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

November 19, 2010

Article II "Natural Born Citizen" Means Unity of Citizenship and Sole Allegiance At Birth

Article II “Natural Born Citizen” Means Unity of Citizenship
and Sole Allegiance At Birth

by: Mario Apuzzo, Esq.
Written: April 23, 2009
Reposted: November 18, 2010

Article II of our Constitution has a lot to say about how a would-be President is born. “Natural born Citizen” status requires not only birth on U.S. soil but also birth to parents who are both U.S. citizens by birth or naturalization. This unity of jus soli (soil) and jus sanguinis (descent) in the child at the time of birth assures that the child is born with sole allegiance (obligation of fidelity and obedience to government in consideration for protection that government gives (U.S. v. Kuhn, 49 F.Supp.407, 414 (D.C.N.Y)) and loyalty to the United States and that no other nation can lay any claim to the child’s (later an adult) allegiance and loyalty. Indeed, under such birth circumstances, no other nation can legally or morally demand any military or political obligations from that person. The child, as he/she grows, will also have a better chance of not psychologically struggling with conflicted allegiance and loyalty to any other nation.

Unity of citizenship and allegiance is based on the teachings of the law of nature (natural law) and the law of nations, as confirmed by ancient Greek and Roman law; American, European, and English constitutions, common and civil law, and statutes; and Vattel’s, The Law of Nations, all of which the Founding Fathers read and understood. These sources have taught civilizations from time immemorial that a person gains allegiance and loyalty and therefore attachment for a nation from either being born on the soil of the community defining that nation or from being born to parents who were also born on that same soil or who naturalized as though they were born on that soil. It is only by combining at birth in the child both means to inherit these two sources of citizenship that the child by nature and therefore also by law is born with only one allegiance and loyalty to and consequently attachment for only the United States.

Our Constitution requires unity of U.S. citizenship and allegiance from birth only for the Office of President and Commander in Chief of the Military, given the unique nature of the position, a position that empowers one person to decide whether our national survival requires the destruction of or a nuclear attack on or some less military measure against another nation or group. It is required of the President because such a status gives the American people the best Constitutional chance that a would-be President will not have any foreign influences which because of conflict of conscience can most certainly taint his/her critical decisions made when leading the nation. Hence, the special status is a Constitutional eligibility requirement to be President and thereby to be vested with the sole power to decide the fate and survival of the American people. Of course, the status, being a minimum Constitutional requirement, does not guarantee that a would-be President will have love and fealty only for the United States. Therefore, the final informed and intelligent decision on who the President will be is left to the voters, the Electors, and Congress at the Joint Session, to whom hopefully responsible media and political institutions will have provided all the necessary vetting information concerning the candidate’s character and qualifications to be President.

Through historical development, unity of citizenship and sole allegiance at birth is not required for U.S. born citizen Senators, Representatives, and regular citizens under the 14th Amendment and Congressional enactments. In contradiction and which confirms the Founding Fathers’ meaning of what a “natural born Citizen” is, naturalized citizens, since 1795, before becoming such must swear an oath that they renounce all other allegiances to other nations. During the Washington Administration, the First Congress passed the Naturalization Act of 1795 in which it provided that new citizens take a solemn oath to support the Constitution and “renounce” all “allegiance” to their former political regimes. This is during the time that most of the Framers were alive and still actively involved in guiding and forming the new national government and Constitutional Republic. Today, we still require that an alien upon being naturalized must give an oath that he/she renounces all former allegiances and that he/she will “support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic.” Hence, allegiance is not simply a thing of the past but very much with us today. It is important to also understand that naturalization takes an alien back to the moment of birth and by law changes that alien’s birth status. In other words, naturalization, which by legal definition requires sole allegiance to the United States, re-creates the individual as though he were a born Citizen but only does it by law and not by nature. This is the reason that the 14th Amendment considers a naturalized person to be a “citizen” of the United States and not a “natural born Citizen” of the United States. This recreation of birth status through naturalization which also existed under English common law also probably explains why John Jay underlined the word “born” when he recommended to General Washington that only a “natural born Citizen” (as to say born in fact, by nature, and not by law) be allowed to be President. Consequently, naturalized citizens stand on an equal footing with born Citizens (who are so recognized and confirmed by the 14th Amendment or by an Act of Congress and who can be but not necessarily are also “natural born Citizens”) except that they cannot be President or Vice President, for they were born with an allegiance not owing to the United States and acquire that sole allegiance to the United States only after birth. Surely, if a naturalized citizen, even though having sole allegiance to the United States, is not Constitutionally eligible to be President, we cannot expect any less of someone who we are willing to declare so Constitutionally eligible.

The Founding Fathers emphasized that, for the sake of the survival of the Constitutional Republic, the Office of President and Commander in Chief of the Military be free of foreign influence and intrigue. It is the “natural born Citizen” clause that gives the American people the best fighting chance to keep it that way for generations to come. American people do not have the Constitutional right to have any certain person be President. But for the reasons stated above, minimally they do have a Constitutional right to protect their liberty by knowing and assuring that their President is Constitutionally eligible and qualified to hold the Office of President and Commander in Chief of the Military.

Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg NJ 08831
Email: apuzzo [AT] erols.com
TEL: 732-521-1900 ~ FAX: 732-521-3906
BLOG: http://puzo1.blogspot.com
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November 2, 2010

The Framers Used Emer de Vattel, Not William Blackstone to Define a “Natural Born Citizen”

The Framers Used Emer de Vattel, Not William
Blackstone to Define a “Natural Born Citizen”

by: Mario Apuzzo, Esq.

The question which has gripped our nation is whether Barack Obama is eligible to be President and Commander in Chief. Article II, Section 1, Clause 5 provides that: “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; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.” The proper question under this clause is not whether Obama is a “Citizen of the United States.” Rather, the correct question is whether Obama is a “natural born Citizen” thereunder.

“It cannot be presumed that any clause in the constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it….” Marbury v. Madison. 5 U.S. 137, 174 (1803). In other words, the “natural born Citizen” clause of Article II must be given independent effect from the “citizen of the United States” clause of Article II itself and of the Fourteenth Amendment. All Presidents must qualify as Article II “natural born Citizens,” not as Fourteenth Amendment “citizens of the United States.” The two clauses have different and distinct meanings or they would not have their own independent life in the Constitution. Article II says “natural born Citizen” and the Fourteenth Amendment says “citizen of the United States.” If being a “citizen of the United States” had the same exact effect as being a “natural born citizen,” then the “natural born Citizen” clause would have no effect. Such a construction is not admissible. If we were not to give special meaning to the words “natural born” and conclude that “natural born Citizen” and “citizen of the United States” mean the same thing, the words “natural born” in the “natural born Citizen” clause of Article II would be superfluous. Our Supreme Court has consistently expressed “a deep reluctance to interpret a statutory provision so as to render superfluous other provisions in the same enactment.” Pennsylvania Department of Public Welfare v. Davenport, 495 U.S. 552, 110 S.Ct. 2126, 2133, 109 L.Ed.2d 588 (1990); International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Uaw v. Johnson Controls, Inc, 499 U.S. 187, 111 S.Ct. 1196, 1204, 113 L.Ed.2d 158 (1991) . Hence, we have to give special meaning to the words “natural born.”

As so many scholars and commentators have asked, what does “natural born Citizen” mean? Why did the Framers distinguish in Article II between a “citizen of the United States” and a “natural born Citizen?” The Founders trusted the occupancy of the Office of President to those born on or inhabiting the soil of or to those who naturalized in the Colonies or new States, all of whom belonged to the original citizen class because, even though they were born subject to a foreign power, they had evidenced their loyalty and attachment to the United States by fighting for the American cause in the Revolution. Also, for those born “natural born subjects” of the British Crown, through the Treaty of Peace of 1783, England absolved its subjects of the natural allegiance that they owed to it. But the Founders knew that there would be other foreigners coming to live in America in the future. The allegiance and loyalty of these future foreigners would not have been tested or even absolved in some manner as had occurred under the Treaty of Peace of 1783. The Founders feared foreign influence infecting the administration of the government. 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 General 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 in the original). Note that Jay wanted a “strong” check that would prevent a foreigner from becoming the Commander in Chief. Hence, any definition of “natural born Citizen” must provide our nation with the strongest check possible on foreign influence invading the Office of President and Commander in Chief of the Military. The Framers found the definition of “natural born Citizen” that would suit their purpose of protecting the future of and preserving the new nation not in the English common law and William Blackstone but in natural law and the law of nations as commented upon by Emer de Vattel, in his treatise, 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). This law became American common law. See my article 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, found at http://puzo1.blogspot.com/2009/08/law-of-nations-and-not-english-common.html.

As James Brown Scott has correctly stated: “It is therefore to be expected that, when terms of municipal law are found in the Constitution, they are to be understood in the sense in which they were used in Blackstone’s Commentaries; and when the law of nations is referred to, that its principles are to be understood in the sense in which Vattel defined them.” James Brown Scott, The United States of America: A Study in International Organizations 439 (1920). There is little doubt that citizenship properly falls under the law of nations which became U.S. national law and not under the rules of municipal law. Citizenship has always been recognized as a topic that affects United States relations with other nations. On the question of national citizenship, Lynch v. Clarke, 1 Sand. Ch. 583, 3 N.Y. Leg. Obs. 236, 244 (1844), http://books.google.com/books?id=ERgvAAAAIAAJ&pg=PA251&dq=%22Natural+born+citizen%22#v=onepage&q=%22Natural%20born%20citizen%22&f=false (whose finding that Julia Lynch, born in New York to “alien parents, during their temporary sojourn” there, was a citizen of the United States, was in effect overruled by a 1860 New York state statute which provided at Sec. 5 that “[t]he citizens of the state are: 1. All persons born in this state and domiciled within it, except the children of transient aliens and of alien public ministers and consuls”), stated that how we define citizenship “has an essential bearing in our intercourse with other nations and the privileges conceded by them to our citizens; is therefore, not a matter of mere state concern. It is necessarily a national right and character. It appertains to us, not in respect to the State of New York, but in respect of the United States. . . .” Given that citizenship affects “the behavior of nation states with each other,” Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Founders would have looked to the law of nations to define it for the needs of the new nation. Clearly, citizenship is both a national and international matter which affects the relations among nations. The Founders and Framers would have looked to the law of nations to define citizenship in the new nation and not the English common law.

The Founders and Framers relied upon Cicero, Grotius, Pufendorf, Locke, and Emer de Vattel (to name a few) in identifying and describing natural law and the law of nations. But they mostly looked to Emer de Vattel and his treatise, 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 for not only authority on the meaning of natural law and the law of nations but also in constituting the new Constitutional Republic and in writing the new Constitution. The 1759 (aka 1760) edition was published in London in English. An explanation of the various editions is provided by Colonial Society of Massachusetts, Publications of the Colonial Society of Massachusetts, Volume 20 (A. Matthews ed. 1920). http://books.google.com/books?id=svE7AAAAIAAJ&pg=PA5&dq=benjamin+franklin+vattel&ei=W-yPStrRNaf4ygS12bC3Bw#v=onepage&q=benjamin%20franklin%20vattel&f=false

Vattel clearly distinguished between “citizens” (“citoyens” in French) and “naturals” (“naturels” in French). His title for Section 212 is “Des citoyens et naturels” (“Of citizens and naturals” which the English translators called “Of the citizens and natives”). He referred to the “citoyens” who were translated to “citizens” and “naturels” who were later translated to “natural-born citizens.” The “naturels” were the children of the “citoyens.” He therefore saw that there is a difference between the two types of citizens. He explained that difference thus: “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”. Id. bk. 1, c. 19, sec. 212. In the 1797 English edition, the translator replaced the word “indigenes” with “natural-born citizens.” Hence, it read: “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.” Hence, while the definition of a “natural born citizen” never changed in Vattel’s texts, the term to express it was changed from “indigenes” to “natural-born citizens.” That the French word “naturels” was understood by the founders and framers to mean “natural born” prior to the writing of the Constitution and prior to the second English translation of Vattel’s Law of Nations in 1797 is confirmed by the record of the Journal of the Continental Congress is 1781. Thus in 1787 John Jay clearly knew what the term “natural born Citizen” meant when he wrote his letter to George Washington suggesting it be added to the eligibility clause as to who can be President and Commander of our military since John Jay was an ardent supporter of Vattel’s concepts and natural law and was an advocate for the Law of Nations as the new common law of the new U.S. federal government. John Jay became the first Chief Justice of the U.S. Supreme Court.

There exists evidence contemporaneous to the Founding that the Founders relied upon concepts of natural law, the law of nations, and Vattel to define national citizenship in the new republic and not English common law and Blackstone. Founder and highly respected historian, David Ramsay, who in 1789 wrote, A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen, defined the original citizens and while not using the term nevertheless provided a Founding period contemporaneous definition of a “natural born Citizen,” as well and in so doing relied upon a definition of an original “citizen” and a “natural born citizen” as given by Vattel and not upon one provided by the English common law or Blackstone (both of which defined a “natural born subject” and not a “natural born Citizen” and did not distinguish between a “subject” and a “natural born subject”). Additionally, Rep. William Smith during the 1789 Congressional hearings on whether he was a “citizen of the United States” of seven years (not to be confused with an Article II “natural born Citizen”) which status he needed under Article I, Section 2, Clause 2 to be eligible to sit as a member of the House of Representatives, cited Vattel and espoused and relied upon his definition of a “citizen” and not upon that provided by the English common law or Blackstone to define citizenship in the United States and as authority to prove that he was a “citizen of the United States” of seven years.

During the Founding, the English common law was selectively adopted only by the states and applied there to resolve local issues such as arising in contracts, inheritance, property, torts, matrimony, criminal procedure, etc. But that common law was not adopted on the national level. National law only included the “Constitution, the Laws of the United States, and Treaties…” Article III, Section 2, Clause 1. We know from Article I, Section 8, Clause 10 that the Framers included “the Law of Nations” as part of “the Laws of the United States.” While the Founders and Framers relied heavily upon Emer de Vattel for justification for the revolution and in writing the Constitution, this reference is to the body of law then called the law of nations, not Vattel’s treatise called, The Law of Nations,” which explains how the law of nations is based on natural law and presented what that law was. The law of nations which was relevant on relations among nations specifically addressed what a “citizen” and “natural born citizen” was. The English common law did selectively make its way into the Constitution by way of the Bill of Rights (the first ten Amendments) which was ratified on December 15, 1791. But the Bill of Rights did not address citizenship or nationality as did the law of nations.

The following United States Supreme Court cases and cases from other courts have confirmed that national citizenship has been defined under American common law which has had its genesis in natural law and the law of nations as explicated by Vattel and not under the English common law or Blackstone: (1) The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (Chief Justice John Marshall, concurring and dissenting for other reasons, cited Vattel and provides his definition of natural born citizens); (2) Shanks v. Dupont, 28 U.S. 242, 245 (1830) (provided the same Vattelian definition without citing Vattel); (3) Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) (Daniels, J., concurring, cited Vattel and The Law of Nations and provided his definition of natural born citizens and took out of Vattel’s definition the reference to “fathers” and “father” and replaced it with “parents” and “person,” respectively); (4) 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”); (5) Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (provided the same Vattelian definition without citing Vattel); (6) 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 cites Vattel); (7) 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); (8) United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (provided the same Vattelian definition and cited Vattel); (9) U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898) (distinguished between a “natural born Citizen” and a “citizen of the United States” and cited Vattel and quoted his definition of “natural born Citizen” as did Minor v. Happersett); (10) and Perkins v. Elg, 307 U.S. 325 (1939) (other than Minor v. Happersett, the only U.S. Supreme Court decision that declared someone a “natural born Citizen.” The person was born in the United States to a citizen father and citizen mother through derivative citizenship).

Further evidence that the English common law and Blackstone did not prevail in the United States to define national citizenship is the cases of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), holding that blacks whether slaves or free did not acquire United States citizenship at birth even though they were born in the United States and Elk v. Wilkins, 112 U.S. 94, 102 (1884), holding that American Indians did not acquire United States citizenship at birth even though they were born in the United States. English common law, with the exception for children of diplomats and invading armies, only required birth within the dominion without any reference to the citizenship status of the parents to grant “natural born subject” status. Yet, under these early decisions of our Supreme Court both Indians and blacks even if born in the United States were denied initial membership in the United States.

There does not exist one U.S. Supreme Court decision that defined national citizenship under English common law as commented upon by Blackstone, except for U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898). This decision defined a Fourteenth Amendment born “citizen of the United States” (not to be conflated with an Article II “natural born Citizen”) under colonial English common law rather than under natural law, the law of nations, and American common law which up to that time the Supreme Court had always relied upon to define national citizenship in the United States. There was no need for Wong Kim Ark to resort to the English common law, for Vattel tells us in Section 215 that if the father [meaning parents because of unity of husband and wife] has [have] “entirely quitted his [their] country in order to settle elsewhere,” i.e., has [have] become a “perpetual inhabitant” of that other country, and has [have] a child in that other country, the father [those parents] will become a member [members] of that other society and his [their] child born in that country will follow his [their] condition and also become a member of that same society. Vattel considered these children to be only “members” of that country which under Section 212 translates to “citizens” and not “natural-born citizens.” He did not say that they become “natural born citizens” of that country. Vattel clearly distinguished between the two, with initial “members” of a society being just “citizens,” not “natural-born citizens.” This dichotomy of citizenship is consistent with the views of Samuel von Pufendorf who divided born citizens into two categories, the original citizens and their descendents. Note that he called the children of the original citizens “Indigenes, or Natives.” He stated: “Citizens are either Originally so; that is, such as are born in the Place, and upon that Account claim their Privileges; Or else, Adscititious; that is, such as come from Foreign Parts. Of the first Sort, are either those who at first were present and concerned in the forming of the said Society, or their Descendants, who we call Indigenes, or Natives. Of the other Sort are those who come from Foreign Parts in order to settle themselves there. As for those who come thither only to make a short Stay, although they are for that Time subject to the Laws of the Place; nevertheless, they are not looked upon as Citizens, but are called Strangers or Sojourners.” The Whole Duty of Man According to the Laws of Nature (William Tooke trans., Ian Hunter & David Saunders, eds., Liberty Fund 2003, Book II, Chapter 6, xiii, 1691).

Given that Wong Kim Ark found that Wong was born in the United States to alien parents who were domiciled in the United States, the Court could have also found that Wong’s parents were “perpetual inhabitants” of the United States and that Wong was born a member of American society (born subject to the jurisdiction of the United States) and thus a born “citizen of the United States” under the Fourteenth Amendment by using Vattel and the law of nations. Under such a scenario, Wong would be treated the same as an original citizen. We can only speculate why Justice Gray did not use natural law, the law of nations, and American common law (meaning Vattel’s rules on citizenship) to declare Wong a “citizen of the United States” like Chief Justice Waite did in Minor to show that Happersett was a “natural-born citizen.” One thing that comes to mind, however, is that if Justice Gray would have relied upon Vattel and American common law rather than English common law to declare Wong a “citizen of the United States,” if the public knew of Arthur’s alien birth circumstances, and if someone would have raised the issue, he would have had to acknowledge that President Chester Arthur, the President who appointed him to the Supreme Court in 1881, was not eligible to be Vice-President or President because he was born in the United States to an alien father and mother (his U.S. born mother also became an alien through then merger of citizenship into the alien father) and at most he would have been a born “citizen of the United States” but not an Article II “natural born Citizen.” Apart from the fact that the American electorate and public was not aware back then that Arthur was born to a non-citizen father, application of the English common law further obscured Arthur’s ineligibility.  In this connection, we should also consider Senate Resolution 511, passed by the Senate on April 30, 2008, to declare Senator John McCain a “natural born Citizen” and the legal analysis of Theodore Olson (former Solicitor General) and Laurence Tribe (Harvard Law School Professor) on which the U.S. Senate relied to come to its conclusion regarding McCain status and which Senator Leahy requested be printed in the Record. Olson and Tribe did not use Vattel’s Section 217’s born abroad to citizen parents while serving “in the armies of the state” as a ground to declare Senator John McCain a “natural born Citizen.” Their using Vattel would have exposed Putative President Obama’s ineligibility to be President the same as Justice Gray using Vattel would have shown President Arthur’s ineligibility for that same office. 

It is critical to understand that Wong Kim Ark did not define a “natural born Citizen,” for the Court recognized that Minor v. Happersett had already done that in 1875 and did not object to that definition. Rather, the Court defined a born “citizen of the United States” under the Fourteenth Amendment which only defines initial membership in American society and did not amend Article II, Section 1, Clause 5’s definition of a “natural born Citizen” which is that status reserved to those children born in the United States to a citizen father and citizen mother which makes them second generation United States citizens who are born with unity of citizenship and sole allegiance to the United States and who are therefore eligible to be President. Hence, Wong Kim Ark did not change the definition of an Article II “natural born Citizen.”

In addition to these Supreme Court cases, there exists other cases and historical evidence which show that the Founders and Framers rejected the English common law and Blackstone as a basis for rules of decision for the new federal government and nation. For sake of brevity, that evidence will not be discussed here. The Founders and Framers would not have rejected the English common law and Blackstone at the federal level and then at the same time relied upon those sources to define generally who the people of the new nation were going to be and specifically who among those people could hold the highest offices in government including the office of President and Commander in Chief of the Military.

Minor told us 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.” Minor, 169 U.S. at 679-80. So we can see that the legal and political battles over citizenship have not been over the meaning of a “natural born Citizen. Rather, they have been over who can be a “citizen of the United States” or in other words, who can be accepted as an initial member of the political society known as the United States. The battle over who can be an initial member of American society has existed in our history because the United States is the product of conquest (of the American Indians), revolution ( against Great Britain), and immigration (involving not only “white” Europeans but also Asians and others who fell outside that description). This battle has also raged because the institution of slavery involving blacks brought to the colonies from Africa existed at the time of the Founding and up to 1865 when the Civil War ended. Hence, because of this historical development, the United States has found itself populated with people of different races, colors, national origins, religions, and ethnicities. In the early years of the English colonies, even religion was a factor that could prevent one from becoming a citizen. James Kettner, The Development of American Citizenship, 1608-1879 (1978). The problem for defining an Article II “natural born Citizen” is that we have lost sight of the fact that historically our courts and political institutions have struggled to define a “citizen of the United States” or who can be a member of the political society called the United States and not a “natural born Citizen.” It is this struggle that produced the Civil Rights Act of 1866, the Fourteenth Amendment, and other special Congressional acts and treaties allowing American Indians to become citizens at birth.

The Constitution should be honored and enforced in the way that it was written and originally intended by the Framers rather than in a way that pleases political parties or some political majority. Needed changes to it brought about by social evolution should not be made for political expediency by political parties or voting majorities without going through the formal amendment process prescribed by the Constitution itself in Article V. It has always been Emer de Vattel that provided our nation with the definition of an Article II “natural born Citizen’ and not William Blackstone. It is this definition that the Founders and Framers used to define the clause and it is this definition which should be enforced for the national security reasons of it being there if we are to be true to the Constitution and the rule of law.

Obama fails to meet this definition because if he was born in Hawaii, he was born to a British father and a U.S. citizen mother and he himself was born a British citizen under the British Nationality Act of 1948, causing him to be born with allegiance to Great Britain and to the United States. 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 [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.

While today our law does not provide for merger of the wife’s citizenship into that of the husband, Obama was still born to an alien father and as a British citizen himself, thereby causing him to lack unity of citizenship and sole allegiance to the United States at birth, necessary conditions to be an Article II “natural born Citizen.” It should be noted that Obama’s father was in the United States on a temporary student visa and he returned to Kenya after his studies were complete. Hence, he never had an intention to become domiciled in the United States. On the other hand, Obama’s mother was not only a U.S. citizen but also domiciled in the United States. Assuming that Obama’s parents were domiciled in the United States and that he was born in the United States (a fact which he has yet to conclusively prove), which would arguably all make him “subject to the jurisdiction thereof,” he was at most born a “citizen of the United States” under the Fourteenth Amendment and a citizen of Great Britain under the British Nationality Act of 1948. While such dual citizenship creates dual allegiances, under current interpretation of the Fourteenth Amendment’s “subject to the jurisdiction thereof” clause, such dual allegiances would not prevent him from being a born “citizen of the United States.” But they would prevent him from being an Article II “natural born Citizen,” which constitutional status does not produce dual allegiances at birth. Obama is therefore not eligible to be President.

Finally, if Obama was not born in the United States, he would not even be a “citizen of the United States” under the version of Section 301(g) of the Immigration Nationality Act that was in effect in 1961 because his 18-year-old U.S. citizen mother was too young when he was born to pass her U.S. citizenship to him under that law as it existed then.

Mario Apuzzo, Esq.
http://puzo1.blogspot.com/
November 1, 2010
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March 5, 2010

Obama – Maybe a Citizen of the United States But Not a Natural Born Citizen

The question which has gripped our Constitutional Republic is whether putative President, Barack Obama, is eligible to be President and Commander in Chief of the Military. Article II, Section 1, Clause 5 of our Constitution provides that: “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; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.” Despite the fact that Article II itself, and when read together with Articles I, III, IV and Amendments Eleven, Fourteen, Fifteen, Nineteen, Twenty-Four, and Twenty-Six, clearly makes a distinction between a “Citizen of the United States” and a “natural born Citizen,” when it comes to deciding whether Obama is eligible to be President under Article II, many incorrectly interpret a “Citizen of the United States ” to be the same thing as a “natural born Citizen.” With these two clauses not having the same meaning, the proper eligibility question is not whether Obama is a “Citizen of the United States.” Rather, the correct inquiry is whether Obama is a “natural born Citizen.”

Most probably recognize that United States citizens are created either at birth or at the moment of naturalization. The former is a native (using that term in its modern sense and not in the sense that the Founders used it) and the latter is not. Most probably also recognize that a naturalized citizen is not eligible to be President. But what many fail to recognize is that the event of birth has two natural elements which always have and always will be present in every birth: (1) the place where one was born and (2) the two parents who procreated the child. Hence, some also fail to understand that there are two types of born citizens, one being a born “Citizen of the United States” and the other being a “natural born Citizen.” Under current law, a born “Citizen of the United States” is one granted that status under the 14th Amendment or Congressional Act (e.g. Title 8 Section 1401), both of which consider either (1) being born on United States soil or (2) being born to at least one United States citizen parent sufficient conditions for being granted the status of a born “Citizen of the United States.” Never in our history has the United States Supreme Court or the Congress ever required that one needs to satisfy both of these conditions in order to be a “citizen of the United States.” But as to a “natural born Citizen,” we have a different story.

To understand what an Article II “natural born Citizen” is, we have to revert to the Founding era to determine what the Founders and Framers intended that clause to mean. In analyzing what meaning the Framer’s gave to the “natural born Citizen” clause, we must remember that they wrote the Constitution in the historical context of having won a Revolution and in having to constitute a new society. They were inspired by and found justification in the political philosophy of natural law and the law of nations and not that of the English common law in going forward with that Revolution and they relied on that same law when defining national citizenship. Article II, Section 1, Clause 5 of the Constitution grandfathered all persons to be eligible to be President who were “Citizens of the United States” at the time the Constitution was adopted. These persons would have been adults who were born in the colonies, children born in the new states, or adults inhabiting or naturalized under the naturalization laws in either place, at the time that the Constitution was adopted, provided they all adhered to the American Revolution. Justice Gray in United States v. Wong Kim Ark, 169 U.S. 649 (1898) explained that under English common law that prevailed in the colonies these original citizens included persons who were born in the colonies or new states to alien parents. These original citizens, whether born in the country or out of it, were all naturalized to be “citizens of the United States” by simply adhering to the American Revolution. The Founders in Article II grandfathered these “citizens of the United States” to be eligible to be President, provided that they were such at the time of the adoption of the Constitution which we know occurred on September 17, 1787. The grandfather clause is obsolete today.

The Founders themselves, being born prior to independence were subjects of the British Crown and to other foreign sovereigns but adhering to the American Revolution became part of the first “citizens of the United States.” All being born in the colonies before the Declaration of Independence was adopted in 1776 to British parents, the first seven Presidents were born subjects of Great Britain (born subject to a foreign power) and therefore needed the grandfather clause to make them eligible to be President. Andrew Jackson, the seventh President, born on March 15, 1767, was the last President who could utilize the grandfather clause to make him eligible to be President. Justice Story observed in his Commentaries on the Constitution of the United States that for the Framers to allow naturalized citizens (who like them were born subject to a foreign power and as we shall see below not “natural born Citizens”) to be eligible to be President was an exception to “the great fundamental policy of all governments, to exclude foreign influence from their executive councils and duties.” III J. Story, Commentaries on the Constitution of the United States Sec. 1473 (1833). Being born on December 5, 1782, on United States soil (in New York and therefore not born on foreign soil) to parents who had also become “citizens of the United States” by election to be loyal to the American Revolution (not born to foreign parents), Martin Van Buren, the eighth President (his mother was of Dutch ancestry and his great-great-great-great-grandfather Cornelis had come to the New World in 1631 from the Netherlands) was the first United States President not born a British or other foreign subject (not subject to a foreign power by being born either on foreign soil or to a foreign parent) who was born a “natural born Citizen” and who therefore did not need the grandfather clause to make him eligible to be President. The New Netherland Institute describes Van Buren’s family history as follows: “In fact, although they were fifth generation Dutch, all of their forebears were of Dutch extraction. The original Van Buren had come over in the 1640’s during the Van Rensselaer era when all of Columbia County was part of the Rensselaer Estate. And the original immigrant forbear probably came over sponsored by Killian Van Rensselaer, among many other immigrants, to occupy the Rensselaer estate. As a result Martin Van Buren was pure Dutch, and still spoke Dutch, the language that prevailed for many generations in that part of New York State along the Hudson River.” http://www.nnp.org/nni/Publications/Dutch-American/buren.html. It has been said that Van Buren is the first President born under the American flag.

On the other hand, for children born after the adoption of the Constitution in 1787, the same Article II, Section 1, Clause 5 provides, among other things, that only a “natural born Citizen” is eligible to be President. An Article II “natural born Citizen” is one granted that special status under American common law that has its origins in natural law and the law of nations. With citizenship being a matter of status having international implications, the Framers would have expected its definition to be supplied by public law or the law of nations and not by any municipal or English common law, which the States continued to use to resolve their local problems concerning contracts, torts, property, inheritance, criminal procedure, etc. Under the law of nations, to be a “natural born Citizen,” the child needed to be born in the United States (or what may be deemed its equivalent) to two citizen parents. This definition of a “natural born Citizen” is found in and has been confirmed by the following United States Supreme Court cases and other authorities:

1. Samuel von Pufendorf, The Whole Duty of Man According to the Laws of Nature (William Tooke trans., Ian Hunter & David Saunders, eds., Liberty Fund 2003, Book II, Chapter 6 (1691): “Citizens are either Originally so; that is, such as are born in the Place, and upon that Account claim their Privileges; Or else, Adscititious; that is, such as come from Foreign Parts. Of the first Sort, are either those who at first were present and concerned in the forming of the said Society, or their Descendants, who we call Indigenes, or Natives.”

2. Emer de Vattel, 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): “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”. In the 1797 English edition, the translator replaced the word “indigenes” with “natural-born citizens.” Hence, it read: “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.” Hence, while the definition of a natural born citizen never changed in Vattel’s texts, the term to express it was changed from “indigenes” to “natural-born citizens.”

With many of the Founders 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. The Framers were well read in the Roman and Greek classics as is expounded upon in their writings in the Federalist Papers. Jefferson and other Founders had a love for Roman history and education. 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, too, 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. In fact, during the constitutional debates the Framers also used both “natural born citizen” and “native” interchangeably, just as the English translators of the Latin term “alumnum orbis oleant” did. It would be highly coincidental that both the English translators of Quintilianus’ Latin text and the Founders would have been using those two clauses interchangeably unless they were referring to the same concept, “alumnum orbis oleant.” We know that the Framers chose “natural born Citizen” rather than “native.” They then applied Vattel’s definitions to the “natural born citizen” clause that they selected. It is also significant that the English translator of the 1797 English edition used “the natives, or natural-born citizens” in the place of “the natives, or indigenes.” In making this change, this translator probably knew that the Founders used “natives” or “natural born Citizens” to represent the citizens of the highest order and whom Vattel called “Les naturels, ou indigenes,” or what had been to date translated as “the natives, or indigenes.”

3. The Venus, 12 U.S. (8 Cranch) 253, 289 (1814): Chief Justice John Marshall, concurring and dissenting for other reasons, said: “Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says ‘The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives or indigenes are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.’”

4. Shanks v. Dupont, 28 U.S. 242, 245 (1830): “If she was not of age, then she might well be deemed under the circumstances of this case to hold the citizenship of her father, for children born in a country, continuing while under age in the family of the father, partake of his national character as a citizen of that country.”

5. Dred Scott v. Sandford, 60 U.S. 393 (1857): Justice Daniels concurring, cited and quoted from Vattel and The Law of Nations thus: “The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As society cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights.” Again: I say, to be of the country, it is necessary to be born of a person who is a citizen; for if he be born there of a foreigner, it will be only the place of his birth, and not his country. . . .” It should be noted that Justice Daniel took out of Vattel’s definition the reference to “fathers” and “father” and replaced it with “parents” and “person,” respectively.

6. 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 [S 61 Bill], 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. . . . ” Cong. Globe, 39th, 1st Session, 1291 (1866).

7. 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.”

8. Minor v. Happersett, 88 U.S. 162, 167-68 (1875): “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. Minor did not cite Vattel but as can be seen the Court’s definition of a “citizen” and a “natural born Citizen” are take directly out of Vattel’s Section 212.

9. Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879): “[T]he offspring of free persons…follows the condition of the father, and the rule partus sequitur patrem prevails in determining their status. 1 Bouv. Inst., 198, § 502; 31 Barb. 486; 2 Bouv. Law Dict. 147; Shanks v. Dupont, 3 Pet. [28 U.S.] 242. This is the universal maxim of the common law with regard to freemen — as old as the common law, or even as the Roman civil law… No other rules than the ones above enumerated ever did prevail in this or any other civilized country. In the case of Ludlam v. Ludlam, 31 Barb. 486, the court says: ‘The universal maxim of [**17] the common law being partus sequitur patrem, it is sufficient for the application of this doctrine that the father should be a subject lawfully, and without breach of his allegiance beyond sea, no matter what may be the condition of the mother.’ The law of nations, which becomes, when applicable to an existing condition of affairs in a country, a part of the common law of that country, declares the same rule. Vattel, in his Law of Nations (page 101), says: ‘As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, these children naturally follow the condition of their fathers and succeed to their rights. * * * The country of the father is, therefore, that of the children, and these become true citizens merely by their tacit consent.’ Again, on page 102, Vattel says: ‘By the law of nature alone, children follow the condition of their fathers and enter into all their rights.’ This law of nature, as far as it has become a part of the common law, in the absence of any positive enactment on the subject, must be the rule in this case.”

10. Elk v. Wilkins, 112 U.S. 94 (1884): “The main object of the opening sentence of the fourteenth amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes, (Scott v. Sandford, 19 How. 393;) and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside. Slaughter-House Cases, 16 Wall. 36, 73; Strauder v. West Virginia, 100 U. S. 303, 306… [S]ubject to the jurisdiction thereof… is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance…. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized… 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…. To be a citizen of the United States is a political privilege which no one, not born to, can assume without its consent in some form.”

11. United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (same definition and cites Vattel); “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.”

12. U.S. v. Wong Kim Ark, 169 U.S. 649 (1898): It quoted the same definition of “natural born Citizen” as did Minor v. Happersett. It declared under the Fourteenth Amendment a child born on United States soil to alien parents who were domiciled and legally residing in the United States and therefore subject to the jurisdiction of the United States a “citizen of the United States,” It did not find him an Article II “natural born Citizen.” Chief Justice Fuller in his dissent said that he would not have found Wong to be a “citizen of the United States” because his parents were not citizens. He also confirmed Vattel’s definition of a “natural born Citizen.”

The two citizen-parent requirement (not only just one parent) comes from the definition of a “natural born Citizen” referring to the child’s parents in the plural. It also comes from the common law that provided that a woman upon marriage took the citizenship of her husband. Both parents must also be citizens in order for the child not to be born subject to any foreign power and therefore with any other conflicting allegiance or loyalty. Hence, given the Framers’ use of the “natural born Citizen” clause, they required a would-be President to have 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. 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 is telling that of all the positions and offices the Framers provided for in the Constitution, only that of the President and Commander in Chief of the Military (and also the Vice President under the Twelfth Amendment) may be occupied only by a “natural born Citizen.” They therefore believed that this singular and all-powerful office was more vulnerable to foreign influence than any other and they thereby sought to give it the most protection that they could. Minor said that there were doubts whether the children born in the United States to alien parents were “citizens.” The Minor decision was decided in 1875 or 87 years after the Constitution was adopted and as Justice Waite explained in that decision our nation still had doubts on whether children born in the United States to alien parents were even citizens. If the Court had doubts about whether these children were “citizens,” it surely had doubts whether they were “natural born Citizens.” We cannot reasonably imagine that the Framers would have used a standard for a person to meet in order to be eligible to be President and Commander in Chief of the Military which would have created doubts as to its meaning and which would therefore have put at risk the security and integrity of that critically important office. Surely, they would have relied on a definition that created no doubt which Minor explained was one that included that both the child be born in the country (or its equivalent) to citizen parents. Indeed, as Minor explained, such a standard created no doubt. It was through the “natural born Citizen” clause that the Framers sought to accomplish the goal of protecting the Office of President and Commander in Chief of the Military from foreign influence and of providing a definition of national citizenship which the nation would have no difficulty to understand.

Because “natural born Citizen” status requires unity of citizenship and allegiance, conditions which descend naturally to the child at the time of birth from the two events of birth in the United States and birth to United States citizen parents, this status provides a would-be President with the greatest degree of loyalty and allegiance to the United States, a quality that the Framers expected all Presidents and Chief Military Commanders born after the adoption of the Constitution to have. It is this high degree of loyalty and allegiance to the United States in a President and Military Commander in Chief of the Military that provides the nation and each of its citizens and residents with both the greatest confidence in the person holding that highest civil and military office and the greatest protection from enemies both foreign and domestic, or what John Jay in his letter of July 25, 1787, to then General Washington called “a strong check” on foreign influence invading our government. Wisdom shows that there is no sound national security or public policy reason why a Constitutional Republic such as the United States should demand anything less from a person who would aspire to the singular and all-powerful office of President and Commander in Chief of the Military.

Because Obama was born 173 years after the Constitution was adopted, he cannot take advantage of Article II’s now obsolete grandfather clause which would have allowed him to be eligible to be President if he could conclusively prove that he was a “citizen of the United States” (by conclusively proving he was born in Hawaii). Since he cannot utilize the grandfather clause, he must conclusively prove he is a “natural born Citizen” to be eligible to be President. But Obama’s birth circumstances show that, even if he were born in Hawaii as he claims, he cannot satisfy his constitutional obligation under Article II. Obama’s father, being born in the then-British colony of Kenya, was under the British Nationality Act 1948 a British subject/citizen and not a United States Citizen when Obama was born in 1961. Being here only temporarily on a student visa, he was not domiciled or permanently residing in the United States. Obama himself in 1961 by descent from his father was also born a British subject/citizen under that same 1948 Act. If Obama was born in Hawaii (a fact which he has yet to conclusively prove by presenting a contemporaneous birth certificate created in 1961 when he was born and not a Certification of Live Birth created in 2007 and posted on the internet in 2008), which would make him a dual citizen from birth of the United States and Great Britain, he could qualify as a “Citizen of the United States” under a liberal and questionable interpretation of the Fourteenth Amendment. But because his father was not a United States citizen when Obama was born, he was born subject to a foreign power which he inherited from his father. Being born subject to a foreign power like a naturalized citizen, he is not an Article II “natural born Citizen” and therefore is not eligible to be President and Commander in Chief of the Military of the United States.

Mario Apuzzo, Esq.

March 4, 2010

http://puzo1.blogspot.com/
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September 8, 2009

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

September 1, 2009

Being Born Subject to a Foreign Power, Obama Cannot be President and Military Commander-in-Chief

Having just won a revolution, the Founders were faced with constituting a new nation. Under the constitutional plan devised by the Founders, they had to identify who were the members of the new nation. They called these members “citizens” of the United States. Thus, they created our first generation of United States “citizens.” These persons were either born abroad or in the British colonies before July 4, 1776 or abroad or in the new States thereafter, but in all cases inhabited one of the colonies or States and were loyal to the American revolution. The Founders under Article II grandfathered these original “citizens” to be eligible to be President. Under this plan, once the new nation had its first generation “citizens,” it was placed in position to have in the future its Article II “natural born Citizens,” who would be born in the United States after the adoption of the Constitution and descend from mothers and fathers who were both original “citizens.” Given that America was already a land of immigrants and that the Founders expected that many more immigrants would come to its shores in search of a new life and to share in its vast resources, they gave Congress in Article I, Sec. 8, cl. 4 the power to naturalize aliens and thereby create more future first generation United States “citizens.” Having become a naturalized “citizen,” one would then be in a position to procreate with another “citizen” (born or similarly naturalized) a “natural born Citizen” who would be eligible to be President.

Throughout American history, there have been no doubts or disputes as to who is a “natural born Citizen.” As we have seen, it was not English common law but the law of nations that became United States common law that defined a “natural born Citizen.” It defined such a citizen as being born in the country to parents who are themselves citizens. It is this definition which our United States Supreme Court incorporated into our federal common law. It is this definition that creates subsequent generation “citizens” who are “natural born Citizens.” They are subsequent generation because born in the country to a mother and father who are citizens.

On the other hand, throughout our history, there have been doubts and disputes as to who may be a born “citizen” (as distinguished from a “natural born Citizen” or a naturalized citizen). These disputes have concerned the question of whether to be a “citizen,” must a child be simply born on U.S. soil and be subject to its jurisdiction, without any reference to the citizenship of the parents (jus soli which follows the old English common law), or must that child also be born to U.S. citizen parents (jus soli and jus sanguinis united which follows the law of nations’ definition and which any way only applies to “natural born citizens”). This dispute has concerned the question of whether we should declare a child a first generation “citizen” (in effect having the same status as one of the original first generation “citizens” which Article II grandfathered to be eligible to be President). The dispute has not been with whether we should declare that child a subsequent generation “natural born Citizen.” The Fourteenth Amendment settled who could be a “citizen” by bestowing such status upon those born in the United States or naturalized here and subject to the jurisdiction thereof. “Citizens” who meet this Fourteenth Amendment definition can be either first or subsequent generation United States “citizens.” If first generation, they are simply “citizens.” If subsequent generation, they are not only “citizens” but also “natural born Citizens.” Congress has also declared who may be a born “citizen” through legislation and has thereby not only confirmed what is already stated in the Fourteenth Amendment but has also granted citizenship to children born out of the United States to U.S. citizen parents (one or two). Senator McCain, being born in Panama, falls into the two United States-parent category. The question of whether foreign-born children, born to two United States parents and thus falling in this category (by definition they would be subsequent generation “citizens” but not born in the United States) are “natural born Citizens” has not been resolved by any Court. If such a child were born to just one United States citizen parent, he or she would not only acquire the allegiance and loyalty of the nation on whose soil he or she may be born but also that of his or her foreign parent’s nation and thereby further compromise his or her claim for “natural born Citizen” status.

A study of citizenship and nationality case law, statutes, treatises, and other sources shows that one acquires allegiance and loyalty through citizenship. Obama has admitted that under the British Nationality Act 1948 when he was born, his father was a British subject/citizen and not a U.S. citizen and that he himself was a British subject/citizen by descent from his father. Therefore, what is clear and established by his own factual admissions is that Obama cannot satisfy the definition of an Article II “natural born Citizen,” for he was born with allegiance and loyalty not only to the United States (assuming he was born here) but to the same degree also to Great Britain. The best that Obama can be is a Fourteenth Amendment “citizen,” assuming that he was born in the United States and assuming that one born subject to a foreign power can also be born subject to the full and complete legal and political jurisdiction of the United States. In such a case, he would be a subsequent generation “citizen” through his American mother but only a first generation “citizen” because of his foreign father. If Obama was not born in the United States or if being born in the United States he was not born subject to its jurisdiction, then he is not even a “citizen” under the Fourteenth Amendment or any applicable Congressional Act. Hence, we can see that Obama is missing the mandatory Article II constitutional status of being at a minimum a second generation “citizen” through both a citizen mother and citizen father. What creates further allegiance and loyalty problems for Obama is that his birthright British citizenship, which continues in effect until today, also allowed him to gain Kenyan citizenship from the age of 2 to the age of 21 or 23. Being 47 years old when he was elected, just his Kenyan allegiance and loyalty occupied him for almost one-half of his then life span.

It is Obama’s being only a first generation U.S. citizen because of his father not being a United States citizen at Obama’s birth that caused his divided allegiance and loyalty at birth (United States v. British and Kenyan) and disqualifies him to be President and Commander in Chief. It is through his father that Obama was born with allegiance and loyalty to Great Britain (which continues until today), which then converted to allegiance and loyalty to Kenya. It does not matter that his mother was a United States citizen because at birth Obama inherited allegiance and loyalty to a foreign power (Great Britain) from his father just as he would have inherited allegiance and loyalty to a foreign power if born to parents who were both non-United States citizens. By Obama’s mother being a United States citizen at his birth, Obama was just spared acquiring even another foreign allegiance and loyalty. Just like a naturalized citizen who–despite taking an oath renouncing all foreign allegiances and loyalties and which incidentally Obama has never done–cannot be President because he or she is born with allegiance and loyalty to a foreign country, Obama, born with allegiance and loyalty to a foreign country, also cannot be President. All this leads to the inescapable conclusion that Obama is not an Article II “natural born Citizen” and is therefore ineligible to be President and Commander in Chief of the Military.

Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg, New Jersey 08831
Blog: http://puzo1.blogspot.com
31 August 2009

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