The test to determine whether one is a “natural born Citizen” is an objective one. The status is determined by looking at the person’s circumstances at the time of birth and applying a bright-line test that is comprised of objective factors.
Going back as far as the Roman Empire, nations have bestowed citizenship upon individuals based on where they were born and/or to what parents they were born. These factors for granting citizenship are technically known as jus soli (right by soil) and jus sanguinis (right by blood).
It has been believed that being born on a certain soil or to certain parents passes to a child at the time of his/her birth a state of being causing the child to have allegiance and attachment to the nation in which that soil is physically located (his/her birth nation) and to the nation of either of his parents. It is generally accepted internationally that it is the allegiance that one owes to a nation that gives that person the right to claim that nation’s citizenship. We saw an example of this in the now-expired grandfather clause of Article II wherein the Founding Fathers allowed the original citizens (not “natural born Citizens”)--all those who were citizens and fought for the Revolutionary Cause and risked their very lives and therefore objectively manifested their attachment to the United States--to be eligible to be President of the United States, regardless of where or to whom they were born.
We can readily see that United States and English common law and statutes, treaties, European civil law, and other foreign law all show that a child can acquire citizenship at birth by either being born on a nation’s soil or by being born to a nation’s citizens no matter where the child is born. Hence, it follows a fortiori that allegiance can be acquired from either being born on a nation’s soil or being born to parents who are citizens of a certain nation and thereby owe that nation their allegiance.
Allegiance (obligation of fidelity and obedience to government in consideration for protection that government gives. U.S. v. Kuhn, 49 F.Supp.407, 414 (D.C.N.Y)) is not simply a dusty thing of the past but very much with us today. The role that allegiance plays in granting citizenship to an individual is seen when we examine our own naturalization laws. During the Washington Administration, the Congress passed the Naturalization Act of 1795 in which it provided that new citizens take a solemn oath to support the Constitution and “renounce” all “allegiance” to their former political regimes. Today, we still require that an alien upon being naturalized must give an oath that he/she renounces all former allegiances and that he/she will “support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic.” It is important to also understand that naturalization takes an alien back to the moment of birth and by law changes that alien’s birth status. In other words, naturalization, which by definition requires sole allegiance to the United States, re-creates the individual as though he were a born Citizen but only does it by law and not by nature. This is the reason that the 14th Amendment considers a naturalized person to be a “citizen” of the United States and not a “natural born Citizen” of the United States. Consequently, naturalized citizens stand on an equal footing with born Citizens (who are so created by the 14th Amendment or by an Act of Congress and who can but not necessarily are also “natural born Citizens”) except that they cannot be President or Vice President, for they were born with an allegiance not owing to the United States. Surely, if a naturalized citizen, even though having sole allegiance only to the United States, is not eligible to be President, we cannot expect any less of the nature and quality of the allegiance of a “natural born Citizen” who can be President of the United States.
We have seen that one who is a citizen of a nation owes one’s allegiance to that nation. It is also generally accepted in the international community that allegiance carries with it both political and military obligations in exchange for which a person receives his/her nation’s protection.
From all this we learn that the factors that determine whether one is a citizen at birth are (1) the child’s place of birth; (2) the mother’s citizenship at the time of the child’s birth; and (3) the father’s citizenship at the time of the child’s birth. These factors are objective, for they do not readily change over time and because their existence vel non may be confirmed in the minds of most reasonable persons who may come to examine through a scientific process the nature and quality of the evidence that supports their existence vel non. Concerning a “natural born Citizen,” whatever experiences a person has later in life are not relevant in making that person as such, for the very test requires that the person be born with the status. Conversely, the circumstances of one’s birth surely influence one’s later life experiences and values.
When a person can satisfy all three prongs of the objective test which are necessary conditions, i.e., that he/she was born in the United States to a mother and father that were United States citizens (by birth or naturalization) at the time of his/her birth, that person is indeed an Article II “natural born Citizen,” for no other nation can claim that person as its citizen and consequently expect that person to owe that other nation any allegiance and military or political obligations whatsoever. Nor will the person himself/herself in such case have any doubt that he/she has any such connection or obligation to any foreign nation. Hence, a “natural born Citizen” is a citizen only of the United States, as recognized not only by the person himself/herself, but by all other nations under principles of natural law as confirmed by international law. This principle was codified by Emerich de Vattel in his treatise, The Law of Nations (1758) (1759 first English translation), upon which the Founding Fathers heavily relied in creating the new Constitutional Republic. This is the natural quality that the Framers wanted a would-be President to have from the time of birth, a quality that needs no law to be created. This is the natural quality they wanted a would-be President to carry throughout his or her growing years and into adulthood, for they believed that only with this innate status and quality could the unique and powerful Office of the President be insulated and protected from any foreign influence emanating either from the person himself/herself or from any foreign nation or both. Even assuming that Obama was born in the United States, this is the natural quality that Obama does not and cannot have because not only at the time of his birth his father was a British subject but also because under English nationality laws his father gave his British nationality to his son, Obama, thereby causing him to be born with dual allegiances. Also, his father had absolutely no attachment to the United States, not being a legal permanent resident and having come to America on a student visa only to benefit from its educational institutions and always having an intent to return to Kenya. In fact, when his father completed his studies, he returned to Kenya. Under these birth circumstances, how can we reasonably expect Obama’s father to impart to his son American constitutional values that the Framers considered to be so important for the future survival and safety of the Constitutional Republic?
It is important to understand that an Article II “natural born Citizen” is not the same as a 14th Amendment “citizen.” The 14th Amendment Framers knew that the Founding Fathers in Article II used the terms “natural born Citizen” and “Citizen of the United States” and that they must have concluded that there was a difference between the two terms. The 14th Amendment framers chose to address “citizens of the United States,” not “natural born Citizens of the United States.” This Constitutional amendment simply does not and cannot nullify the special and distinct meaning of an Article II “natural born Citizen,” for it was never the amendment’s framers’ intent to do so nor do the amendment’s exact words accomplish such. Furthermore, for want of Constitutional authority, an Act of Congress cannot nullify or alter the meaning of an Article II “natural born Citizen.” Given subsequent U.S. Supreme Court interpretation that has had nothing to do with an Article II “natural born Citizen,” a 14th Amendment citizen qualifies as such when he/she is naturalized or when he/she is born on U.S. soil without the need that the child’s parents also be U.S. citizens. But a decision of the United States Supreme Court that does not specifically address the meaning of an Article II “natural born Citizen” cannot be reasonably read to render that clause meaningless.
It is not bad enough that Obama does not agree with the objective test described herein (jus soli and jus sanguinis combined at the time of birth). Ostensibly, Obama has taken the position that being born on U.S. soil is all that is necessary for him to satisfy the “natural born Citizen” clause of Article II, arguing that his father’s foreign citizenship status is not relevant in the analysis. Many Americans who have a deep concern and love for the Constitution have made a reasonable request of Obama that he produce conclusive proof that he was born in the United States. But for some unknown reason, Obama has refused to show the American people that he satisfies the simple test that he himself advocates (jus soli).
But the suspected fraud upon the American people does not stop there. Article II, Section 1 not only requires that one must be a “natural born Citizen” to be eligible to be President, but also that one be 35 years old and a resident within the United States for 14 years. The Founding Fathers wanted a Presidential candidate not only to be a “natural born Citizen,” but also to have developed American constitutional values by living in the United States and thereby learning and assimilating its ways and political and social culture. Hence, they included the 14-year residency requirement. During this 14-year time period, a candidate can engage in various educational, social, cultural, political, and work activities, all of which will shape and develop his/her character to hold the highest political office in the land. It is during this time period that a candidate also contemporaneously creates a paper trail of his/her activities which in the end is a better way to judge him/her than just relying on self-serving speeches. That the candidate must be at least 35 years old guarantees the people that the candidate will engage in a great part of those character-building activities at a minimum between the years when he/she is 21 to 35 years old. These are adult years, a time when the people can truly learn about the character of a would-be President.
In Obama’s case, a great part of his life that is so important in this regard centers on his years as a student at Occidental College, Columbia University, and Harvard Law School. Obama’s working activities as a lawyer are also important in this regard. Apart from the time he spent living and going to school in Indonesia when he was younger, Obama also did quite a bit of international travel during these formative years, traveling to Pakistan and Kenya. The reason for his travels, what he did during his travels, and other details about those travels could provide the American people not only with credible and objective evidence showing where he was born but also great insight into Obama’s character. Apart from refusing to allow the American people to assure themselves that he was born in Hawaii, Obama has also refused to allow the American people to look into his education, work, and travel experiences. Some details that we do know about his international travels which are quite revealing are his going to Kenya and personally getting involved in that country’s internal politics and traveling to Berlin, Germany where he proclaimed on July 24, 2008 to 200,000 Germans: “…I come to Berlin as so many of my countrymen have come before, although tonight, I speak to you not as a candidate for President, but as a citizen - a proud citizen of the United States, and a fellow citizen of the world” (emphasize supplied). Yes, Obama described himself as a world citizen. How can Obama have sole allegiance to the United States if he is a citizen of the world? Alexander Hamilton cautioned: "safety" of the Republic "depends" upon "love of country" and "the exemption of citizens from foreign bias and prejudice." Woodrow Wilson stated in 1915 that "the man who goes among you to trade upon your nationality is no worthy son to live under the Stars and Stripes." Hence, "world citizens" need not apply for the Office of the President. Would the Founding Fathers have allowed such an individual, with dual or more allegiances, to be President and Commander in Chief of the United States? More troubling is the question of why does Obama see himself as a “citizen of the world?” Obama’s papers could reveal even more about him.
The American people and media, to properly vet him, are entitled to know this information. But he has refused to release all his important education, work, and travel documents for public scrutiny. One could say that he has satisfied the letter of the residency requirement. But has he really satisfied the spirit and purposes of Article II’s residency requirement? Notwithstanding one judge recently ruling although without any factual basis that “[t]he issue of the President's citizenship was raised, vetted, blogged, texted, twittered, and otherwise massaged by America's vigilant citizenry during Obama's two-year-campaign [sic] for the presidency,” Obama surely has not satisfied the reason for that important Constitutional requirement, for he has violated the very purpose for which the Framers made 14 years of residency a requirement to be President, that purpose being to give the American people and their political and media institutions a real and meaningful opportunity to learn about (“vet”) an individual who would aspire to be the President of the United States and Commander in Chief of all its military might.
Obama has not conclusively shown he is an Article II “natural born Citizen.” Nor has he honored the spirit and purpose of Article II’s 14-year residency requirement. Hence, let us ask ourselves, what has he done to show that he is constitutionally eligible and qualified to be President? Nothing! Which leads me to my final two questions: How did America’s people and her political and media institutions--leaders of the educated and free World--let him get away with it? And what are Americans who care for and love America and her Constitution going to do about it?
Mario Apuzzo, Esq.
P.S. Also, please feel free to join the discussions and comments in this forum about the subject of the Natural Born Citizenship clause in Article II of our Constitution by [Clicking Here].