Senator McCain was either born in the Panama Canal Zone or in Panama proper. Neither of these locations is located in the United States. He claims he was born in the Panama Canal Zone. Hence, let us analyze his citizenship status with the assumption that he was born in that location. McCain cannot be a U.S. “citizen” under the Fourteenth Amendment which requires that a born “citizen” be born in the United States and be subject to the jurisdiction thereof. Since the Constitution does not provide any source for McCain to be a U.S. citizen, we must look to Congressional Acts for any such basis. Additionally, even if McCain were to be declared a “citizen” under the Fourteenth Amendment or any Congressional Act, he would still have to prove that he was an Article II “natural born Citizen.”
Some have raised the question whether under the Act of August 4, 1937, Sec. 1, 50 Stat. 558, codified at INA Section 303(b) (8 U.S.C. 1403), McCain may be declared an Article II "natural born Citizen." Before we examine Section 303(b), we must first look at Act of May 24, 1934, Sec. 1, 48 Stat. 797, ch. 344, which granted citizenship to the foreign born children of U.S. citizen mothers or fathers. This law became effective in 1934. McCain was born on August 29, 1936. Hence, it would appear that this statute applied to him. But upon close examination, we can see that it does not provide him with citizenship. While Section 1993 of this law granted U.S. citizenship to children born oversees to U.S. citizens, it granted citizenship only to children who were born out of the United States and out of its jurisdiction. Hence, those born in the Canal Zone (an unincorporated territory) and not in Panama (which was out of United States jurisdiction) did not qualify for citizenship because while the Canal Zone was physically located out of the territory of the United States, it was not out of the jurisdiction of the United States. Hence, when McCain was born on August 29, 1936 in the Canal Zone, this statute did not grant him U.S. citizenship and there existed no other statute that could do so. In other words, Senator McCain was not a U.S. citizen under any Congressional Act when he was born. Gabriel J. Chin, “Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship.” (Chin implicitly recognizes that a Fourteenth Amendment “citizen” is not the same thing as an Article II “natural born Citizen”). Not being a born “citizen” under any Act of Congress, he surely cannot argue that he is a “natural born Citizen” under any such Act.
The next statute to examine is INA Sec. 303 which provides:
"(a) Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States.
(b) Any person born in the Republic of Panama on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States employed by the Government of the United States or by the Panama Railroad Company, or its successor in title, is declared to be a citizen of the United States."
First, we know that McCain was born on August 29, 1936. This statute did not go into effect until 1937. The problem for McCain using INA Sec. 303(b) to gain “natural born Citizen” status is therefore that the Act did not exist when he was born and can only help him retroactively. But “natural born Citizen” status must be established at the time of birth. Apart from want of constitutional authority and the fact that the children were not born "in the country," this could be another reason why the Third Congress in the 1795 Act removed the words "natural born" from the 1790 Act, which had created "natural born citizens" retroactively.
Second, by using this statute to be declared a "natural born Citizen," McCain would be gaining the status by statute. We know that “natural born Citizen” status cannot be so gained, for Congress has the constitutional power to naturalize persons but not to make them “natural born Citizens.” Even the Foreign Affairs Manual at 7 FAM 1131.6-2(d) recognizes the distinction between being a “natural born Citizen” under the Constitution and being declared a “natural born citizen” under a Congressional Act: "the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes." The manual commits error here, for the act only gives “citizen” status and in suggesting that anyone could be a "natural born citizen" by statue. Except for the repealed 1790 Act, Congress has never made any such attempt.
Third, the text of the statute confers only the status of "citizen" and not "natural born Citizen." Article II mandates that one be a "natural born Citizen" and not only a "citizen" to be eligible to be President.
The question then is what other avenue exists for McCain to be declared an Article II “natural born Citizen.” According to Vattel, being physically born out of the country did not necessarily mean that one was not born “in the country.” E. Vattel, The Law of Nations, Or, Principles of the Law of Nature. Sec. 215-217. Vattel explained that if a child was born “in the armies of the state,” that child was “reputed born in the country; for a citizen, who is absent with his family on the service of the state, but still dependent on it, and subject to its jurisdiction, cannot be considered as having quitted its territory.” Vattel, Sec. 217. Since this child would have been born in the foreign “armies of the state,” he would normally not be granted citizenship in the country in which he was physically born. Additionally, the country on whose soil the child might be born might adhere to a jus sanguinis system of conferring citizenship (meaning that born on its soil alone would not confer citizenship and therefore allegiance and loyalty on the child). Being born under those conditions, this child would therefore be born with sole allegiance to the country of his parents and would qualify as a “natural born citizen” of that country. Hence, it can be argued that McCain is a “natural born Citizen” under federal common law that emanated from the law of nations which had its source in natural law, as described by Vattel and all of which the Framers accepted as our federal common law during the Founding. In such case, “natural born Citizen” status is not created by Congress but rather by law that already existed among civilized nations and was, indeed, jus gentium. It is this law (natural law that became the law of nations and which became U.S. federal common law) from which the Founders extracted the meaning of "natural born Citizen." Reliance on common law to make McCain was also utilized by Tribe and Olson in drafting their position paper which is the basis of Senate Resolution 511. See also Chin, “Why Senator John McCain Cannot Be President” (also recognizes common law citizenship that existed during the Founding). This argument is McCain’s best chance for “natural born Citizen” status. This argument also brings good news for members of our military who are serving and defending our country from abroad, who may give birth to children there, and who may want those children to be eligible to be President.
Chin, in his article, “Why Senator John McCain Cannot Be President,” said about Senator McCain: "In a government of laws, not of people, rules apply equally to all. . . . In addition, no legitimate system of laws can dispose of this question by saying it does not matter whether Senator McCain is a natural born citizen; inconvenient laws cannot be ignored simply because one expects to get away with it. It cannot be that because he is a major party's nominee, he is, therefore a citizen at birth. Senator McCain must find a sound legal basis to be a natural born citizen. The implications of that legal principle must be equally available to every person similarly situated."
Commenting on McCain's philosophy on how the judiciary should function, Chin quoted McCain as saying: "'When applying the law the role of judges is not to impose their own view as to the best policy choices for society but to faithfully and accurately determine the policy choices already made by the people and embodied in the law.'"
McCain, like Obama, has been sued over the question of whether he is an Article II “natural born Citizen.” McCain produced his birth certificate for those who challenged him. Congress fully investigated and researched his status, with the Senate passing Resolution 511 (which is legally flawed) in which it declared him to be a “natural born Citizen.” The courts also expeditiously addressed the issue. Surely, the same standard as applied to McCain applies to Obama. Surely, Congress should have dealt with Obama as it did with McCain. Surely, we would also expect the courts to deal as promptly with Obama's case as they did with McCain's. But why was it so easy to apply these principles to McCain but so hard to apply them to Obama? Has Obama found "a sound legal basis to be a natural born citizen?" Not even close. Is he not "similarly situated" as was McCain? Other than McCain just being a candidate for President and Obama going on to win that Office, he surely is.
We are still waiting for the Court to decide Obama's and Congress's motion to dismiss the Kerchner et al. complaint for, among other things, lack of standing and government immunity. Let us hope that the Court will, indeed, "faithfully and accurately" determine what our Founding Fathers intended when they wrote the "natural born Citizen" clause and apply that finding to Obama so that our nation may know whether he is eligible to be President and Commander in Chief of the Military. Let us hope that the Court acts to support and defend the Constitution in this historic case by finding that the plaintiffs have standing and that the defendants are not immune from suit.
Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg, NJ 08831
9-12-09
Saturday, September 12, 2009
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58 comments:
Excellent assessment Mario.
McCain in my opinion betrayed the country to the socialists special interests when he allowed the democrats in the Senate to determine his status. He should have come to the American people and made his case.
If he didn't know how to make his case about being an NBC and needed to rely on the "experts" then he was not sure of his status and never should have run.
I think it is reasonable to conclude a "Natural Born" citizen is one born on US Soil to parents who are US Citizens.
"Natural Born" implies that NO law is needed or required to determine if a person a citizen of that country.
By Natural Law and the Natural Order of things a person who born in a courty of its citizens (parents) is a citizen of that country.
There can never been any doubt to that fact and no law is needed to define of clarify that fact - Hence to person is a "Natural Born" citizen.
It could be that the reason why "Natural Born" citizen was not defined was becomes it is Natural Law and no statute or law is needed to define it. The only condition this could include is that the person was born in that country to parents who are citizens of that country. Even if we are to assume that "Natural Born" only meant "Born in the country" it is still open to lawful interpretation because we have seen that children of ambassadors cannot be "Natural Born" even if born in the country. But in Minor Vs. Happersat, the court said that there no doubt a person born in the country to citizens of that country is "Natural Born". Nonetheless, doubt is established when one simply implies "Natural Born" as simply being born in that country.
Mario --
It's the devil in the details that defeat McCain's qualifications. Senator McCain was born before the Cold War: during much of the Cold War he was fighting for his Country! He’s a living example of patriotism and loyalty.
And yet, he never was eligible to office of President. Why? Three (3) documents create the unbridgeable gap: two (2) 'Birth Certificates,' and in one (1) missing 'Record of Birth.'
All those who have weighed in on McCain’s claim to be a ‘natural-born CITIZEN’ have accepted the premise that his parents were residing at the Coco Solo Submarine Base on the Canal Zone, and not residing on the island of Colón in the Republic of Panama.
These include the high-profile arguments like those proffered by Tribe and Olson, and the high-brow arguments of Professor Gabriel J. 'Jack' Chin, of Arizona, and young Stephen E. Sachs, JD, of Yale. And also the cautious arguments of Sarah H. Duggin, JD, Catholic University, and even the cheer-leading of Matthew J. Franck, NRO, The Corner.
The widely quoted ‘Act of August 4, 1937’ (Pub.L. 75-242, 50 Stat. 558) reflects the maternity options available to Americans on the Canal Zone: namely, (a) the Canal Zone (Gorgas Hospital, Balboa Heights) and (b) the Republic of Panama (Colón Hospital, Colón).
The medical records maintained by the Panama Canal Health Department were second-to-none. And so, the 'missing record' that the Washington Post's Michael Dobbs dismissed as a ‘bureaucratic snafu,’ is in fact a confirmation that his parents were living ‘off the Canal Zone!’ Why? Because, the Canal Zone Health Department only kept records of military personnel who were part of the population of the Canal Zone. [“Malaria in Panama” (1936), prepared by James Stevens Simmons, p. 86; — (the entire report is digitized)].
John Sydney McCain, III, is a war hero. He is the son of a war hero: and the grandson of a war hero. But, he was 'born out of the limits and jurisdiction of the United States,' because his parents' decided to live in the Republic of Panama and NOT on the Canal Zone (with probably good reason).
As a result, he never was, and never could be, a 'natural-born CITIZEN!' Rather, Senator McCain is no different from all the children of Americans CITIZENS in the course of American history ‘born overseas’ (natus in partibus transmarinis).
This is the key citation from the United States Supreme Court: “The notion that there is any common-law principle to naturalize the children born in foreign countries, of native-born American father ‘and’ mother, father ‘or’ mother, must be discarded. There is not, and never was, any such common-law principle.’” Binney, Alienigenae, 14, 20; 2 Am. Law Reg. 199, 203.” Horace Binney, Federalist, leading Philadelphia lawyer, opponent of Andrew Jackson, contemporary of Daniel Webster, advocate of Abraham Lincoln, wrote a paper in 1853: “‘Alienigenae’ of the United States under the present Naturalization Laws,” and was quoted in Wong Kim Ark, 169 U.S. 649, 669, 670 (1898) by Justice Horace Gray.
In fact, one of Mr. Binney’s own grandsons was an ALIEN as the Law then stood.
[Also Chief Justice Taft (in Weeden v Chin Bow, 274 U.S. 660 ff.), notes that persons born abroad (even children of parents who were CITIZENS of the United States) after the ‘Act of March 26, 1790’ (1 Stat. 103), are ‘naturalized’ under power vested in Congress (Article 1, Section 8, Clause 4).]
So, McCain is a CITIZEN naturalized under the ‘Act of Feb 10, 1855’ (10 Stat. 604, § 1) that reformed the Naturalization Laws to say: “All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth CITIZENS thereof, are declared to be CITIZENS of the United States.”
So, forget the '14th Amendment;' and forget the ‘Act of August 4, 1937’ Instead, it is the naturalization 'Act of Feb 10, 1855,' that made Senator McCain a CITIZEN of the United States -- an Act that has been carried forward in our law to this day.
Can you please edify as to when the US citizenship definitions came to include born to one US citizen parent and overseas births of US citizens (this is not for natural born citizens of course).
It's clear that anchor babies are not US citizens, this fact has never been put into any law though the cultural influences would make one believe otherwise. It's as if we've been fed a "belief system", but in actuality the jurisdiction issue matters still until legally it doesn't.
Donofrio had argued that McCain was ineligible; I thought he was born in Panama proper, not the Canal Zone? But if I am to understand your take, he was born while his parents were in military service of country so that's the same thing as being born in-country (?).
Well, even if McCain is eligible -- if Obama the fraud is ousted, I don't know if he is "in line" but I do know he's a RINO. He's been a colossal sell-out and disappointment (though still far better than Obama the Destroyer).
Mario:
Perhaps you should consider the FAM 1131.9.
It appears to encompass the specific exception covering McCain's birth in Panama and make him a "citizen-by-statute" which may not be, I'd think, the same as a NBC.
Mario,
Please if the opportunnity arises, ask the Court to take judicial notice of SR 511 because what it does do is make the case that you need TWO US Citizen parents to be NBC, and the messiah who's own commentary claiming that the British Nationality Act of 1948 governed his birth, which violates the 14th Amendment "subject to the jurisdiction of" clause should be the petard that hangs them by their own words and deeds!
Shawn
FAM 1131.9 Birth in Panama; Special Provisions(in pertinent part):
"a. Congress has enacted special legislation governing the conditions under which U.S. citizenship may be acquired by birth in Panama (see also 7 FAM 1120 for legislation relating to the Canal Zone). This legislation does not apply to all children born in Panama, but only to those born to U.S. citizens employed by the U.S. Government or the Panama Railroad Company. Section 303(b) INA (8 U.S.C. 1403(b)) states that: Any person born in the Republic of Panama on or after February 26, 1904, and whether before or after the effective date of this Act, whose father or mother or both at the time of birth of such person was or is a citizen of the United States employed by the Government of the United States or by the Panama Railroad Company, or its successor in title, is declared to be a citizen of the United States."
I believe that this clearly indicates that McCain is a citizen-by-statute and NOT a natural born citizen and is, thereby, ineligible to hold the office of President - as are Obama, Colero, etc.
McCain a hero - yes - eligible to hold the office - NO! Being a RINO and egged on by Obama and his cronys (Tribe & Olson ... both of who are hoping for SCOTUS nominations, I believe - shades of Chester Arthur and the opinion-giver in WKA?).
At the risk of putting the cart before the horse, I'd like to learn more about what would happen if SCOTUS ruled Obama ineligible.
The only other person to receive electoral college votes for President is John McCain, who is also ineligible.
Joe Biden received electoral votes for Vice President because his name, along with Obama, was on the ballot under the Democrat Party slate of electors in each state. With an ilegitimate candidate, Barack Obama, on the ballot, the integrity of the 2008 Presidential election seems to be compromised. For this reason, I don't think Joe Biden could succeed Obama as President.
All of Obama's appointments would be ilegitimate, so none of them could succeed him as President.
Nancy Peolosi signed the Hawaii Certification of Nomination where she swore that Obama was verified to meet the Constitutional requirements. Apparently, she did no such verification, so this would make her guilty of fraud or at least an accessory to fraud. For this reason, I don't think that she could succeed Obama as President.
So where does that leave us?
I think that if the battle to bring forth the truth of Obama's ineligibility is won and he is forced out of the Whitehouse, this will only be the beginning of the legal battles to follow. Then next fight will be over who will then be President. There will be an army of lawyers backing Biden as the successor, another backing Pelosi, another backing McCain. Then there will be talks of pardons, and talks of re-sigining previously signed legislation and executive orders (thus more violations of the Constitution).
My take is that the only reasonable course is for President Pro Tempore of the Senate, Robert Byrd, to serve as President temporarily until a new emergency special election for President and Vice President can be held. All laws, executive orders, and appoints by Obama should immediately be invalidated. All actions by Obama's appointments should immediately be invalidate, including court decisions by all courts that have judges appointed by Obama (including the US Supreme Court).
jayjay --
The ‘Act of August 4, 1937’ is the focus of Professor Chin's academic discussed by Mario in this posting.
However, this Act was adopted AFTER McCain's birth (by some 11 months). [It's good that Chin accepts the 'at birth' argument.]
However, Professor Chin (an Arizona Democrat) argued for more than a few pages that McCain might not be a CITIZEN at all. That argument is not true.
But it also means that Jack Chin FAILED to consider the 1855 Naturalization Act, which IS the law that applies to McCain under any circumstance.
Bob:
I think the 1937 Act is overruled by this:
"... Section 303(b) INA (8 U.S.C. 1403(b)) states that: Any person born in the Republic of Panama on or after February 26, 1904, and whether before or after the effective date of this Act ..." which makes McCain a STATUORY citizen, not a NBC (unless SCOTUS somehow overturnes the above statute).
McCain was not born in the Panama Canal Zone. He was born in Colon which is a city that was outside the boundaries of the PC zone and out of the jurisdiction of the USA. Colon is specifically excluded in the treaty and that never changed.
Hays Buana Varilla Treaty (President Rutherford B. Hayes)
Article II treaty 1903
"The Republic of Panama grants to the United States in perpetuity, the use, occupation and control of a zone of land and land under water for the construction, maintenance, operation, sanitation and protection of said Canal of the width of ten miles extending to the distance of five miles on each side of the center line of the route of the Canal to be constructed; the said zone beginning in the Caribbean Sea three marine miles from mean low water mark and extending to and across the Isthmus of Panama into the Pacific Ocean to a distance of three marine miles from mean low water mark with the proviso that the cities of Panama and Colon and the harbors adjacent to said cities, which are included within the boundaries of the zone above described, shall not be included within this grant."
jayjay --
Are we to take it then, that YOU do not accept the 'at birth' argument?
I agree that the children of Americans born overseas are Americans 'by statute.' One major reason Congress cannot do anything differently, is that it has no jurisdiction over the foreign nations where the Armed Forces of the United States are serving (especially during the Cold War), and the 14th Amendment requires such jurisdiction.
However, the authority of Congress to create Citizens en masse (jus gentium) pre-dates the U.S. Constitution, because it was adopted as part of The Northwest Ordinance” enacted under the Articles of Confederation.
But it is not my argument, but rather Professor Chin's argument, that the ‘Act of August 4, 1937’ (Pub.L. 75-242, 50 Stat. 558), applied only to those troops ‘distributed on military reservations,’ because only those troops actually assigned to base housing were able to be accurately counted by schools, etc., as part of the population of the Canal Zone.
However, Professor Jack Chin believed the information put out by his Campaign that McCain was born at Coco Solo. However, it was later discovered that McCain was already five (5) years old and living in New London, Connecticut, when the famous Coco Solo hospital was built during 1941/42.
So, because he was born in Panama to Americans residing in Panama, Senator McCain is simply "born overseas," and therefore, a plain-vanilla but naturalized CITIZEN.
Being born out of the U.S., McCain cannot be a "citizen" under the 14th Amendment.
R.S. Sec. 1993, which was in effect when McCain was born in 1936. R.S. Sec. 1993 gave one U.S. citizenship only if one was born to one or two U.S. citizen parents in a place that was both out of the territorial and political jurisdiction of the United States. These are two separate and distinct types of jurisdictions that had to be satisfied. This is the same two-part type of "jurisdiction" (territorial and political) that is required under the 14th Amendment's "subject to the jurisdiction" clause and which Justice Gray's decision in Wong Kim Ark violated.
R.S. Sec. 1993 does not give McCain citizenship status because McCain was born in the Canal Zone, an unicorporated territory which is not part of the U.S. (see the Insular Cases) but was also not under its political jurisdiction. McCain satisfied the territorial jurisdiction test but he failed the political jurisdiction one. Hence, when McCain was born, he could be a U.S. citizen under neither the 14th Amendment nor under any Congressional Act. At birth, McCain was therefore not a U.S. citizen under either the 14th Amendment or any Congressional Act.
INA 303(b) (8 U.S.C. Sec. 1403), passed after McCain was born, made him a U.S. "citizen" retroactively. But he cannot use the fact of retroactive citizenship to prove he is a "natural born Citizen," for that status can only be established at the time of birth.
Even if McCain through some legal fiction could use INA 303(b) to establish U.S. citizenship as of the time of birth (which he cannot), he still would not be an Article II "natural born Citizen." Under such circumstances, he would be only a "citizen." Justice Gray in Wong Kim Ark, under the unique circumsatnces of that case, allowed a child who was born in the U.S. to alien parents to become a U.S. citizen. Because of that ruling, which violated the letter and the spirit of the 14th Amendment's "subject to the jurisdiction thereof" clause, and because of the definition of what a "natural born Citizen" is as recognized by various Supreme Court cases up to that time, under the "natural born citizen" clause, one must necessarily (but not sufficiently) be born a U.S. citizen. Being born a "citizen" is necesary but not sufficient because one must be a "natural born Citizen" under Article II to be eligible to be President. Therefore, McCain would still have to show that he was not only a statutory U.S. "citizen," but also an Article II "natural born Citizen."
How can McCain do this? The only chance that McCain has to show that he is an Article II "natural born Citizen" is to show that he has that born status under federal common law that emanates from the law of nations (jus gentium) as explicated by Vattel in The Law of Nations. In my article I have explained how that would be accomplished. That McCain could be a "natural born Citizen" has no impact on who would be President should Obama be declared ineligible.
Mario Apuzzo, Esq.
Squinlivan,
The Olson-Tribe opinion that is the basis for S.R. 511 said: "Thus, regardless of the sovereign status of the Panama Canal Zone at the time of Senator McCain's birth, he is a "natural born" citizen because he was born to parents who were U.S. citizen." I have already argued in the past that it is illogical to use this statment to show that Obama is not a "natural born Citizen." Because I believe it is important for readers to better understand my point, I will now comment further upon it.
First, the Olson-Tribe statement was made in the context of analizing whether a child born abroad to U.S. citizen parents is a "natural born citizen." S.R. 511 relates to a child born out of the U.S. in the Canal Zone to two U.S. citizen parents (McCain). This situation has its own set of requirements for U.S. citizenship which are found in the Act of May 24, 1934 (R.S. Sec. 1993), Act of August 4, 1937 (8 U.S.C. Sec. 1403) and U.S.C. Sec. 1401(c), (d), and (e). On the other hand, a child born on U.S. soil has a different set of citizenship rules which are found in 14th Amendment and U.S.C. Sec. 1401(a). Hence, any statement regarding McCain having U.S. citizen parents was made only to satisfy these statutory requirements which have even changed over time. Obama, assuming that he was born in the U.S., has a different situation which is not controlled by any of these statutes.
Second, the two-citizen parent requirement for children born abroad was found in old English statutes (e.g. British Nationality Act, 1730, Geo. 2, c.. 21 referring to "subjects") and in U.S. Congressional Acts passed in 1790, 1795, and 1802. Starting in 1855, only U.S. fathers were allowed to transmit U.S. citizenship to their foreign-born children which was repeated in 1878. Starting in 1934, either U.S. citizen fathers or mothers would suffice which was confirmed in subsequent statutes and is the current rule. Hence, as we can see, two-parents were required only from 1790 to 1802 which was changed to fathers only in 1855. Today, a two-parent requirement for children born out of the U.S. in the Canal Zone or Panama is not necessary, for 8 U.S.C. Sec. 1403 requires that either the mother or father be a U.S. citizen.
What this means is that Obama can
argue that a birth out of the U.S. has different requirements than a birth in the U.S. to be a "natural born Citizen." He will say that he was born in the U.S. and that different rules apply. He can also argue that what was said about McCain in S.R. 511 regarding the two U.S. parents was not necessary, for only one U.S. citizen parent is required under the statutes that apply to him and the more modern statutes. Here, Obama will argue that he was born in the U.S. to a U.S. citizen mother and that is sufficient for "natural born Citizen" status. Please note that if Obama was not born in the U.S., his U.S. citizen mother was too young to transmit U.S. citizenship to Obama and he would under such circumstance not be a U.S. citizen at all.
Supporters of the Kerchner case and of this blog know, Obama is not and cannot be an Article II "natural born Citizen" because, even assuming he was born in the U.S. (which he has not conclusively proven), unlike McCain, he was not born to a mother and father who were U.S. citizens. I present this information on McCain as a means to shed more light on Obama's ineligibility status.
Mario Apuzzo
Bob,
Olson-Tribe and Chin say that McCain was born in the Panama Canal Zone. Chin says that if McCain was born in Panama proper as you contend, then McCain would be a "citizen" under R.S. May 24, 1934 Sec. 1933. Please note that this latter statute replaced the 1877 Act (continued that only U.S. citizen fathers could transmit U.S. citizenship to foreign-born children) which replaced the 1855 Act (first established that only U.S. fathers could transmit U.S. citizenship to foreign-born children). In such a case, McCain would also be a retroactive U.S. citizen under the Act of August 4, 1937 (8 U.S.C. Sec. 1403 (b)).
Under the Founding period common law argument for "natural born Citizen" status (note that both the 1790 and 1795 Acts did not address the case of the U.S. citizen parents of the foreign-born child being in the "armies of the state"), it would not matter whether McCain was born in the Panama Canal Zone or in Panama proper, for in either case he would have been born in the "armies of the state." I appreciate the cases that you have cited regarding whether a child born abroad to two U.S. citizen parents can be a "natural born citizen" under common law. I do not believe any of these cases covered the case of the parents being in the "armies of the state." I will not dwell on this point other than to say that I have submitted that the Founding period common law argument is the only way that McCain could prove himself to be an Article II "natural born Citizen." This would be an issue for the U.S. Supreme Court to decide.
Mario Apuzzo, Esq.
Mario,
I don't beleive Obama can argue anything different than two parents who are American citizens born under the juristiction.
Obama might have a leg to stand on if his father was not from a country in which has jus sanguinis as a birthright citizenship. Then his father would not have tainted his natural born citizenship status.
Again I mention John Jay, and the class of people Jay wanted excluded from the Presidency. Jay wanted all those born with foreign allegiances excluded.
I understand that it is easy to get lost in the law for there are so many laws and they change with the political seasons. Keeping Jay's letter in focus helps us to navigate through this morass.
The Founders took Jay's letter and compared it to the citizenship laws published at the time. They rejected Blackstone because it was contradictory in itself, and chose Vattel because of its clear meaning.
The naturalization law of 1790 could have been from Vattel, Blackstone or a need to deal with a unique situation we just don't know. What is certain is that it was repealed.
If they was repealed for any reason except as a part of a special circumstance then we only need to look at the history of the times. Impressment of American sailors by the British navy was common during this time. The founders must have realized that being born overseas, especially in territory where citizenship was governed by jus soli created a dual citizen. It is a fact that dual citizenship was grounds to revoke American citizenship including natural born citizenship from the earliest laws until the 20th century. They revoke the 1790 laws and opted instead to make those children born overseas statutory citizens and not natural born citizens.
Mario --
Communis error no facit jus – ‘What all do wrong, creates no right!’
I'm not an attorney, rather I translate documents of historic value, so I have to research historic details that others often overlook.
For what it is worth, what did the English-language Panamanian American newspaper print on Monday, August 31, 1936?
http://www.washingtonpost.com/wp-srv/politics/documents/mccain_announcement_041708.pdf
Above the fold, in the banner of the Panama-American we read that it was published Pacific Side in the city of Panama and in the Republic of Panama. It’s motto is: “Let the country know the truth and the country is safe.” — Abraham Lincoln.
Also above the fold is one detail that should not be overlooked: it is this headline that ought to capture our attention. That headline reads: “Colón officer to enter plea in Dist. Court. Officer Shot Fugitive escaping Into Canal Zone.”
The phrase ‘Colón ... fugitive escaping into Canal Zone’ is important, because a fugitive fleeing ‘Zonian’ territory (to use the local idiom) only had to run across Colón’s Calle del Frente (“Front Street”) to make his escape.
You write: -- 'Olson-Tribe and Chin say that McCain was born in the Panama Canal Zone. Chin says that if McCain was born in Panama proper as you contend, then McCain would be a "citizen" under R.S. May 24, 1934 Sec. 1933.'
BOTH of them are WRONG, because they have both operated under the premise that Lt. and Mrs. John S. McCain RESIDED at Coco Solo Submarine Base. But we know now that was not true.
But where did they get that information? Inside the Panama-American, under a byline ‘Atlantic Side Society Notes,” they read this squib: “Lt. and Mrs. John S McCain Jr., of the Submarine Base, are the parents of a son born Saturday afternoon at the Submarine Base Hospital.”
However, the records of the Panama Canal Health Department, show that the only inpatient maternity hospital for the Submarine Base in 1936 was the oceanfront Colón Hospital, built on the site of the former French Hospital.
Costing $177,000 to rebuild, Colón Hospital was 20 years old in 1936, having admitted its first patient in May, 1916: it discharged its last patient on October 26, 1954.
They did not read the headline: 'Colón officer to enter plea in Dist. Court. Officer Shot Fugitive escaping Into Canal Zone.'
It was well-known to every reader of the Panama-American in 1936 the limits of 'Zonian' territory.
Both copies of McCain's publicly available birth certificates list his parents' RESIDENCE as Colón, RP (not Coco Solo Submarine Base, CZ, which had its own Post Office in 1936).
Therefore, McCain is 'born overseas' to American parents 'residing overseas' (I have a nephew and a niece who fall in the exact same category).
Thus, Senator McCain is plain and simple a 'naturalized CITIZEN' under existing Article 1, Section 8, Clause 4 (and NOT under Article 2, Section 1, Clause 5). Every other legal argument is really more than necessary.
I was in Senator Cornyn's offices 9/11/09 meeting with a couple of his staffers on the issue of Art II eligiblity. (BTW they were unaware of being named in Kerchner v Obama). I was there asking for a senate investigation and a Writ of Quo Warranto. His staffers had never heard of Quo Warranto.
"Robin" didn't know the difference between a 14th amendment naturalized citizen and an Natural Born one. 2 US citizen parents and US soil. She told me it only took one US parent citizen, but that she knew about jus soli and jus sanguini.
I tried a different approach, I asked her if she heard about the founders placing importance on undivided allegiance. She commented she was well aware of that fact. So I asked her in the context of Art II Sec I, weren't the founders referring to two US citizen parents, otherwise there would have been no need for the word "undivided" allegiance and they could have just said allegiance if they were telling us one US citizen parent would suffice.
I also went over to Sen Hutchinson's office. One of her senior staffers remarked "Alexander Hamilton was born in the West Indies and wasn't NBC and ineligible to run for POTUS." I corrected him by explaining the grandfather clause for the charter members of the Revolution.
What this is pointing out is the stupidity in our government at the highest levels. Our very elected officials don't even understand our Constitution. These staffers speak for their senators, and advise them on talking points, yet they are clueless about the Supreme Law of the Land.
I told "Robin and Emily" in Cornyn's offices that my visit was as effective as talkng to the wall. I asked were they afraid of rioting? Which they replied "no" then I asked if they were afraid of revolt, because that was coming if they didn't stop sitting on their hands. While I was discussing this two other groups of Texans entered the offices and to a man agreed with me Obama hasn't proven his eligibility.
Mario and Charles, is very obvious the courts will have to save us or we will have to revolt. Our government is corrupt through and through.
As far as the 9/12/09 DC march anybody that says 10s of thousands are just as clueless as the people mentioned above. for three hours Pennslyvania Ave was full of marchers from the White House all the way to the Capital (1.2 miles long and 9 lanes wide). There were those who waited at the Capital that didn't march, in the hundreds of thousands. People joined the march midway right off the Metro terminals and other points. A twenty year veteran DC policeman said it was bigger than Obama's 1.8 million inauguration day, bigger than any gathering he had ever witnessed in his career.
Teo,
Please note that based on the excellent comments by my client, Charles Kerchner, and others on this blog, I have amended my article to reflect that there is a dispute as to whether McCain was born in the Panama Canal Zone or in Panama proper.
Clearly, Obama cannot argue that Great Britain practiced jus sanguinis in its colony, Kenya, with respect to Obama's father. That would be absurd. Even if it did, Obama's father then would have inherited the citizenship of his father (Obama's grandfather) which was surely not American. Also, with respect to Obama himself, Great Britain did follow jus sanguinis, given that Obama became a British subject/citizen by way of descent from his father.
I believe that the "natural born Citizen" part of the Naturalization Law of 1790 was only a stopgap measure to grandfather children born abroad to U.S. citizens during that time period to be eligible to be President. It had the same effect as the "citizen" grandfather clause of Article II. It used "natural born Citizen" rather than just "citizen" because the Constitution had already been adopted and its Article II grandfather clause would no longer apply for children born after 1789 and its effect would only be retroactive. Note that those children were declared "natural born Citizens" only retroactively. Since its effect was only retroactive and only to cover a small period of time, Congress probably saw no harm in declaring those children "natural born citizens," even though it probably had no constitutional authority to do so.
Also, Congress under Article 1, Sec. 8, cl. 4 gave Congress only the power to make uniform the naturalization laws. It did not give Congress the power to make anyone a "natural born Citizen." Declaring a child a "natural born citizen" surely is not within that sphere of power. Congress probably saw no harm in declaring those children "natural born Citizens" even though it had no constitutional authority to do so. Hence, by the time 1795 rolled around, the Third Congress, knowing well its limited powers on the subject matter and probably decided that there was no longer any need for the grandfather effect that had been needed in 1790, removed the words "natural born" and left in just "citizen." At that point, whether a child born out of the country to U.S. citizen parents was a "natural born Citizen" would be decided, like what an Article II "natural born Citizen" was, not by any Act of Congress but by the law of nations (jus gentium) that was based on natural law and which became incorporated into our federal common law.
A thanks to you and to all the other commentators here for your contributions to this most interesting subject matter.
Mario Apuzzo, Esq.
For jayjay --
I was looking for the SCOTUS language that recognizes the 'at birth' formula for the transmission of CITIZENSHIP and I found it here:
Weedin v. Chin Bow, 274 U.S. 657 (1927) Page 274 U. S. 675, quoting the Ninth Circuit Court of Appeals:
"The expression 'the rights of citizenship shall descend' cannot refer to the time of the death of the father, because that is hardly the time when they do descend. The phrase is borrowed from the law of property. The descent of property comes only after the death of the ancestor. The transmission of right of citizenship is not at the death of the ancestor, but AT THE BIRTH OF THE CHILD, and it seems to us more natural to infer that the conditions of the descent contained in the limiting proviso, so far as the father is concerned, MUST BE PERFECT AND HAVE BEEN PERFORMED AT THAT TIME."
I just added the following to my article in which I argue that the law of nations and not the English common law was the law that the Framers used to define the "natural born Citizen" clause:
Part I of II
"Article I, Section 8, cl. 4, which gives Congress the power to make uniform the naturalization laws, also provides further evidence that the Framers were not influenced by English law (statutory and common) in defining what a “natural born Citizen” is. Prior to the Founding and throughout its period, English Parliament had the power to and did exercise that power to declare children born in or out of the Kingdom to English “natural born subject” parents “natural born subjects” themselves. But the Framers gave to Congress in Section 8 the power to only make uniform the naturalization laws and no power to make anyone a “natural born Citizen.” The "natural born Citizen" part of the Naturalization Law of 1790 was probably only a stopgap measure to grandfather children, born abroad to U.S. citizens during that time period, to be eligible to be President. It had the same effect as the "citizen" grandfather clause of Article II. It used the words "natural born Citizen" rather than just the word "citizen" because the Constitution had already been adopted and its Article II grandfather clause which used the word “citizen” no longer applied for children born after 1789 and its effect would only be retroactive, for those children were declared "natural born Citizens" only retroactively. Since its effect was only retroactive, only to cover a small period of time, and needed to grandfather additional children to be President, Congress probably saw no harm in declaring those children "natural born citizens," even though it had no constitutional authority to do so. Hence, by the time 1795 arrived, the Third Congress, knowing well its limited powers on the subject matter probably decided that there was no longer any need for the grandfather effect that had been needed in 1790, removed the words "natural born," and left in just "citizen." At that point, whether a child born out of the country to U.S. citizen parents was a "natural born Citizen" would be decided, like what an Article II "natural born Citizen" was, not by any Act of Congress or the English common law but by the law of nations (jus gentium) that was based on natural law and which became incorporated into our federal common law. The Third Congress would not have removed the words “natural born” from the clause if the Framers and Congress accepted the English notion that Parliament had the authority to declare who was a “natural born subject.” The Framers had to view “natural born Citizen” differently than how the British viewed a “natural born subject.” Such a different view of the term explains why the Framers only gave Congress the power to naturalize and not the power to declare anyone a “natural born Citizen.”
continued . . .
Mario Apuzzo, Esq.
Part II of II
If the Framers used the English common law as their guide in defining “natural born Citizen,” the First Congress in the 1790 Act would not have made “natural born Citizen” status only retroactive. The Third Congress would not have changed “natural born citizen” of the 1790 Act to say just “citizen” in the 1795 Act. The framers of the Civil Rights Act of 1866 would have used the term “natural born citizen” rather than just “citizen.” Congress in all its citizenship acts would have used “natural born Citizen” rather than just “citizen” in describing a child born on U.S. soil and within the jurisdiction of the United States. The English bestowed “natural born subject” status on both its born subjects and those it naturalized. Hence, what is most revealing of our nation as a whole not accepting English common law to define a “natural born Citizen” is the Fourteenth Amendment’s use of the term “citizen” rather than “natural born Citizen” to describe a child born on U.S. soil or naturalized and subject to the jurisdiction thereof. Congress in 8 U.S.C. Sec. 1408 uses the same exact test to declare a child a born “citizen” rather than a “natural born citizen.” If the English common law model were the standard for the Framers, why would our legislative history reveal that other than in Article II and for only a short time in the 1790 Act, our nation has never used the term “natural born Citizen” in any of our laws. Why did we conserve “natural born Citizen” status in such a fashion? Why did we not easily bestow the status upon children born within or without the United States to United States citizen parents as the English under their laws bestowed “natural born subject” status upon children born within or without the Kingdom to “natural born subject” parents? The answer is that we, as a nation, had a different standard than they did for the term, a standard that emanated from natural law which became the law of nations (jus gentium) and which was incorporated into American common law.
Mario Apuzzo, Esq.
Mario --
The 1798 Law was the first of Four "Alien and Sedition Acts" adopted during an official war with France known as "The Quasi-War."
Really, it was the influx of political radicals caused Congress to repeal the 1790 Act in 1795, and the phrase ‘natural-born CITIZENS’ was replaced by the term ‘CITIZENS.’ Residency was increased to 5-years. The X,Y,Z Affair in Paris provoked Congress wile the U.S. Navy was fighting with France. So, in 1798, the 5-years was increased to 14-years.
Then, by 1802, during the first term of President Jefferson, the CHILDREN OF AMERICANS BORN OVERSEAS were considered to be 'ALIENS.'
There is an article written by Horace Binney, “‘Alienigenae’ of the United States under the present Naturalization Laws.” This important article was published on December 1, 1853 for his friends and fellow citizens whose children were born abroad during occasional visits by their parents to Europe. This is how it begins:
"It does not probably occur to the American families who are visiting Europe in great numbers, and remaining there frequently for a year or more, that ALL THEIR CHILDREN BORN IN A FOREIGN COUNTRY are ALIENS, and when they return home will return under all the disabilities of ALIENS. Yet this is indisputably the case, for it is not worthwhile to consider the only exception to this rule that exists under the laws of the United States, viz., the case of a child so born whose parents were citizens of the United States on or before the 14th day of April, 1802."
So, in fact, the law descended from 'natural-born Citizen,' to 'Citizen' (with Residency Requirement), to 'Alien' (with a very long Residency Requirement) -- . And, all of these amendments were adopted in little more than a decade by both the Executive and Legislative branch comprised of members of the Constitutional Convention (except Jefferson, who was Ambassador to France).
Part I of II
A commentator on Dr. Conspiracy's blog is arguing that Vattel's definition of what a "natural born Citizen" is violates Equal Protection and is therefore unconstitutional. Here is my response which I posted on Dr. Conspiracy's blog.
Your arguing that my test, i.e., born in the country (jus soli) to a U.S. citizen mother and father (jus sanguinis) is a “natural born Citizen," creates a discriminatory classification and violates equal protection is just as unfounded as if you argued that not allowing naturalized citizens to be President is such a violation. You assume that selecting "natural born Citizens" by whether they are born in the country to both U.S. citizen mothers and fathers is invidious discrimination against a suspect class, those identified by alienage or nationality. I do not see how such a test disadvantages any suspect class. My test for "natural born Citizen" status simply does not unfairly create any disadvantaged class.
You also incorrectly assume that being allowed to be eligible to be President is a fundamental constitutional right. There is no validity to your assumption, for the Constitution does not explicitly or implicitly guarantee to anyone the substantive right to be President of the United States nor are there any constitutional underpinnings to such an alleged right. The fact that someone might want to aspire to be President does not elevate eligibility to be President to be a constitutional fundamental right. On the contrary, being eligible to be President is a political privilege given by the Constitution to those who meet the qualifications of Article II to be president.
All these incorrect assumptions lead you to apply strict scrutiny (compelling government interest) rather than some other more deferential test (does my unity of citizenship test for "natural born citizen" status bear a rational relationship to a legitimate government purpose) to the subject at hand. Even if we were to apply strict scrutiny analysis rather than a more deferential standard, do you believe that protecting our national interest per the Founder's vision would not pass the compelling government interest test? Do you really believe that there is anything fundamentally inconsistent between my unity of citizenship test for Presidential eligibility and the test the Founders established for the President and Commander in Chief of the Military? My test meets both strict scrutiny and rational basis scrutiny. The Founders wanted to make sure to keep foreign influence out of the Office of President and Commander in Chief. We know from studying our own and international legal precedents that citizenship produces allegiance. Preserving the national security, safety, and best interests of the United States is a compelling government interest. Making sure a would-be President has attachment and allegiance from birth solely to the United States is a means by which the nation can assure itself that the person to be President will, indeed, have the survival of the nation as currently constituted at heart. Requiring that a would-be President be born in the country to a U.S. citizen mother and father assures that from birth that person has sole and absolute allegiance to the United States. Making sure the person to be President has sole and absolute allegiance to the United States and is free of foreign influence to the greatest degree possible is a reasonable means of securing the safety and interests of the United States?
continued . . .
Mario Apuzzo, Esq.
Part II of II
The “natural born Citizen” clause as I define it is no different from Article II’s requirements that a would-be President have a certain age (35) and a certain time of residency (14 years). My interpretation of the “natural born Citizen” is not discriminatory but rather based on respect for the rule of law, i.e. the Constitution. Indeed, the clause has no race, color, or religion test, for its requirements apply to all people regardless of those factors. Under the clause, we are not condemning any child for any misdeeds of his or her parents. These children are not being penalized or stigmatized for anything the parents did or did not do or for their birth status. Rather, these children’ status is being characterized pursuant to a constitutional mandate that applies to defining the eligibility requirements to be President. These children are being treated no differently from how Congress treats persons differently when it comes to doling out government benefits to a person depending on that person’s relationship to the United States, i.e., citizen, resident, or alien. They are no different from the persons who cannot be President because they have been naturalized. Additionally, the Equal Protection Clause is not designed to equalize all persons and eradicate every distinction that may exist between people and for which people are not responsible. Indeed, guilt or innocence of the target of legislation does not control equal protection analysis. The requirements for Presidential eligibility emanate from the Constitution itself and neither the federal nor state legislatures nor voters themselves can avoid or change them unless done by a way prescribed the Constitution itself. Hence, there is nothing discriminatory about my wanting our Constitution respected. On the contrary, there is much wrong in allowing a majority of our legislatures or people to circumvent the Constitution for the sake of wanting for whatever reason any specific person to occupy the Office of President and Commander in Chief.
Mario Apuzzo, Esq.
Bob,
There were different reasons why Congress went from "natural born citizen," to "citizen," and then to "alien." But my point is that Congress did not just stick to "natural born Citizen" as British Parliament stuck to "natural born subject." Not even our own Fourteenth Amendment, which the incorrect interpretion thereof contends confirms jus soli citizenship (of course by giving a nonsensical definition of what "subject to the jurisdiction means), does not say "natural born Citizen" with respect to one who is a born citizen. If we look to and apply English common law, one knows that one born on U.S. soil should be called a "natural born citizen (subject)" and not just a "citizen." Hence, the Amendment should have said regarding born citizens that they are "natural born Citizens" and not just "citizens."
Also, if the Framers and those of later generations used the English common law in defining "natural born Citizen," why did the Framers of the Fourteenth Amendment require not only birth on the soil but also "jurisdiction." They could have written in the English exceptions, i.e., born to diplomats or to invading armies. They also could have excluded American Indians by simply saying so. Why did they express the exceptions as one not subject to the jurisdiction, which is a much more encompassing exclusion? How do we explain this?
Mario Apuzzo, Esq.
Bottom line: No law makes those born solely-jus-soli even citizens.
The 14th places emphasis on jurisdiction (aka allegiance) as the MOST important aspect of citizenship, and CRA1866 is consistent with the naturalization oath--100% allegiance or nada!
Part 1
After reading analyses such as below, how can anyone NOT come to the obvious conclusion that Barack means to destroy the Constitution and the USA as we know it?
The Truth About the Health Care Bills – Michael Connelly, Ret. Constitutional Attorney 08.24.09
Well, I have done it! I have read the entire text of proposed House Bill 3200: The Affordable Health Care Choices Act of 2009. I studied it with particular emphasis from my area of expertise, constitutional law. I was frankly concerned that parts of the proposed law that were being discussed might be unconstitutional. What I found was far worse than what I had heard or expected.
To begin with, much of what has been said about the law and its implications is in fact true, despite what the Democrats and the media are saying. The law does provide for rationing of health care, particularly where senior citizens and other classes of citizens are involved, free health care for illegal immigrants, free abortion services, and probably forced participation in abortions by members of the medical profession.
The Bill will also eventually force private insurance companies out of business and put everyone into a government run system. All decisions about personal health care will ultimately be made by federal bureaucrats and most of them will not be health care professionals. Hospital admissions, payments to physicians, and allocations of necessary medical devices will be strictly controlled.
However, as scary as all of that it, it just scratches the surface. In fact, I have concluded that this legislation really has no intention of providing affordable health care choices. Instead it is a convenient cover for the most massive transfer of power to the Executive Branch of government that has ever occurred, or even been contemplated. If this law or a similar one is adopted, major portions of the Constitution of the United States will effectively have been destroyed.
The first thing to go will be the masterfully crafted balance of power between the Executive, Legislative, and Judicial branches of the U.S. Government. The Congress will be transferring to the Obama Administration authority in a number of different areas over the lives of the American people and the businesses they own. The irony is that the Congress doesn’t have any authority to legislate in most of those areas to begin with. I defy anyone to read the text of the U.S. Constitution and find any authority granted to the members of Congress to regulate health care.
Part 2
This legislation also provides for access by the appointees of the Obama administration of all of your personal healthcare information, your personal financial information, and the information of your employer, physician, and hospital. All of this is a direct violation of the specific provisions of the 4th Amendment to the Constitution protecting against unreasonable searches and seizures. You can also forget about the right to privacy. That will have been legislated into oblivion regardless of what the 3rd and 4th Amendments may provide.
If you decide not to have healthcare insurance or if you have private insurance that is not deemed “acceptable” to the “Health Choices Administrator” appointed by Obama there will be a tax imposed on you. It is called a “tax” instead of a fine because of the intent to avoid application of the due process clause of the 5th Amendment. However, that doesn’t work because since there is nothing in the law that allows you to contest or appeal the imposition of the tax, it is definitely depriving someone of property without the “due process of law.
So, there are three of those pesky amendments that the far left hate so much out the original ten in the Bill of Rights that are effectively nullified by this law. It doesn’t stop there though. The 9th Amendment that provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people;” The 10th Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are preserved to the States respectively, or to the people.” Under the provisions of this piece of Congressional handiwork neither the people nor the states are going to have any rights or powers at all in many areas that once were theirs to control.
I could write many more pages about this legislation, but I think you get the idea. This is not about health care; it is about seizing power and limiting rights. Article 6 of the Constitution requires the members of both houses of Congress to “be bound by oath or affirmation” to support the Constitution. If I was a member of Congress I would not be able to vote for this legislation or anything like it without feeling I was violating that sacred oath or affirmation. If I voted for it anyway I would hope the American people would hold me accountable.
For those who might doubt the nature of this threat I suggest they consult the source. Here is a link to the Constitution: http://www.archives.gov/ex hibits/charters/constituti on_transcript.html
And another to the Bill of Rights: http://www.archives.gov/ex hibits/charters/bill_of_ri ghts_transcript.html
There you can see exactly what we are about to have taken from us.
Michael Connelly Retired attorney, Constitutional Law Instructor Carrollton , Texas
Mario --
I think I'm making an ENTIRELY different point from you, so we may be talking past each other without realizing it.
I TOTALLY agree with your analysis of de Vattel, and I TOTALLY agree that Blackstone did not help the Framers for their ideas of Citizenship, because the Framer KNEW that Blackstone was describing the remnants of a Feudal system, and those who may inherit titles of nobility.
So, except for phrases like 'natural-born' and 'ligeance', etc., there was little that Blackstone could add to their thought process. Why? Because he wrote about a sovereign and a subject who were mutually bound to each other.
I was talking about the relative weight between jus solis and jus sanguinis in the definition of a 'natural-born CITIZEN.'
My point is that they must be EXACTLY IN BALANCE, as demonstrated by actual laws passed by members of the Constitutional Convention once they were actually serving in the Executive and Congress.
A 'naturalized' citizen is someone whose birth status is governed by statute -- and that cannot apply to a 'natural-born CITIZEN.'
In fact, the best definition of a 'natural-born CITIZEN' is this -- a CITIZEN whose birth is 'unencumbered' by legislation or statute.
cajapie,
Part I of II
The concept of jurisdiction of the United States was explained by Chief Justice Marshall in the great case of The Exchange, 7 Cranch. 116 (1812), in which he covered the whole question of what persons within the territory of the United States are subject to the jurisdiction thereof. The chief justice first laid down the general principle: “The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may be either express or implied.”
The debates over the Civil Rights Act of 1866 and the Fourteenth Amendment provide a wealth of information on the meaning of the Fourteenth Amendment’s “subject to the jurisdiction” clause. For space reasons, I will not repeat that information here but may be found in my articles on the subject in this blog.
Continued . . .
Mario Apuzzo, Esq.
Part II of II
In our citizenship laws, jurisdiction breaks down into three types, territorial, legal, and political. Territorial means one is physically present on a sovereign’s territory. Legal means that once present on that territory, one is subject to the laws of that sovereign. Political means that not only is one subject to that sovereign's laws, but is also duty bound to give that sovereign allegiance and loyalty for the purpose of preserving and protecting that sovereign and its people. The 14th Amendment requires the coming together of jus soli and jurisdiction in order for a baby to be born a U.S. “citizen.” This jurisdiction is not just territorial and legal jurisdiction, which is how Justice Gray in Wong Kim Ark, contrary to the express will of Congress, the Executive, and the People, defined it to make Wong a citizen and whose position has become the incorrect approach to applying the amendment. Apart from the Wong Court usurping the power of the other two branches of government and of the People, that could not be the correct application, for just being born on the soil automatically provides territorial and legal jurisdiction and would render the word "jurisdiction" a redundancy. The minute a baby is born he or she is on the territory of the sovereign. Also, just being physically there, the baby is subject to the sovereign's laws. Hence, that baby still has to satisfy the requirement of political jurisdiction, i.e., that he or she owes sole and absolute allegiance and loyalty to the sovereign. Such sole and absolute allegiance and loyalty can only occur at the time of birth if the baby is born only and only if subject to the sole political power of the United States. And that can only occur if the baby at the time of birth does not inherit any other citizenship from either his mother or father. That happens if the baby's mother and father are both U.S. citizens, for to be otherwise would allow one of the parent's foreign citizenship to descend upon the baby should the country of that parent exercise jus sanguinis citizenship. There would be no inheritance of a foreign citizenship if the foreign parent's country follows only jus soli citizenship. But this would be an exception and rarely occur given the citizenship practices of most nations. Since the United States would recognize, dual or multiple citizenships in the baby under the proper circumstances as established by treaties or international law, it would consent to its jurisdiction not being complete over that baby and under the concept of jurisdiction laid down by Justice Marshall, its jurisdiction would not be absolute.
Such a baby born with divided allegiance is therefore technically not a Fourteenth Amendment citizen. Because of Wong, our government has refused to interpret the “subject to the jurisdiction” clause correctly, even to the point of allowing baby’s born in the U.S. of illegal alien parents to be “citizens.” There is no evidence that the Fourteenth Amendment amended in any way Article II. Hence, such an expansive interpretation of a Fourteenth Amendment “citizen” does not and should not change the meaning of an Article II “natural born Citizen,” which is the original standard the Founding Fathers established for one to be eligible to be President and Commander in Chief.
Mario Apuzzo, Esq.
Mario:
your above post re WKA is the best one I have ever seen on the subject and I hope that when Kerchner et al is taken before SCOTUS that you will heavily involve this exposoition of WKA thereby giving SCOTUS the possibility of overturning that decision.
It should always have been known as WRONG Kim Ark and I believe that Leo Donofrio's belief of the "payback" from the Justice giving the most-strange opinion to Chester Arthur who appointed him to SCOTUS and thereby with WKA gave "cover" to Arthur's Constitutional ineligibility.
It is known, for example, that Scalia believes WKA needs revisiting. The Kerchner action may give SCOTUS such a "hook" so that perhaps the case would forever after be known (as it should) as WRONG Kim Ark thereby removing future "anchor babies" from sight.
JayJay,
Dittos on your comments and observations about Mario's latest piece about WRONG Kim Ark.
Charles
Mario,
Stone cold brilliant. Succinct, to the point, common sensical, and clearly the idea behind all of the amendments of the Constitution.
I've always said this: What if two Mexican nationals jump the border and bear a son (in the USA) who lives in the US for 14 years, with his parents, who never get citizenship in any form. Certainly this already has happened, and if it hasn't, it is a likely scenario at the least, for those who might argue the point.
In any case, that child goes back to Mexico with his parents, gets a job, and lives their until he is ~ 35 years of age.
If ANY American (especially an educated politician!) would look you in the eye and say that THE PERSON DESCRIBED HERE should be eligible to be President of the United States of America using any sort of logic, not to mention the Constitution, we are all in deep trouble because that is a step that is already in, or on its way to insanity, or anarchy.
Finally, as a joke (which are funny because they are true, usually) I give the example of the Mexican National Soccer team playing in the United States.
If Mexican-American "immigrants" don't have divided allegiances, why are USA fans in these matches always outnumbered over 5:1?
The problem, perhaps, with our arguments is that they are logical and reasonable. They are not emotional, which is what you will find in every "response" to our points. Therein lies the problem.
Obama supporters argue that “subject to the jurisdiction” should have a limited meaning. They argue that as long as the child is to some degree within the jurisdiction of the United States, the element is satisfied. They find support for that proposition in the following quote from United States v. Wong Kim Ark (1898):
“The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem — and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.”
But a careful reading of this quote shows that it is not the baby's allegiance that counts for citizenship but rather being born in the allegiance of the sovereign. Do we really expect a baby to have allegiance? What can a baby tell us about the U.S. Constitution? Unlike the English, the Framers of the Constitution and Fourteenth Amendment demanded that the United States have complete and absolute allegiance and power over the new-born United States citizen. Let us remember the concept of not being born "subject to a foreign power," as required by the Civil Rights Act of 1866 which is the genesis of the Fourteenth Amendment. The United States would have to have sole and absolute allegiance or jurisdiction over the new-born in order for that baby not to be subject to any foreign power.
With birthright citizenship, the baby is given citizenship at birth, provided the United States has complete and absolute jurisdiction (power) over the baby, which means no other sovereignty has any power over that baby. As the baby grows, he or she becomes conscious of that birth citizenship and learns its values from his or her citizen parents. It is those citizen parents who will instill in that child the political, social, and cultural values of that birthright citizenship. Then and only then will the growing child start to develop his or her own sense of sole allegiance to the sovereign, the United States.
Continued . . .
Mario Apuzzo, Esq.
II of II
Hence, when analyzing "subject to the jurisdiction," we do not only look to see if the United States has "some" jurisdiction over the baby. We must also examine if any other power or sovereign also has jurisdiction over the baby. If another foreign power has such jurisdiction, like in the case when the baby inherits from one or both of his or her non-United States parents a foreign citizenship which has the same effect as if one of the baby’s parents were a foreign diplomat or an alien member of an invading army, then that child is not born within the complete and absolute jurisdiction of the United States. In such circumstance, the baby is born with dual or multiple allegiances over him because more than one sovereign can exert power over him or her and thereby demand political and military obligations of him or her. Of course, this does not mean that the baby is confused as to whom he or she should give allegiance. What it means is that more that one sovereign has power or jurisdiction over the baby. Being born with such conflicting allegiance will by nature interfere with the child developing a sole attachment and allegiance to just one nation. This is the reason that for one to be eligible to be President and Commander in Chief, he or she must be born within the sole and absolute allegiance (jurisdiction) of the United States. That means that the child must be born in the United States to a mother and father who are both United States citizens.
Mario Apuzzo, Esq.
Mario, I am very confused and looking for answers. I believe you have done an excellent job presenting a valid concern of extreme importance. However, it is resting on the desk a single man that may or may not assign it the value many of us do and there is no way to request the court to make a decision on this motion. I am losing faith in our court system. Is the court required to answer the defendants motion to dismiss in a reasonable amount of time? Is no response from the court an indication this case has been shelved and will not be answered? What are your options if this occurs?
Any judge with an ounce of fidelity to his oath would and should discover the truth about Obama and his qualifications since no other law must be satisfied before the supreme law, the constitution. Should any judge discover a violation or abrogation it would then be an entirely different case and legitimately delay or even settle the case being brought. The ONLY reason a sworn upholder of the law would place artificial rules, common law, states laws, congressional law or any other barrier between the supreme law and the upholding of it would be to diminish that constitutional law by removing its protections from the people. Courts may very well function within their own made rules however it is clear the prime goal of all laws are to protect that constitution not protect those who are in violation of it or even seeking to violate it as a result of some other indirect act. Since all courts have the power of subpoena they can all seek to uphold the constitution by merely demanding the proofs required by the supreme law be made public should they be secreted by some act. It is their duty to do this whenever a valid question comes in front of them regardless of any other rule or law.
Two brief quotes from Hamilton;
“In short, when human laws contradict or discountenance the means, which are necessary to preserve the essential rights of any society, they defeat the proper end of all laws, and so become null and void.”
Alexander Hamilton
The Founders Constitution
Volume 1, Chapter 3, Document 5
"It is not otherwise to be supposed that the constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority."
Alexander Hamilton Federalist #78Founders Constitution Volume 1, Chapter 17, Document 24
Bruce,
The Federal District Court is constitutionally obligated to render a decision. To fail or refuse to render a decision that is properly before it would amount to a deprivation of the affected parties' due process rights under the 5th Amendment. Should a District Court fail in this regard, a party can file a mandamum action in the Circuit Court of Appeals, asking that the higher court issue an order to the lower court that it exercise its jurisdiction and render a decision.
Mario Apuzzo, Esq.
Bruce,
I agree. Our patience is wearing thin on this issue. The court must render it's decision soon. It is injust for the court's shelve Charles and Mario's case.
Justice Delayed is Justice Denied!
Charles
Is there no way you determine what court is doing with your case? Is there any indication the court has actually studied your motions or ruled on them?
Mario should immediately take action in getting the courts to render it's decision. The longer time passes with more cases of various nature being dismissed for various reasons, the harder it will be for your case. I hope your are too late already, but if the court dismisses your case, they might use precendent set in previously dismissed cases such as Cooke and Rhodes. Waste no more time. Get the courts to rule soon.
Indeed a ruling will eventually come down, the question is will the ruling be centered on a matter of technical conformity, a ruling based on some statute which contravenes the constitution or a ruling intended to merely escape being the subject jurisdiction of one minute part of the pleading which is not the core issue. So far all these types of rulings have been handed down and all apparent reasoning, to the people, is not to satisfy the rules of court processes or rules of common law but to satisfy a justice department and US attorneys whom are beholden to the legislature and the president whose legitimacy if not proven will undoubtedly send them into ruin. It is also apparent to an ever growing population educated in the intent of the constitution that this is an issue of fidelity between a fist full of dollars and an old piece of paper. It is shameful that those educated in the means to protect and preserve liberty have lost the spine to do so in favor of the promise of luxury or silently waiting to pounce on the side of victory to continue their livelihoods. Mario, you are of the few who have integrity.
I wonder if sending back the bust of Winston Churchill was an overshoot "thou doth protest too much methinks" action by Obama?
We just did an expse on McCain on theBirthers.org website, http://birthers.org/misc/DevilDetails.html
What you will read will answer alot of questions you have been having about McCain on the overall silence of eligibility
Teo Bear,
Excellent work on McCain's POTUS eligibility. We know that McCain was born to U.S. citizen parents. Your work shows that McCain was not born a Panamanian citizen in 1936, whether he was born in the Panama Canal Zone or Panama Proper. At that time Panama followed jus sanguinis citizenship. Article 8 and 9 of the Panamanian Constitution that exists today did not apply. Apart from Panama following jus sanguinis, we must remember that McCain was also born while his parents were serving "the armies of the State." Vattel.
Mario Apuzzo, Esq.
Most readers of 'birthers.org will say "Who cares? McCain lost!"
So, why should we care about how much McCain, his campaign, and his party knew, but may have fraudulently misrepresented to the American voter?
His party accepted $87 million dollars in Federal Matching Funds, and that maybe they should be required to repay!
But, at least we know this much -- so far it's pundits from his party (mostly) who bring down their full wrath on those who have expressed their desire to see the Constitution upheld.
And so, this why we should care, and continue to care. And, maybe this is why this issue ALSO WILL NOT GO AWAY!
Signed -- Constitution Day, 2009
It is obvious the judges, Congress, Senate, Obama, McCain, Bush, Cheney, SCOTUS, "they" ALL know he is ineligible.
ALL of them know it.
If you were going to install a usurper, you'd prepare for the onslaught of legal challenges ahead of time. You'd threaten, coerce, bribe or just have installed complicit judges well ahead of time. You'd prevent the media, even FOX from covering the issue using heavy measures. These judges dismiss and footdrag with preposterous illogical reasons and non-evidence and employ Alinsky#5 themselves. Obama abuses his campaign funds and DOJ lawyers for his defense unchallenged, the corruption is layered through and through. Occasionally there may be a judge or two who are non-complicit, but they can be arm-twisted. There's been numerous snuff-outs in relation to Obama's past dealings already. The message is carried in the wind.
Only a true brave patriotic judge will stand up to the largest defrauding, the grandest treason against America in her history. Those running this coup were audacious to the extreme. Did they really think they could fool America? Did they think that running the "system" in their crimes and corruption by a trickle of persons, could control hundreds of millions of people raised in freedom? The founding fathers put their fortunes and very lives at stake, and I'm certain there are today people just as brave. Whether they are in existence in key positions is apparently unlikely.
It is time we expect enemy treatment by the fringe media and the bulk in government and the judiciary, and deal with things accordingly.
Obama's $9 Trillion spending, $2 Trillion "lost" by the Fed, near 18% unemployment, -6.5% GDP, 14% dollar devaluation since Jan 20,2009...is simply economic terrorism. Disarming eastern Europe, freeing and funding terrorists, demoralizing the CIA and military, running a deliberately suicidal and un-winnable action in Afghanistan is contrary to American's very survival interests.
This is serious business folks, they are ready for the intellectual arguments at the level of the judiciary and the media.
It would be wonderful if the Judge in the case would make his decisions on the motions before him since June and July 2009 and sign his orders on this day, Constitution Day.
Charles Kerchner
CDR USNR (Ret)
Lead Plaintiff
Mario,
I think I just found something HUGE!
I do not know if this case has been superseded BUT if the sylabus is correct....you need to use this case to the benefit of the Plaintiffs of this case:
SEE PARAGRAPH 4 below especially!
U.S. Supreme Court
Union Pacific Railroad Company v. Hall, 91 U.S. 343 (1875)
Union Pacific Railroad Company v. Hall
91 U.S. 343
Syllabus
1. The initial point of the Iowa branch of the Union Pacific Railroad was fixed by the Act of Congress of July 1, 1862, 12 Stat. 489, on the Iowa bank of the Missouri River.
2. The order of the President of the United States bearing date the seventh day of March, 1864, established and designated in strict conformity to law the eastern terminus of said branch at a point
"on the western boundary of Iowa east of and opposite to the east line of section 10, in township 15, north of range 13, east of the 6th principal meridian, in the Territory of Nebraska."
3. The bridge constructed by the Union Pacific Railroad Company over the Missouri River between Omaha in Nebraska and Council Bluffs in Iowa is a part of tire railroad. The company was authorized to build it only for the uses of the road, and is bound to operate and run the whole road, including the bridge, as one connected and continuous line.
4. Private persons may, without the intervention of the government law officer, move for a mandamus to enforce a public duty not due to the government as such.
I hope it means what it says!
Citizen McCain, lets remember congress can enact any law or introduce any legislation regarding US citizenship, the constitution gives them that right and authority. What it does not give them is the right to determine how a Natural Born Citizen is created; the Founding Father were very careful not to allow congress to interject their reasoning in what determines Natural Born Citizen status; that they can only do by amending the constitution.
Therefoe any resolution passed in the Senate determining Citizen McCain's NBC status was moot since he was born out of the soveriegn soil of the US; therefore the resolution was in and of itself flawed from the start.
As I have said before, had he been born at the US Embassy in Panama there would be no issue since it is soveriegn US soil. Anywhere outside the Embassy grounds, including any US miliary installations make him at best a US Citizen. Remember, US militay installations on foriegn soil are leased grounds, not soveriegn US soil; and you are right he should have not been able to legitimately run for president.
I hold McCain a war hero, and a compatriate fellow United States Navy sailor; in high esteem. That said I do not always agree with his politics even though I an a conservative, hesitantly Republican in the wake of the current Republican policies and direction.
Does anyone know why the Judge has let the deadline come and go without a ruling? Thanks!!
UPDATE ON KERCHNER ET AL V. OBAMA ET AL
Today, Friday, September 18, 2009, at about 4:15 p.m., I telephoned the Chambers of Judge Simandle to inquire about the status of his decision on the defendants' motion to dismiss the complaint/petition and my cross-motion for leave nunc pro tunc to file the second amended complaint/petition. The defense motion and my cross-motion were scheduled for decision on August 3, 2009 and August 17, 2009, respectively. I spoke to Judge Simandle's law clerk, Emma. I asked her if there was any word on when we can expect a decision. She said that she was not able to give me any time line on when we can expect a decision. She said that it will take some time for the judge to get to complete all his outstanding obligations. She said that when the judge makes a decision, it will appear on the court's docket. She added that no more than that can be said. Finally, she said that no more from me needed to be done for the Court to rule.
I guess that leaves us still in the waiting mode. They said that patience is a virtue. Too bad they never told us how much.
Mario Apuzzo, Esq.
Mario --
This is a simple note for you also finally to conclude that there is no continuing 'dispute' concerning the Senator McCain's birthplace --
In simplest terms: In 1936, he would have to be born at Gorgas Hospital, Balboa Heights, to be born 'on the Canal Zone.' But, he was not.
1. No birth certificate is listed for John Sydney McCain, III, in the sequential ledger maintained by the Panama Canal Health Department called, 'Records of Birth.' [Note: Since the medical records maintained by the Panama Canal Health Department were second-to-none, the absence of a record begs for an explanation, as any auditor would notice immediately.]
2. The Organizational Chart of the Panama Canal Health Department, published December 31, 1936, shows no inpatient hospital operated by the U.S. Navy, but rather the same chart shows a pre-war hospital and naval dispensary (temporary sick bay) located across Manzanillo Bay on the island of Colón.
Another Canal Zone Division of Hospitals ‘Organizational Chart’ (dated December 31, 1940) shows that the Naval dispensary was located in Colón. But, by 1940, a medical aid station (only) is found at Coco Solo Submarine Base.
3. The 'Act of August 4, 1937' (Pub.L. 75-242, 50 Stat. 558) reflects the only maternity options available to Americans in the Canal Zone: namely, (a) the Canal Zone (Gorgas Hospital, Balboa Heights) and (b) the Republic of Panama (Colón Hospital, Colón).
4. In 1936, Americans who gave birth abroad, including in U.S. territories, routinely filed a report with the State Department, in order to insure their child's American Citizenship. Called an 'FS 240: Consular Report of Birth Abroad of a Citizen of the United States of America,' the form is normally prepared by a local U.S. Consulate, and requires proof of birth through several specific forms of identification.
What we know: the Washington Post's staff reporter, Michael Dobbs, wrote this: 'For what it’s worth, it does not seem that McCain’s parents filed such a form. Looking through State Department records at the National Archives, I found numerous Forms 240 filed for children born in the Canal Zone in 1936, but no such form for Senator McCain. (The fact that his parents did not file the form does not mean that he is not a CITIZEN — just that it could be a little more difficult to prove.)'
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