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

March 11, 2011

>The States Have the Constitutional Power to Pass Legislation Prescribing Presidential Ballot Access Requirements Including Determining Whether a Candidate Meets the Eligibility Requirements of Article II, Section 1, Clause 5

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The States Have the Constitutional Power to Pass Legislation Prescribing Presidential Ballot Access Requirements Including Determining Whether a Candidate Meets the Eligibility Requirements of Article II, Section 1, Clause 5

by Mario Apuzzo, Esq.
March 11, 2011

Article II, Section 1 of the U.S. Constitution tells us that the Electoral College is the mechanism used to elect the President. 3 U.S.C. Sec. 4. Article II, Section 1 also tells us how the Electoral College is filled. It says that the states shall appoint the electors who will make up the Electoral College, determining the manner of electing them and the quantity to be elected. The rest of Article II, Section 1 was changed by the Twelfth Amendment which now prescribes how the voting is done, the votes are tallied and transmitted to Congress, and Congress confirms those votes and declares who shall be President. Further state authority over federal elections is found in Article I, Section 4, Clause 1, which delegates to the state legislatures the initial authority for the “Times, Places and Manner” of elections to Congress, with Congress having residual authority to make such regulations. Hence, the Constitution gives to the states the authority over federal elections and specifically to appoint its electors and decide how their votes are processed for the purpose of determining who shall be President. There is therefore no question that states have the power to run their own presidential and vice-presidential elections. Storer v. Brown, 415 U.S. 724, 730 (1974) (the Election Clause, Article I, Section 4, Clause 1 which applies to Congress was intended to grant states authority to protect the integrity and regularity of the election process by regulating election procedure). As part of that process, states must also have the authority over who shall be placed on any ballot to run for president and vice-president.

This state mechanism has been recently confirmed by an April 3, 2009 Congressional Research Service Memo by Legislative Attorney, Jack Maskell, entitled, “Qualifications for the Office of President of the United States and Legal Challenges to the Eligibility of a Candidate,” wherein he stated:

“The mechanics of elections of federal officials within the several states are administered under state law. [footnote 4] The quadrennial presidential election, although required since 1845 to be held on the same day in each state [footnote 5] is, in an administrative and operational sense, fifty-one separate elections in the states and the District of Columbia for presidential electors. States generally control, within the applicable constitutional parameters, the administrative issues, questions, and mechanisms of ballot placement and ballot access. [footnote 6]

State election officials under some state ballot laws might thus require candidate “statements” or “declarations” of candidacy attesting to and/or certifying certain facts as a condition to be on the ballot; in other states, representatives of the established political parties may certify names to the Secretary of State, or the designated elections official may place viable or “recognized” candidates on the presidential preference ballots. [footnote 7] In such cases, opposing political candidates or political parties may have “standing” to legally challenge the placement of a name of an opponent on the ballot, [footnote 8] or state law may specifically provide for a procedure for timely protests to be filed concerning the qualifications of candidates. [footnote 9] Additionally, the relevant election official in the state, such as the Secretary of State, may have authority to exercise discretion to challenge a self-certification or a certification by a political party of a candidate whom the election official believes is not eligible for the office. It would appear to be a matter of state law and interpretation as to whether election officials in a particular state have discretionary authority to question the certification of a party’s nominated candidate, or even a self-certification of a candidate, if such election officials were presented with actual probative, documentary evidence to rebut any presumed or self-certified eligibility. In Keyes v. Bowen, the California Supreme Court dismissed a suit against the Secretary of State which challenged President Obama’s eligibility and the California electoral votes for him, finding that: “Petitioners have not identified any authority requiring the Secretary of State to make an inquiry into or demand detailed proof of citizenship from Presidential candidates,” and thus mandamus (a writ of mandate) was not granted. [footnote 10] However, although no “ministerial duty” or mandatory requirement exists to support a mandamus action, there may still exist discretionary authority in such elections official.” [footnote 11]. 11 See, for example, unreported case of Cleaver v Jordan, Case no. 7838 (Calif. Supreme Court minutes, Sep. 26, 1968), cert. denied, 393 U.S. 810 (1968), where California court reportedly upheld discretionary authority of Secretary of State not to list ineligible candidate for President on the ballot; and Jenness v Brown, also unreported, case no. civil 72-204 (S.D. Ohio Sep. 27, 1972), concerning ballot placement of an ineligible candidate in Ohio.”

But the states’ power to regulate election procedure is not without limitations. As the Court explained in Texas Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006):

“States, through the Elections Clause, exercise some regulatory authority over federal elections because “as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Storer, 415 U.S. at 730. This authority, however, is not unlimited. Any regulation of time, place, and manner must not violate other portions of the Constitution. See, e.g., Smith v. Allwright, 321 U.S. 649, 661-62, 64 S. Ct. 757, 88 L. Ed. 987 (1944) (“Texas is free to conduct her elections and limit her electorate as she may deem wise, save only as her action may be affected by the prohibitions of the United States Constitution . . . .”). In addition, “while states enjoy a wide latitude in regulating elections and in controlling ballot content and ballot access, they must exercise this power in a reasonable, nondiscriminatory, politically neutral fashion.” Miller v. Moore, 169 F.3d 1119, 1125 (8th Cir. 1999).” Id. at 590.

Discussing the qualification clause for Representatives and Senators found at Article I, Section 3, Clause 3 and Article I, Section 2, Clause 2, respectively, in U.S. Term Limits v. Thornton, 514 U.S. 779 (1995), the U.S. Supreme Court stated that “the text and structure of the Constitution, the relevant historical materials, and, most importantly, the ‘basic principles of our democratic system’ all demonstrate that the Qualifications Clauses were intended to preclude the States from exercising any such power and to fix as exclusive the qualifications in the Constitution.” The Court said that a state has no authority to change, add to, or diminish the age, citizenship, and residency requirements for members of Congress specified in their Qualification Clause found at Article I, Section 2, Clause 2 and Article I, Section 3, Clause 3. See also Powell v. McCormack, 395 U.S. 486 (1969) (relying on historical analysis and democratic principles held that the qualifications for Congress are “fixed” in the Constitution and cannot be supplemented by Congress). As Congress is limited in changing, adding to, or diminishing constitutional eligibility requirements for members of Congress, so are the states. See Texas Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006) (same). The same reasoning would necessarily apply to the Presidential eligibility clause found at Article II, Section 1, Clause 5. Under well-established precedent, this qualification clause is exclusive and cannot be changed by a state in definition or application in a way that is contrary to the Constitution. Id. at 589. So we can see that states are not allowed to make their own definitions of eligibility for public office which violate the Constitution. A state can only apply that definition for eligibility as is prescribed by the applicable qualification clause of the Constitution.

“If a statute is unconstitutional as applied, the State may continue to enforce the statute in different circumstances where it is not unconstitutional, but if a statute is unconstitutional on its face, the State may not enforce the statute under any circumstances.” Women’s Medical Professional Corp. v. Voinovich, 130 F.3d 187, 193 (6th Cir. 1997). In deciding who shall get on its election ballot, a state has to also make sure that it also complies with its own state statutes and laws. Texas Democratic Party, 459 F.3d at 592.

Mr. Maskell states in his CRS memo that there is no “formal administrative or legal requirement or oversight at the federal level, or specific state requirement to produce a birth certificate for ballot placement.” Hence, several states are now working on legislation the purpose of which is to make sure that presidential candidates who would win an election and assume the Office of President and Vice-President are eligible to hold those offices under Article II, Section 1, Clause 5. As we know, under the “natural born Citizen” clause, no one who is not a “natural born Citizen“, 35 years old, and a 14-year resident may be President. Since the federal government does not require it, the states should demand to see documentary evidence showing that a candidate who intends not only to run for such office but also to assume the powers of that office should he or she win the election meets those three requirements and is therefore qualified according to the Constitution. On being a “natural born Citizen” and for those candidates who may have been born in a hospital, that would include, but not be limited to, the candidate producing a certified true copy of a valid long-form birth certificate which contains corroborating information which will enable the state to reasonably conclude that the candidate was born in the specified place and time. Such a requirement is within its powers to protect the integrity and regularity of the election.

Notwithstanding whatever powers the states may have retained under the Tenth Amendment, states cannot alter or add to the meaning of a “natural born Citizen.” As U.S. Term Limits explained in the context of qualifications for Congress, “[f]irst, we conclude that the power to add qualifications is not within the ‘original powers’ of the States, and thus is not reserved to the States by the Tenth Amendment. Second, even if States possessed some original power in this area, we conclude that the Framers intended [801] the Constitution to be the exclusive source of qualifications for Members of Congress, and that the Framers thereby “divested” States of any power to add qualifications. Id. at 800-01. Indeed, states cannot prescribe a presidential eligibility requirement that goes over and above that included in Article II, Section 1, Clause 5 itself. To do so would be unconstitutional. United States Term Limits, 514 U.S. at 807.

The Constitution does not provide a definition of the “natural born Citizen” clause. Nevertheless, the states can define the “natural born Citizen” clause based on:

(1) the text and structure of the Article II, Section 1, Clause 5 and other parts of the Constitution;

(2) the Founders’ and Framers’ intent in inserting the “natural born Citizen” clause in the Constitution which was for the safety and preservation of the nation by excluding foreign allegiance, influence, and attachment from the Office of President and Commander in Chief of the Military. On July 25, 1787, John Jay wrote a letter to General Washington, who was acting as president of the Constitutional Convention, stating: “Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in chief of the american army shall not be given to, nor devolve on, any but a natural born Citizen” (“born” underlined in the original). http://rs6.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28fr00379%29%29 . On September 2, 1787, George Washington wrote a letter to John Jay the last line of which read: “I thank you for the hints contained in your letter.” http://www.consource.org/index.asp?bid=582&fid=600&documentid=71483 . On September 4, 1787, about 6 weeks after Jay’s letter and just 2 days after Washington wrote back to Jay, the “natural born Citizen” requirement appeared in the draft of the Constitution. The proposal passed unanimously without debate which does not mean that the proposal was not discussed, for the convention meetings were conducted in secrecy. From the chronology of these events, we can conclude that it was probably Jay’s letter to Washington and his concern about foreign influence infecting the office of the Commander in Chief which motivated the Founders and Framers to insert the clause as part of the eligibility requirements to be President and Commander in Chief.

(3) relevant historical materials such as Emer de Vattel’s, The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758), who told us: “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.”

Another historical reference is Founder historian, David Ramsay, who in his A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789) told us that after July 4, 1776, birthright citizenship was preserved only for a child born to U.S. citizens, making no mention of place of birth. In his 1789 article, Ramsay first explained who the “original citizens” were and then defined the “natural born citizens” as the children born to citizen parents. He said concerning the children born after the declaration of independence, “[c]itizenship is the inheritance of the children of those who have taken part in the late revolution; but this is confined exclusively to the children of those who were themselves citizens….” Id. at 6. He added that “citizenship by inheritance belongs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring….” Id. at 7. He continued that citizenship “as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776….” Id. at 6. As we can see, Ramsay put forth a definition of a “natural born Citizen” that only depended upon the child being born to U.S. citizen parents with no mention of place of birth;

(4) interpretation of early Congressional Acts such as the Naturalization Acts of 1790, 1795, and others that followed. These Acts did not distinguish whether the child born to an alien was born in or out of the United States. In either case, the child was not a U.S. citizen and had to naturalize, either derivatively from the naturalizing parent if done before the child reached the age of majority or on his or her own if done thereafter. Since wives followed the national character of their husbands, this law meant that the father of a child born in the U.S. would have to naturalize which would cause both his child and his wife to then become “citizens of the United States,” not “natural born Citizens.  Also note that the 1790 Act used the language “natural born citizen” and the 1795 Act repealed the 1795 Act and replaced that clause with “citizen of the United States.”  This clearly shows that the early Congresses, which included many Founders and Framers, recognized the critical difference between a “natural born Citizen” and a “citizen of the United States.  Additionally, Congress never again used the clause “natural born Citizen” in any of its Acts including the Civil Rights Act of 1866 and the 14th Amendmen, using rather the clause “citizen of the United States;” and

(5) case precedent of the U.S. Supreme Court such as:

The Venus, 12 U.S. (8 Cranch) 253, 289 (1814): Chief Justice John Marshall, concurring and dissenting for other reasons, cited Vattel and provided his definition of natural born citizens and 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.’”

Inglis v. Sailors’ Snug Harbor, 28 U.S. 99, 3 Pet. 99, 7 L.Ed. 617 (1830): The majority, which included Chief Justice John Marshall, cited Vattel on the right of election to change one’s allegiance and thus citizenship in the context of the new nation being formed after revolution. The Court found on principles consistent with Vattel’s jus sanguinis and not on the English common law rule of jus soli, that simply being born in New York, after July 4, 1776 and before September 15, 1776, when the British took possession of New York, was not sufficient to establish one’s status as an American citizen, for a child of minor years is incapacitated from making any citizenship election but rather followed the citizenship held or chosen by the father. On the contrary, relying upon principles of the English common law, Justice Johnson and Justice Story, who wrote separate minority concurring opinions, would have found the child born in New York during the same time period a citizen of the State of New York or American citizen, respectively, regardless of the citizenship of his parents. Id. 136 and 164. This case shows what the majority rule was on citizenship and that it followed the Vattelian doctrine that a child when born took on the national character of his or her father (meaning father and mother under the doctrine of merger of the wife’s citizenship into the husband) and did not acquire his or her citizenship from the territory in which he or she was born.

Dred Scott v. Sandford, 60 U.S. 393 (1857): Justice Daniels concurring cited Vattel and The Law of Nations and provided his definition of natural born citizens and took out of Vattel’s definition the reference to “fathers” and “father” and replaced it with “parents” and “person,” respectively, and stated: “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. . . .”

Minor v. Happersett, 88 U.S. 162, 167-68 (1875): Providing the same Vattelian definition without citing Vattel, and not in any way referring to the English common law, stated: “The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens.” Id., 169 U.S. at 679-80 (emphasis supplied).

Minor did not cite Vattel but as can be seen the Court’s definition of a “citizen” and a “natural-born citizen” are taken directly out of Vattel’s The Law of Nations, Section 212. Hence, when Minor said “common law,” it was not referring to the English common law but rather to American common law which had its basis in citizenship matters in natural law and the law of nations. Minor also distinguished between “natural-born citizens” and “citizens.” When Minor spoke of the common law, it referred to the “citizens” and the “natives or natural-born citizens,” explaining that there never has been any doubts that the children born in the country to “citizens” were the “natives or natural-born citizens.” Since Minor was being asked to apply the 14th Amendment, it then applied the common law rule to the 14th Amendment which only speaks of “citizens” and not “natives or natural-born citizens.” It then concluded that any person who is a “natural-born citizen” is necessarily also a “citizen.” The Court, was not, however, willing to go as far as to say that a child born in the country to parents who were not U.S. citizens was even a “citizen” under the 14th Amendment, let alone a “natural-born citizen.” The Court added that “there have been doubts” as to whether that child is even a “citizen.” Having decided that such a child is not a “natural-born citizen,” it left the question of whether such a child is a “citizen of the United States” under the 14th Amendment to another day.

It is important to understand that if the English common law prevailed in the United States to define national citizenship, the Court would not have stated that “there have been doubts” whether children born in the country to alien parents were citizens. Under English common law, there was no doubt that such children would have been “natural born subjects,” for under that law the citizenship of the parents was not a factor in determining subjectship when the child was born in the dominion of the King.

So Minor told us that a child born in the U.S. to non-U.S. citizen parents is not a “natural-born citizen” and that it was not necessary for it to decide whether that child was a “citizen” under the 14th Amendment because the plaintiff was born in the country to U.S. citizen parents, making her an Article II “natural-born citizen.” What is important about Minor is that the U.S. Supreme Court told us that the definition of a “natural born Citizen” is not contained in the Constitution, including the 14th Amendment, nor in any Act of Congress.  Rather, Minor defined a “natural born Citizen” under American common law which as we can see was based on natural law and the law of nations as presented by Vattel in Sections 212-217 of The Law of Nations and not under the English common law.  It also told us by implication that a child born in the country to parents who are not U.S. citizens is not a “natural-born citizen” and expressly told us that “there have been doubts” as to whether such a child is even a “citizen” under the 14th Amendment. If “there have been doubts” as to whether such a child was a “citizen” under the 14th Amendment, then given that purusant to the grandfather clause of Article II, Section 1, Clause 5 the standard to be a “natural born citizen” was higher than that to be just a “citizen,” there is no way that such a child could be a “natural-born citizen.” After all, if one cannot satisfy the requirements to be a “citizen,” one surely cannot satisfy the requirements to be a “natural-born citizen.”

U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898): The question that Minor did not answer was answered by U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898), in which the United States argued that a child born in the U.S. to alien parents was not a “citizen of the United States” under the 14th Amendment. Ruling against the government, Wong Kim Ark declared a child born in the country to alien parents to be a “citizen of the United States” under the 14th Amendment. Wong Kim Ark, citing and quoting Minor and acknowledging its definition that a “natural-born citizen” was born in the country to citizen parents, in no way disturbed Minor’s definition of a “natural-born citizen,” for it was asked to decide only if Wong was a “citizen of the United States” under the 14th Amendment. Wong Kim Ark also allowed Wong to be a 14th Amendment “citizen of the United States” because it found that his parents, while not U.S. citizens, were, among other things, domiciliaries, residents of the United States, and not working in some foreign diplomatic capacity and therefore “subject to the jurisdiction” of the United States. So Wong decided only the “citizen” part of Wong’s status. It never decided whether he also had the “natural born” part. The Court cautioned in its opinion in the beginning and at its end that it was only deciding whether Wong was a “citizen of the United States” under the 14th Amendment and also informed us under what limited conditions (born in the U.S. to alien parents who were domiciled and residing in the U.S. and not employed in some foreign diplomatic capacity) it ruled that he was so.

Perkins v. Elg, 307 U.S. 325 (1939): Other than Minor v. Happersett, Perkins is the only Supreme Court decision to declare someone a “natural born Citizen.” The person was born in the United States to a naturalized U.S. citizen father and citizen mother through derivative citizenship.

The last word on the meaning of a “natural born Citizen” was provided by Minor v. Happersett. It is important to note that the Court decided Minor after the Fourteenth Amendment was passed which tells us that the Court gave us that definition knowing that the Fourteenth Amendment defined a “citizen of the United States” and not a “natural born Citizen.” This same definition had been stated by Rep. John Bingham, who in the House on March 9, 1866, in commenting on the Civil Rights Act of 1866 which was the precursor to the Fourteenth Amendment, stated Vattel’s definition thus: “[I] find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen. . . . ” John A. Bingham, (R-Ohio) US Congressman, March 9, 1866 Cong. Globe, 39th, 1st Sess., 1291 (1866), Sec. 1992 of U.S. Revised Statutes (1866). As we have seen, this definition was confirmed in U.S. v. Wong Kim Ark. Our Supreme Court has never changed this American common law definition and it prevails today. For more information on the meaning of a “natural born Citizen,” please see the many essays on its meaning at http://puzo1.blogspot.com and at http://www.protectourliberty.org.

While the Constitution does not define a “natural born Citizen,” the states can apply the definition of the “natural born Citizen” clause in keeping with the sources stated herein. What is imperative is that the states apply the “natural born Citizen” clause as intended by the Constitution. See Matter of Kryzan v. New York State Bd. of Elections, 2008 NY Slip Op 8354, 55 A.D.3d 1217, 865 N.Y.S.2d 793, 2008 N.Y. App. Div. LEXIS 8129 (the only requirement of New York’s election law that the candidate be a resident of the State did not violate the Constitution’s Congressional Qualification Clause). Applying the “natural born Citizen” clause in keeping with the Constitution will not violate the fundamental principle identified in Powell that in our representative form of government “the people should choose whom they please to govern them.” Powell, 395 U.S. at 547. Applying the “natural born Citizen” clause pursuant to U.S. Supreme Court precedent and other sources herein identified does not create an absolute bar to any one person or a class thereof being able to be President any more than the Constitution itself requires.

The 2008 presidential election presented us with a situation in which putative President Obama has assumed and currently holds the great and singular civil and military powers of the President and Commander in Chief without proper vetting by our media and political institutions. To this date, even though there are millions of concerned Americans asking that Mr. Obama release to the public a certified copy of his long-form, hospital generated birth certificate which would conclusively prove that he was born in Hawaii, he just refuses to do so. These Americans are not satisfied with the electronic image of an alleged 2007 short-form Certification of Live Birth that Obama posted on the internet in 2008. Apart from the question of whether this computer image is authentic, this computer image does not contain the name of the birth hospital, the name of the delivery doctor, and names and signatures of persons who witnessed the birth in Hawaii. The State of Hawaii and the alleged birth hospital, Kapi’olani Medical Center for Women & Children (formerly known as Kapi’olani Maternity & Gynecological Hospital and which has neither affirmed nor denied Obama’s birth there), have also announced publicly that they cannot release Obama’s long-form, hospital generated birth certificate because of federal and state privacy laws and Obama has not given his consent to the release. How can our nation have gotten to the point where a person has been allowed to assume these great powers without having revealed to the people he is supposed to serve the necessary documents which would conclusively show that he was in fact born in Hawaii as he claims? How can a presidential candidate have any reasonable expectation of privacy in his or her birth certificate if the Constitution demands that the President be a “natural born Citizen?” Moreover, Mr. Obama was born a British subject/citizen and a “citizen of the United States” if born in Hawaii. Neither the federal authorities nor the states questioned whether a person born subject to a foreign allegiance, influence, and power can be an Article II “natural born Citizen.” The states which have a constitutional duty to protect their citizens simply cannot allow a repeat of such a scenario to occur in the 2012 presidential election.

If any candidate feels damaged by a state’s application of the “natural born Citizen” clause, let that candidate file an action against the state and let the courts decide the issue. A court having to decide the issue will have to examine as the state would have done in applying the “natural born Citizen” clause the text and structure of the Constitution, the Founders’ and Framers’ intent in inserting the “natural born Citizen” clause in the Constitution, relevant historical materials, and case precedent of the U.S. Supreme Court.

Mario Apuzzo, Esq.
March 11, 2011
Revised March 12, 2011
http://puzo1.blogspot.com/
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Copyright © 2011
Mario Apuzzo, Esq.
All Rights Reserved

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March 2, 2011

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

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

By Mario Apuzzo, Esq.
March 2, 2011

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

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

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

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

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

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

To have a person (a future President) born with natural allegiance and political and military obligations solely to the United States, they relied upon natural law and the law of nations definition of a “natural born Citizen,” as codified by Emer de Vattel in Section 212 of The Law of Nations (London 1797) (1st ed. Neuchatel 1758), which is a child born in the country to citizen parents. So, the Framers reserved the special citizenship status of “natural born Citizen” for the Office of President for those born after the adoption of the Constitution. They relied on natural law to provide the clause’s definition. Founder David Ramsay in his 1789 essay, A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789), provides us with insight into the thinking of the Founders and Framers and confirms that they reserved future birthright citizenship to only those born to citizen parents. For more information on David Ramsay and his influence during the Founding, please see my essay, Founder and Historian David Ramsay Defines a Natural Born Citizen in 1789, accessed at this blog at: http://puzo1.blogspot.com/2010/04/founder-and-historian-david-ramsay.html  A copy of David Ramsay’s 1789 dissertation can be found at: http://www.scribd.com/doc/33807636/A-Dissertation-on-Manner-of-Acquiring-Character-Privileges-of-Citizen-of-U-S-by-David-Ramsay-1789 The U.S. Supreme Court has confirmed this original definition of a “natural born Citizen’ through several of its cases. For a list of these cases, see my article entitled, Arizona’s Proposed Interstate Birth Certificate Compact Law As Now Written Is Both Unconstitutional and Contrary to the Best Interests of the United States , accessed at http://puzo1.blogspot.com/2011/02/arizonas-proposed-interstate-birth.html . Through these cases, this definition has become the American common law definition of a “natural born Citizen.”

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

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

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

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

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

February 25, 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“None can claim citizenship as a birth-right, but such as have been born since the declaration of independence, for this obvious reason: no man can be born a citizen of a state or government, which did not exist at the time of his birth. Citizenship is the inheritance of the children of those who have taken part in the late revolution; but this is confined exclusively to the children of those who were themselves citizens….” Id. at 6.

He added that “[t]he citizenship of no man could be previous to the declaration of independence, and, as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776.” Id. And again, “citizenship by inheritance belongs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring….” Id. at 7.

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

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

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

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

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

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

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

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

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

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

For more information on why the “natural born Citizen” clause requires that both of the child’s parents be U.S. citizens at the time of birth, see my essay published on September 8, 2009, entitled, The Natural Born Citizen Clause of Our U.S. Constitution Requires that Both of the Child’s Parents Be U.S. Citizens At the Time of Birth , accessed at http://puzo1.blogspot.com/2009/09/natural-born-citizen-clause-requires.html

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

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

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

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

February 15, 2011

>The Citizenship Status of Our 44 Presidents

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

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

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

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

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

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

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

When determining whether a child born in the U.S. is an Article II “natural born Citizen,” the question is not whether the parents of the child are foreign born. Rather, the question is whether they are “citizens of the United States” at the time of the child’s birth in the United States. In Minor v. Happersett, 88 U.S. 162, 167-68 (1875), our U.S. Supreme Court, providing the same definition of a “natural born citizen” as did Emer de Vattel in his The Law of Nations, Section 212 (1758), but without citing Vattel, and not in any way referring to the English common law, stated:

“The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens.”

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

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

Under out naturalization laws, citizenship can be derived from a close relation to a family member. Historically, a number of U.S. laws have provided for the automatic naturalization of children or wives (not husbands) of naturalized U.S. citizens. In some periods of our history, these laws provided that married women derived citizenship from their husband and had no control over their status. Under the Act of 10 February 1855, a woman automatically became an American upon marrying a U.S. citizen or following the naturalization of her foreign husband. Kelly v. Owen, 74 U.S. 7 Wall. 496 (1868). The 1922 Married Women’s Act (or the Cable Act) finally severed the link between naturalization and marital status for most women.

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

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

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

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

Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg, NJ 08831
Tel: 732-521-1900
Fax: 732-521-3906
http://puzo1.blogspot.com/
© 2011 Mario Apuzzo, Esq.
All Rights Reserved
####

P.S.  A copy of this report may be downloaded at SCRIBD.com at this link:
http://www.scribd.com/doc/48894388/The-Citizenship-Status-of-Our-44-Presidents

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

February 9, 2011

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

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

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

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

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

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

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

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

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