law of Nations or Principles of Natural Law’ as U.S. Federal Common Law Not English Common Law Define What an Article II Natural Born Citizen Is.

Mario Apuzzo, Esq.
May 19, 2010
http://puzo1.blogspot.com/
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P.S. For more on natural born Citizenship to constitutional standards, see my essay:
Obama – Maybe a Citizen of the United States but Not a “natural born Citizen”

May 13, 2010

The Nonsense Published by Our Nation’s Editors Regarding Obama’s Eligibility to be President

As an example of the nonsense that is produced by our nation’s editors regarding the Obama eligibility issue, one can read the story entitled, Taking Issue With the Birthers, written by Daily Titan Opinion Editor, Skylaw Smith, and posted on May 9, 2010, at the Daily Titan at: http://www.dailytitan.com/2010/05/09/taking-issue-with-the-birthers/comment-page-1/#comment-15663. Mr. Smith’s opinion article is factually inaccurate and highly biased. Mr. Smith attempts to ridicule the efforts of those who question where Obama was born, people that he calls “extremists and conspiracy theorists,” by equating their Obama birthplace inquiry to one involved in a “college level thesis of human genetics.” But our place-of-birth inquiry is not so difficult to understand and surely does not require more than a rudimentary level of education (maybe not even any education at all but just some mother-nature-given common sense). Rather, regarding the place of birth issue, we just want to see a simple contemporaneous birth certificate from 1961 (which includes the name of the birth hospital and delivery doctor), not the 2008 computer scan of an alleged 2007 Certification of Live Birth (COLB) which Mr. Smith posted as part of his article to show the world that Obama has release his “birth certificate.” If Mr. Smith would even read the bottom of the COLB here and here, it says: “This copy serves as prima facie evidence of the fact of birth in any court proceeding.” This caveat warns the public that this document can only be relied upon if there is no other contradictory evidence showing otherwise than what is stated in the document. If there were to exist such contradictory evidence, a court of competent jurisdiction would have to settle the factual dispute.

Mr. Smith says that Hawaii stated the computer scan of the COLB was legitimate. No such thing ever happened. I challenge Mr. Smith to produce evidence supporting such a reckless statement.

Mr. Smith alleges a “birther” forged a Kenyan birth certificate in August 2009. Again, this is wild and reckless speculation. What evidence does Mr. Smith have that it was a “birther” that forged any birth certificate? The forging could well have been done by an Obama operative so that people like Mr. Smith can go around the nation polluting what we know about Obama by way of his reckless and biased article.

Finally, Mr. Smith says that Obama, by releasing his “official birth certificate” “would be risking identity fraud and potentially making it possible for document request laws to be altered.” This is really a nonsensical statement. In the beginning of his article, Mr. Smith tells us that Obama released his “birth certificate” and that should end the debate. But now he objects that if Obama were to release his “official birth certificate,” all these drastic consequences would occur. First, we can see that Mr. Smith, although unconsciously, concedes that Obama has not yet released any “official birth certificate.” Even though Mr. Smith is not aware of having made such a concession, he is aware that there exists an “official birth certificate” and that Obama has not released it to the public. But he hides that fact when he first told us that Obama released his “birth certificate” and even posted the image of the COLB as proof thereof, not telling us that the document is not an “official birth certificate.” Second, I fail to see why there should be such dire consequences with the release of Obama’s “official birth certificate” but no such consequences with the release of his “birth certificate.” Does the writer expect clones of Obama to appear on the planet after he releases his “official birth certificate”? Does he expect people to hold themselves out as “Barack Hussein Obama II” and thereby steal some goods or services from some unsuspecting vendor? Third, how else does the writer expect a candidate for the office of President to prove where he or she was born to meet the first requirement of the “natural born Citizen” test, place of birth?” For further information on the place of birth issue, please visit the following essay: http://puzo1.blogspot.com/2010/05/catalog-of-evidence-concerned-americans.html.

Mr. Smith, like so many television, radio, and print media commentators, editors, and journalist, is also ignorant of the fact that place of birth is only one part of the “natural born Citizen” test for Presidential eligibility. The definition of an Article II “natural born Citizen” as relied upon by the Founders and Framers is a child born in the country (or its equivalent) to citizen parents (mother and father). The Founders used natural law and the law of nations not only to justify the revolution and to create a Constitutional Republic but also to define the new national citizenship. The Founders and Framers saw the law of nations as being both sacred (coming from God) and obligatory and therefore looked to it for guidance. They relied upon Emer de Vattel, who provided the Framers with the definition for what they called a “natural born Citizen” and Vattel called “Les naturels, ou indigenes” (translated in 1759 from the French to English to mean “natives or indigenes” and in 1797 to mean “natives, or natural-born citizens”), being a child “born in the country, of parents who are citizens.” The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, Section 212 (1758 first edition in French) (1759 first edition in English). Anyone satisfying this natural law and law of nations definition was a “natural born Citizen.”

If we are going to determine what the Framers meant when they wrote “natural born Citizen,” we need to find where they probably obtained the phrase. It is well known that the Framers were well read in the Roman and Greek classics. I have found evidence that the Framers probably found the phrase “natural born Citizen” in the works of Quntilianus. With many of the Founders also being proficient in Latin, Greek, and French, they probably obtained the clause “natural born citizen” and its synonym, “native,” from ancient Latin text which was also translated into English rather than from simply copying the clause “natural born subject” from the English common law and substituting the word “citizen” for “subject.” That ancient text was found in Institutio Oratoria, by Marcus Fabius Quintilianus (or Quintilian), published in Latin in the first century A.D. Quintilianus’ work covered not only the theory and practice of rhetoric, but also the foundational education and development of the orator himself. Quintilianus had a love for Cicero. Tacitus, another one of the Founders’ favorite, was probably one of his students in the school he opened in Rome on rhetoric. Texts by natural law philosophers Aristotle, Cicero, and Seneca, among others, were essential subjects of study in a legal education in the early American Republic. David Hoffman, A Course of Legal Study 59-63 (2nd ed. 1836). Following in the steps of Cicero, Quintilianus believed that the natural order was the proper guide to perfect oratory. Quintilianus stressed the important role that both the father and mother played in their child’s education from the moment of birth. His textbook covered subjects such as the natural order and the relation of nature and art. Along with the works of Aristotle and Cicero, his textbook on rhetoric represents one of the ancient world’s greatest works on rhetoric. http://en.wikipedia.org/wiki/Quintilian.

From the excellent research conducted by John Greschak, we learn the following: “In 1774, the phrase natural born citizen was used in an English translation (from the Latin) of the book Institutio Oratoria, by Marcus Fabius Quintilianus (published in the first century A.D.); this was done in Chapter I of Book VIII. The phrase is found in the Latin text: Quare, si fieri, potest et verba omnia et vox huius alumnum urbis oleant, ut oratio Romana plane videatur, non civitate donata. Quintilianus, Institutio Oratoria, Book 1, Chapter VIII. There have been at least five different English translations of this work and this sentence. The first was by Guthrie in 1756. Since then, there have been translations by Patsall (1774), Watson (1856), Butler (1920-2) and Russell (2001).” http://www.greschak.com/essays/natborn/index.htm. Greschak found that Guthrie in 1756 used the word “native” when translating Quintilianus’ reference to that Roman citizen who because of birth and family upbringing was expected to be most able to speak the pure Roman language. In referring to the same type of citizen, Patsall in 1774 translated the same sentence as: “Therefore, if possible, every word and the very tone of voice, should bespeak the natural born citizen of Rome, that the language may be purely Roman, and not so by a right different from birth and education” (emphasis supplied). Greschak states: “I do not claim that this is the first use of the phrase natural born citizen, but it is the earliest use of which I am aware.” Id. “Alumnum” means “nourished, brought up; reared/fostered by; native, brought up locally.” (Latin-English Dictionary 1.97FC). “Urbis” means city. Parentage, education, and upbringing made an “alumnum urbis oleant.” Just being born in the city was not sufficient to meet the definition of the phrase. It was both birth in the locality and parental and institutional rearing and education from birth that produced the “natural born citizen.”

Hence, Quintilianus’ work, which was translated from the Latin to the English, provided the clause “natural born citizen” and the word “native” and the translators used the words interchangeably to mean the same thing. This fluctuation in translation explains why the Founders, English translations of Section 212 of Vattel’s The Law of Nations, and United States Supreme Court cases used the words “native” and “natural born Citizen” synonymously. Quintilianus also provides an explanation of how the Framers translated Vattel by taking his French words of “Les naturels, ou indigenes” or the same words translated into English as “natives or indigenes” and translated or converted them into “natural born Citizen” which is what they wrote into Article II.

Being able to read and understand the definitions that Vattel gave to the clause “Les naturels, ou indigenes” (in French) and “The natives or indigenes” (in English), they realized that Vattel’s clauses as written in either French or English were the equivalent to “native” or “natural born citizen” with which they were familiar from having found the clauses in ancient Latin text or its English translations that we saw above. The Founders would have been familiar with both “natural born citizen” and “native” from having seen the two expressions in these various English translations of the ancient Latin text. These English translations took the Latin clause “alumnum urbis oleant” and translated it into either “native” or “natural born citizen.” Hence, it appears that the English translators believed that either “native” or “natural born citizen” captured the meaning of “alumnum urbis oleant.” The Framers, applying their study and knowledge of natural law, would have equated Vattel’s description of “Les naturals, ou indigenes” or “the natives or indigenes” found in Section 212, which was a citizen of true origin and therefore of the highest order with what Quintilanus called “alumnum orbis oleant,” also considered by him to be a citizen of true Roman origin and of the highest order.

Vattel’s French 1758 edition of The Law of Nations was first translated into English in 1759. It was also translated into English in 1760 which edition provided:

“The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or indigenes, are those born in the country of parents who are citizens. Society not being able to subsist, and perpetuate itself, but by the children of the citizens; those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this; in consequence of what it owes to its own preservation; and it is presumed that each citizen, on entering into society, reserves to his children the right of their becoming members. The country of the fathers is then that of the children; and these become true citizens, merely by their tacit consent. We shall soon see, whether on their arriving at the years of reason, they may renounce their right, and what they owe to the society in which they are born. I say, that in order to be of the country, it is necessary that a person be born of a father who is a citizen; for if he is born there of a stranger, it will be only the place of his birth, and not his country.” Id. Sec. 212 Of the citizens and natives.

The Framers relied on this well-known law of nature and law of nations definition of “natives, or indigenes” or what Vattel called in French, “Les naturels, ou Indigenes.” They borrowed this definition to define their Article II “natural born Citizen.” With a “natural born Citizen” being so defined in natural law and the law of nations, they did not see any need to define it in the Constitution as they did not define all the other terms they included in the Constitution. This was the meaning that the Framers gave to a “natural born Citizen.” There was no other form or definition of a “natural born Citizen” at the time of the Founding. At that time, the English common law did define a “natural born subject” as one born in the King’s dominion and allegiance without any reference to the citizenship of the parents. That law also said that “[a]n alien naturalized is “to all intents and purposes a natural-born subject.” Co. Litt. 129. But the English common law would have supported the definition of the original citizens whom the Framers called “Citizens of the United States.” But the Framers did not adopt the English common law and its definition of a “natural born subject” to define the future “natural born Citizen” of the new nation or to guide them in constituting the new Constitutional Republic. Rather, they rejected the use of the English “natural born subject” definition which was a relic of feudal and monarchical England, and instead relied upon the natural law and law of nations for that definition which was relevant to a free society with a self-representative government.

There is direct evidence from the Founding period that the Founders and Framers used natural law and the law of nations to define a “natural born Citizen” and that they did not simply take the English common law “natural born subject” and substitute in its place a “natural born Citizen.” David Ramsay, a highly respected doctor and historian from the Founding period, wrote an essay on citizenship during the Founding entitled, A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789). David Ramsay (April 2, 1749 to May 8, 1815) was an American physician and historian from South Carolina and a delegate from that state to the Continental Congress in 1782-1783 and 1785-1786. He was one of the American Revolution’s first major historians. Ramsay “was a major intellectual figure in the early republic, known and respected in America and abroad for his medical and historical writings, especially for The History of the American Revolution (1789)…” Arthur H. Shaffer, Between Two Worlds: David Ramsay and the Politics of Slavery, J.S.Hist., Vol. L, No. 2 (May 1984). In his 1789 article, Ramsay first explained that there is an “immense” difference between a British “subject” and a United States “citizen,” with the former being “under the power of another” and the latter being “a unit of mass of free people, who, collectively, posses sovereignty.” He informed that “Republics, both ancient and modern, have been jealous of the rights of citizenship.” He then explained that the “original citizens” of the United States were those who were parties to the Declaration of Independence and thereby adhered to the revolutionary cause. But the importance of his work does not stop there, for he also described the future citizens to come after the original citizens, whom he defined as the children born to citizen parents. He said 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. He added that “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. He continued that 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. Here, Ramsay referred to “natural right,” which ties into the Framers’ use of the clause “natural born Citizen.” By focusing on citizenship that occurs by “natural right,” Ramsay distinguished citizenship that occurs naturally versus citizenship that occurs by operation of law. It is evident from his writing that in defining the original citizens and the future citizens who were to follow them, Ramsay did not look to English common law but rather to natural law, the law of nations, and Vattel, Sec. 212, which all provided the same definition that he provided. As we can see, Ramsay required the future citizens to be children of citizens. While he did not call these future citizens “natural-born citizens,” Ramsay’s standard was the same standard that Vattel provided when he defined the “natives, or indigenes,” which in 1797 came to be translated into “natives, or natural-born citizens.”

Further evidence that the Framers relied upon Vattel to define a “natural born Citizen” may be found by examining the 1797 London edition of, The Law of Nations. The anonymous French to English translator translated Vattel in the 1797 London edition as follows:

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

This is the first known edition of The Law of Nations that used the phrase “natural-born citizens” in place of “indigenes.” Here we can see that an anonymous translator now used for the first time “natural-born citizens.” It is reasonable to conclude that the translator, living at the time that the Framers lived, knew that the Founders and Framers took their definition of their Article II “natural born Citizen” from Vattel’s editions that were in print before and at the time they drafted the Constitution in 1787 and that it was only right that Vattel’s words translated into English should reflect the terms that the Framers used in Article II. Hence, the translator inserted the phrase “natural-born citizens” in place of “indigenes” in the 1797 English edition. Given this new English translation of Vattel, we can see that a translator from only 10 years after the Constitution was adopted made a direct connection between the Framers’ Article II “natural born Citizen” clause and Vattel’s, The Law of Nations. Additionally, the fact that a translator of French into English took the phrase “natural-born citizen” and inserted it into Vattel’s, The Law of Nations, a treatise on natural law and the law of nations, is solid evidence that the phrase “natural-born citizen” was not equivalent to the English common law phrase “natural born subject,” the definition of which pursuant to Blackstone included only the element of a child being born in the dominion and allegiance of the King with the citizenship of the parents having no relevance.

The natural law and law of nations definition of a “natural born Citizen” is still the law of the land today, for it was never amended by any constitutional amendment, including the Fourteenth Amendment, or changed by any Act of Congress or any decision of the United States Supreme Court, including United States v. Wong Kim Ark, 169 U.S. 649 (1898). In fact, the United States Supreme Court has to this day used the term “natural born Citizen” only to describe a person born in the country to citizen parents. We have provided in our court filings in the Kerchner et al v. Obama/Congress et al case and on this blog the numerous United States Supreme Court case citations and other authorities showing that the Founders and Framers relied upon natural law and law of nations to define a “natural born Citizen” and not the English common law and its definition of a “natural born subject.” Given the existing definition of a “natural born Citizen,” it does not matter where Obama was born, even in the White House itself. His father was a British subject/citizen and Obama himself was a British subject/citizen when Obama was born in 1961 (which fact Obama has conceded) and he is therefore not an Article II “natural born Citizen.” It is therefore not necessary for us to prove or disprove where Obama was born. The Court must first rule on the constitutional definition of an Article II “natural born Citizen.” If the Court agrees with us as it should and the United States Supreme Court affirms, the case is over and Obama is history.

Mario Apuzzo, Esq.
May 12, 2010
http://puzo1.blogspot.com/2010/05/catalog-of-evidence-concerned-americans.html
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May 3, 2010

For Love of Party Obama Supporter Declares President George Washington a “Natural Born Citizen” Instead of an "Original Citizen" Covered by the Constitution’s ‘Founding Fathers Grandfather Clause’

It is becoming clear that Obama’s enablers are running scared and desperate. They are intensifying their campaign of deceit and ridicule and their war against the straw man, “Birther.” Even though they have no history, law, or facts to support their position and that history and all United States Supreme Court cases show that the Framers used natural law and the law of nations to define an Article II “natural born Citizen,” they continue trying to sell to the unknowing person that the Framers used the English common law to define a “natural born Citizen.” Can you just imagine? The Founders told us in the Declaration of Independence, the same document that was inspired by the political philosophy of natural law and the law of nations, that it became necessary for the American people “to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them…” They also declared that the new “Free and Independent States” were “absolved from all Allegiance to the British Crown, and that all political Connection between them and the State of Great-Britain, is and ought to be totally dissolved….” The Founders’ goal was to “totally dissolve” all political connection with and allegiance to Great Britain. They saw themselves as establishing a new nation that was separate from Great Britain or any other nation. They saw that they had a right to this free and independent status by the Law of Nature and of Nature’s God. Hence, it was in nature that they saw their rights to be born and not from government. The Founders saw the need and the wisdom in totally dissolving any connection or allegiance to a foreign power which happened to be Great Britain. The Framers understood that adhering to the Revolution provided the Founding generation with the opportunity to dissolve any allegiance individuals had to Great Britain.

With all that, demagogue Dr. Conspiracy and his hate-filled team of birther bashers want us to believe that the Framers would have allowed a British subject by birth like Obama to be President and Commander in Chief of the Constitutional Republic. Now they want to convert President George Washington into an Article II “natural born Citizen” in order to give support to their untenable position. http://www.obamaconspiracy.org/2010/04/george-washinton-natural-born-citizen/. Dr. Conspiracy reaches the desperate point of declaring President George Washington an Article II “natural born Citizen” even though we know that President George Washington and his parents were born “natural born subjects” of Great Britain, when they were born there was no United States of America, it is his mother’s (his father died a British subject in 1743 when Washington was 11 years old) and Washington’s adherence to the Revolution which naturalized them to become original citizens of the United States, and David Ramsay, a highly respected historian from the Founding period, provides direct evidence from that period and explains in no uncertain terms at page 3 and 6 of his 1789 dissertation, A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789), that the “difference is immense” between a “subject” and a “citizen” and citizenship “as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776….” Founder and Historian David Ramsay Defines a Natural Born Citizen in 1789, http://puzo1.blogspot.com/2010/04/founder-and-historian-david-ramsay.html. Of course, Dr. Conspiracy takes the position that he does because he is looking for mere birth on the territory (he will even go as far as settling with British territory) to make one a “natural born Citizen” rather than have to concede that a “natural born Citizen” is one born in the United States (or in what is deemed its equivalent) to parents who are themselves United States citizens (by birth or naturalization). See Ramsay; Emer de Vattel, The Law of Nations, Or, Principles of the Law of Nature bk 1, c. 19, sec. 212 (1758 French edition) (1759 first English translation). See also all Supreme Court cases and other authorities cited and discussed in my essay, Obama – Maybe a Citizen of the United States but Not a Natural Born Citizen, http://puzo1.blogspot.com/2010/03/obama-maybe-citizen-of-united-states.html. Dr. Conspiracy would have a lot to do if he had to explain why President George Washington under Article II, Section 1, Clause 5 was only a grandfathered “citizen of the United States” and not a “natural born Citizen.” He figures he better stay away from that one. Hence, a Washington that is a “natural born Citizen” of the United States, even though the United States of America did not exist when Washington was born, suits his unfounded position just fine.

But Dr. Conspiracy and his supporters do not stop there. They also put forth the position without providing any evidence that the Fourteenth Amendment amended the meaning of an Article II “natural born Citizen” by making a born “citizen of the United States” under that Amendment or under any Congressional Act to mean the same thing as an Article II “natural born Citizen.” Finally, they even go as far as to pooh-pooh the constitutional requirement that a President and Commander in Chief must have unity of Citizenship and sole and absolute allegiance and loyalty to the United States from the moment of birth and that the Framers inserted the “natural born Citizen” clause in the Constitution for the security of the nation. It is by examining the Dr. Conspiracy team which is a reflection of the current Democrat and Republican parties that we can understand President Washington’s warning in his farewell address about the threat that political parties pose to the survival of the Constitutional Republic.

In his Farewell Address of 1796, Washington not only warns the young nation which had yet to “settle and mature its yet recent institutions” about the “insidious wiles of foreign influence” which he saw as “one of the most baneful foes of Republican Government, but he also continues to advance his idea of the dangers of sectionalism and expands his warning to include the dangers of the “fury of party spirit” to the survival of the republic. His warnings are made in the context of the then-recent creation of the Democratic-Republican Party by Jefferson, to oppose Hamilton’s Federalist Party, which had been created a year earlier in 1791 and which in many ways promoted the interest of certain regions and groups of Americans over others. A more pressing concern for Washington, which he makes reference to in his address when speaking about the need to maintain neutrality in the war between England and France, was the Democratic-Republican party aligning with France and the Federalist party aligning with Great Britain in the ongoing conflict between the two European nations caused by the French Revolution.

Washington accepts that it is natural for people to organize and operate within groups and to have the “spirit of party.” But he also argues that every government has recognized political parties as an enemy and has sought to repress them because of their tendency to seek supremacy over other groups and take revenge on political opponents, motivations which he argues have led to horrible atrocities. He also warns that such party spirit could ultimately lead to a “more formal and permanent despotism” as people seek security in that individual who may gain and wield absolute power and who will most likely use that power for his own elevation at the expense of “Public Liberty.” Washington sees parties as something that could promote and protect liberty in monarchies. But he believes that parties must be restrained in a country led by self-representative government because of their tendency to distract the government from carrying out its most pressing duties, create unfounded group and regional jealousies, create false crisis among the public, and promote riot and insurrection. What he also cautions against and which is most relevant to the issue of the President having to be a “natural born Citizen” is his warning that the spirit of party “opens the door to foreign influence and corruption, which find a facilitated access to the government itself through the channels of party passions. Thus the policy and the will of one country are subjected to the policy and will of another.” Finally, Washington advises that since there is the constant danger to liberty posed by the spirit of party, the people need to be forever vigilant that party excesses do not consume the nation and to express their views publicly.

We can see where love of party has led us on the constitutional question of whether Obama is a “natural born Citizen” and eligible to be President and Commander in Chief. People like Dr. Conspiracy now tell us that Washington was an Article II “natural born Citizen.” Both the Democratic and Republican parties will not touch the question of Obama’s eligibility to be President and do not take any affirmative steps to stop party operatives and media cronies from bashing those who do, all at the expense and survival of our Constitution and Constitutional Republic. Obama and both political parties believe they do not have to prove or do anything because they consider those who question Obama’s eligibility to be President to be nothing but “radical fringe groups.” But polls, even recently in the NY Times with their liberal readership, disagree with that characterization and reveal that a significant percentage of Americans do not believe at all or doubt Obama’s eligibility.

President George Washington warned us so that the spirit of party does not consume our nation, the people need to be forever vigilant and express themselves through public opinion on the issues that they believe are dear and vital to their liberties. Let the Obama eligibility debate rage on in the court of public opinion, for it is only with open, complete, and honest public debate on this issue that the truth will be revealed.

Mario Apuzzo, Esq.
May 2, 2010
http://puzo1.blogspot.com/
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April 2, 2010

Founder and Historian David Ramsay Defines a Natural Born Citizen in 1789

In defining an Article II “natural born Citizen,” it is important to find any authority from the Founding period who may inform us how the Founders and Framers themselves defined the clause. Who else but a highly respected historian from the Founding period itself would be highly persuasive in telling us how the Founders and Framers defined a “natural born Citizen. ” Such an important person is David Ramsay, who in 1789 wrote, A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789), a very important and influential essay on defining a “natural born Citizen.”

David Ramsay (April 2, 1749 to May 8, 1815) was an American physician, patriot, and historian from South Carolina and a delegate from that state to the Continental Congress in 1782-1783 and 1785-1786.  He was the Acting President of the United States in Congress Assembled. He was one of the American Revolution’s first major historians. A contemporary of Washington, Ramsay writes with the knowledge and insights one acquires only by being personally involved in the events of the Founding period. In 1785 he published History of the Revolution of South Carolina (two volumes), in 1789 History of the American Revolution (two volumes), in 1807 a Life of Washington, and in 1809 a History of South Carolina (two volumes). Ramsay “was a major intellectual figure in the early republic, known and respected in America and abroad for his medical and historical writings, especially for The History of the American Revolution (1789)…” Arthur H. Shaffer, Between Two Worlds: David Ramsay and the Politics of Slavery, J.S.Hist., Vol. L, No. 2 (May 1984). “During the progress of the Revolution, Doctor Ramsay collected materials for its history, and his great impartiality, his fine memory, and his acquaintance with many of the actors in the contest, eminently qualified him for the task….” http://www.famousamericans.net/davidramsay/. In 1965 Professor Page Smith of the University of California at Los Angeles published an extensive study of Ramsay’s History of the American Revolution in which he stressed the advantage that Ramsay had because of being involved in the events of which he wrote and the wisdom he exercised in taking advantage of this opportunity. “The generosity of mind and spirit which marks his pages, his critical sense, his balanced judgment and compassion,” Professor Smith concluded, “are gifts that were uniquely his own and that clearly entitle him to an honorable position in the front rank of American historians.”

In his 1789 article, Ramsay first explained who the “original citizens” were and then defined the “natural born citizens” as the children born in the country to citizen parents. He said 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. He added that “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. He continued that 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.

Here we have direct and convincing evidence of how a very influential Founder defined a “natural born citizen.” Given his position of influence and especially given that he was a highly respected historian, Ramsay would have had the contacts with other influential Founders and Framers and would have known how they too defined “natural born Citizen.” Ramsay, being of the Founding generation and being intimately involved in the events of the time would have know how the Founders and Framers defined a “natural born Citizen” and he told us that definition was one where the child was born in the country of citizen parents. He giving us this definition, it is clear that Ramsay did not follow the English common law but rather natural law, the law of nations, and Emer de Vattel, who also defined a “natural-born citizen” the same as did Ramsay in his highly acclaimed and influential, The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, Section 212 (1758 French) (1759 English). We can reasonably assume that the other Founders and Framers would have defined a “natural born Citizen” the same way the Ramsay did, for being a meticulous historian he would have gotten his definition from the general consensus that existed at the time.

Ramsay’s article and explication are further evidence of the influence that Vattel had on the Founders in how they defined the new national citizenship. This article by Ramsay is one of the most important pieces of evidence recently found (provided to us by an anonymous source) which provides direct evidence on how the Founders and Framers defined a “natural born Citizen” and that there is little doubt that they defined one as a child born in the country to citizen parents. Given this time-honored definition, which has been confirmed by subsequent United States Supreme Court and some lower court cases such as The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (Marshall, C.J., concurring and dissenting for other reasons, cites Vattel and provides his definition of natural born citizens); Dred Scott v. Sandford, 60 U.S. 393 (1857) (Justice Daniels concurring took out of Vattel’s definition the reference to “fathers” and “father” and replaced it with “parents” and “person,” respectively); Shanks v. Dupont, 28 U.S. 242, 245 (1830) (same definition without citing Vattel); Slaughter-House Cases, 83 U.S. 36, 21 L.Ed. 394, 16 Wall. 36 (1872) (in explaining the meaning of the Fourteenth Amendment clause, “subject to the jurisdiction thereof,” said that the clause “was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States;” Elk v. Wilkins, 112 U.S. 94 (1884) (“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” are not citizens under the Fourteenth Amendment because they are not subject to the jurisdiction of the United States); Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (same definition without citing Vattel); Ex parte Reynolds, 1879, 5 Dill., 394, 402 (same definition and cites Vattel); United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (same definition and cites Vattel); U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) (quoted from the same definition of “natural born Citizen” as did Minor v. Happersett); Rep. John Bingham (in the House on March 9, 1866, in commenting on the Civil Rights Act of 1866 which was the precursor to the Fourteenth Amendment: “[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)).

The two-citizen-parent requirement would have followed from the common law that provided that a woman upon marriage took the citizenship of her husband. In other words, the Framers required both (1) birth on United States soil (or its equivalent) and (2) birth to two United States citizen parents as necessary conditions of being granted that special status which under our Constitution only the President and Commander in Chief of the Military (and also the Vice President under the Twelfth Amendment) must have at the time of his or her birth. Given the necessary conditions that must be satisfied to be granted the status, all “natural born Citizens” are “Citizens of the United States” but not all “Citizens of the United States” are “natural born Citizens.” It was only through both parents being citizens that the child was born with unity of citizenship and allegiance to the United States which the Framers required the President and Commander in Chief to have.

Obama fails to meet this “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 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 even become a legal resident or immigrant to the United States.

Obama may be a plain born “citizen of the United States” under the 14th Amendment or a Congressional Act (if he was born in Hawaii). But as we can see from David Ramsay’s clear presentation, 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. Hence, Obama is not an Article II “natural born Citizen,” 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. 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 Unity of Citizenship and Allegiance 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, 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.

Mario Apuzzo, Esq.
April 2, 2010
http://puzo1.blogspot.com/
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