A poster and commentator by the User ID name of Slartibartfast has recently left a comment to my recent essay entitled, "For Love of Party Obama Supporter Declares President George Washington a 'Natural Born Citizen' Instead of an 'Original Citizen' Covered by the Constitution's 'Founding Fathers Grandfather Clause.'" The poster describes himself/herself as follows: “While I just created the google account for 'Slartibartfast', I am an occasional poster (under that pseudonym) at Dr. Conspiracy's site and a regular poster at George Washington University Law professor Jonathan Turley's site (while I use the same pseudonym there, I have revealed my identity so it is not anonymous). I'm not on any 'team' and I'm not filled with hate.” The poster then made various comments on the issues raised in my essay. Below are the poster’s comments and my responses:
Slartibartfast: “I am a supporter of President Obama and believe that a certified copy of his COLB (assuming it confirms the information on the version posted online) is sufficient proof that he is a natural born citizen to any US court.”
Apuzzo response: An authentic and certified Certification of Live Birth (COLB), not to be confused with a Certificate of Live Birth (BC), is only prima facie evidence of a birth event. A certified copy paper version of the alleged COLB has not been presented to any controlling legal authority or even to any reporters in the major media. Only providing a 2008 computer image on the internet of an alleged 2007 COLB, Obama has yet to produce for the public even an authentic and certified COLB. All the major talking heads on TV have been waving before the cameras is a local laser printer printout of that same digital image off the internet. What kind of proof of anything is that in the age of digital image manipulation software such as PhotoShop? On the contrary, there is convincing evidence posted here, here, and here that the COLB images posted on the internet are fraudulent. But even if Obama produced an authentic COLB, it is not sufficient evidence of place of birth. As the COLB itself clearly states at its bottom, it is only prima facie evidence (evidence accepted on its face without challenge from other evidence). Given the great amount of existing evidence showing that Obama was born in Kenya, he has to produce his contemporaneous birth certificate from 1961 which would provide corroborating evidence such as the identity of the Honolulu hospital where he was allegedly born and the doctor who allegedly delivered him, along with other probative evidence. There exists too much contradictory evidence showing that he was born in Kenya to simply accept the short-form COLB as proof that he was born in Hawaii. Additionally, Obama causes his COLB to lose probative value given that he has refused to release to the public all his other contemporaneous life papers--medical, travel, work, and education documents--evidence which would corroborate the veracity of the COLB. But more important, even if the COLB and his 1961 contemporaneous birth certificate (BC) both show that he was born in Hawaii, Obama still does not and cannot satisfy the constitutional definition of an Article II “natural born Citizen” because he was not born in the United States to a mother and father who were at the time of his birth United States citizens.
Slartibartfast: “I don't find your argument [regarding the meaning of the “natural born Citizen clause] persuasive since in other cases where the founders did not want their words to be interpreted in the context of English Common Law, they explicitly said so (such as the definition of the term 'treason').”
Apuzzo response: It is rather unreasonable to argue that with every word in the Constitution, the Framers defaulted to the English common law for its meaning unless they told us they were relying upon some other law for definition. We know from evidence from the Founding era that the Framers rejected English common law on the federal level and only tolerated its use by the States on local issues. The test for who would wield the executive and military power of the United States would surely not be anything that the Framers would have left to be defined by the outdated and no longer relevant feudalistic law of monarchial Great Britain or to be left in the hands of unpredictable State control. We also know from that same historical evidence that natural law and the law of nations, as confirmed and enlightened for the Founders and Framers by Biblical text and classical wisdom, inspired them in deciding to “dissolve” their feudal allegiance to the British Crown and in constituting the new Constitutional Republic of “Free and Independent States.” The Framers also made express and direct reference to the “the Law of Nations” in Article I, Section 8, Clause 10. No where in the Constitution did they refer to the English common law. It is only reasonable to conclude that the Founders and Framers would have looked to that same law, which they considered as coming from God and providing the basis of liberty for the civilized world, for the standard to be used to determine who would be the present and future President and Commander in Chief of the Military.
Slartibartfast: “In addition, I think that the the [sic] statement ‘The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’" in the majority opinion of US vs. Wong Kim Ark clearly indicates that President Obama would have been a natural born citizen if BOTH of his parents were aliens (and he was born in Hawaii), but since he is the child of a US citizen born in the United States (and under its jurisdiction) I don't think that there is any doubt that he is a natural born citizen and eligible for the office he holds.”
Apuzzo response: This quote from Wong Kim Ark, 169 U.S. 649 (1898), shows that Justice Gray understood that a “natural-born citizen” can only be produced by being born in the country to two citizen parents. While Justice Gray equated a child born in the United States to “an” alien parent (this is Obama if he was born in Hawaii and is what Justice Gray called a “citizen of the United States” under the Fourteenth Amendment) to a child born in the United States to two citizen parents (this is not Obama and is what Justice Gray called a “natural-born citizen”), he only did so in terms of their rights. Justice Gray distinguished the former from the latter by the sole fact of being born to “an” alien parent which means just one alien parent. At no time did he say that such a child born in the United States of “an” alien parent is a “natural born Citizen.” To better understand this point, we know that the Fourteenth Amendment considers born citizens and naturalized citizens "citizens of the United States" and deems both classes of citizens to be equal. But even though they are equal in rights, we know that under our Constitution, a naturalized citizen is not eligible to be President.
In Wong Kim Ark, the Court was faced with interpreting the meaning of “subject to the jurisdiction thereof” as written in the Fourteenth Amendment’s citizenship clause. While Justice Gray cited and quoted favorably Minor v. Happersett’s (88 U.S. 162 (1875)) Vattelian definition of an Article II “natural-born citizen,” he also said that he did not read the Minor decision to mean that the Court was “committed” to excluding children born in the United States to alien parents from being considered “citizens of the United States” under the Fourteenth Amendment. The Court knew that Wong, being born in the country to alien parents, did not satisfy the law of nations definition of a “natural born Citizen.” It also was not necessary for Wong to be a “natural born Citizen,” for he only needed to be a “citizen of the United States” to enter and remain in the United States. So what the Court did was use the old English common law that prevailed in the colonies to make Wong a “citizen of the United States” under the Fourteenth Amendment. Hence, the Court was willing to give Wong the status of a “citizen of the United States,” but only under the Fourteenth Amendment, and not under the natural law and law of nations which previous United States Supreme Court cases and other authorities had advised provided the standard for one to be a “natural born Citizen.” So what Wong did was create a class of persons who are born in the United States and even though they are born to one or two alien parents are still considered to be “subject to the jurisdiction thereof” under a rather liberal interpretation of that clause which at most makes them Fourteenth Amendment “citizens of the United States” but not Article II “natural born Citizens.”
Justice Gray said that a child born in the United States to alien parents “is as much a citizen as the natural-born child of a citizen.” But we know that the Constitution says that only a “natural born Citizen” can be President. Being able to be President is not a “right” but rather a privilege that is granted by the People to someone among them who meets the minimal constitutional eligibility requirements of Article II and is legally voted into that office. The People included this requirement so that they could make sure that there would be a minimal way to assure them that after that person won the required vote and assumed office, they could still trust him to protect their lives, liberty, and property, and promote their happiness. Hence, Justice Gray’s statement is subject to the command of “the People,” as expressed by them in the Constitution. That command can only be changed indirectly by way of interpretation by the United States Supreme Court or directly by a constitutional amendment.
Slartibartfast: “[I]f any court rules on the definition of 'natural born citizen' that they will come to the same conclusion as the (non-binding) precedent set by the Indiana court in the Ankeny decision.”
Apuzzo response: As you correctly point out, the Indiana State court decision of Ankeny v. Governor of the State of Indiana, 916 N.E.2d 679 (2009), is not binding on a federal court. But more important is that the decision is wanting in legal analysis and historical and legal support. It basically took Wong Kim Ark’s definition of a Fourteenth Amendment “citizen of the United States” and used it to also define an Article II “natural born Citizen.” Hence, the court conflated the two terms into the former. In so doing, the court obliterated the presidential eligibility clause “natural born Citizen” from the Constitution. Such doing has no support in logic, history, historical sources, and United States Supreme Court case law. In fact, it is contrary to sound constitutional interpretation as taught by Chief Justice John Marshall. It is of critical importance that the Framers included in the Constitution the status of “natural born Citizen” and “Citizen of the United States.” There must be a reason for their including these two separate and distinct classes of citizenship. “It cannot be presumed that any clause in the Constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.” Marbury v. Madison, 5 U.S. 137, 175 (1803). Use of different language in different parts of a statute suggests that the words used have a different meaning. E.g. Bates v. United States, 522 U.S. 23, 29-30 (1997). Hence, every clause in the Constitution must be given its own independent meaning. The Framers were very specific in including both these terms into the Constitution. The unambiguous text and structure of the Constitution show that the terms each describe a different type of citizen and each are ascribed to different political offices. Hence, conflating “natural born Citizen” and “Citizen of the United States” is therefore simply not allowed and “inadmissible.” Moreover, apart from a strict textual interpretation of the meaning of the two terms, there is no United States Supreme Court decision holding or even suggesting in dicta that the two terms mean the same thing. On the contrary, the historical record, Supreme Court cases, and Congressional Acts all show that the two terms are separate and distinct with their own meaning.
Slartibartfast: “I expect that the effect of any eligibility law or lawsuit will be to demonstrate that President Obama is a natural born citizen in a very high profile way and totally marginalize the eligibility movement.”
Apuzzo response: We welcome the challenge to have a court of competent jurisdiction decide the question of Obama’s Article II eligibility to be President. We believe that if a court will give Commander Kerchner and the other plaintiffs standing, we will prevail. Once such a court decides the merits of the eligibility question (not just the standing question), I do not believe there will continue to be an “eligibility movement” and so there will not be any need to “marginalize” it.
Slartibartfast: “So I wish you and Mr. Apuzzo the best of luck in attempting what I expect will greatly benefit the effort to re-elect President Obama.”
Apuzzo response: Commander Kerchner, the other plaintiffs, and I are not interested in hurting or helping anyone’s chances of getting elected or re-elected. What we are interested in is that the Constitution be respected and applied as the law of the land in our Constitutional Republic. We are also interested in making it publicly known that in our Constitutional Republic the President and other elected officials are the servants of “the People” and that under no rational and common-sense-driven system of self-representative republican government should the servant hide his or her identity from the People that he or she serves.
Mario Apuzzo, Esq.
May 4, 2010