Wednesday, December 31, 2008

OBAMA HAS NOT MET HIS BURDEN OF PROVING HE WAS BORN IN HAWAII

By now, many of us know about the Certification of Live Birth (COLB) that Obama posted on the internet in June 2008 as proof that he was born in Hawaii. This document was touted by fightthesmears.com and factcheck.org as sufficient proof that he was born in Hawaii. Later on we learned about Hawaiian law in effect at the time of Obama's birth that allowed parents or guardians of babies born in a foreign country to register the foreign births in Hawaii and to receive a COLB as evidence of that registration. We also learned that only the original Certificate of Live Birth (BC), issued by the birth hospital, provides, among other things, the name of the hospital where a baby was born and the name of the attending physician that delivered the baby. We learned that the Department of Hawaiian Home Lands (a state agency that happens to detail the difference) states:

"In order to process your application, DHHL utilizes information that is found only on the original Certificate of Live Birth, which is either black or green. This is a more complete record of your birth than the Certification of Live Birth (a computer-generated printout). Submitting the original Certificate of Live Birth will save you time and money since the computer-generated Certification requires additional verification by DHHL."

After learning this information many concerned Americans had doubts about whether the COLB was sufficient proof that Obama was in fact born in Hawaii. But apart from the lax Hawaii law, there is another important point to understand about the COLB.

If one reads the document, one will see that at the bottom it states: "This copy serves as prima facie evidence of the fact of birth in any court proceeding." file:///C:/Documents%20and%20Settings/HP_Administrator/My%20
Documents/Obama/Birth%20Certificate%20Fight%20the%
20Smears%20Obama%20birth%20certificate.htm. The important words here are "prima facie evidence." "Prima facie" is a Latin phrase meaning "on its first appearance" or "by first instance." It is evidence which is adequate, if not invalidated, to confirm a particular intention or fact. It is evidence that is sufficient to raise a presumption of fact or to establish the fact in question unless rebutted. A prima facie case may be insufficient to enable a party to prevail if the opposing party introduces contradictory evidence. In other words, it basically means that on the face of it or on the surface there is enough evidence to prove the alleged fact, unless and until the alleged fact is contradicted.

What does all this mean? Obama has presented his COLB has proof that he was born in Hawaii. That document itself states that it is only "prima facie" evidence of that fact. As we have seen under the definition of "prima facie," the presumption that the fact exists fails when evidence contradicting that fact is presented. When evidence contradicting the alleged fact is presented, the interested party needs to present other competent evidence to prove the existence of that alleged fact. If he fails to do so, the alleged fact is not proven, even if the opposing party produces no further evidence.

Many concerned Americans have provided the public domain with evidence which contradicts the COLB's statement that Obama was born in Hawaii. They have presented the following: the existence of the lax Hawaiian law that existed at the time Obama was born which allowed parents to register their foreign born babies in Hawaii; Hawaii requires the original birth certificate to prove that one is a "native" Hawaiian which easily justifies concerned Americans requiring Obama to produce his original birth certificate to prove he is a "native" American; Obama's grandmother's statement that her grandson was born in Kenya and that she was present during that birth; the Kenya Ambassador to the United States, Peter N.R.O. Ogego, confirmed on November 6, 2008 during a radio interview with Detroit radio talk-show hosts Mike Clark, Trudi Daniels, and Marc Fellhauer on WRIF's "Mike In the Morning," that "President-Elect Obama" was born in Kenya and that his birth place was already a "well-known" attraction; the conflicting statements of Obama and his sister concerning in which Hawaiian hospital he was born; the failure of any Hawaiian hospital to confirm that Obama and/or his mother were present in any such hospital at the time of Obama's alleged birth in Honolulu; Director of Hawaiian Department of Heath, Fukino, said she has “personally seen and verified that the Hawaii State Department of Health has Sen. Obama’s original birth certificate on record in accordance with state policies and procedures," but she failed to say that the certificate shows that Obama was born in Hawaii; fightthesmears.com's and factcheck.org's current silence on the issue; the lack of any other corroborating document showing that Obama was born in Hawaii; the refusal of Obama to release for inspection his past documents (college and law school records and passports) which would shed some light as to where he was born; the failure of Obama to declare publicly after his COLB has been put into question that he was born in Hawaii; and Obama relying on state privacy laws to block the release of a certified copy of his birth certificate. This mountain of contradictory evidence is sufficient to cause the prima facie presumption of the COLB to fall. Obama therefore now has the burden to come forward with competent evidence to prove that he was born in Hawaii. To date, he has failed to come forward with that evidence. Hence, under these circumstances, how can the American people in good faith conclude that Obama was born in Hawaii which makes him a "natural born Citizen" and therefore eligible to be President? How can Obama in good conscious take the oath to be President on January 20th when so many Americans have put forward all this contradictory evidence regarding where he was born and he refuses to come forward with any other convincing evidence (like a certified copy of his original birth certificate) showing that he was born in Hawaii? Obama should do the right thing for everyone's sake and produce the evidence of where he was born.

(c) Mario Apuzzo, Esq.

Monday, December 29, 2008

Regarding Senate Resolution 511 Declaring McCain A "Natural Born Citizen"

What is more interesting about Senate Resolution 511, passed by the Senate on April 30, 2008, is not the resolution itself but the legal analysis of Theodore Olson (former Solicitor General) and Laurence Tribe (Harvard Law School Professor) on which the U.S. Senate relied to come to its conclusion that McCain is a "natural born Citizen" (NBC) and which Senator Leahy requested be printed in the RECORD.

The Senate was faced with the question of the citizenship status of a person born outside the United States to two U.S. citizen parents (McCain). Compare Obama's factual situation which could be (1) that he was born outside the United States to a U.S. citizen mother and a British/Kenyan citizen father; (2) born on U.S. soil to those same parents; or (3) number (2) and he was adopted by an Indonesian father which arguably caused him to lose his U.S. citizenship (assuming there is no other factual explanation for Obama's origins). Mr. Olson and Professor Tribe argue that there are two reasons why McCain is a "natural born Citizen."

First, they say that he is a NBC simply because he was born to two U.S. citizen parents, regardless of where he was born. In coming to this conclusion, they rely on the British Nationality Act of 1730 (which was in effect at the time of the writing of the Constitution) that basically said that children born abroad to parents who were English "natural- born subjects" were themselves English "natural-born subjects." They conclude that the Framers would have been influenced by such legislation when using the NBC term in the Constitution. But in coming to their conclusion, they do not adequately explain who the Framers would have included in the category, “Citizen of the United States, at the time of the Adoption of this Constitution. . ." What is also questionable in their analysis is that they also cite the First Congress Act of 1790, which gave "natural born Citizen" status to children born abroad to two U.S. citizen parents but fail to mention that in 1795 Congress amended that statute by taking out the words "natural born" and just leaving in "citizen." This amendment can be used to argue that the Framers did not intend children born abroad to two U.S. citizen parents to be "natural born Citizens" but rather only "Citizens." Remember that Article II itself distinguishes between a "natural born Citizen" and "Citizen of the United States, at the time of the Adoption of this Constitution. . ." Finally, they fail to reconcile their conclusion with the 14th Amendment which states that a"Citizen" is any person born or naturalized in the United States and subject to its jurisdiction.

Second, they say McCain is a NBC because he was born in the Panama Canal Zone which was a "sovereign U.S. territory" at the time of McCain's birth in 1936. They treat that territory the same as U.S. soil and maintain that under the 14th Amendment he is a "natural born Citizen." What they fail to properly explain, however, is how they get from the 14th Amendment's use of the term "Citizen" to Article II's use of the term "natural born Citizen." In fact, the authors do not address in their analysis the question of whether there is a difference between Article II's "natural born Citizen" and the Fourteenth Amendment's "Citizen."

Whether any of this can be used for or against Obama is another question. Again, Obama presents a different fact pattern from McCain. Mr. Olson and Professor Tribe in their first point state that McCain is a NBC simply because he was born to two U.S. citizen parents, regardless of where he was born. We do not know if their conclusion would change if he had been born to just one U.S. citizen parent. Again, they conclude that he was a NBC and not just a "Citizen." They also say on two occasions that "natural born Citizen" includes birth within our nation's territory and allegiance. This statement clearly suggests that being born on U.S. soil alone is not sufficient to make the child a "natural born Citizen," for the child's "allegiance" also has to exist at the time of the birth. Just being born on U.S. soil cannot possibly provide that allegiance, for then why include the term with the requirement of having to be born on U.S. soil. The issue for the U.S. Supreme Court, assuming that Obama was born in Hawaii, would be to decide what is meant by the child's "allegiance." Does it mean one or both parents have to be U.S. citizens at the time of the child's birth? I submit that allegiance must be absolute in all respects and that if one parent can cause that absolute allegiance to fail in any way, then it must follow that both parents need to be U.S. citizens at the time of the child's birth. Keep in mind that here we are not talking about Wong Kim Ark 14th Amendment "citizenship" but rather Article II "natural born Citizen[ship]." Also, the Supreme Court would have to decide what effect, if any, did the Indonesian adoption have on Obama’s U.S. citizenship, if he ever had any.

Finally, they also state that Obama was born in Hawaii on August 4, 1961. If this statement is not true and Obama knew it was not true, then he allowed a fraud upon Congress, various national and state institutions, and the American people when he voted for the resolution.

Mario Apuzzo, Esq.
December 29, 2008

How the Public Can Gain Access to Obama's Original Birth Records

I have said this before and I will say it again. There is a Constitutional requirement that a would-be President must be a "natural born Citizen." Someone running for President knows that this requirement exists and knows that he/she must satisfy this Constitutional requirement. This is a CONSTITUTIONAL REQUIREMENT. An individual running for President therefore knows two things: he/she wants to hold a public position and he/she must prove that he/she is a "natural born Citizen." I cannot imagine under any circumstance how that same individual has a reasonable expectation of privacy in his/her birth certificate and/or adoption records (if they exist) if those same documents must be relied upon to adequately prove that he/she meets the Constitutional requirements for the Office of President. No state law or even Federal law on privacy can trump the American public's need to know whether a Presidential candidate is a "natural born Citizen," a need that has its origins in the Constitution itself. Given this Constitutional requirement, a court could order that the private documents be released under seal and in camera (to the judge's chambers) for inspection by the court and the attorneys only, with an order that neither the court nor attorneys can reveal what the documents say without further order of the court. Once the documents are inspected and the relevant information is learned, the court could issue an appropriate order and the case would then proceed to its conclusion.

Mario Apuzzo, Esq.

December 29, 2008

Sunday, December 28, 2008

Was Obama Properly Vetted for the Office of President?

Why do we currently have the massive debate over the question of whether Obama is constitutionally qualified to be President? On properly vetting Obama, our own political leaders, institutions, political parties, and main stream media have failed the people miserably and they should be taken to task after this is all said and done. One example of this failure can be seen from the August 12, 2008 interview by Hannity & Comes of Howard Wolfson, FOX News contributor and former Clinton communications director. Hannity asked: “Do you regret not vetting, you know, Senator Obama the way he should have been?” Wolfson responded: “No, I mean the media is tasked with the responsibility of vetting candidates. . . .” As we can see, all the players involved will simply point the finger at the other on the question of who was suppose to properly vet Obama. Another question that we need to ask is why was Obama not vetted properly?

Some concerned and well-informed Americans realize that our leaders have failed us in this regard and so have themselves demanded some straight answers-call it a vetting by We the People. These concerned Americans, in this time of crisis, have petitioned their government and political and legal institutions for help in resolving the question of whether Obama is Constitutionally eligible to be President. Their efforts have so far been in vain. Fortunately, these Americans have exercised their First Amendment right of free speech and have not had to rely on their government and these other institutions to have their grievance heard.

The internet has revolutionized society by giving individuals greater ability to guide their own destinies by participating in and benefiting from collective intelligence. Hence, concerned Americans have used the internet to bring to the fore the issue of Obama's eligibility to be President and have placed their hope in the U.S. Supreme Court to decide that issue. Some brave attorneys and pro se litigants, who have had the courage to put their necks on the line, have helped these concerned Americans. We the people should be forever grateful to them, regardless of what the Supreme Court decides. This whole process shows that we the people will not be fooled so easily. We will and must stand up and fight until we get a straight answer.

Mario Apuzzo, Esq.

December 28, 2008

Friday, December 26, 2008

OBAMA'S PERSONAL RIGHT TO PRIVACY CANNOT TRUMP THE RIGHT OF THE PEOPLE TO KNOW WHO THEIR PRESIDENT IS

The whole reason the AMERICAN PUBLIC cannot get credible information as to whether Obama was born in Hawaii along with other information revealing his past experiences seems to be Obama asserting a privacy right over his personal information. This right to privacy comes from State law and maybe could also have a basis in Federal law. But how can someone running for President of the United States, a public position to say the least, have any reasonable expectation of privacy over his or her personal information regarding who he or she is or what he or she has done in the past. How could any person running for President not reasonably expect to have to satisfy the Constitutional requirement that he or she is a "natural born Citizen?" How could any such individual reasonably expect to put legal blocks up which prevent the public from learning whether he or she is in fact a "natural born Citizen?"

Being President of the United States involves protecting national security at its highest level. Given that the United States is a nuclear superpower which can destroy the world and send all its inhabitants to their respective afterlives, I believe that not only do the American people have a right to know who their President is but probably also the rest of the world. Would America want some unknown person gaining control of the nuclear arsenals of Russia, China, India, Pakistan, and other nuclear power possessing nations? I believe that the "law of nations" would demand that any nation which will give such power to one individual should at least know the most basic information about that person(like where he was born and what are his or her past accomplishments), even though such information is no guarantee on how that individual will act once he or she gains power. Surely, under these circumstances, a person's individual right to privacy, whether grounded in State or Federal law, must give way to the AMERICAN PUBLIC'S (and that of the international community's) much weightier right to know who such a person is, for not only is America's survival at stake but also that of the World.

The public officials who have so far managed to keep Obama's personal information secret need to really understand the consequences of their actions. This is not some little "frivolous" political game (sour grapes, etc.) that concerned Americans are playing in wanting to know who Obama is. Other than President Chester A. Arthur, I do not know when in American history such an ongoing debate about where the President was born came up. Which leads me to the next question as to why then all the alleged "sour grapes" in this Election? Some people argue that today's birth place issue exists simply because Obama is the first African American who stands to become President and that the losers just cannot get over having to have a "Black" President. First, McCain is "White" and the birth place issue was raised by his political opponents without much public fanfare. Also, President Arthur was "White" and the issue was also hotly contested when he ran for Vice President. Additionally, I do not believe that so many truly concerned Americans would be giving this issue so much importance simply because Obama is "Black."

Let our Nation come together on this most important national security issue and put it to rest with WE THE PEOPLE having obtained the collective knowledge of who their next President is.

Mario Apuzzo, Esq.
Jamesburg, New Jersey
December 26, 2008

Saturday, December 20, 2008

THE TWO CONSTITUTIONAL OBSTACLES OBAMA HAS TO OVERCOME TO BE PRESIDENT

I.

Our nation is currently debating what “natural born Citizen” means as that term is used in Article II of the Constitution which provides that "No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution shall be eligible to the Office of President . . . ." There is a need to determine what “natural born Citizen” means only if Obama was born in the U.S. He has to prove he was born on United States soil, i.e., Hawaii and not Kenya. If he was born in Kenya, he cannot be President because he is not a "natural born Citizen" nor can he be a “Citizen” under the Fourteenth Amendment which provides "All persons born or naturalized in the United States and subject to the Jurisdiction thereof, are Citizens of the United States and of the State wherein they reside. Additionally, he would not qualify to obtain U.S. citizenship from his U.S. citizen mother.

“Birth Abroad to One Citizen and One Alien Parent in Wedlock


A child born abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth under Section 301(g) of the INA provided the U.S. citizen parent was physically present in the United States or one of its outlying possessions for the time period required by the law applicable at the time of the child's birth. (For birth on or after November 14, 1986, a period of five years physical presence, two after the age of fourteen, is required. For birth between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen, is required for physical presence in the United States or one of its outlying possessions to transmit U.S. citizenship to the child.) The U.S. citizen parent must be genetically related to the child to transmit U.S. citizenship.” http://travel.state.gov/law/citizenship/citizenship_5199.html

Obama’s mother, born on November 29, 1942, was 18 years old when she gave birth to Obama on August 4, 1961. She was 117 days short from being 19 years old. But she had to be at least 19 years old (14 years old plus 5 years of U.S. physical presence) to satisfy the legal requirement of Section 301(g). Hence, if Obama was born in Kenya, under the Fourteenth Amendment, he is neither a U.S. citizen by birth on U.S. soil nor one by naturalization. (There is no existing evidence that Obama was ever naturalized.) Nor would he qualify to be a U.S. citizen by any act of Congress by being born abroad to a U.S. citizen parent. If this scenario is accurate, it can be reasonably argued that Obama is an illegal alien.

There continues to exist reasonable doubt as to whether Obama was born in Hawaii as he maintains. There is some evidence that he was born in Kenya. There are allegations that his mother was present in Kenya when she gave birth to Obama and that she later arrived in Hawaii and simply registered him in there as having been born there. Obama's own grandmother said he was born in Kenya and was present there when he was born. The Kenya Ambassador to the United States, Peter N.R.O. Ogego, confirmed on November 6, 2008 during a radio interview with Detroit radio talk-show hosts Mike Clark, Trudi Daniels, and Marc Fellhauer on WRIF's "Mike In the Morning," that "President-Elect Obama" was born in Kenya and that his birth place was already a "well-known" attraction. Now, Mr. Ogego says that the radio hosts manipulated him and he was referring to Obama's father, even though the whole discussion was about the president-elect Obama and the question regarding the birth place was prefaced with relating to "President-elect Obama."

Some have dismissed the birth certificate issue as absurd, arguing that Obama’s Hawaii birth certificate is genuine and that here is no massive conspiracy to produce a fraudulent document. But these individuals miss the point, i.e., that even if the Hawaii “Certification of Live Birth” (COLB) is genuine, that document alone does not conclusively prove that Obama was in fact born in Hawaii. It is common knowledge that Hawaii law at the time of Obama’s birth allowed a Hawaii resident parent to register a foreign birth in Hawaii and that having done that the parent would get COLB. Obama has yet to produce a “vault” (original) long version of a birth certificate showing that he was born in Hawaii. The COLB that Obama has posted on the internet and otherwise produced does not state in what hospital he was born in Hawaii. Obama has to date refused to provide a full version of an original birth certificate which would definitively prove that he was born in Hawaii. No hospital in Hawaii has confirmed that either Obama’s mother or Obama himself were ever present during the time Obama was born. Obama can simply put this issue to rest if he provides credible proof of his alleged birth in Hawaii. He can, among other things, simply produce his original birth certificate, medical records from the Hawaii hospital where he was born showing the exact date and time of his birth and the name of the doctor and other hospital staff who delivered him, and Kenya-Hawaii travel documentation showing that his mother could have been physically present in that hospital on that date and at that time. To date, none of this simple evidence has been produced.

There are many Americans who still expect Obama to do a simple thing like show them (the voters) through credible and sufficient evidence where he was born. Credible and sufficient evidence is more than a digital image containing limited information posted by Obama on the internet. How can anybody reasonably think that this is asking Obama for too much. He is the one who wants to be President. He has the burden of proof to show the nation that he is Constitutionally eligible for the job. How can Obama expect well-informed and rational Americans to believe in him if he has sealed all his important papers that could shed some light on who he is and spent so much money in legal fees in keeping his past secret? What ever happened to his proclaimed transparency and openness in government? And I do not accept all the maneuvering ( evasive movement or shift of tactics; adroit and clever management of affairs often using trickery and deception) that goes on in various quarters (e.g., the people already voted; you are asking that because you are a racist; the parties should have investigated that before the people voted; he could not have gotten this far if he was not born in America; the FBI and the CIA must know where he was born given that he was a U.S. Senator and sat on sensitive committees and must have had a top security clearance to do so; since the November 4 election, Obama has been getting the daily National Security briefings that President Bush gets including our nation’s most precious secrets which cannot be done without the CIA and Homeland Security verifying that the man is who he says he is; all the big Whigs would have known if he was not qualified to be President; why did McCain and the Republicans let him get away with such a simple thing; I cannot believe that someone running for President would try to pull off such a scam; Obama is a lawyer and to get a license to practice law applicants must provide a certified copy of a birth certificate to the proper licensing authorities to be eligible to take the bar exam; Obama is a Harvard Law School graduate and Constitutional law scholar and he cannot be that dumb to lie about where he was born; Obama could not have obtained a U.S. passport unless he provided authorities with his birth certificate proving he was born in the U.S.; you do not have standing to request that he show his original birth certificate; Obama has privacy rights; etc.) to avoid the issue. All these cited factors can create a rebuttable presumption that Obama is qualified to be President. But I try to keep my life simple as in, if you want the job then just produce the documents to the American voters. If he wanted to keep his life private, then he should not have run for President. By Obama producing acceptable evidence of where he was born, he can easily put the birth place issue to rest and prevent himself and so many Americans from spending so much time and money arguing about it rather than focusing on providing solutions to our current security, economic, health, and education problems. The American voters and the public in general deserve to know that the person who ran for President, who won the popular and Electoral Vote, and who will now be sworn in as President constitutionally qualifies for that position.

II.

Even if Obama was born on United States soil and is a citizen of the United States under the Fourteenth Amendment, that is not sufficient to make him eligible to be President. He still has to prove that he is a “natural born Citizen” of the United States and thereby satisfy the Constitution’s requirements for eligibility to be President. Again, Article 2, Section 1, Clause 5 of the Constitution of the United States: “No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution shall be eligible to the Office of President . . .”

Since Obama’s father was a Citizen of Kenya and therefore subject to the jurisdiction of the United Kingdom at the time of Obama’s birth, then Obama was a British Citizen “at birth.” Obama has admitted this reality. Even if he were to produce an original birth certificate proving he was born on US soil, he still would not be eligible to be President. The Framers of the Constitution, at the time of their birth, were also British Citizens and that is why the Framers declared that, while they and so many others were technically (by law) Citizens of the United States, they themselves were not “natural born Citizens.” Hence, they included a grandfather clause in Article 2, Section 1, Clause 5 of the Constitution: No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution shall be eligible to the Office of President.” In other words, even if you were not a “natural born Citizen,” if you were a citizen at the time of the adoption of the Constitution, you were eligible to be President. The inclusion of the grandfather clause proves that the Framers saw a clear distinction between “natural born Citizen” and “Citizen.” If there were no distinction, there would not have been a need to include the clause, for the term “Citizen” would have sufficed when spelling out the qualifications to be President. The Framers recognized that a person who was just a “Citizen” could still have divided loyalties and allegiance between the United States and some other country. It is also important to note that many of the then living population were subjects of England or some other country, either having been born in that foreign country or born to foreign parents or both. The Framers did not exclude these individuals from being President, provided that they were citizens at the time that the Constitution was adopted. The laws of the individual States would have determined citizenship at this time. This group would eventually die out and then the “natural born Citizen” requirement would prevail and provide further security for the new nation, for the question of divided loyalties would be over. Nobody alive today can claim eligibility to be President under the grandfather clause, for he or she including Obama was not a citizen of the U.S. at the time the Constitution was adopted. Hence, being a “Citizen of the United States” is necessary but not sufficient to satisfy Article 2’s presidential eligibility requirements. What is also necessary is that a person also be a “natural born Citizen.”

Some argue that Obama is a “citizen” of the U.S. because he was born in Hawaii and that is sufficient to be a “natural born Citizen.” But if just being born on U.S. soil is sufficient, then why did the Framers have to include the grandfather clause in Article II? After all, they recognized in their grandfather clause that the person was a U.S. citizen but still they had to make a special provision to allow that person to be President, that provision being only if he was such a citizen at the time that the United States Constitution was adopted. It is clear that once time passed, the Framers expected the President to be not only a citizen but also a “natural born Citizen.” Obama’s current status is the same as many including the Framers themselves during the Constitutional Convention. He may be a “Citizen” just as they were, but he is not a “natural born Citizen” as many of them were not. But the difference between Obama and those individuals is that Obama cannot take advantage of Article II’s grandfather clause to make him eligible to be President.

Some argue that American law on citizenship cannot be trumped by English law on the same subject and that therefore what English law may have said about Obama’s citizenship when he was born is not relevant on the question of whether Obama is a “natural born Citizen.” Maybe it is not clear to these individuals that there is a difference between how we determine Obama’s father’s citizenship and how we determine his son’s. On the former, there is no need to talk about whether English law trumps American law. His father was born in Kenya, a British colony at the time. He was therefore a British citizen under the British nationality law that applied at the time. The “trumping” point only applies when we look to Obama the son. The argument would be that we will not let a foreign nation tell us what the citizenship is of a child born on U.S. soil. I agree with that. But that argument misses the point. We only need to consider that Obama, regardless of whether he was born in Hawaii or some other location, was born to a mother that was a U.S. citizen and a father who was a British citizen. If “natural born Citizen” means that you must be born on U.S. soil and that both your parents at the time that you are born need to be U.S. citizens, then Obama is not a “natural born Citizen.” We do not need to resort to “trumping” to arrive at this simple conclusion.

These same individuals argue that it is not relevant what the citizenship of Obama’s father was when Obama was born. I maintain that as it applies to being President and Commander in Chief of the United States, “natural born Citizen” means that you have to be born on U.S. soil to a mother and father who are both U.S. citizens when you are born. If one of the child’s parents is not a U.S. citizen when he or she is born, that child is not a “natural born Citizen.” These individuals would be correct only if the Framers of the Constitution, in specifying the requirements to be President and Commander in Chief of the new nation, did not care where a child’s parents were born and only required that child to be born on U.S. soil. I do not believe that this was their position for the following reasons:

Some argue that no U.S. citizen parents and others argue just one U.S. citizen parent is all you need for a baby born on U.S. soil to be a “natural born Citizen.” Since, Obama was born on U.S soil, the status of his parents is immaterial or he had a U.S. citizen mother, making him a “natural born Citizen.” But having no U.S. citizen parents or even just one U.S. citizen parent is not sufficient to give the U.S. born child the special status to be eligible to be President. It would not make sense to allow no U.S. citizen parents, for parents have a great influence on their children. It also would not make sense to allow just one U.S. citizen parent to be sufficient, for each parent has just as much influence as the other on his or her child. E. de Vattel’s The Law of Nations (which is an authoritative text on the meaning of “natural born Citizen” and which Justice Scalia has cited in one of his past Supreme Court decisions) does not require just one parent to be a citizen of the child to consider that child a “natural born Citizen.” Here is the text:

E. de Vattel, The Law of Nations, or, Principles of the Law of Nature 144 (1792)
Law of Nations (1758)

§ 212. Citizens and natives.
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. Vatt. Law Nat. bk. 1, c. 19, § 212. ‘The true bond which connects the child with the body politic is not the matter of an inanimate piece of land, but the moral relations of his parentage. * * * The place of birth produces no change in the rule that children follow the condition of their fathers, for it is not naturally the place of birth that gives rights, but extraction.’

The text starts by stating that “[t]he natives, or natural-born citizens, are those born in the country, of parents who are citizens” (emphasis supplied). Note that the noun (“parents”) and verb (“are”) are in the plural. The text does later use the word “father.” But it also says “fathers” when referring to the children’s parents. Hence, Vattel used parents and fathers interchangeably.

I have found support for my interpretation in a case decided by the United States Court of Appeals for the District of Columbia on August 1, 1938, Perkins v. Elg, 99 F.2d 408 (D.C. Cir. 1938). The Supreme Court did affirm the decision at 307 U.S. 325 (1939). The language that I quote is from the Court of Appeals and not from the Supreme Court:

“The law of England, as of the time of the Declaration of Independence, was that a person born in that kingdom owed to the sovereign allegiance which could not be renounced. Many early American decisions applied that as the common law in this country. All agreed that every free person born within the limits and the allegiance of a State of the United States was a natural born citizen of the State and of the United States. And this was undoubtedly the view of Mr. Justice Curtis in his dissenting opinion in the Dred Scott Case, 19 How. 393, 581, 15 L.Ed. 691, in which he said:

“* * * we find that the Constitution has recognised the general principle of public law, that allegiance and citizenship depend on the place of birth.”

            This doctrine of citizenship by reason of place of birth is spoken of by the writers on the subject as the jus soli or common law doctrine. The Roman rule is different and is in effect in many of the continental European countries. This is called the jus sanguinis and depends upon the nationality of the parents and not upon the place of birth. Professor Bluntschild, in speaking of the latter doctrine, said

            “The bond of the family lies at the foundation of national and political life, and attaches the child to the people among whom he is born. The opinion that fixes upon the locality of nativity, instead of the personal tie of the family, as the cause of nationality, abases the person to be a dependence of the soil.” (footnote omitted).

This language shows that under Roman law which has had a significant influence in the development of law of Europe, citizenship depended upon the nationality of the parents and not upon the place of birth. E. de Vattel was a Swiss jurist and would have been influence by the law that existed at the time in Europe. He would have studied why this ancient law placed such a great emphasis on the nationality of the child’s parents. The passage above from Law of Nations shows that Vatell believed that a “true citizen” was one who acquired that citizenship through nature by being born to two parents who shared the same allegiance as the child and not one who was just tied to the soil.

Indeed, there is a reason why the Framers added the adverb “natural” to the verb “born.” If there were no special meaning to the use of both words together, one could easily argue that “natural” is redundant, for any birth at the time of the writing of the Constitution was nothing but natural. I submit that by using the word “natural,” the Framers believed that the child was tied to the parents and not just the soil, for a baby comes from his parents and not the soil. It is also amazing that Article II, in mentioning “natural born Citizen,” does not state that the child has to be born on U.S. soil. Consider that the Fourteenth Amendment states that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This is the only place in the Constitution where one will find any reference to a person being born on U.S. soil being a “Citizen,” but only provided that he or she is subject to the jurisdiction thereof. And it is this qualifying phrase that brings the parents' allegiance back into the equation. Just using the word “born” would have made the citizenship requirement satisfied simply by being born on the soil. But the Framers said “natural born.” Hence, they must have been thinking of more than just the soil. They must have been thinking of the child’s parents joining together in the natural act of procreation and thereby giving their respective citizenships to their new born. It was these children, born to these parents who had the same allegiance as each other, who would become “true citizens” (Vattel). Hence, both natural elements (soil and blood [parental citizenship]) are needed to be a “natural born Citizen.”

It is thought the origin of the natural-born citizen clause can be traced to a letter of July 25, 1787 from John Jay (who was born in New York City and later became the first Chief Justice of the United States Supreme Court) to George Washington (who was born in Virginia), presiding officer of the Constitutional Convention. John Jay wrote:

"Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen."

In Federalist Paper #64, Jay wrote that the President should be a man “of whom the people have had time to form a judgment.” He explained that this was one main reason for the eligibility requirements. It is interesting to note that before the Revolutionary War started, Jay served on the New York Provincial Congress committee to detect and defeat conspiracies, which monitored British actions. Jay also wrote the second, third, fourth, fifth and sixty-fourth articles of the Federalist Papers, all of which except the sixty-fourth concerned the dangers from foreign force and influence. We have to remember that during the American Revolution, the colonies were inhabited by people loyal to the Revolution and those loyal to England. Indeed, the Founding Fathers had a firsthand experience with a population with divided allegiances. They must have known that just being born in a place did not necessarily make you loyal to that place alone. They must have concluded that if you combine being born in a certain place with the influence that your mother and father’s citizenship has on a child, then there is a better chance of the child being loyal to just one place. After all, they had to decide what the qualifications to be President of the new nation were going to be and they wanted to make these requirements most exacting.

The Framers wanted to do everything they possibly could to make sure the President would be loyal only to the new nation. One safeguard was having the child’s parents both be U.S. citizens. This requirement makes sense when we consider that a child inherits so much of who he or she becomes from his mother and father. But they did not leave it just to the citizenship of the parents. Their decision was a wise one, for parents can manipulate this factor through American naturalization laws. Hence, they also factored in an immutable element-where the child is born. The combination of these elements provided the most stringent test to be President and Commander in Chief.

There are also subsequent Congressional acts that give us insight into what the Framers of the Constitution meant by “natural born Citizen.” The 1790 Congress, many of whose members had been members of the Constitutional Convention, passed the Naturalization Act of 1790 (1 Stat.103,104) which provided that “And the children of citizens of the United States that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens.” It is interesting to note that George Washington was president of the Constitutional Convention and President of the United States when this bill became law and if he disagreed with this definition, he could have vetoed this bill. One would then at first think that this legislation strongly suggests that the Framers of the Constitution understood this phrase to refer to citizenship acquired from the child’s parents at birth, regardless of whether or not that birth had taken place on U.S. soil. But Congress changed this law in 1795 by removing the words “natural born” from the term “natural born citizen” and just leaving it “citizens.” This change in the law gives us a clear understanding of what the Congress perceived to be what the Framers of the Constitution understood “natural born Citizen” to mean. This legislative amendment by many members of Congress who had been members of the Constitutional Convention also shows that they recognized that there was a critical distinction between “natural born Citizen” and “citizen, ” a distinction important enough to have to pass a Congressional act to amend a prior law that was ill conceived in their eyes. It is also questionable whether the 1790 act is constitutional given the language of Article 2 which makes “natural born Citizen” one of the requirements to be President and distinguishes that status from mere citizen of the United States.

In 1795 the Congress passed the Naturalization Act of 1795 which removed the words “natural born” from the previous 1790 law. Hence, the new law meant that such children born to citizens beyond the seas are citizens of the U.S., but are not legally to be considered “natural born Citizens” of the U.S. It seems that this was done to clarify for those living at that time who was and who was not a “natural born Citizen” per the Framers intent at that time, since the 1790 Act had introduced confusion into that subject regarding the use of those words in the Constitution. It is again important to note that George Washington was also President in 1795, making him aware of this change. If he disagreed with the clarification and change in the wording in the new 1795 act, he would have vetoed the Naturalization Act of 1795. The 1795 amendment clearly suggests that the Framers wanted a child to be born on U.S. soil and of parents who were U.S citizens in order to be considered a “natural born Citizen.” It appears that at first (1790) the Congress was willing to sacrifice the sanctity of a "natural born Citizen," for children born abroad, provided that both parents were U.S. citizens. They probably figured that with both parents being U.S. citizens, the child had a better chance of acquiring the values of the parents and were willing to waive the connection to the soil. But by the time 1795 came along, the Congress must have realized that they could not diminish the exacting standard of an Article II "natural born Citizen," which required for natural born citizenship status that the child be born on U.S. soil to a mother and father both of whom were U.S. citizens at the time of the child's birth. Hence, to further protect the new Nation, the Congress realized that if a child is not born on U.S. soil and if that child is born to U.S. citizen parents, he/she can still be a U.S. citizen, but not an Article II "natural born Citizen." Hence, it is clear from the actions of these Founders/Framers that when it came to a "natural born Citizen" as it applied to the President, they mandated that the child be born on U.S. soil to a mother and father who were themselves U.S. citizens at the time of the birth. This latter standard gave the greatest protection to the nation and is what Article II mandates. I would also add that it could be argued that the 1790 Act was unconstitutional, for Congress was attempting to amend Article II of the Constitution by way of an Act of Congress. Finally, it does not matter whether 1790 or 1795 is closer in time to the enactment of the Constitution. At that time, we still had many of the Founding members in our legislature. Washington was still President. The act that is last in time is the one that counts and the one that has the power of law.

Further support for the two-parent requirement can be found in the Fourteenth Amendment itself which provides that a person born on U.S. soil or naturalized in the U.S. and “subject to the jurisdiction thereof” is a citizen of the U.S. I submit that that jurisdiction must be complete and not partial, and both territorial and political.

“To be ‘completely subject’ to the political jurisdiction of the United States is to be in no respect or degree subject to the political jurisdiction of any other government. Now, I take it that the children of aliens, whose parents have not only not renounced their allegiance to their native country, but are forbidden by its system of government, as well as by its positive laws, from doing so, and are not permitted to acquire another citizenship by the laws of the country into which they come, must necessarily remain themselves subject to the same sovereignty as their parents, and cannot, in the nature of things, be, any more than their parents, completely subject to the jurisdiction of such other country.” Wong Kim Ark (Chief Justice Fuller dissenting).

Hence, to be completely subject, we would need that both parents give the child U.S. citizenship and no other allegiance.

Rep. John Bingham of Ohio, considered the father of the Fourteenth Amendment, confirms the construction the framers used in regards to birthright and jurisdiction while speaking on civil rights of citizens in the House on March 9, 1866:

" ... I find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents [plural, meaning two] not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen..."

Additionally, and putting aside the debate as to what “subject to the jurisdiction” means, the Fourteenth Amendment tells us that if you are born in the United States or naturalized there, and subject to its jurisdiction, you are a U.S. citizen. Additionally, the Fourteenth Amendment in no way amended the requirements of an Article II "natural born Citizen," for it was passed to secure the citizenship rights of former slaves who may have been born on U.S. soil and to keep the Supreme Court from declaring the Civil Rights Act of 1866 to be unconstitutional for lack of Congressional authority to pass such a law or a future Congress from altering it by a simple majority vote. Finally, the amendment uses the word “citizen.” In other word even a naturalized person is also a citizen, just as one who is born on U.S. soil. But we know that a naturalized citizen is not eligible to be President because he or she was not a “natural born Citizen” (i.e., did not acquire U.S. citizenship at the time of birth). Hence, there must be a difference between the meaning of “citizen” and “natural born Citizen.” If there were no difference, a naturalized person could maintain that he or she is a citizen of the U.S. under the Fourteenth Amendment and being a citizen is eligible to be President. But we do not accept that. Some have called for a constitutional amendment to change this. Hence, the difference between the two terms must exist.

Some argue that the decision of United States v. Wong Kim Ark, 169 U. S. 649, 18 S.Ct. 456, 42 L.Ed. 890 (1898) is the final word on “natural born Citizen” and that under that decision, as long as Obama was born on U.S. soil, he is a “natural born Citizen.” It should be acknowledged that the concept of a person not being a U.S. citizen even though he was born on U.S. soil because his or her parents are not U.S. citizens was rejected by Wong Kim Ark. But this holding, which only tells us what a “citizen” is, has nothing to do with what a “natural born Citizen” is as that term is used in Article II of the Constitution. Any reference in the decision to the term “natural born Citizen” is mere dicta. Note: President Chester Arthur appointed Justice Horace Gray who wrote the opinion. Arthur, who was initially elected Vice-President, went to great lengths, including lying about when his father arrived in America from Ireland and burning his family papers, apparently to keep secret from the American public the fact that when he was born his father was not a U.S. citizen. Arthur then became President when a close Arthur supporter assassinated President Garfield. Hence, the American voters never knew about Arthur’s true citizenship status and his presidency is no precedent on the issue. In any event, and despite what the dissenting opinion said about the majority view allowing U.S. born children of foreigners to run for President, the Wong Kim Ark case, which had nothing to do with interpreting what “natural born Citizen” means as that term is used in Article II of the Constitution, only defined what a U.S. “citizen” is, not what a U.S. “natural born Citizen” is as that term is used in that Article. In other words, all the case law and arguments as to what a “Citizen” is or is not do not answer the question of what is a “natural born Citizen.” These arguments only go to the question of what is a “citizen.”

Finally, Section 301(g) INA has different requirements when conferring U.S. citizenship of a child born abroad, depending on whether the parents of the child are married and whether they are both U.S. citizens. For those parents who are married and both U.S. citizens at the time of birth, there is no minimum age requirement for the parents nor is there any minimum time requirement of U.S. residency. This category is the most liberal in granting the foreign-born child U.S. citizenship. Hence, it can be seen that even our own Congress has recognized the profound impact on a child, regardless of where he/she is born in the world, of being born to one or two parents who are U.S. citizens. We must keep in mind that citizenship under Congressional Acts is just that and not citizenship under the Constitution which at Article II prescribes the eligibility requirements to be President.

Some argue that our nation of immigrants will never stand for such a restrictive definition of “natural born Citizen.” I do not believe that our nation of immigrants will object to making it a little more difficult to be President and Commander in Chief. Such a requirement is not about being discriminatory, xenophobic, racist, un-democratic, archaic, or bigoted, but rather about providing for the security of the United States of America in an uncertain and very dangerous world. Given the weapons that humanity has created, the President of our country can decide whether the world will continue to exist or not. A person who is a citizen of this great country enjoys the same rights as all other U.S. citizens. Those rights include, but are not limited to, holding any public position except President, unless you are also a “natural born Citizen.”
Some object by saying that we are raising the bar for Obama and Obama alone. But he wants to be President of the United States. I think that deserves great scrutiny. Also, he is the one who won the popular vote for President and now also that of the Electoral College. Should someone ask why the issue has never come up before when all the other “white” Presidents were running, the answer is that other than Chester Arthur, every President of this nation was born in the United States to parents who were both U.S. citizens.
The U.S. Supreme Court has been asked for the first time in its history to decide what is a “natural born Citizen,” as that term is used in Article 2 of the Constitution. How the Court interprets that term will have great consequences to Obama, regardless of whether he was born in Hawaii or Kenya. It is hoped that the Supreme Court decides the "natural born Citizen" issue on the basis of intelligence, intellectual honesty, knowledge, logic, historical development, and political philosophy as clearly expressed by the Founding Fathers and Framers of the Constitution, and not on the basis of political correctness, social justification, political expediency, pity, or fear for what may happen by action taken. What is at stake and in the hands of the Court is the future of our United States of America, a future that so much depends upon our belief in the integrity of our national institutions, our belief that we as Americans are special in the world, and our belief in the sanctity of our Constitution and the rule of law. The Supreme Court may have decided not to hear the cases so far brought to it because those cases did not have the correct procedural posture or that the cases were brought premature since the Electoral College and/or Congress had yet to act. On December 15, 2008, the Electoral College voted for Obama. The college votes will be certified by the U.S. Congress on January 8, 2009 and Obama is scheduled to be sworn in as President on January 20, 2009. The American people who believe in this issue need to immediately contact the representatives in Congress and ask them to thoroughly investigate this urgent matter and vote accordingly. Should the Congress not be interested in this matter, then the only other avenue for relief is to go back to court with a case that has the proper procedural posture.

(c) Mario Apuzzo, Esq.
Jamesburg, New Jersey
December 20, 2008

Added on January 1, 2009: Please copy and paste into your browser the following link for an urgent message from restoretheconstitutionalrepublic.org regarding Obama's Constitutional eligibility to be President.

http://www.youtube.com/watch?v=QEnaAZrYqQI