Friday, February 27, 2009

DISCUSSION5: Kerchner et al v Obama et al - Questions About Case & Discussion Thread #5

DISCUSSION5 thread for Kerchner v Obama. Please use this discussion #5 thread for the continuing discussion on the ongoing issue of "natural born citizenship" as per the Constitutional standards and the intent of the founders and framers. Also, please use this thread to ask questions or post comments about Kerchner v Obama. You can download a personal copy of the case via the link provided in the right column of this blog.

THE RULES: Please keep in mind this is a moderated blog. This is akin to a court setting and is not a wide open say anything you want, anytime you want, free speech zone like a soap box in a public square. If you want that type of forum you will have to go elsewhere. Keep your comments and questions in the case threads serious and focused on the subject and merits of this case. Unsubstantiated statements which I determine are false and misleading, or even potentially misleading to others (the jury of public opinion reading this blog) as to the true facts of this case, repetitive, argumentative, personal attacks, and/or off topic comments will likely not be posted. I also will not discuss in public specifics of the case as to my planned tactics or strategies for pursuing this case. That will be only be revealed at the appropriate time in subsequent court filings and in the hearings or trial. I am the Judge in this blog and will rule on the merits, materiality, worthiness, etc., of all comments. My rulings on the acceptance or rejection of a comment are final. Please note that your comments will not appear immediately as I have to review them first. As I am busy working on this case, it may be several hours to 1/2 a day at times before your comment is reviewed and accepted and/or answered. Thank you for your kind consideration of the purpose of the blog posts about Kerchner v Obama and for your comments.

Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg NJ 08831
Email: appuzzo [AT] erols.com
Tel: 732-521-1900
Fax: 732-521-3906
Blog: http://puzo1.blogspot.com

P.S. For discussion of the case, please utilize the DISCUSSION5 comments thread by [Clicking Here].
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30 comments:

mtngoat61 said...

Re. Vattel's influence on our founders.

The influence was there, and heavily so with many of the key founders such as Jay, Franklin, Madison, and Washington. Vattel's influence is a forgotten chapter in the history of the founding of our country. But the influence was there and in a major way. Here are a couple quotes about two other key founders of our country who were also key framers of our Constitution:

Re. Benjamin Franklin:
"I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the Law of Nations. Accordingly, that copy which I kept, has been continually in the hands of the members of our congress, now sitting.
—Benjamin Franklin, letter to Charles W.F. Dumas, December 1775"
http://www.schillerinstitute.org/fid_97-01/971_vattel.html


Re. General and President George Washington:
"The pages of Vattel, Law of Nations, lay open to the President's scrutiny, but it is not to be hastily assumed that he found in them an answer to his problem. He was learning to be President, and at long last the Republic was a going concern."
This Was New York, the Nation's Capital in 1789, Monaghan and Lowenthal, page 138


I have no doubt in my mind that the term "natural born citizen" suggested by Jay to Washington came directly from the writings on the Natural Law, and the Law of Nations, Section 212, (in the French original edition since Franklin and Jay were fluent in French as diplomats to France during the war). And it meant to Jay and Washington exactly as Vattel defined it ... born in the country to two citizens of the country. The French and French speakers helped win our freedom as a nation in more ways than one. General Lafayette, the French Navy arriving in the Chesapeake Bay just in time, and the writings of Vattel the French speaking scholar and philosopher of Switzerland.

At the time of the Rev. War the revolutionaries were allied with France. Later that changed of course and over time the Swiss, French, and European philosophical influences for the founding inspirations for the federal system of government of our nation was forgotten to history who writers wished to emphasize the English heritage of the people more and more and discount the influence of those like Vattel.

Respectfully, those who doubt the influence of Vattel on the creation of our new form of Federal Government should reconsider the influence that Vattel had on Jay, Franklin, Madison, Washington, and other founders of our new nation and the Federal System of government, i.e., a Constitutional Republic.

M Publius Goat

Puzo1 said...

To smrstrauss February 19, 2009:

YOUR COMMENT: "British common law held that a person merely had to be born in the British realm to be a Natural Born British Subject. Thus Vattel was simply misunderstanding British Common Law when he wrote that a child became “naturalized” by being born in England."

MY RESPONSE: Study English common law better. You will learn that what Vattel says regarding a "natural born citizen" is the same as what English common law says.

YOUR COMMENT: "And our Constitution has been amended to eliminate any distinction (if there ever were any) between citizens who are born in the USA and citizens of US parents who are born in the USA. The 14th Amendment says: “ 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.'”

MY RESPONSE: The 14th Amendment Citizenship Clause did not amend Article II's "natural born Citizen" clause. The citizenship clause of the 14th Amendment did not expand or reduce the meaning of what a citizen is let alone change the meaning of an Article II "natural born Citizen." The 14th Amendment was not needed to establish that persons born on U.S. soil and subject to the jurisdiction of the United States are citizens. That was always the law. What the Amendement did is make sure that States did not deny such citizens privileges and immunities belonging to a citizen. More important, however, the 14th Amendment has nothing to do with Article II, which specifies the qualifications to be President. I challenge you to find one quote from the debates on the 14th Amendment or any other evidence that in any way shows that the framers of that Amendment amended or even intended to amend the meaning of an Article II "natural born Citizen."

YOUR COMMENT: "A person who is born in the USA is a citizen at birth under Title 8 of the US Code."

MY RESPONSE: The Constitution gives Congress the power to naturalize people. It does not give Congress the power to create a "natural born Citizen." Hence, Congress does not have the Constitutional power to make a person a "natural born Citizen." The word "natural" clearly tells you that, for the status of "natural born Citizen" cannot be created by law but only by nature. Hence Title 8 does not and cannot create a "natural born Citizen" nor does the statutory language indicate that it intends to. If anything, it can only confirm what a "natural born Citizen" is. Furthermore, the 14th Amendment did not in any way touch upon an Article II "natural born citizen."

YOUR COMMENT: "But, you may ask, is “a citizen at birth” the same thing as a “Natural Born Citizen?'”

MY RESPONSE: No. All "natural born Citizen" are necessarily "citizens at birth" but not all "citizens at birth" are necessarily "natural born Citizens."

YOUR COMMENT: "Why should the model be Vattel and not the British Common Law?"

MY RESPONSE: They are the same when it comes to defining a "natural born subject/citizen."

YOUR COMMENT: "Surely the people who wrote Article II of the Constitution were familiar with the Declaration of Independence, which had the words: “We hold these truths to be self-evident, that ALL men are created equal.”

That cannot mean that someone who is born in the USA to parents who are NOT citizens has fewer rights than someone who was born in the USA to parents who ARE citizens. It cannot mean that those who were born to citizens are MORE citizens than those who were born to people who were not citizens."

MY RESPONSE: The Framers felt that the President and Vice President were so unique that those offices could be filled only with a "natural born Citizen." These two offices were the only exception, for all other offices could be filled with "Citizens." The Framers felt that given the amount of power that a President wields, the national security of our country deserved such a special distinction. This is their wish and command. If we as a society do not like what the Framers commanded, then we have to formally and legally amend the Constitution.

YOUR COMMENT: "So, the British Common Law, the 14th Amendment, and the Declaration of Independence all show that the meaning of Natural Born Citizen is simply someone who was born in the USA."

MY RESPONSE: Wrong. See above.

YOUR COMMENT: "Many congressmen and senators who are also lawyers agree. For example: Senator Lindsey Graham (R-SC), who said: “Every child born in the United States is a natural-born United States citizen except for the children of diplomats.” (December 11, 2008 letter to constituents)

And:

Senator Orrin G. Hatch (R-UT), who said: “What is a natural born citizen? Clearly, someone born within the United States or one of its territories is a natural born citizen.” (Senate Judiciary Committee hearing on OCTOBER 5, 2004.)

MY RESPONSE: With all due respect, these Senators do not know what an Article II "natural born Citizen" is.

YOUR COMMENT: "And here is Lincoln’s Attorney General: Attorney General Edward Bates, Opinion on Citizenship (1862)

“'The Constitution itself does not make the citizens, (it is. in fact,made by them.) It only intends and recognizes such of them as are natural—home-born—and provides for the naturalization of such of them as were alien—foreign-born—making the latter, as far as nature will allow, like the former. …

“And our Constitution, in speaking of natural born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic.

“If this be a true principle, and I do not doubt it, it follows that every person born in the country is, at the moment of birth, prima facie a citizen; and he who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the “natural born” right as recognized by the Constitution in terms the most simple and comprehensive …

MY RESPONSE: If the Constitution, in using the term "natural born Citizen," only recognized and reaffirmed the universal principle, common to all nations, and as old as political society, then it recogninzed the principles of the Roman law, civil law, English common law, and Vattel that a "natural born Citizen" is a child born in a country of parents who are its citizens.

Mario Apuzzo, Esq.

ttrishstar said...

When are we going to get the truth on the resident evil? We all know that he is not a natural born citizen but yet our justice system will not allow the truth to be told. Why are we sending men and woman to die for our freedoms and not expose the usurper for what he is. He and Pelosi, Cox, Schummer also franks are destroying this Country. When the hell is Justice to be served!

Doublee said...

Puzo1:

Your response to smrstrauss regarding the impact of the 14th amendment on the Article II natural born citizenship clause already answered one part of a question I was going to ask when I came to your blog:

You said, "...The 14th Amendment did not in any way touch upon an Article II 'natural born citizen.'"

That was my understanding, but then I asked myself some additional questions which left me still confused about the issue of birthright citizenship as it relates to natural born citizenship.

The broad interpretation of the 14th amendment says that anyone born on U.S. soil is a U.S. citizen regardless of the status of his or her parents. This is the current interpretation of the 14th amendment, but it is not the correct interpretation as I understand it. The phase “subject to the jurisdiction” of the United States has effectively been ignored. The following questions are based on what I call the broad interpretation.

Birthright citizenship is not granted to children born to foreign diplomats since they are not subject to the jurisdiction of the United States. Yet, a child born to foreign parents who happen to be in the United States at the time, and are here temporarily, would be granted birthright citizenship. I see no practical difference between a child born to foreign diplomats and a child born to foreign tourists, for example. In either case, the child is going to return home, and be raised and educated in the country of his or her parents. Could you explain the rationale for treating these two cases (and other similar cases) differently? The status of the parents is germane in all cases or it isn’t, as I see it.

If it is accepted that all children born on U.S. soil are U.S citizens regardless of the status of their parents, how is it possible to argue at the same time that they are not natural born citizens because of the status of their parents? In other words, would not the broad interpretation of the 14th amendment have to be overturned to also rule that someone such as Barack Obama who has one foreign parent is not a natural born citizen?

Consider the case of Yaser Hamdi. Hamdi, who was captured in Afghanistan fighting for the Taliban, was born in Louisiana to Saudi parents who were in the U.S. on temporary visas. He returned to Saudi Arabia as a small child and maintained little connection to the United States.

Yet, because he was born on U.S. soil and considered a U.S. citizen, he is granted rights and benefits that a noncitizen combatant would not have been granted.

Assume for the moment that someone has the same life history as Hamdi, except that he is not an enemy combatant, but that he was raised and educated in Saudi Arabia as a typical Saudi citizen. Assume also, that this person returns to the U.S. and meets the other Article II requirements. Casting aside the political question of electability, is this person eligible to occupy the office of President?

Puzo1 said...

Post by Mick which has been moved from Discussion4 thread for continuity purposes:

-------------------------
Mick said on 28 Feb 09:
Hello Mario,
It is always maddening when tricks are used to ascertain the meaning of the term Natural Born Citizen by those with an agenda. It is rather obvious that the focus on National Security and allegiance was the driving force for the POTUS qualification for NBC. Logically therefore, it would be impossible to even consider that the Framers would think an anchor baby could be POTUS! The dihonest phrasing of the question by those with an agenda as to the definition is, "whom, in other words, is a citizen of the US at birth?". The question should be "whom. at birth, is a citizen of the US and no other foreign power?"
Posted by Mick on February 28, 2009 6:42 AM
--------------------------

Mick said...

To Doublee,

Those simply born in the US to non citizens are considered US Citizens only because of Stare Decisis of the Wong decision. My understanding is that the 14A never meant to grant birthright citizenship to children of aliens. If their parents were naturlized then they could be naturalized automatically, or if the mother was a citizen and father never was, naturalized by election at the age of consent. If neither parent was a citizen they should be considered aliens. The jurisdictional phrase had been defined by the precedent of the Elk v. Wilkins decision 15 years prior to Wong as "complete political allegiance to the US and no other foreign power". The Gray court (in Wong Kim Ark) defined it as Common Law, meaning Within the jurisdiction. They said that since Wong was born within the territory of the US (they also made a point that the parents had supposed ties by employment here for many years) then he should be a citizen, completely going against the Civil Rights Act 1866, the true meaning of the 14A and Elk v. Wilkins. Leo Donofrio has uncovered a possible reason for this, as a cover for his benefactor, the other Usurper (President Arthur, who's father was not a citizen at his birth either) whom had appointed him (Judge Gray). He did stop short of deeming Wong a NBC and deemed him a "Citizen", but the legal conundrum this case has caused persists today. Now people actually think that the jurisdictional phrase only applies to indians and diplomats, probably because of Elk (an indian). Maybe the writers of 14A anticipated all of this, and that is why they left the term NBC out of the amendment, so as to insulate it from being redefined. The problem is that Wong has opened us up to the anchor baby syndrome, and alot of confusion. I guess one fraud leads to another. Perkins v. Elg reaffirmed the definition as Vattel's, but the SCOTUS really needs to take the opportunity to clarify that NBC is seperate from the 14A (Marbury v. Madison, they are the final arbitters of constitutional terms). In my eyes USC 8 1401 #1--" Those Born in the US and Subject to the juridiction thereof" is a NBC, and to the writers of the 14A that was a NBC. But Gray's mangling of Subject to the jurisdiction to mean the same as Within the jurisdiction has changed that. The Wong case created a new category of citizen, the Native Citizen, which is what Obama says he is on "Fight the Smears", but he knows that is not the same as NBC.

libertyforusa said...

There is little room for doubt about the level of thought to the meaning of the written word when one reads the documents of freedom scribed by the framers.
I think I read somewhere that they possessed, on average, a level 24 education.
They also had the benefit of having survived oppressive and ambiguous wording by tyrannical factions in power under both rigorous church and governmental systems of control over the people.
This leaves little doubt that they sought only the purest form of citizenry available for the most powerful position to be filled in the new system.
There was not to be a person who was inexperienced in age,
nor years of citizenship,
nor divided in his loyalty by a dual jurisdiction for his citizenship,
that could be eligible for the top position of the republic.

Unfortunately, so far, we the people seem to be left without remedy to verify this!

Puzo1 said...

To Libertyforusa 2-28-09:

You state:

"This leaves little doubt that they sought only the purest form of citizenry available for the most powerful position to be filled in the new system.
There was not to be a person who was inexperienced in age,
nor years of citizenship, nor divided in his loyalty by a dual jurisdiction for his citizenship, that could be eligible for the top position of the republic."

I totally agree with your statements but would like to make some clarification on your use of the expression "purest form of citizenry." If we consider what a "natural born Citizen" is as the Framers understood one to be from studying natural law, civil law of Europe, Vattel, and English common law, we can readily see that it describes the greatest part of the American population, i.e., children born in America to a mother and father who are themselves Americans either by birth or by naturalization. Hence, the Framers were not creating some exclusive club for Presidents, but rather only providing a bright-line objective test to assure that future-born Presidents would have by nature (not by any law) at the time of their birth absolute allegiance and loyalty to the United States, meaning no multiple allegiances or loyalties between the United States and some foreign country at birth. Indeed, these individuals would be a full generation away from any conflicting allegiances or loyalties thereby better serving the interests of the American people.

Mario Apuzzo, Esq.

libertyforusa said...

I agree with your response. As the common man, significantly below the educational level of the framers, I believe that they wrote to the common man, and for the common mans ability to digest the meaning of their words.
The word "purity", was not meant to suggest that one would have to fit into a particular exclusive club. Perhaps I should have clarified this by adding the word minimum.
A "minimum purity"
gives the word "natural" substance.
If one thinks of a natural water source being filtered through rocks, it becomes pure enough to drink at a certain point or points depending on what it is that is undesirable being filtered out along the journey.
I see buffer zones. Age,years of residence, and allegiance and loyalty to the United States based on ones parents citizenship.

Granted citizenship cannot be natural, and a dual citizenship cannot be natural because it requires someone to decide between two countries, and must be sanctioned by someone.
So the test becomes in my mind can another country claim this is their "natural citizen"?
In Obamas case that clearly is true (if we know who his legal father was).
Obama may be the epitome of the Person the framers were guarding against holding the office, someone who's loyalties are not naturally exclusively with the US, and may lie elsewhere as his fathers allegedly did.

Zapem said...

"British common law held that a person merely had to be born in the British realm to be a Natural Born British Subject. Thus Vattel was simply misunderstanding British Common Law when he wrote that a child became “naturalized” by being born in England."

That is completely incorrect. British Common Law said, "All those are natural-born subjects whose parents, at the time of their birth, were under the actual obedience of our king, and whose place of birth was within his dominions."

I see this constant trend. I see it most recently in the ignorant Politico article by Ben Smith, by conservative talk show hosts such as Medved and liberal extremists -- and it's words we're now mincing.

We're now reduced to finding it fun to pick on the framers as "dead men's words" with ridicule and scorn -- as if because they are dead or existed in another time period, suddenly they become our objects of "lesser intelligence". What we are then saying, is that because we live in THIS century and not theirs, that we magically know more. Yet all we're doing is proving how much less we know now than a dead man's 24th grade level education.

I've never read law reviews that carried such elementary, naive and ignorant writings than I have in this generation - that's a fact. They did no homework whatosoever. It's all nothing but opinionated drivel with a horrifying hatred for their forefathers.

The bottom line here is, there is no way that the framers did not place a guard at the door of the presidency. They did and they took those entry words, "natural born citizen" from English Common Law and placed them squarely at the door of the presidency. It was to ensure that the presidency fall upon no one else except for a person who could relate to the blood, sweat and tears poured out for HIS liberty and freedom and know no other allegiance but this country. The framers talked for months about foreign influence and how it was to be avoided at all costs, since it was foreign influence that would destroy this country. Some of the people should heed those words, especially since 9/11, because I guarantee you that foreigners are salivating and laughing at what you're doing right now -- giving them a free pass to come in here and take over, spitting on the graves of men and women who died for this country. You freely gambled it away in a selfish argument.

It's really that simple. When you understand the presidency has to have those qualifications, what those qualifications mean, and why they were put there, you understand that the person taking that office is much less likely to ever steer down a path of socialism, monarchy, communism, or any other rule other than "we the people".

In order to set this principle in law, conditions are set with words, to the best of our ability. The conditions we see, over and over, from Common Law to Vattel to Jay, Washington, Madison, etc., are consistent with having ROOTS only to this country via parental influence, both of which, ONLY have allegiance to this country. You must have that condition, you must be born among its citizens and be of an age to understand and appreciate the value of liberty and freedom. This is what embodies the definition of natural born citizen and no other. Those are the conditions we set in law to guard against the fears the framers had.

If we are now to say that the framers didn't have this intent, then how do you explain the vast discussions to guard against foreign influence? It's common sense! Yet, all I'm reading out there from even the conservatives is a picking apart of words without finding any meaning behind the framer's intent and no study at all about their own history. It disgusting, quite frankly, and embarrassing. THOSE are the people who are the embarrassment to this country -- because of their ignorance and arrogance of standing up to speak before they educated themselves honestly! What they are doing is INVITING foreign influence to come in here.

Whether McCain or Obama or Calero, PERSONALLY are threats to this country, is another debate, but the law is the law!! All three of those candidates broke the law! It's evident in the way that Obama and McCain manipulated the election in 2008. If they were willing to do that, then how much faith should we, as a people, have in them?

McCain manipulated the Senate by attempting to side-step the Constitution and legislate himself into being a natural-born citizen when he KNEW he was not as a matter of "condition".

Obama admitted he wasn't a natural born citizen by pointing to his own roots and the British Nationality Act of 1948, where he KNEW he wasn't eligible. They BOTH counted on the fact that the average citizen would be ignorant of the law and overlook the "CONDITIONS" set in the Constitution, so he lied to them.

By doing so, what they have done is opened the door of this country to ANYONE who feels like overthrowing it tomorrow and it's WRONG. And for what??? Their own PERSONAL, political objectives.

For those of you following this crazy birth certificate conspiracy, forget about it. It makes no difference whatsoever! The law makes them ineligible and there's a reason for that law and I'm sorry they BOTH got caught under its constraints, but they did, and that's the truth of it.

If it weren't the truth, McCain would have never been in the Senate, hiring the best attorneys he could trying to legislate his way into eligibility; and Obama would have never pulled that ruse with the birth certificate to deter attention away from the law, which makes him automatically ineligible. He's not a natural born citizen under the Constitution and the British Nationality Act only makes it worse for him trying to say that he is.

Ask yourself this, how trustworthy are any of these men, who hide behind attorneys instead of facing the American people with answers and discussion? They don't do that and therefore, that alone, makes them untrustworthy people. It was their actions, not ours, that should be coming under fire here.

McCain should probably be even more chastised for what he's done because he knew and tried to hide facts that made his "condition" ineligible. Obama should be ashamed of himself for lying to the American people about the law itself from what he printed on his own webpage, which every attorney KNOWS is legal fiction.

This country better start deciding whose interests they're protecting. Are the protecting this country as they claim? No, because all I see are manipulations of law for selfish, political gains and I can prove it! The Congress has run amuck and will legislate anyone or anything, so long as it has their faction stamp on it. For anyone that's interested, that's not what they were put into office for and it's illegal under the Constitution. Ask yourself why they continue to get away with it and seem to immune themselves from the laws they subject us to?

I want to see what Ben Smith or Michael Medved has to say about about the activity surrounding the 2008 campaign and then come back and tell me it's all about "birther conspiracies". - http://zapem.wordpress.com/2009/01/11/obama-knew-he-wasnt-eligible-for-potus/

Why not tell these arrogant, ignorant idiots to do some homework to find out the TRUTH before they go spouting off to equally stupid, pathetic, ignorant people. They do this country no service whatsoever by aiding in the corruptness that went on, and we're going to pay for it again if people don't wake up.

Quite frankly, "we the people", deserve it if you hand this country over like you're doing, all because you WORSHIP a certain political faction and have NO REGARD for the framer's true intent; never bothering once to go find out what they meant.

Is this really worth trying to throw under the carpet so Bobby Jindal can run in 2012, Mr. Smith? Because seriously, we all know why and where this going. You didn't fool anyone. We're not that stupid. But I guarantee you that the briefs being written today against Obama, will be used tomorrow against Jindal - bet on it.

There's a solution to this you know. If you want qualification standards changed regarding the Constitution relevant to the presidency, convene a Constitutional Convention for strictly that purpose and stop playing these games with "dead men's words" with uppity aversions. All you are doing is demonstrating an ignorance for the procedure in law that you live under.

Don't worry about dead men's words for we're sure to be joining them soon to discuss it at the rate we're going.

Zapem said...

And our Constitution has been amended to eliminate any distinction (if there ever were any) between citizens who are born in the USA and citizens of US parents who are born in the USA. The 14th Amendment says: “ 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.'”

Where did you come up with that the 14th Amendment gives citizenship to anyone born here? Is that what they told you? Did you bother reading the history on it? Or even looking closely at the words to that clause?

“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.”
–Citizenship Clause in Sec. 1 of the Fourteenth Amendment (1868)

“What do we mean by ’subject to the jurisdiction of the United States’? Not owing allegiance to anybody else. That is what it means.”
–Judiciary Committee Chair Senator Lyman Trumbull during the Citizenship Clause debate, 39th Congress, 1st Session (1866)

Puts a big damper on that broad-brush anchor baby rumor, huh? Puts an even bigger damper on Obama, being born with dual-loyalties, one of which, wasn't to allegiance of the U.S. and where his mother wasn't of age to transfer her own.

When the committee who wrote that clause doesn't even agree with you, you have to admit, you are wrong.

smrstrauss said...

Re “then it recogninzed the principles of the Roman law, civil law, English common law, and Vattel that a natural born Citizen" is a child born in a country of parents who are its citizens.”

This is what Blackstone said:

The children of aliens, born here in England, are, generally speaking, natural-born subjects and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is alien.” http://www.lonang.com/exlibris/blackstone/

(And generally speaking refers to the children of foreign diplomats.)

So, if you say that the Constitution in Article II follows Vattel and not Blackstone, why did the writers not make it clear. It is clear in the Wong case, and to Senators Lindsey and Hatch, and to the Yale Law Review that anyone born in the USA (except for the children of diplomats) is a natural born US citizen.

Surely the writers of the Constitution, if they knew that some people would use the Blackstone definition of a Natural Born Subject, would have written something to make themselves clear. They could have said: "We mean that a natural born citizen has to be born in the USA of two US parents"--but they did not.

They used the common language definitions in all the words and phrases of Article II. Fourteen years means 14, 35 means 35, and "Natural Born Citizen" also refers to the most common use of the term, the definition used in Common Law. Moreover, there is no evidence that any colonies before the Revolution or US States prior to the Constitution had any law that that required someone to have two parents and be born in the Colony or the State to be a citizen at birth.

There is no evidence that the Framers of Article II were referring to Vattel and not to the Common Law.

Puzo1 said...

To smrstrauss:

The Framers knew what English common law said. They knew that such law could cause children to end up with English allegiances without even consenting to it. One way to stop such an invasion of loyalty into a future President was to require that the child be born on U.S. soil and that the mother and father of the child both be U.S. citizens at the time of the child's birth. That would put a stop to the long arm of English common law. Such a result was proclaimed by natural law and was accepted throughout the civilized world. No law could interfere with such absolute allegiance in a "natural born Citizen."

"Natural born Citizen" as used by the Framers is a term of art. The Framers knew what it meant and so did the legal intellectuals of the time. There was no need for the Framers to explain or define such a technical word.

Again, the Wong case does not address what an Article II "natural born Citizen" is. It does however tell us what the common law was and that such law provided that a child born in the country to two parents who were also citizens was a "natural born citizen." The Court said there was not doubt as to the "natural born citizenship" status of these children. On the other hand, the Court said that as to children born on the soil to parents with a different citizenship status, there was doubt whether they were "natural born citizens." Of course, the Framers in drafting such an important clause which prescribed the qualificiations for President would not have wanted any doubts as to what a "natural born Citizen" was.

Senators Lindsey and Hatch are entitled to their unsupported opinions.

The Yale Law Review is just but one other opinion. The arguments are not well supported.

Any one born in the colonies was a British subject under English common law. The English common law applied because the child was considered as having been born in the King's dominion. These individuals, being inhabitants of the colonies, were also later made "citizens" by the laws of the States. These persons qualified to be President under Artilce II's grandfather clause which only required the person to be a "Citizen" at the time of the adoption of the Constitution. It does not matter that in the colonies, they may not have used the definition of "natural born Citizen." We know that they used "natural born subjects" under the English common law. With the Revolution and Constitution, the people made a new nation and with it came different rules. The people threw off the monarchial and feudal rules of England and built a new nation based on republicanism and the constitution.

Vattel called his people "citizens." Blackstone called them "subjects." The Framers picked "citizens." The rest is history.

Mario Apuzzo, Esq.

JDM said...

My questions are the following if he is not a natural born citizen:

Did President Obama break any laws becoming elected president?

Did President Obama break any laws when he took office?

Being a natural born citizen is a requirement or is it law?

If President Obama did break the law by taking office, how come no one has amended their actions to criminal. It would make sense to me at this time to organize all the people signing petitions, all the lawsuits all the media of non-believers of President Obama to organize a massive filing of criminal charges with the FBI, based on those criminal charges, then could an injuction be filed for him to cease being President until the investigation by the FBI is complete?

Thank you

Mick said...

Mr. Apuzzo,
Thanks for your cogent analysis. I am excited to hear about you teaming up with Leo Donofrio for a Quo Warranto! I wish I could have been a fly on the wall during your meeting with him.

smrstrauss said...

Re: “Again, the Wong case does not address what an Article II "natural born Citizen" is.”

Of course. It is NOT an Article II case. There has never been an Article II case. The Wong case says what a Natural Born Citizen means in its ordinary meaning. Its ORDINARY meaning.

There is no evidence that the Framers were using a special meaning in Article II that is different from the ordinary meaning.

You say that they were using it as a term of art. You say that they were using Natural Born Citizen differently from Blackstone’s use and the use in the colonies before the revolution and in the states under the Articles of Confederation.

This is a radical suggestion. For the framers to use “Natural Born Citizen” differently from the colonies and the states requires some kind of evidence. Vattel is a little evidence. He was indeed popular, though we do not know that the framers agreed with every word he wrote. But, the evidence of Vattel is offset by Blackstone. And it is far offset by the willingness of colonies and states to consider anyone born in their territories as subjects of the king and citizens of the respective colonies and later states under the Articles of Confederation.

The Wong case says that in the USA, in ordinary citizenship use, the term “Natural Born Citizen” is the US equivalent of “Natural Born Subject.” That is in ordinary citizenship use. But what is the evidence that the framers were using a “term of art?”

Re: “Senators Lindsey and Hatch are entitled to their unsupported opinions.”

Of course. I merely suggest that there are likely to be at least five votes on the Supreme Court that hold the same thing. In fact, I doubt there are even four votes to take such a case.

Re: “They knew that such law could cause children to end up with English allegiances without even consenting to it.”

And the same holds for children born in the USA, they could end up with USA allegiances without even consenting to it. If you are saying that before the revolution, the USA was Britain and therefore the children had British and not USA allegiances, this is silly. No one in the Convention thought that he,the member of the Convention, who had been born in British America, was any less loyal than a child born after July 4, 1776, who was born in the USA.

The question is whether a child born in America of two parents who have already been naturalized is more loyal than a child born in America of two parents who haven’t been naturalized yet.

Vattel believes that; Blackstone does not. Do you think there are five votes on the Supreme Court who believe it, or can find evidence that the Framers (who were practical men) believed it?

Re: “"Natural born Citizen" as used by the Framers is a term of art. The Framers knew what it meant and so did the legal intellectuals of the time.”

This requires considerable proof because the legal intellectuals of the time also knew Blackstone, and Blackstone is a description of the British law. Vattel is a theorist. If you could get a quote from one of the writers of the Constitution saying that when he voted for “Natural Born Citizen” he meant that the kid had to have two parents who were citizens before his birth and be born in the USA, then there might be a little evidence. But so far the balance of evidence is towards Blackstone.

Re: “...the Court said that as to children born on the soil to parents with a different citizenship status, there was doubt whether they were "natural born citizens."

Yes, you could say that there was doubt, but that they resolved the doubt.

Wong was born in San Francisco of two parents who at the time of his birth were SUBJECTS of the Emperor of China. The court ruled that he had Natural Born Citizen status.

Re: “Any one born in the colonies was a British subject under English common law.”

A minor point, but both colonies and states under the Articles of Confederation had laws as to who were citizens. Before the revolution there were colonial legislatures, and someone had to be both a citizen of the colony and a subject of the King to vote. And there were nationalization laws of the colonies and of the states under the Articles of Confederation, which is how Alexander Hamilton (who was born on the island of Nevis) became a citizen before the Constitution, so that he could be eligible to be president even though he was not born in the USA.

Re: “Vattel called his people "citizens." Blackstone called them "subjects." The Framers picked "citizens." The rest is history.”

Very stirring. But the Wong case says that “Citizens” is our synonym for “Subjects.”

libertyforusa said...

For the purposes of this case, it is necessary to solve these doubts.

The results requested by America

Puzo1 said...

To smrstrauss:

You state: "Wong was born in San Francisco of two parents who at the time of his birth were SUBJECTS of the Emperor of China. The court ruled that he had Natural Born Citizen status." I hope that your statement is just an honest mistake and not intentional on your part to mislead the public. Since so many Obama supporter attempt to mislead the public about what the Wong Kim Ark case held, I will bring some attention to it here.

Let us remember that the Framers used "natural born Citizen" only in the first part of Article II and "Citizen" in Article II's grandfather clause and in every other part of the Constitution. There is a clear distinction made in the Wong Kim Ark case between “natural born citizens” and “citizens.” Since Wong Kim Ark was not running for President, clearly the Court did not have to nor did it decide whether he was a "natural born Citizen." Justice Gray’s majority opinion said Wong Kim Ark was a “Citizen” and never said he was a "natural born Citizen."

You can obtain little support from your invocation of the dictum from Wong Kim Ark. The dictum upon which you rely can not be considered a reasoned consideration of the issue of whether Obama is an Article II "natural born Citizen." The issues in that case were whether a person born in the United States to Chinese domiciled legal resident aliens of the United States who were not employed in a diplomatic or official capacity was a citizen of the United States and whether, nevertheless, he could be excluded under the Chinese Exclusion Act, 22 Stat. 58. The Court first held that within the terms of the Fourteenth Amendment, Wong Kim Ark was a citizen of the United States, and then pointed out that though he might 'renounce this citizenship, and become a citizen of * * * any other country,' he had never done so. Id., at 704 705, 18 S.Ct. at 478. Afroyim v. Rusk, 387 U.S. 253, 266, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967).

Nowhere in Wong Kim Ark does the Court say the child was a "natural born citizen" just because he was born on U.S. soil. Rather, the Court rejected the concept that a person while being born on U.S. soil was not a citizen if his/her parents were not citizens at the time of his/her birth and declared such a child “a citizen of the United States” under the Fourteenth Amendment. But this holding, which only tells us what a Fourteenth Amendment “citizen” is has nothing to do with what an Article II “natural born Citizen” is. It is important to understand that the Wong Kim Ark only addressed what a Fourteenth Amendment birth citizen is and not what an Article II "natural born Citizen" is.

We should not confuse the standards to be a Fourteenth Amendment "Citizen" with the Article II Constitutional standard required for one to become President of the U.S.
The citizenship clause of the Fourteenth Amendment was drafted to provide citizenship to former slaves born in the United States. There is no evidence that either the amendment or the clause were intended to in any way affect the meaning of Article II’s “natural born Citizen” clause. There is considerable evidence that the drafters of the amendment did not mean to impact the meaning of Article II’s “natural born Citizen” clause.

The Wong Kim Ark Court was careful to tell us that it was deciding the case based only “upon the facts agreed by the parties” and that the “necessary effect” of its decision was to declare “a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subject of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States.” Id. 169 U.S. at 705. Hence, any reference in the decision to “natural born Citizen” is dicta, for the question before the Court had absolutely nothing to do with the eligibility standards to be President under Article II. On the contrary, Justice Gray's analysis of "natural born citizen" quoted directly form the Minor case which said that there have always been "doubts" as to whether such a person is a "natural born citizen"... but since the court was only concerned with whether Wong Kim Ark was an ordinary "citizen," they did not need to reach a decision on whether he was a "natural born citizen" and so they avoided that issue and held that he was a "citizen," native born under the 14th Amendment.

Even Justices Fuller and Harlan in their dissent clearly state that they doubted that the Framers would have allowed a child born on U.S. soil of parents who were not U.S. citizens to be Article II eligible for the Presidency. But despite what the dissenting opinion said about the majority view allowing U.S. born children of foreigners to run for President which it did not say, 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. Fourteenth Amendment “citizen” is. It did not address the question of what a “natural born Citizen” is as that term is used in that Article II. Since the Court did not address such an important question as what are the Presidential citizenship eligibility requirements under Article II, it is not reasonable to use the Court’s holding on what a Fourteenth Amendment citizen is to also tell us what an Article II “natural born Citizen” is.


On the contrary, the dictum could conceivably be read to hold that “natural born Citizen” as used in Article II means a child born in the United States to parents who are both United States citizens, for in Wong Kim Ark, the court discussed “natural born citizen” and in doing so, Justice Gray quoted directly from the holding in Minor v. Happersett, 21 Wall. 162, 166-168 (1874). Hence, Minor’s “natural born Citizen” formulation was affirmed in Wong. The following passage is a quote from Minor as quoted by Justice Gray in Wong Kim Ark:

"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.

The majority's view of what the common law provided regarding what a "natural born Citizen" was is supported by both Justices Fuller and Harlan who in dissent clearly stated that they doubted that the Framers would have allowed a child born on U.S. soil of parents who were not U.S. citizens to be Article II eligible for the Presidency.

Wong Kim Ark does not require the result requested by you. On the contrary, the dictum of the case can be read to support our position that an Article II “natural born Citizen” is one that is born on United States soil to parents who are both United States citizens at the time of his or her birth.

Mario Apuzzo, Esq.

rightky said...

smrstrauss quote: "It is clear in the Wong case, and to Senators Lindsey and Hatch, and to the Yale Law Review that anyone born in the USA (except for the children of diplomats) is a natural born US citizen."

So, to turn this around, if a child is born in the USA to foreign parents, as long as they are not diplomats, then they are natural born US citizens? This is ridiculous.

And, back to the state of naturalization of the parents at birth being important (i.e. either naturalized at the time of the birth or naturalized in the future), are we forgetting that Obama's father was never naturalized at all, nor did he ever intend to be?

I'm no law expert, but legally and historically, isn't the citizenship status of the father more important than that of the mother?

smrstrauss said...

Let’s dispose of this first:

"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.” (quoting Minor)

But neither of Wong’s parents were citizens. NEITHER. Gray therefore resolved the doubts.

Gray quoted massive amounts of commentary on Common Law that said that a child needs only to be born in the British realm to be a Natural Born Subject even if neither of the parents were British, and then ruled that Wong falls into this category. So, not merely children born of parents who are citizens are citizens, but ALL who are born in the country are citizens.

What kind of citizens? The same kind of citizens who would have been Natural Born Subjects under British law. Does this make them Natural Born Citizens? Well, it certainly does not make them naturalized citizens. Could there be a distinction between native-born citizens and Natural Born Citizens? Not so far as I can see in this ruling, and Gray stresses repeatedly that Wong falls into the category of Natural Born Subject.

So Minor had doubts, but Gray did not. Minor thought that some authorities who had doubts as to whether a citizen could be created merely by birth. Gray does not quote a single expert who says that to be a citizen you require two parents, or one parent.

Does this ruling apply to Article II?

It is not, obviously, a case related to Article II. There has never been a case related to Article II. But there is nothing in Article II that says that a Natural Born Citizen for the presidency should be different from a Natural Born Citizen for citizenship. The evidence is all the other way, towards the meaning of Natural Born Subject under common law, and away from Vattel.

Re: Your disagreement with my “The court ruled that he had Natural Born Citizen status."

The court ruled that he was a citizen, as you say. The court does not use the term Natural Born Citizen in its conclusion.

However, the court establishes that Wong was a native-born citizen and throughout the ruling uses “Natural Born” in the context of British common law. It shows that Wong was a US citizen, who could not be deprived of his rights, because he was the equivalent of a Natural Born Subject. What kind of citizen was he? Not a naturalized citizen, a Natural Born Citizen.

Thus, you can see that the Court put Wong within the category of Natural Born Citizen. Within the discussion there is no distinction made between “native born” and “natural born” for applying the rule of citizenship that stems from British common law. Wong falls under that category, which the British call Natural Born Subject, and which Gray says (quoting Kent) in the USA is virtually a convertible term to Natural Born Citizen.

There is no distinction in the Wong opinion between native-born and natural-born. They are treated as synonyms.

As you say, the Wong case is a citizenship case. It is NOT an Article II case. This is obvious and should be obvious. There has never been an Article II case.

Still, if you want to know what Natural Born Citizen means in its ordinary citizenship context, the Wong case establishes that. AND there is absolutely no evidence that Article II uses Natural Born Citizen in anything other than its ordinary citizenship definition. If it did, it would say so.

It would HAVE to say so because anyone who knew the law at the time of the Constitutional Convention could have assumed that Natural Born Citizen was the US synonym for Natural Born Subject.

As you say, the Wong case finds in its conclusion that Wong was a citizen, not a Natural Born Citizen. But it is only because he was a Natural Born Citizen that he was a citizen. Gray first establishes that a natural-born subject is anyone born in the British realm. Then he shows that our meaning of “Natural Born Citizen” is a synonym for “Natural Born Subject.” Then he shows that Wong falls under the definition of Natural Born Citizen, and hence Wong is a citizen.

Quoting from Justice Gray’s majority opinion

“In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: "The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that." And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 167.”

Stress COMMON LAW (not Vattel)

“In Smith v. Alabama, Mr. Justice Matthews, delivering the judgment of the court, said:

There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”

Stress COMMON LAW (not Vattel)

….” and had no thought of impeaching the established rule that all persons born under British dominion are natural-born subjects.”

Is anyone who is born under British dominion and not a child of a foreign diplomat not a natural-born subject? Not according to the previous statement.

“Lord Chief Justice Cockburn, in the same year, reviewing the whole matter, said:

By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.”

How many British parents does it require to be a Natural Born Subject? None. How long do the parents have to be settled in Britain? They may be merely sojurning. Is there any effect given to descent as a source of nationality? No.

Quoting from Dicey: Conflict of Laws:
“…therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.”

“The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.”

Did any English Colonies use Vattel as the criteria by which someone could become a citizen? No. Did any colony have a law that said someone born in that colony was not automatically a citizen of the colony? No. Was this only for citizenship law? Yes, of course. But was it the common use of the term “natural born citizen?” Yes. Therefore, what evidence is there that Vattel is the definition used in the Constitution and not the British Common Law and the laws used in the colonies?

“Again, in Levy v. McCartee (1832), 6 Pet. 102, 112, 113, 115, which concerned a descent cast since the American Revolution, in the State of New York, where the statute of 11 & 12 Will. III had been repealed, this court, speaking by Mr. Justice Story, held that the case must rest for its decision exclusively upon the principles of the common law, and treated it as unquestionable that, by that law, a child born in England of alien parents was a natural-born subject, quoting the statement of Lord Coke in Co.Lit. 8a, that,

if an alien cometh into England and hath issue two sons, these two sons are indigenae, subjects born, because they are born within the realm.”

What law applies in Levy? The common law. How many parents does it take to make a natural-born subject? None.

“In Dred Scott v. Sandford, (1857) 19 How. 393, Mr. Justice Curtis said:

The first section of the second article of the Constitution uses the language, "a natural-born citizen." It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.”

It is embarassing to have to quote from the Dred Scott decision (and this is not the ruling opinion of Taney), but the point is being made that “natural-born citizen” is a citizen who acquired citizenship by birth, not by naturalization. And the second sentence says that the principle of public law, well understood, was that citizenship was conferred by the place of birth NOT BY THE PLACE OF BIRTH AND TWO US PARENTS.

The common language use of the term Natural Born Citizen is anyone born in the USA. Curtis is pointing out that it was well understood at the time of the writing of the Constitution that citizenship was conferred by the place of birth, not by the number of US parents. What does this mean? It means it was more likely that the Framers of Article II were thinking of the British Common Law than they were thinking of Vattel.

“But at the time of the adoption of the Constitution of the United States in 1789, and long before, it would seem to have been the rule in Europe generally, as it certainly was in France, that, as said by Pothier, "citizens, true and native-born citizens, are those who are born within the extent of the dominion of France," and

mere birth within the realm gives the rights of a native-born citizen, independently of the origin of the father or mother, and of their domicil;’

So at the time of the adoption of the US Constitution not even France followed Vattel.

“The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin's Case, 7 Rep. 6a, "strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;" and his child, as said by Mr. Binney in his essay before quoted, "if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle."

Is the US-born child of a non-citizen visiting the USA any different from a US-born child of a citizen of the USA. No ‘"if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle."

Is there a distinction made between natural-born child and native-born child? No. Can native-born and Natural Born be synonyms in this use? Yes.

Quoting “2 Kent Com. (6th ed.) 39, 42. And he elsewhere says:

And if, at common law, all human beings born within the ligeance of the King, and under the King's obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary. . . . Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land.”

Are “subject” and “citizen” to a degree convertible terms? And what kind of a subject is being referred to here? A natural-born subject.

Re: “But this holding, which only tells us what a Fourteenth Amendment “citizen” is has nothing to do with what an Article II “natural born Citizen” is.”

Why should an Article II Natural Born Citizen be any different from a Natural Born Citizen for the Fourteenth? Does Article II say that it should be different? If the writers of Article II did not want a Natural Born Citizen to be considered the same as a Natural Born Subject, why didn’t they say so?

Re: “There is no evidence that either the amendment or the clause were intended to in any way affect the meaning of Article II’s “natural born Citizen” clause.”

Yes, but what is the meaning of Article II’s natural born citizen clause? Is it Vattel or the Common Law? The 14th was not written to change Article II (except, of course, it does allow Black people to be president since they have become citizens), but the Wong interpretation of the 14th points to the Common Law, not to Vattel. If the 14th makes all who are born in the USA citizens, why doesn’t this mean Natural Born Citizens? The 14th refers to two classes of citizens, naturalized and born in the USA. Why isn’t the born in the USA Natural Born? What evidence is there that there is a special meaning of Natural Born in Article II?

I have not discussed the minority opinions because they were in the minority. It is likely that at least one, possibly two or three, of today's Supreme Court justices will agree with Harlan. But are there five votes?

Not likely.

Which is why such authorities as Yale Law Review wrote that it is settled that anyone born in the USA is eligible, the question is whether children of US parents born outside of the USA are eligible.

“It is well settled that "native-born" citizens, those born in the United States, qualify as natural born. It is also clear that persons born abroad of alien parents, who later become citizens by naturalization, do not. But whether a person born abroad of American parents, or of one American and one alien parent, qualifies as natural born has never been resolved. Eligibility for children of American Indians born on reservations, persons born in United States territories, children born on American military bases, and children of United States diplomats stationed abroad is also uncertain."


Hypothetical example, take one of the two million or so women who travel abroad every year. She comes back home and nine months later a baby is born. Don’t know the father. Could it have been someone overseas? Yes. Could it have been someone who was in the USA—that too. Is the kid eligible? According to the Vattel logic, there would have to be proof of who the father was and that the father was a US citizen for the child to be eligible to be president. But is this approach practical? Would it mean that all future presidents have to have DNA tests to prove that their father was really their legal father?

The word for Vattel is naïve. He assumes that you can know the father, when you never can know with certainty without DNA testing.

parsifal said...

Puzo1 -

Why do you keep making these lengthy replies to smrstrauss? Don't you have more important things to do? Please.

Puzo1 said...

To Parsifal:

The only reason I published your little comment is so that you and anyone else who may be interested can read my reply. The name of this blog is "A Place to Ask Questions To Get the Right Answers." Also, the rules of this blog are that anyone can engage in intelligent debate so that we can all arrive at the truth. I am not interested in ignoring commentators when they have a different point of view than mine, provided they present their arguments in an intelligent and civilized manner. I am a big boy and can handle the heat.

I do not know who you are, you do not know who I am, and I do not appreciate you telling me how I should spend my time preparing my case. If you do not agree with anything smrstauss says, reveal to us your intellectual prowess and write something contradicting him instead of only pontificating from your computer with your snippets. Furthermore, I thought understanding what a "natural born Citizen" is was something important for me to work on. Finally, what smrstrauss has to say passes the intelligent and civility test. I cannot say the same for your disrespectful and condescending comment. I would recommend that you come down off your high horse. Please.

Mario Apuzzo, Esq.

Mick said...

To smrstrauss,

Justice Gray was clearly covering for Chester Arthur, or was sympathetic to the plight of Chinese immigrants. What other motivation would there be to totally mangle the Jurisdictional phrase of the 14A, when there was recent precedent and statements by the writers of 14A? The writers of the 14A are on record (not just one of them) as saying that the Civil Rights Act of 1866 mirrors the citizenship clause of the 14A. It meant "subject to the juridiction of the US and NO OTHER FOREIGN POWER". The case was only 32 years later, so he had to know that. He also must have known and went against the precedent set by Elk v. Wilkins about what the Jurisdictional phrase meant only 15years earlier (1884). His decision was meant to muddy the waters of the phrase to cover for his benefactor, and he never called Wong a Natural Born Citizen, only "citizen", while bandying the term "Native" around in dicta. 50 Years later in Perkins v. Elg
(1939) it was determined that Miss Elg, born of naturalized citizen parents in Brooklyn, was deemed to be a "Natural Born Citizen". The case also gave other examples of similar circumstances, calling Mr. Steinkauler, born of naturalized parents, "Native Born Citizen, with the ability to become POTUS" (SIC). The differentiation was Mr. Bohn, born of alien parents, was deemed "American Citizen" (Stare decisis of Wong). They did not have to cite these differences, and clearly did it to clarify what the term means, and seperate it from Wong, or else why would they cite a case of children born to alien parents? This case is 50 years AFTER Wong and uses the term in relation to the qualification to be POTUS specifically (which Wong does NOT) so it is clearly the dominant case as far as precedent. If Gray was being sympathetic to the plight of Chinese immigrants, domiciled here, w/o the ability (because of treaty) to be naturalized, then that is not sound basis for determining the law. This is also evidenced in Plyler v. Doe, where a sympathetic court totally misapplied the Equal Protection clause.

mtngoat61 said...

THE CONSTITUTION IS THE SUPREME LAW OF THE LAND AND ALL BRANCHES OF OUR FEDERAL GOVERNMENT ARE SUBSERVIANT TO IT ... AS ARE ANY LAWS OR ACTIONS DONE OR CREATED BY THE THREE BRANCHES (PAST OR PRESENT). IF THOSE LAWS OVER TIME ARE COMPOUNDED AND TWISTED IN SUCH A WAY AS TO ULTIMATELY TRY AND TAKE AWAY THE SUPREMACY OF THE CONSTITUTION, THEN ANY SUCH SET OF LAWS CITED TO TRY AND DO THAT BY SLICK LAWYERS WHICH WOULD ULTIMATELY RESULT IN SUBVERTING THE INTENT OF OUR CONSTITUTION (FOR THE SET OF NEW FACTS IN THE INSTANT CASE BEFORE SCOTUS), THEN SCOTUS CAN AND WILL OVER TURN THOSE LAWS TO PROTECT THE U.S. CONSTITUTION. OR AT LEAST THEY SHOULD IF SCOTUS IS DOING ITS JOB AS GUARDIAN OF THE CONSTITUTION WHICH WAS CREATED BY WE THE PEOPLE. THE CONSTITUTION IS THE SUPREME LAW OF THE LAND, NOT SOME PRIOR CASE LAW. AGAIN, WHEN A NEW SET OF FACTS IN THE INSTANT CASE BEFORE THEM IS DETERMINED TO BE UNDERMINING THE TRUE INTENT AND MEANING OF THE CONSTITUTION, SCOTUS CAN AND WILL OVER TURN PRIOR CASE LAW AND PRIOR SCOTUS DECISIONS. THEY HAVE IN THE PAST AND THEY WILL DO SO IN THIS MATTER.

Re. "separation of powers" arguments. While each branch of our federal government which was created by We the People and given limited power by the We the People via a contract we call our U.S. Constitution do indeed have separate powers, ... those powers are all subserviant to the Constitution the supreme law of the land. And the U.S. Supreme Court is the ultimate guardian of that Constitution within the framework of the Constitution. Beyond that of course the several States and We the People are the Constitutions guardians. If the other branches take actions of which the end result or product is UNCONSTITUTIONAL, then upon bringing the matter to the U.S. Supreme Court, that court can and has ruled that actions and/or acts by Congress were UNCONSTITUTIONAL and so ordered in the past. This has been done many times in the past regarding acts done by Congress. The three separate branches of our federal government CANNOT do whatever the heck they want! The branches must first and foremost observe and obey the command and dictates of our U.S. Constitution, the supreme law of our land and to which all statutory law is subserviant and of which all satutory law in the way of righting the proper rule of the Constitution can be over turned and ignored by this SCOTUS in order to correct the injustice done to the Constitution. And the Supreme Court has the power to address this instant matter too. Any prior SCOTUS ruling can be overturned by subsequent ruling of SCOTUS given the set of facts for the instant case in front of them. What they cannot over turn and must obey is the commands of the Constitution. And in this instant circumstance Article II is very clear that the persons who can serve as POTUS and CINC must be a Natural Born Citizen. SCOTUS wil take a case to define that term. That is certain. It is critical to the futre of are nation and Constitutional Republic. What Obama has done with his HOAX and vast amounts of foreign money in his campaign enable by a media who does not care about the Constitution was historic, i.e., got himself unconstitutionally seated as President without being Article II qualified. And thus a precedent setting lawsuit given the set of facts surrounding the "identity of Obama" to restore the commands of our Constitution will ultimately result in removing him one way or another. He has not proven with credible and sufficient evidence that he is article II qualified because he cannot since his father was a foreigner and his father was not even an immigrant to the USA. Obam has mixed national allegiances which is something specifically the framers did not want. His confirmation was UNCONSTITUTIONAL and I believe SCOTUS will hear a case at which it will decide what the Natural Born Citizen (NBC) "term of art" in our constitution means as to the framer's original intent and then rule that Congress's action was UNCONSTITUTIONAL and order them to rectify it. It will likely be up to Congress to remove Obama but SCOTUS will set the stage to do it by holding a fact finding hearing on this instant matter at hand and then rule. And once the true facts about Obama are determined in a Court of Law, I am sure Congress will remove him at such time when Obama's true identity is clearly brought before the American people. We the People will demand that Congress do that at such time after SCOTUS rule that Obama is not NBC qualified and that Congress acted UNCONSTITUTIONALLY in confirming him.

And in particular, on another point, the Kerchner et al v Obama, Congress et al lawsuit was filed AFTER the Congress acted UNCONSTITUIONALLY on 8 Jan 09 by confirming an ineligible President Elect who was not a natural born citizen of the U.S. since his father was not a citizen or even an immigrant or permanent resident to the U.S. when Obama was born, or ever, ... and BEFORE the confirmed President Elect was sworn in and seated on 20 Jan 09. Thus the Kerchner et al v Obama & Congress, et al case has a special judicial timeliness too that the other suits don't have.

The Constitution is the Supreme Law of the land and I believe SCOTUS will act appropriately when the facts for this instant matter finally gets a full hearing before them. And Kerchner v Obama with 12 separate counts against multiple defendants for violating our Constitution is the case that will get that full public hearing by SCOTUS.

M Publius Goat
http://www.obamacitizenshipfacts.org

Puzo1 said...

To smrstrauss:

Your whole argument rests on the two related premises. First, you state that the Framers relied upon English common law in defining what a “natural born Citizen” is. Second, you go on to state that “natural born Citizen” as used by the Framers is a word which can be defined by “ordinary citizenship context” as found in English common law. Both of these statements are incorrect.

Pre- and post-Constitution evidence shows that both of your premises are invalid. When drafting the ‘natural born Citizen” clause, the Framers did not rely on English common law but rather on natural law, international law as expressed by Vattel in his treatise The Law of Nations,” and on other common law that developed in America apart from English common law. The Framers were strong adherents to the concept of “natural law” which provided that children follow the condition of their parents. Vattel codified the same principle in his treatise which was widely read and relied upon by the Framers and other legal and political intelligentsia in the colonies. The United States Supreme Court tells us in both the Minor (1874) and Kim Wong Ark (1898) decisions what common law the Framers looked to in defining a “natural born Citizen:”

"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” (emphasis supplied). 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.” (emphasis supplied).

First, the Supreme Court did not say “English common law,” but rather just “common law.” Second, given your thorough explanation of what English common law provided to be the necessary and sufficient conditions to make one a “natural born subject (i.e. just born on English soil or born anywhere in the world to English natural born subjects),” the common law to which the Supreme Court was referring surely cannot be the same English common law that you expounded upon, for the common law to which the Supreme Court referred required both territorial and parental conditions to be satisfied and not just one or the other. Third, the English common law theory on allegiance was riddled with inconsistencies, contradictions, and ambiguities. One of the biggest problems that it presented was that in many references it made no qualification to the simple event of being born on English soil which oversight caused mixed allegiances in a subject born. On the other hand, Sir Edward Coke proclaimed in Calvin’s case: “Neither the climate nor the soil but ligeantia (allegiance) and obedientia (obedience) that makes the subject born.” The Framers would not have accepted a birthright citizenship for the President that did not provide him with full and absolute allegiance in the United States. Fourth, the Framers would not have used a citizenship standard for eligibility to be President that created within the legal community the doubt expressed by the Minor and Wong Kim Ark Supreme Court.

There is also no evidence for your statement that “natural born citizen” as used by the Framers is a word which can be defined by “ordinary citizenship context” as found in English common law. On the contrary, the evidence shows that “natural born Citizen” is a word of art and does not take its meaning from the English common law.

Regarding who belonged to the community of allegiance, the only word that inhabitants of America knew before the Constitution was “natural born subject,” which was the expression used in the English common law. The English no where in their common law or naturalization statutes used the word “citizen.” So how can we expect the ordinary person during the time of the signing of the Constitution to know what a “natural born Citizen” was? We cannot simply assume that they would substitute the word “citizen” for “subject” and give the term the same meaning. The English king, in so conveniently proclaiming individuals his subjects thereby expanded his power over his dominion. At no time did he have to consider that some day one of those subjects who may have been born to some unknown foreigner/alien (of unknown loyalty or allegiance or maybe even of opposing loyalty or allegiance to the King) who just happened to be “visiting” his dominion and then who would raise that child in keeping with that loyalty and allegiance would grow up to be the King of England. Simply stated, English kings came from royal blood, not from popular elections conducted by the people of a nation with the purpose of choosing one person among themselves to be King. Also, the English courts that ruled on what a “natural born subject” was did so with the motivation of expanding for people physically born in the King’s dominion and their heirs property and inheritance rights. They surely were not thinking about their rulings being used as a basis for defining the qualifications to be King of England. Indeed, English common law was no basis for creating future Kings but rather a basis for creating future subjects of the King whose coming into being only increased the King’s power throughout his empire and for defining and expanding property and inheritance rights for those born on English soil however defined and their heirs. Finally, the Framers could not look to English naturalization laws for their definition of “natural born Citizen, for as Coke and Blackstone tell us, the English Parliament through such laws retroactively made a person a “natural born subject” as if born in the King’s ligeance.

Article II’s Presidential standard was “citizen” at the time of the adoption of the Constitution (found in the grandfather clause and only applicable to the original citizens) and “natural born Citizen.” “Citizen” was the standard assigned to Senators and members of the House. Hence, the term “natural born Citizen” would have to have a very special meaning, one that evoked the Presidents absolute allegiance to the United States. That special meaning could not be found in the English common law but only in Vattel’s famous and highly-read treatise, The Law of Nations, which text was the basis for the Framers creating the new Constitutional Republic headed by a President popularly elected from among the people rather than one who descended down from the blood of royals. It was this very powerful position, open to anyone who met the simple age, residency, and citizenship requirements, rather than just those who descended from monarchial blood, that the Framers wanted to protect from foreign influence. They added the extra measure of protection to the qualification to be President because they wanted to assure the new nation that its President would have only one loyalty and allegiance and that would be to the new nation thereby protecting and promoting the values and traditions of the original colonists who fought and won the Revolutionary War. They did not want any foreigner to assume such a position of power, for such a foreigner could influence the nation in a way that would steer it away from its fundamental values. They knew that simply being born on U.S. soil without accounting for the parents’ allegiances would not provide the absolute allegiance that they sought. Allegiance would have to qualify the place of birth. Vattel’s definition of natural citizen (“Les naturels, ou indigenes, sont ceux qui sont nes dans le pays, de parents citoyens”-The naturals or indigenous are citizens who are born in the country of parents who are citizens) provided them with that protection for the new nation.

There is also other evidence that shows that the Framers did not use English common law in defining a “natural born Citizen” but rather gave it a new technical meaning. I will not explain each piece of evidence but for the sake of brevity will only list it here. This list is not exhaustive:
1. Letter of July 25, 1787 from John Jay to George Washington, expressing his wanting to keep foreigners out of the Presidency and asking that the “natural born Citizen” standard be adopted in the Constitution.
2. The Constitutional debates.
3. United States Naturalization Law of March 26, 1790 (1Stat. 103)
4. United States Naturalization Act of January 29, 1795 (1 Stat. 414)
5. Act of 1866: “All persons born in the United States and not subject to any foreign power . . . are declared to be citizens of the United States” (emphasis supplied). John Bingham on March 9, 1866 declared: "[I] find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen. . . . ” Cong. Globe, 39th, 1st Session, 1291 (1866).
6. 14th Amendment-“What do we mean by ‘subject to the jurisdiction of the United States’? Not owing allegiance to anybody else. That is what it means.” Judiciary Committee Chair Senator Lyman Trumbull during the Citizenship Clause debate, Congressional Globe, 39th Congress, 1st Session, May 30, 1866, p.2893, 1st col. Senator Jacob Howard, co-author of the citizenship clause of the 14th Amendment, stated in 1866, "Every Person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons." Senator Howard continues: "[T]he word 'jurisdiction,' as here employed, ought to be construed so as to imply the full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States." (Congressional Globe, 39th Congress, 1st Session, May 30, 1866, p.2895, 2nd col.) It is clear from what Senator Howard said that, apart from the cases of ambassadors and foreign ministers, one born in the United States to an alien or foreigner subject to the jurisdiction of their home country was ineligible for citizenship. Senator Howard in his sponsorship speech points specifically to additional "exceptions"—the children of "foreigners, aliens" (Id. at 2890, 2nd col.)—as distinguished from the common-law Jus Soli "exceptions" of only the children of diplomats and "alien enemies in hostile occupation." How can we deny that these exceptions are significant and that they significantly qualify birthright citizenship? Further the 14th Amendment makes no reference to a “natural born Citizen” but only a “citizen.”
7. Congress (except for the 1790 act which it later repealed as to “natural born,” status) has never legislated what a “natural born Citizen” is.
8. 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 42 Americans that have served as President (not including Mr. Obama). Ten were born before 1787. All “elected” Presidents born after 1787 (Chester Arthur was not elected President) 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. 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. Chester Arthur is no precedent to establish otherwise, for he hid from the public that fact that his father was not a United States citizen when Arthur was born.

Whatever meaning “citizen” took on after the adoption of the Constitution does not and cannot change what the Founders’ intent was when they wrote “natural born Citizen” in Article II. That our courts through the following years took a more liberal view of what a 14th Amendment “citizen” is cannot and must not change what an Article II “natural born Citizen” is, for at no time were these courts faced with the specific question of who can or cannot be President of the United States. To properly answer this question, we must go back to the time that the Framers wrote the “natural born Citizen” clause in the Constitution and ask ourselves what did the Framers intend by the term. We have to consider the political and social environment in which they lived at the time. We have to consider that America had just fought and won a war with England, breaking the “natural” and “perpetual” bond to the English King. America was now a new nation with a new beginning, a constitutional republic. The new nation opened all its political power to ordinary people, including the power to be President which power did not have to descend from royal blood. But America was also a new nation that feared that foreign influence would somehow creep back into its government and undo the life and blood sacrifice of the American people and the liberty that they achieved for themselves in that struggle. It is in this context that we have to define what a “natural born Citizen” is.

The “natural born Citizen” clause is not unreasonably discriminatory. Today, anyone can be President of the United States, no matter what your race, sex, religion, ethnicity, physical disability, or sexual orientation is, provided the candidate meets the age and residency requirements and is born on United States soil to parents who are themselves United States citizens by birth or naturalization. This class of people provides the greatest number of citizens potentially eligible to be President. An individual who meets this eligibility requirement has only one allegiance and that is to the United States, for there is no way for any other foreign power to expect any allegiance from that person without his or her consent given that all avenues of transmitting allegiance (soil and parentage) lead to the United States and to no other nation. Under such birth circumstances, a “natural born Citizen” of the United States will not be compelled to deal throughout his or her life with any conflicting allegiances which he or she may have unwittingly acquired at birth. Our current President should come from this class.

We cannot allow the changing winds of political expediency to alter this standard for the sake of those who, without regard to the future of America, want to see this standard changed because it serves their selfish political ambitions. Congress has no Constitutional power to change this Constitutional standard. If some people of America today believe this standard is not consistent with an America now existing in a “global” international environment, then they have to resort to the Constitution which provides the way to change it. Let those who want to change this standard do so under the rule of law (i.e. Constitutional amendment), the same rule of law that has made our Constitutional republic a great and powerful nation that it is.

Mario Apuzzo, Esq.

mtngoat61 said...

The Kerchner et al v Obama & Congress et al is an Historic Case in Many Ways Including a Quo Warranto Action to Remove the Usurper from the White House.

For those of you reading this blog who have not read the full case, Kerchner et al v Obama et al is an historic case in many ways. That includes suing Congress for its many counts of violations of Constutional protections guarranteed by that contract between We the People and our federal government when we created it and Congress. It also includes a historic Quo Warranto count petitioning that the usurper President be asked "by what authority" have you proved that you are qualified under Article II of the Constitution. There has been a lot of chatter in other blogs lately about Quo Warranto, but that concept is not new to this case and it should be pointed out here and to the general public following the cases against Obama that a Quo Warranto petition action against Obama was an original count in this case when it was filed 2:50 a.m. on 20 Jan 2009. And of note it should be pointed out that all the counts were filed in a judicially ripe timely manner PRIOR to Obama being sworn in! That timeliness of filing AFTER Obama was the confirmed President Elect and BEFORE Obama was officially sworn in is another very unique aspect of this particular case. No other case to my knowledge was filed in that time frame between the confirmation of the President Elect on 8 Jan 09 and prior to the inauguaration ceremony on 20 Jan 09.

You can read the entire case at SCRIBD.com. And for those follow these cases, I suggest you do:
http://www.scribd.com/doc/11317148/

However, let me provide an overview in sort of a "Cliff Notes" summary style of some of the key introductory material and the key 12 counts in this case, including the Quo Warranto count, which is Count XI of XII counts.

Civil Action No. 1:09-cv-00253

Plaintiffs:
Charles F. Kerchner, Jr, :
Lowell T. Patterson, :
Darrell James LeNormand, and :
Donald H. Nelsen, Jr., :

Defendants:
Barack Hussein Obama II, President Elect :
of the United States of America, President :
of the United States of America, :
and Individually, a/k/a Barry Soetoro; :
United States of America; :
United States Congress; :
United States Senate; :
United States House of Representatives; :
Richard B. Cheney, President of :
the Senate, Presiding Officer of Joint :
Session of Congress, Vice President of the :
United States and Individually; and :
Nancy Pelosi, Speaker of the House and :
Individually, :

Descriptions and brief informaton the Parties to the action begins on page 3.

Excerpt of Introduction begins on page 6:
19. "Governments are instituted among men, deriving their just powers from the
consent of the governed." ENDNOTE 7.
20. Under our Constitutional Republic form of democratic government which
adheres to the rule of law, not even the President Elect, President, or Congress is above
the law. ENDNOTE 8.
21. No court of the United States has ever decided the merits of any legal action
against a Presidential candidate, President Elect, or sitting President challenging his
eligibility to be President based on the “natural born Citizen” requirement of Article II
Section 1 of the United States Constitution.
22. To date, no state or federal election official, nor any government authority,
has investigated or held hearings and verified that Obama ever established and proved
conclusively that he is an Article II “natural born Citizen.”
23. Plaintiffs have filed this action against the non-Obama defendants for their
violation of plaintiffs’ First Amendment right not to have their right to petition their
government abridged by their failure to address their First Amendment petitions and
grievances filed with them regarding Obama’s Article II eligibility to be President.
24. Plaintiffs are also filing and seeking remedies under the Fifth Amendment for
the non-Obama defendants’ denying them a liberty interest without procedural due
process of law, depriving them a liberty interest without substantive due process of law,
depriving them of equal protection of the law under the Fifth Amendment, and for their
violation of plaintiffs’ constitutional rights under the Ninth and Tenth Amendment.
25. This action is brought against the non-Obama defendants because, in light of
the great public outcry and plaintiffs’ petitions for redress of grievances regarding whether Obama is an Article II “natural born Citizen” and otherwise qualified for the
office of President, they violated plaintiffs’ Constitutional rights under the Twentieth
Amendments by failing on behalf of the plaintiffs and other concerned Americans as their
elected representatives to properly vet and verify pursuant to their Constitutional
obligation under the Twentieth Amendment, Section 3 whether Obama was born in the
United States and is an Article II “natural born Citizen” so as to meet that provision’s
citizenship eligibility requirements to be President and to allow and to continue to allow
Obama to occupy the Office of President even though he is not qualified to be President
under Article II because he is not a “natural born Citizen.”
26. By so failing and given that the non-Obama defendants with much less public
demands and grievances, fully investigated, authorized legal scholars to conduct legal
research and to present their findings in the form of a legal opinion, held public hearings
on the question of whether Republican Presidential candidate John McCain is an Article
II “natural born Citizen” and eligible to be President, and even passed Senate Resolution
511 proclaiming that McCain is an Article II “natural born Citizen,” defendants also
deprived the plaintiffs of procedural due process and equal protection under the Fifth
Amendment in failing to utilize, on their behalf as their democratically elected
representatives and through whom plaintiffs speak and assert their constitutional rights,
the same procedure they used to investigate McCain and to also use the Constitutional
and statutory procedure that exists under the 20th Amendment and 3 U.S.C. Sec.15,
respectively, for the purpose of conclusively verifying that President-Elect Obama was
born in the United States and he is an Article II “natural born Citizen” and otherwise
constitutionally qualified for that office and in failing to treat plaintiffs the same as they treated other similarly situated members of the public who had expressed their concerns
for whether McCain was an Article II “natural born Citizen.”
27. By way of mandamus, plaintiffs seek a court order compelling the non-
Obama defendants to adequately investigate and hold Congressional hearings under the
Twentieth Amendment on the question of whether defendant Obama was born in the
United States and is an Article II “natural born Citizen” and otherwise qualified to be
President under that Article.
28. This action in the form of mandamus is brought against defendant Obama to
compel him to prove that he was born in the United States, that he is an Article II “natural
born Citizen,” and that he is Constitutionally eligible to hold the Office of President and
Commander in Chief,
29. This action in the form of declaration of rights and quo warranto is brought
for the Court to declare that Obama is not Article II qualified to hold the Office of
President and Commander in Chief and therefore that the non-Obama defendants
removed and permanently barred him from that Office.

THE COUNTS:

COUNT I begins on page 37:
(First Amendment-Abridged Right to Petition the Government v. Non-Obama
Defendants)
THE NON-OBAMA DEFENDANTS VIOLATED PLAINTIFF KERCHNER’S RIGHTS UNDER THE FIRST AMENDMENT BY ABRIDGING HIS RIGHTS TO PETITION HIS GOVERNMENT FOR A REDRESS OF GRIEVANCES WHEN THEY UNJUSTIFIABLY FAILED TO ADDRESS AND IGNORED PLAINTIFF’S PETITIONS TO THEM TO INVESTIGATE WHETHER OR NOT OBAMA IS
AN ARTICLE II “NATURAL BORN CITIZEN” AND QUALIFIED TO BE
PRESIDENT AND COMMANDER IN CHIEF OF THE UNITED STATES

COUNT II begins on page 39:
(Fifth Amendment-Procedural Due Process v. Non-Obama Defendants)
THE NON-OBAMA DEFENDANTS VIOLATED PLAINTIFFS’ FIFTH AMENDMENT RIGHTS BY DEPRIVING THEM OF A LIBERTY INTEREST WITHOUT PROCEDURAL DUE PROCESS OF LAW BY FAILING UNDER
THE PROCEDURAL GUIDELINES OF THE TWENTIETH AMENDMENT AND 3 U.S.C. 15 TO AFFORD PLAINTIFFS AN OPPORTUNITY TO BE HEARD THROUGH THEIR ELECTED REPRESENTATIVES AND BY FAILING TO CONDUCT AN APPROPRIATE CONGRESSIONAL INVESTIGATION AND HEARING ON WHETHER OBAMA WAS BORN IN THE UNITED STATES AND WHETHER HE IS AN ARTICLE II “NATURAL BORN CITIZEN” AND QUALIFIED TO BE PRESIDENT AND COMMANDER IN CHIEF THEREOF

COUNT III begins on page 43:
(Fifth Amendment-Substantive Due Process v. Obama)
DEFENDANT OBAMA VIOLATED PLAINTIFFS’ FIFTH AMENDMENT
RIGHTS BY DEPRIVING THEM OF A LIBERTY INTEREST WITHOUT
SUBSTANTIVE DUE PROCESS OF LAW BY COMMENCING AND CONTINUING THE OCCUPATION OF THE OFFICE OF PRESIDENT WHILE REFUSING TO HONOR THEIR REQUESTS PURSUANT TO ARTICLE II THAT HE PROVE THROUGH CREDIBLE, OBJECTIVE, AND SUFFICIENT EVIDENCE THAT HE WAS BORN IN THE UNITED STATES AND IS AN ARTICLE II “NATURAL BORN CITIZEN” THEREOF

COUNT IV begins on page 46:
(Fifth Amendment-Substantive Due Process v. Non-Obama Defendants)
THE NON-OBAMA DEFENDANTS VIOLATED PLAINTIFFS’ FIFTH AMENDMENT RIGHTS BY DEPRIVING THEM OF A LIBERTY INTEREST WITHOUT SUBSTANTIVE DUE PROCESS OF LAW BY ALLOWING OBAMA
TO COMMENCE AND CONTINUE THE OCCUPATION OF THE OFFICE OF
PRESIDENT WHILE REFUSING TO HONOR THEIR REQUESTS UNDER ARTICLE II AND THE TWENTIETH AMENDMENT THAT THEY ADEQUATELY CONFIRM WHETHER OBAMA WAS BORN IN THE UNITED
STATES AND THAT HE IS AN ARTICLE II “NATURAL BORN CITIZEN” THEREOF

COUNT V begins on page 49:
(Fifth Amendment-Equal Protection v. Non-Obama Defendants)
THE NON-OBAMA DEFENDANTS VIOLATED PLAINTIFFS’ FIFTH AMENDMENT RIGHTS BY DENYING THEM EQUAL PROTECTION OF THE LAWS IN REFUSING AND FAILING TO EXERCISE THEIR GENERAL
INVESTIGATORY AND TWENTIETH AMENDMENT POWERS TO PROTECT
PLAINTIFFS BY AFFORDING THEM AN OPPORTUNITY TO BE HEARD THROUGH THEIR ELECTED REPRESENTATIVES, AND BY REFUSING AND FAILING TO CONDUCT AN APPROPRIATE INVESTIGATION, LEGAL
RESEARCH, AND PUBLIC HEARINGS ON WHETHER OBAMA IS AN ARTICLE II “NATURAL BORN CITIZEN” AND QUALIFIED TO BE PRESIDENT AND COMMANDER IN CHIEF OF THE UNITED STATES WHEN THEY DID PROVIDE SUCH PROTECTION TO OTHER SIMILARLY
SITUATED CONCERNED CITIZENS WHO EXPRESSED THE SAME CONCERN REGARDING PRESIDENTIAL CANDIDATE JOHN MCCAIN’S ARTICLE II “NATURAL BORN CITIZENSHIP” STATUS AND
QUALIFICATIONS TO BE PRESIDENT

COUNT VI begins on page 52:
(Ninth Amendment-Rights Reserved v. Obama)
PLAINTIFFS HAVE THE CONSTITUTIONAL RIGHT UNDER THE NINTH AMENDMENT TO COMPEL OBAMA TO SATISFY HIS ARTICLE II CONSTITUTIONAL BURDEN OF PROVING THROUGH OBJECTIVE,
CREDIBLE, AND SUFFICIENT PROOF THAT HE WAS BORN IN THE UNITED STATES AND THAT HE IS AN ARTICLE II, “NATURAL BORN CITIZEN” AS THAT TERM SHALL BE DEFINED BY THE JUDICIAL BRANCH OF GOVERNMENT

COUNT VII begins on page 53:
(Ninth Amendment-Rights Reserved v. Non-Obama Defendant)
PLAINTIFFS HAVE THE CONSTITUTIONAL RIGHT UNDER THE NINTH AMENDMENT TO COMPEL THE NON-OBAMA DEFENDANTS TO
CONDUCT APPROPRIATE CONGRESSIONAL HEARINGS UNDER THE TWENTIETH AMENDMENT TO DETERMINE IF OBAMA IS ARTICLE II QUALIFIED TO BE PRESIDENT UNDER THE STANDARD TO BE
ESTABLISHED BY THE COURT AND IF HE DOES NOT SO QUALIFY TO REMOVE HIM FROM THE OFFICE OF PRESIDENT AND REPLACE HIM PURSUANT TO APPLICABLE CONSTITUTIONAL PROVISIONS

COUNT VIII begins on page 56:
(Tenth Amendment-Power reserved v. Obama)
PLAINTIFFS HAVE THE CONSTITUTIONAL RIGHT UNDER THE TENTH AMENDMENT TO COMPEL OBAMA TO SATISFY HIS ARTICLE II CONSTITUTIONAL BURDEN OF PROVING THROUGH OBJECTIVE,
CREDIBLE, AND SUFFICIENT PROOF THAT HE WAS BORN IN THE UNITED STATES AND THAT HE IS AN ARTICLE II, “NATURAL BORN CITIZEN” AS THAT TERM SHALL BE DEFINED BY THE JUDICIAL BRANCH OF GOVERNMENT

COUNT IX begins on page 57:
(Tenth Amendment-Rights Reserved v. Non-Obama Defendant)
PLAINTIFFS HAVE THE CONSTITUTIONAL RIGHT UNDER THE TENTH AMENDMENT TO COMPEL THE NON-OBAMA DEFENDANTS TO
CONDUCT APPROPRIATE CONGRESSIONAL HEARINGS UNDER THE TWENTIETH AMENDMENT TO DETERMINE IF OBAMA IS ARTICLE II QUALIFIED TO BE PRESIDENT UNDER THE STANDARD TO BE ESTABLISHED BY A COURT AND IF HE DOES NOT SO QUALIFY TO REMOVE HIM FROM OFFICE AND REPLACE HIM PURSUANT TO APPLICABLE CONSTITUTIONAL PROVISIONS

COUNT X begins on page 60:
(Twentieth Amendment-Congress to Qualify President Elect v. Non-Obama Defendants)
GIVEN PLAINTIFFS’ AND OTHER CONCERNED AMERICANS’ PETITIONS
TO THE NON-OBAMA DEFENDANTS TO ADDRESS THEIR GRIEVANCES REGARDING WHETHER OR NOT OBAMA IS AN ARTICLE II “NATURAL BORN CITIZEN” AND QUALIFIED TO BE PRESIDENT AND COMMANDER IN CHIEF OF THE UNITED STATES, THE NON-OBAMA DEFENDANTS
VIOLATED PLAINTIFFS’ RIGHTS UNDER THE TWENTIETH AMENDMENT BY FAILING TO CONDUCT AN APPROPRIATE INVESTIGATION AND HEARING THEREUNDER ON WHETHER OBAMA IS AN ARTICLE II “NATURAL BORN CITIZEN” TO ASSURE THEM THAT HE IS QUALIFIED
TO BE PRESIDENT AND COMMANDER IN CHIEF OF THE UNITED STATES

COUNT XI begins on page 65:
(Quo Warranto v. Obama)
BECAUSE OBAMA IS NOT AN ARTICLE II “NATURAL BORN CITIZEN,”
THE COURT SHOULD REMOVE AND EXCLUDE HIM FROM THE OFFICE
OF PRESIDENT WHICH HE PRESENTLY HOLDS AND PERMANENTLY BAR
HIM FROM HOLDING THAT OFFICE

COUNT XII beginson page 68:
(Declaratory Action v. All Defendants)
THE COURT SHOULD DECLARE THE RIGHTS OF THE PLAINTIFFS AND
THE DEFENDANTS IN CONNECTION WITH THE QUESTION OF WHETHER OBAMA IS AN ARTICLE II “NATURAL BORN CITIZEN” AND WHETHER THE NON-OBAMA DEFENDANTS ARE TO BE COMPELLED TO HOLD CONGRESSIONAL HEARING ON THE QUESTION OF WHETHER OBAMA IS AN ARTICLE II “NATURAL BORN CITIZEN” AS THAT TERM WILL BE DEFINED BY THE COURT AND IF THEY DETERMINE THAT HE IS NOT THAT THEY EXERCISE THEIR POWERS UNDER THE CONSTITUTION TO REMOVE HIM FROM THE OFFICE OF PRESIDENT AND REPLACE HIM

PRAYER FOR RELIEF regarding the Defendant Obama begins on page 69.

PRAYER FOR RELIEF regarding the No-Obama Defendants begins on page 72.

Again, read the whole case. It is easy to read and well written. Atty Apuzzo has done a masterful job in presenting the history of how Obama pulled off this hoax. I believe this case prepared by Atty Apuzzo's with its many charges/counts brought on behalf of Mr. Kerchner and the other Plaintiffs will lead to the removal of this historic hoaxster and usurper from the Oval Office and White House. This is "the one/the case" that will take down "the one/the hoaxster/the fraud/the usurper". Read the whole case at SCRIBD.com:
http://www.scribd.com/doc/11317148/

M Publius Goat
[Click Here for More of My Writings about the Obama Usurper Issue at Mountain Goat's Ledge]

Let us move forward said...

The excellent review of the case is a hard act to follow.

Just some notes:

for smrstrauss February 19th post:

The "all men are created equal" language in the Declaration of Independence refers to a break with the European idea of "class" divisions in society and the Divine Right (God given right) of their monarchs to rule. In the American society, there is no monarch sanctified by God nor resident subjects to his will, nor titled nobles, nor simple peasants. All men are created equal in the eyes of God (George III too). It has absolutely nothing to do with citizenship.

Concerning the letters that the Senators wrote:

The Senators are politicians. To question or publicly investigate Mr. Obama's eligibility openly would have been political suicide. I think we all understand that and are disappointed by the lack of courage evident in all Members of the House and Senate.

I have heard all my life is that any child simply born in the United States is a citizen and can be President one day.

Unfortunately, no one in Congress really took the time to look into the question. And we have seen some public examples of their working understanding of the Constitution. They will try to claim that they just didn't know!

Why should they give up their political careers for the Constitution?
Why should they try to convince the public that what they have heard all these years is not right?
Why not just say that vetting is ultimately the responsibility of the voters?
Put it on the voters who are powerless under our legal system to demand more proof than the candidate is willing to provide!


and for the Cris Ericson comment of February 18th:

"It is very possible that hearsay evidence under Hawaii Rule 803 was used to obtain the COLB after September 11, 2001,
the Terrorist Attack on the United States,
because it is quite clear that Obama received his COLB
after the terrorist attack because it gives a legal notice:
(Rev. 11/01)LASER
which proves that Obama
received this COLB
after the Terrorist Attack, so we need to know where he was that day and what his address and occupation was that day,
and why he needed a COLB at that time when he was already over
40 years old."

Reply OHBM 1.1 (Rev. 11/01) probably refers to a revision of the software used to store and print the documents.
The copy of the online COLB was obtained June of 2007.

smrstrauss said...

To: Mario Apuzzo, Esq.

Well written Counselor.

Please forgive the delay. I had to do some research. It is clear from your writing that you are very good at representing your case. If I have need of a lawyer, I would hire you. My argument is not with you but with your case. You do an excellent job of making it seem much stronger than it is. In fact, I would say that you are a great jockey, riding a three-legged horse.

First, let’s dispose of the emotional peroration “we cannot allow the changing winds of political expediency. This sounds a little like Mark Antony’s speech in “Julius Caesar,’ not designed to convince by reason but by passion.

Neither you nor I argue that the relevant meaning of the Constitution on eligibility has changed since at least the 14th Amendment. You say that it has not changed since Article II was written, I say that it may have changed with the 14th,and at the very least the 14th clarifies the citizenship law on which Article II relies, making it more clear that Article II refers to the common law.

And, when Senator Lindsey Graham (R-SC) said: “Every child born in the United States is a natural-born United States citizen except for the children of diplomats. (December 11, 2008 letter to constituent)” Graham certainly was NOT arguing that the meaning of the Constitution had changed in the 20th or 21st centuries, or that it should have changed. He is saying that this has been the meaning of the Constitution for a long time.

Re: “If some people of America today believe this standard is not consistent with an America now existing in a “global” international environment.” Certainly that is not the position of Graham or me. And, IF there are some justices on the Supreme Court who hold that the Constitution changes with the times, or that it should change because of a global environment, they are the ones who will vote against you based on the Common Law. So, who are the villains that you identify as globalists?

As an aside, the Framers also were to some extent in a global environment, and John Jay, whom you cite as someone favoring “Natural Born Citizen” had children when he was serving as US ambassador to England. There are some historians who say that when Jay wrote to Washington about “Natural Born” he meant to include the children of two US citizens even if they were born abroad, so as to allow his own children to eligible. In other words, he meant either two US citizens as parents or born in the USA—BUT what is the evidence that he meant BOTH?

In any case, to use John Jay as an expert witness in this argument requires more details. In the letter that Jay wrote to Washington, did he say what he meant by “Natural Born Citizen?” Could he have meant the common law? If he did not actually quote Vattel in the letter, how do we know what he really meant?

Did Washington write back saying “Jay, you are right on the two parents plus born in the USA idea?”

And, for that matter, what did such other influential leaders as Benjamin Franklin hold? I doubt Franklin, who knew a great deal about children not necessarily being the off-spring of their legal fathers (he had at least two illegitimate children), would have required a president to have a father who was a citizen because someday there would have to be proof that the father really was a citizen, and then you would have to prove who was the father, and they didn’t have DNA evidence in those days. And old joke is that Washington is considered the father of his country in more than one way. Did that make a lot of New Yorkers and Massachusetts citizens really Virginians?

Do you think that Jefferson, Wahington’s first secretary of state, would have required a future president to have TWO parents who were citizens AND be born in the country? Somehow I doubt it.

But I digress. Let’s start again.

Your whole argument rests on this statement: “the evidence shows that “natural born Citizen” is a word of art and does not take its meaning from the English common law.”

The legal phrase, I believe, is “term of art.” But term of art has to be used so commonly that no one within the specialized group that uses it is likely to make a mistake as to its meaning. One of the common examples is “double jeopardy,” which may not be understood by non-professionals but is completely understood within the community. The Constitution uses several legal terms of art, including Ex Post Facto and Bill of Attainer, but you say that Natural Born Citizen is not a legal term of art but refers to natural law philosophy. This is quite an exception, and requires evidence.

To prove that Natural Born Citizen is a term of art, you have to show that it was used WIDELY in the precise meaning that you refer to prior to the date of the writing of the Constitution. And, that it was completely understood, so well understood that the framers could not believe that it could be confused with another meaning for the same phrase. (In this case, there is another meaning, which derives from common law.)

This, I think, requires you to cite uses of the term “natural born citizen” in writings prior to the Constitution. I have pointed out that in the Colonies and the States under the Articles of Confederation, there were citizenship laws. These laws included naturalization, and they also defined citizenship at birth, and the latter did NOT (so I believe) require the citizen to have two parents who had already become citizens. This, I think, is exactly the same as a Natural Born Subject under British common law. It is not the same as the two-parents plus being born in the country rule of Vattel, or some say of Vattel. (I'll get around to Vattel's ambiguity shortly.)

You may say that this refers only to citizenship and not to the presidency. To be sure, but colonies were not electing presidents, and when the Convention got to Article II, it could easily have said “two USA parents and birth in the USA.” If the writers did not do this, they would KNOW that they would leave everyone to believe that what the phrase meant was the rules that colonies and states used to establish citizenship at birth.

The only way out of this is to show that Natural Law theory was so commonly used that “Natural Born Citizen” would have meant two parents who were citizens very widely in the US at the time of the Convention. However, Natural Born Citizen in the context that you claim for it is used only in Vattel.

I find that Locke and Hobbes, two of the most prominent natural law theorists, make no reference to citizens at all, saying that societies are composed of “men.” And, while Vattel may have been popular reading in Philadelphia, I find that the Convention did NOT follow one of his other recommendations, which was the establishment of a religion (Book 1, Chapter 12, Of Piety and Religion).

You say, somewhat convincingly, that “The Framers were strong adherents to the concept of “natural law” which provided that children follow the condition of their parents.” But I find that this concept is not widely held among natural law philosophers. For example, Locke (whose influence is considered strongest at the time of the writing of the Declaration) wrote:

Sec. 55. Children, I confess, are not born in this full state of equality, though they are born to it. Their parents have a sort of rule and jurisdiction over them, when they come into the world, and for some time after; but it is but a temporary one. The bonds of this subjection are like the swaddling clothes they art wrapt up in, and supported by, in the weakness of their infancy: age and reason as they grow up, loosen them, till
at length they drop quite off, and leave a man at his own free disposal.

As you can see, Locke believes that children are under the “jurisidiction” of their parents, but it is only temporary. It is hard to believe that Locke would support a law that affected the condition of a person at 35 or older if jurisdiction was only a temporary thing that was imposed at birth.

And I find that Benjamin Franklin did not believe that children necessarily followed the condition of their parents. He was strongly opposed to the awarding of titles of nobility (which the Constitution reflects) and wrote in a letter to his daughter in 1784: “Thus among the Chinese, the most ancient, and from long experience the wisest of nations, honor does not descend, but ascends. If a man from his learning, his wisdom, or his valor, is promoted by the Emperor to the rank of Mandarin, his parents are immediately entitled to all the same ceremonies of respect from the people, that are established as due to the Mandarin himself; on the supposition that it must have been owing to the education, instruction, and good example afforded him by his parents, that he was rendered capable of serving the public.”

This also indicates that Franklin did not believe that the quality of the parents was disposed on the child because of blood, but because of the education, instruction and good example. In other words, the cause was nurture, not nature. It is difficult to see how Franklin would have voted for two parents plus birth in the country, especially in the case where one of the parents had virtually nothing to do with the nurture of the future president.

Then, frankly, to argue from natural law is a natural weak case. There is all kinds of natural law. St Thomas Acquinas was considered a natural law philosopher, as was Leibnitz. And we know how brilliantly Voltaire ridiculed Leibnitz’s philosophy in his short novel Candide.

The nine justices are lawyers, and it is difficult to sway their votes with appeals to philosophy, especially when it varies so much.

Moreover, it is very difficult to show the massive influence of natural law over the framers, who were overwhelmingly lawyers or judges. This web site http://usconstitution.net/constframe.html shows the writings of one of the delegates, William Pierce, and I have searched it for the term Law, which appears 11 times, and judge, which appears six or seven times (I lost count). Only a few delegates had no reference to the law in his comment, and one of these was Franklin.

At this point I turned to reading the first US constitutions of several states. By the first US constitutions, I mean the ones written after the Declaration of Independence. I read through Virginia, Massachusetts, New York and Pennsylvania, in three of the four, I find no reference to citizens at all, and the third—Pennsylvania—does not make clear what citizenship is. The use of the term citizen in that document apparently refers to previous colonial laws on citizenship. I cannot find these, but I sincerely doubt that they required a citizen at birth to have two parents who were previously citizens.

Massachusetts allowed voters who were not citizens (so long as they passed a wealth test), saying: “Every male person being twenty-one years of age, and resident in any particular town in this commonwealth, for the space of one year next preceding, having a freehold estate within the same town, of the annual income of three pounds, or any estate of the value of sixty pounds, shall have a right to vote in the choice of a representative or representatives for the said town.”

And New York said: “That every male inhabitant of full age, who shall have personally resided within one of the counties of this State for six months immediately preceding the day of election, shall, at such election, be entitled to vote for representatives of the said county in assembly; if, during the time aforesaid, he shall have been a freeholder, possessing a freehold of the value of twenty pounds, within the said county, or have rented a tenement therein of the yearly value of forty shillings, and been rated and actually paid taxes to this State…”

Virginia said only: ‘The right of suffrage in the election of members for both Houses shall remain as exercised at present.”

Of the four, only Pennsylvania has citizenship requirements for senators and the governor, but as I said, I have no idea what the citizenship requirements were, though I doubt that they called for two parents who were also citizens.

I turned then to the Articles of Confederation, which is also weak on citizenship. It said: “the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States.” Read literally, it means that ordinary inhabitants are entitled to the privileges of citizens. In other words, citizens are no higher in this writing than inhabitants.

Clearly Article II changes this. Article II is, I think we agree, MUCH stiffer than state constitutions that do not mention citizenship at all or the Articles, which holds that an inhabitant is as good as a citizen.

But, it is difficult to see that it goes all the way to the other extreme. In other words, if there is NO barrier to citizenship in the early constitutions and the Articles, and Vattel holds the barrier is so high as to require two US parents plus birth in the state, most likely Article II falls somewhere in between. The possibilities are: (1) Common law (mere birth in an area); (2) Common law plus one parent; (3) Common law plus two parents. Option three is highly unlikely unless there is strong evidence to the contrary.

Let me point out here how radical the two-parent plus born in the country idea really is. An old joke is that if a man is really concerned about his security, he ought to wear both suspenders and a belt. I do not know what the female equivalent of this is. According to the Vattel theory (at least as expounded by his modern proponents), a person must have the equivalent of suspenders and a belt. She or he must have both two parents who were citizens AND be born in the country, not either or merely be born in the country.

If a justice were to say: “could we compromise and make it born in the country and ONE parent can be a citizen,” you lose because Obama had one parent who was a citizen.

Yet, sad to say, even Vattel is not clear on whether he means two parents or only one.

He says parents at one point and then later “I say, that, in order to be of the country, it is necessary to be born of a father who is a citizen…” True, we can presume that Obama’s father was not a citizen (though you cannot prove it without a DNA test), but if Vattel mentioned only one of the two parents as being the source of the nationality (the Father), then the fact that we allow the vote to women now has changed that. In other words, if there was ever a you-gotta-be-born-in-the-USA-and-have-a-USA-father rule (which I doubt), the 19th Amendment has changed that to either mother or father.

I believe that you point out in your discussion of the Common Law that it was not absolutely clear on whether birth in the realm was sufficient to create a natural born subject. All the cases cited in Wong seem clear enough to me. But, if there is any doubt, it is totally off-set by Vattel’s ambiguity over whether two parents or the father is required. And, as I pointed out earlier, the original Constitution ignored Vattel’s advice on establishing a religion, and the Bill of Rights said just the reverse, that there should be NO establishment of religion.

Getting back to the Common Law for a moment, and whether it was US common law or British Common Law, I see this in the New York Constitution of 1776, which was written by John Jay:

“XXXV. And this convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare that such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same.”

It is clear that the British Common Law was the most common of common laws in the USA at the time of the writing of the Constitution. If there is any other common law referred to, you really should cite it. The Wong case cites British common law overwhelmingly.

Jay also seems to have “the common law of England” on his mind.

Then I looked through the Federalist papers, and found no discussion of the Natural Born Citizen issue, or of the 35 year age or 14 year residence requirements. Jay writes several articles concerning the dangers of Foreign Force and Influence, but these argue only that 13 strongly united states are better protections than 13 weakly united ones under the Articles of Confederation.

There was discussion of foreign influences through bribery or through foreign titles of nobility, which the Constitution barred, but the discussion did not go on to comment on the Natural Birth requirement. One reason might be the grandfather clause allowed even persons who had been born overseas and naturalized (specifically thinking of Alexander Hamilton) to be president so long as they had been naturalized before the adoption of the Constitution.

This, some say, shows that the framers were concerned about foreign influences, but they were politicians enough to overcome their concern in the case of people whom they knew. Yes, but it does not indicate OVERWHELMING concern either. If they really distrusted foreigners, they would have distrusted Hamilton. I grant that the law in effect now is Natural Born Citizen, no exceptions. But I do not grant that Natural Born Citizens means suspenders and a belt—or more literally, two parents who were citizens at the birth of the person plus the person being born in the USA.

Re: ‘So how can we expect the ordinary person during the time of the signing of the Constitution to know what a “natural born Citizen” was? We cannot simply assume that they would substitute the word “citizen” for “subject” and give the term the same meaning.”

This is well put. But we cannot assume that it means two US citizens plus birth in the USA either. Since I have shown that the Constitution does not follow Vattel on religion, we cannot assume that it follows him on citizenship in Article II. What then does it follow? Unless it specifically says “two parents” it must be assumed to follow the common meaning of citizenship in the colonies before 1776 and in the States under the Articles of Confederation. The qualifications for citizens were low—far from the suspenders plus a belt extreme—and they certainly did not require two parents who had been citizens.

To be sure, citizen was a new word, a word that seemed to emerge at the time of the revolution, used in Pennsylvania’s Constitution but not the other three that I read. But the word was CERTAINLY not defined by the Locke or Hobbes and was ambiguously defined by Vattel, and there is no evidence that the Convention used his definition in any case. If the word “citizen” was not the US synonym of “subject,” then what was it?

Let us consider from the context of the times whether the framers of Article II really wanted a high barrier. They had been through a revolution. Some Americans had fought on the other side of the revolution, the Torries. If the framers had really wanted a high barrier, surely they would have said “no Torries,” but they didn’t. This indicates that they wanted a low barrier. Why? Because they were sure that we would not vote for Torries. If they had wanted to bar persons with divided loyalties, they could surely have written “no persons with divided loyalties.” But they didn’t. Why not? Because they were sure that we would not vote for persons with divided loyalties.

And we haven’t of course. Ben Franklin and John Locke would have laughed at the concept that a person’s loyalty after 35 could be affected by one parent’s citizenship at the moment of birth.

Re: “That special meaning could not be found in the English common law but only in Vattel’s famous and highly-read treatise, The Law of Nations…”

As I said, I disagree, and so I think would Ben Franklin. And even Vattel wasn’t clear on whether the parents should both be citizens or if only the father being a citizen was sufficient. (And that is, as I have shown, no longer valid because of the 19th Amendment.)

Re: “They did not want any foreigner to assume such a position of power, for such a foreigner could influence the nation in a way that would steer it away from its fundamental values.’

What is the evidence? They would have allowed foreign-born Hamilton to be president. They allowed Torries to be president. To be sure they did not want a foreigner to be president, and they knew that the voters of the USA also did not want a foreigner to be president. They did not have to say “no foreigner can be president” because they knew that we would not vote for one, anymore than we would have voted for a Torrie. The issue, however, is whether they considered a person with no parents born in the USA or one parent born in the USA was a citizen. And on that, they are not clear. If they had wanted to be clear, they certainly could have. There is no evidence, however, that they required the absolutely highest barrier—suspenders and a belt.

Re: ‘Act of 1866: “All persons born in the United States and not subject to any foreign power.”

As I am sure you know, the phrase “not subject to any foreign power” refers to the children of foreign diplomats. That has always been the understanding. The Wong case makes this clear. It boggles the mind to think that the framers, who allowed anyone who had enough money to vote, would suddenly switch to the idea that a child born in the USA was subject to a foreign power if one of his parents had not been naturalized yet.

Re all presidents until now had parents who were also citizens except maybe for Chester Arthur (a distant grandchild of King Arthur?).

That is the stuff of legend. We do not really know. We know that all of the presidents and vice presidents whose parents were born overseas SAY that the parents were naturalized by the time that the future presidents were born. It is nice to think so. But we really do not have solid evidence. However, with the exception of Arthur, we have pretty good evidence that they were born on US territory. Charles Curtis, vice president under Herbert Hoover, was an American Indian. He surely qualified as being a Natural Born Citizen due to his place of birth. But American Indians were not granted citizenship until 1924. So, were his parents citizens?

Re: ‘The “natural born Citizen” clause is not unreasonably discriminatory. Today, anyone can be President of the United States, no matter what your race, sex, religion, ethnicity, physical disability, or sexual orientation is, provided the candidate meets the age and residency requirements and is born on United States soil to parents who are themselves United States citizens by birth or naturalization.”

In theory it is discriminatory. Say you have two children, the eldest is born before the father was naturalized, the youngest was born after the father was naturalized. Who does it favor? The youngest. More importantly, it discriminates in the largest way possible. It discriminates against the people who would have wanted to vote for the eldest child, and if these people were in the majority in the election, it discriminates against a very large group of people indeed.

I dimly remember some discussion, perhaps it was only a High School debate topic, about changing Article II to make it tougher and to require two parents who were citizens as well as birth in the USA. That, I think, was in the late 1950s or early 1960s. I seem to remember (I may “mis-remember,” but I assure you that I am not making this up) that the Catholic Church was opposed to the idea because it would encourage some people to practice birth control during the seven years until citizenship can be granted. Who were discriminated against? The people who were encouraged to practice birth control.

Let’s sum up: The evidence is for the common law and away from Vattel. Even under Vattel one parent is still possible, and under the 19th amendment, that could be a mother.

Finally, to bring the case at all, you must show that Obama’s father was not a citizen. Obama has said that his father was not a citizen. Obama BELIEVES that his father was not a citizen. But it is a wise child that knows his own father. Would the Supreme Court accept a case on the mere supposition that that someone who the person believed was his father was indeed his father?

Here is how I think it would break down:

Five or six justices for the common law.
One justice for one parent is enough and it can be the mother.
One justice for “if the framers had meant two parents, they would have said two parents.”
One justice for “if the framers had meant no person who had ever had dual nationality, they would have said no person who had ever had dual nationality.’
And one justice for, “we shouldn’t hear this case at all because what if DNA tests show that Obama senior was not really his father, or maybe they weren’t married. What a mess!”

But, counselor, you have argued your case very well. I don’t think anyone could do any better. I cannot wish you good luck, since I hold the other view, but I do hope you get a chance to bring a case and that you argue it as well as you have, or even better, than you have so far.

mtngoat61 said...

Benjamin Franklin and other members of the Contintental Congress used Vattel extensively, as did other colonial leaders. It was the leading legal treatise of the times in the colonies in their revolutionary aspirations to achieve the goals of the Declaration of Independence ... life, liberty, and the pursuit of happiness. And then later in the Constitution ... in order to establish a more "perfect" union, i.e., an improved and better federal system of government. This is the thinking and teachings of Vattel.

A quote about Vattel from Franklin and other colonial leaders:
"I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the Law of Nations. Accordingly, that copy which I kept, has been continually in the hands of the members of our congress, now sitting."
—Benjamin Franklin, letter to Charles W.F. Dumas, December 1775

"This [previous work on the law of nations], says a writer, is evidently rather an introduction than a system; and it served only to excite a desire to see it continued with equal perspicuity and elegance. The honor of this task was reserved for the great Vattel, whose work is entitled to the highest admiration!"
—James Duane, Mayor and Chief Judge of New York City, August 1784"

Read this book and you will see that George Washington was reading from Vattel in his first day in office as the new and first President of the USA.
This was New York, the Nation's Capital in 1789
By Frank Monaghan, Marvin Lowenthal


The post Revolution War generations of historians and also judges in later generations want to bury Vattel and his influence for their own purposes, i.e., rule by Judges, to build a new set of "common judge-made laws" layered over the supreme law Constituion in the USA to wittel away at our Consitution of the last two hundred years, but Vattel's writing were the preminent source of wisdom and inspiration for the formation of our Federal system of government. The judges have moved away from all power being in the hands of states and the people. The judges have continue to move power to the Federal system beyond what was intended by the framers. It is now time to put a stop to it. Vattel's vision is clearly what our framer's drew upon. Not for everything in our Constitution but a lot of it. All you have to do is read Vattel, Book 1, and then read our Declaration of Independence and our Constitution. Our federal system of government was heavily influenced by the writings of Vattel. Anyone who is intellectually honest and studies the framers and history knows that. And now with the seating of a Usurper in the Oval Office we see that "judge-made common law and snowing the people by an enabling media and ignorant or politically expedient members of Congress" type interpretations of the Constitution have in effect destroyed the Constitution as to the meaning of Article II by allowing three ineligble people on the ballot for President this year; Obama, McCain, and Calero, and for one to actually get sworn in as the Usurper in Chief.

It is time to right the wrong and restore the Constitution and its amendments to its rightful place, the supreme law of the land. It is time for a SCOTUS interpretation of what exactly is Article II natural born citizenship and why is it special and required for the office of President and Commander in Chief (and VP) and is not required for Senator or Member of the House, which only require simple citizen of any type.

Types of citizenship mentioned in the U.S. Constitution:
http://www.scribd.com/doc/11737124/

The Kerchner v Obama case is seeking an answer to the question once and for all as to what was the intended meaning of the Article II "Natural Born Citizen" clause and legal term of art (introduced by the writings of Vattel) which was placed into the Constitution by John Jay, a man of French Huguenot heritage and fluent in French and who was the 1st Chief Justice of our Supreme Court, when the case gets before SCOTUS eventually, for the sake of our Constitutional Republic system of government, with its independent Judiciary as the ultimate guardian of our Constitution, as described by Vattel, in Book 1 of Vattel's Law of Nations.

M Publius Goat
Mountain Goat's Ledge

Puzo1 said...

THIS DISCUSSION THREAD IS CLOSED.

To jump to the next active discussion thread for continued discussions regarding "natural born citizenship" [Click Here]