Wednesday, January 7, 2009


Many have argued that a would-be President in order to be a “natural born Citizen” under Article II of the Constitution has to be born on U.S. soil to two parents who were U.S. citizens (by birth or naturalization) at the time of his/her birth. These same individuals have argued that Obama cannot be a natural born citizen even if he was born in Hawaii because, while he was born to a mother who was a U.S. citizen, his father was a British subject/citizen at the time of his birth. In disagreeing with this argument, one commentator said the following:

"Yes. He is a natural born citizen. He was born in the USA, Hawaii. There are a few who comment on the Web that in their OPINION "natural born" where Article II is concerned requires that both parents be US citizens as well as the candidate being born in the USA. But most Constitutional experts hold that the Supreme Court will accept the definition of a "citizen at birth," which is defined in US law, which is Title 8 of the US Code.

After all, the Constitution does not specifically say: "A natural born citizen must have two parents who were citizens at the time of birth,” and it does not say "no dual national persons", and it does not say "no persons with divided loyalties at the instant of birth."

In other words, the really strict constructionist justices on the Supreme Court (two of whose fathers were born in Italy) will not accept that the definition of "natural born" means more than what US citizenship law requires. After all, does it actually say “the President of the USA must be born in the USA of two parents both of whom are citizens,” or does it say “in Article II the standards are higher than US citizens at birth”? No, it just says “a natural born citizen.’”

I do not agree with the commentator for this reason. In defining what is a "natural born Citizen" under Article II, we are attempting to define what the standard to be President of the United States is as envisioned by the Founders of our nation and the Framers of the Constitution who had just fought a revolutionary war against a foreign power. That standard has to be an exacting one. We are not talking about the requirements to hold any other political office, to be a judge, or to be an ordinary citizen. The President alone has great power which is not the case for any Senator, Representative, or Judge who may not act alone. These later individuals are part of a collegial body. The President may act alone, despite his surrounding himself with a Cabinet and other political advisors.

Hence, the question of what is a "natural born Citizen" must be answered not only with the thought of what is "fair" and "politically correct" in our immigrant America, but also with what makes sense from a self-survival standpoint. When analyzing the national self-survival factor, we have to assume the most extreme examples, existing not only in today's world but also that of the future. When one puts these factors on the scale of justice, which way does the scale tip?

Mario Apuzzo, Esq.

January 7, 2009


Anonymous said...

"we are attempting to define what the standard to be President of the United States is as envisioned by the Founders of our nation and the Framers of the Constitution who had just fought a revolutionary war against a foreign power."

Right, but those very individuals passed a statute in 1790 according "natural born citizenship" status to children born overseas to U.S. parents:

"Congress first recognized the citizenship of children born to U.S. parents overseas on March 26, 1790, under the first naturalization law: "And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States." Many members of the 1790 Congress had been members of the Constitutional Convention. In addition, George Washington was president of the Constitutional Convention and President of the United States when this bill became law, yet it was not vetoed."

Admittedly, 5 years later, this language was repealed:

"In 1795, the Congress passed the Naturalization Act of 1795 which removed the words "natural born" from the Naturalization Act of 1790, to state that such children born to citizens beyond the seas "shall be considered as citizens of the United States."'

But 1790 is closer to the time of ratification of the Constitution than 1795 is, so if the challenge is to deduce what the Framers meant by NBC at the time the Constitution was written, the 1790 statute is a better guide to their thinking than one enacted later. At minimum, this statutory history raises serious questions about the black and white claim that NBC can ONLY mean "born in US" AND "born of 2 American citizen parents." If it were that cut and dried, Congress never could have enacted the 1790 statute in the first place.

Kay said...

It would appear that neither the 1790, nor 1795 definition would apply to Senator Obama since his father was not a Citizen of the United States. In both the 1790 and 1795 examples, the requirement for "Natural Born Citizenship" was PARENTS (plural - meaning both mother and father)who are United States Citizens. The established, Obama admitted, fact that Barack Hussein Obama, Sr. was a British citizen disqualifies Barack Hussein Obama, Jr. from being POTUS.

ubirevera said...

During the 1790's many in the U.S. were concerned that the growth in the number of political refugees, particularly those men and women driven out by the revolution in France, might prove inimical to American liberty.

"Alarmed by the influx of so many immigrants, Congress on January 29, 1795 modified the Act of 1790, raising the period of residence from two years to five years before a person could be naturalized."

Puzo1 said...


Excellent observation. It apppears 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.

Mario Apuzzo, Esq.

Joe said...

Mr. Apuzzo,
There has got to be records of why they changed the language in 1795 in the congressional record??

And how does that language in 1795 and in the Constitution relate to Title 8 of the US Code?

Does Title 8 define the term "NBC"??

And Constitutionally, can Title 8 define NBC??