Thursday, February 24, 2011

Arizona’s Proposed Interstate Birth Certificate Compact Law As Now Written Is Both Unconstitutional and Contrary to the Best Interests of the United States

Arizona’s Proposed Interstate Birth Certificate Compact Law As Now Written Is Both Unconstitutional and Contrary to the Best Interests of the United States

By Mario Apuzzo, Esq.
Written: February 24, 2011
Revised: February 25, 2011

Arizona is considering passing a law that, among other things, would allow a child born in the U.S. to one or two alien parents to be recognized as a “natural born Citizen.” Such a law would be passed in error. Apart from the proposed law being unconstitutional for violating the Supremacy Clause and the Pre-emption Doctrine, a law that recognizes an Article II “natural born Citizen” as including a child born in the U.S. to one or two alien parents would be contrary to what the Founders and Framers designed as a national security safeguard for the Offices of President and Commander in Chief of the Military. In this article, I will address only that part of the proposed law that attempts to define what an Article II “natural born Citizen” is and specifically that part of the law that includes as an Article II “natural born Citizen" a child born in the U.S. to one or two alien parents. In a follow up article, I will address the other parts of the proposed law that I will show are also unconstitutional.

This proposed law is known as SB1308 and is designed to amend Title 36, Chapter 3, by adding what the law calls an interstate compact which concerns U.S. citizenship. The new Article is Article 6, Interstate Birth Certificate Compact 36-361. The proposed law states that the “governor is authorized and directed to enter into a compact on behalf of this state with any of the United States lawfully joined in the compact in a form substantially as follows.”

Article I and III of the new law declare that “[a] person who is born subject to the jurisdiction of the United States is a natural born United States citizen.”

Article II says that “[a]s used in this compact, ‘subject to the jurisdiction of the United States’ has the meaning that it bears in section 1 of the fourteenth amendment to the United States Constitution, namely that the person is a child of at least one parent who owes no allegiance to any foreign sovereignty, or a child without citizenship or nationality in any foreign country.”

Article II also says that “[f]or the purposes of this compact a person who owes no allegiance to any foreign sovereignty is a United States citizen or national, or an immigrant accorded the privilege of residing permanently in the United States, or a person without nationality in any foreign country.”

The proposed law seeks to define an Article II “natural born Citizen” by tying that definition to the 14th Amendment's “subject to the jurisdiction” clause. It then sets out to define what “subject to the jurisdiction” means. It ties that clause to the child being born to at least one parent who does not have any foreign allegiance. So, the proposed law seeks to tell us what a “natural born Citizen” is by providing us with its own definition of “subject to the jurisdiction” and allegiance. But as we shall see, given how it defines “subject to the jurisdiction” and allegiance, Arizona would allow even a child born to two alien parents to be included as a “natural born Citizen.”

I. The Proposed Law Improperly Connects the Meaning of a Natural Born Citizen to the 14th Amendment

Arizona has improperly tied the meaning of a “natural born Citizen” to the 14th Amendment. The meaning of a “natural born Citizen” has nothing to do with the 14th Amendment. The Framers wrote the clause in 1787 and the 14th Amendment was passed in 1868. There is no indication in the text of the amendment, its history, or in any court decision that suggests that the amendment changed Article II’s “natural born Citizen” clause.

There is a critical difference between a 14th Amendment “citizen of the United States” and an Article II “natural born Citizen.” “Representatives, U.S. Const. Art. I, § 2, cl. 2, and Senators, Art. I, § 3, cl. 3, must be citizens. Congress has the authority "to establish an uniform Rule of Naturalization" by which aliens can become citizen members of our society, Art. I, § 8, cl. 4; the judicial authority of the federal courts extends to suits involving citizens of the United States "and foreign States, Citizens or Subjects," Art. III, § 2, cl. 1, because somehow the parties are "different," a distinction further made by the Eleventh Amendment; the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments are relevant only to "citizens." The President must not only be a citizen but "a natural born Citizen," Art. II, § 1, cl. 5. One might speculate what meaning Art. IV, § 2, cl. 1, has today.” Sugarman v. Dougall, 413 U.S. 634, 651-52 (1973) (Rehnquist, J., dissenting).

Anytime Congress uses its naturalization powers, it creates a “citizen of the United States” and not a “natural born Citizen.” That is the reason why although a Congressional act or treaty can declare a person to be an “at birth” “citizen of the United States,” doing so does not mean that that person is a “natural born Citizen.” That person would have to satisfy the conditions of being a “natural born Citizen” without being compelled to rely upon the act or treaty to give him or her at most the status of a “citizen of the United States.” The same reasoning extends to the 14th Amendment, which is nothing more than the constitutionalization of Congress’s Civil Rights Act of 1866 and not the People’s amendment of Article II. So any person who is at most made a “citizen of the United States” by the 14th Amendment and who does not otherwise qualify as a “natural born Citizen’ is a “citizen of the United States” but not a “natural born Citizen.”

All the political and legal battles under the Civil Rights Act of 1866 and the Fourteenth Amendment over who has the right to be admitted to membership in America does not change the meaning of an Article II “natural born Citizen,” for these battles have not been about who are “natural born Citizens” under Article II but rather about who are “citizens of the United States” under those laws. There has never been any doubt in our nation as to who the “natural born Citizens” are. As we shall see below, the U.S. Supreme Court has informed us several time throughout our history that a child born in the country to citizen parents is a “natural born Citizen.” This American common law definition of a “natural born Citizen,” based on natural law and the law of nations, has to this day never been changed by the Constitution, Congressional Act, or the U.S. Supreme Court, and continues to prevail as originally written in Article II by the Framers in 1787.

II. The Proposed Law Improperly Re-defines the Meaning of “Subject to the Jurisdiction”

Article II of the proposed law says that “‘subject to the jurisdiction of the United States’ has the meaning that it bears in section 1 of the Fourteenth Amendment to the United States Constitution, namely that the person is a child of at least one parent who owes no allegiance to any foreign sovereignty, or a child without citizenship or nationality in any foreign country.”

But the 14th Amendment’s “subject to the jurisdiction” clause has never been defined in this manner by our federal courts. For example, U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898) found that a child born in the U.S. to parents who were both aliens and who were domiciled and residing in the U.S. and not serving in any foreign diplomatic capacity was born “subject to the jurisdiction” of the United States and therefore a born “citizen of the United States” under the 14th Amendment. Hence, Arizona wants to change the meaning of “subject to the jurisdiction” through an interstate compact. Arizona simply cannot do that, for federal law on the matter is supreme. The Constitution, federal law, and treaties are “the supreme Law of the Land” and therefore trump any conflicting state law. See Constitution Article VI, Clause 2. Such a provision is unconstitutional.

"Subject to the jurisdiction thereof" means "not subject to any foreign power." Civil Rights Act of 1866. Hence, it is tied to allegiance. Simply being born on the territory and being subject to U.S. laws is not sufficient, for virtually every child born on U.S. soil satisfies that condition by simply being born on the soil (except for children of ambassadors, invading armies, and American Indians as originally believed). Rather, more is needed. While traditionally, citizenship of the child's parents was needed, Wong Kim Ark changed the law and used domicile and residence of the alien parents as the sufficient link to declare U.S.-born Wong Kim Ark to be a 14th Amendment born "citizen of the United States," not to be confused with an Article II "natural born Citizen." Wong's parents were in the U.S. legally, i.e., with the consent of the U.S. But as far as an Article II "natural born Citizen" is concerned, the natural law/law of nations/common law definition of that term was never changed and prevails today. That definition is a child born in the country to U.S. citizen parents.

III. The Proposed Law Improperly Defines Not Owing Any Allegiance to Any Foreign Sovereignty

Article II of the proposed law also says that “[f]or the purposes of this compact a person who owes no allegiance to any foreign sovereignty is a United States citizen or national, or an immigrant accorded the privilege of residing permanently in the United States, or a person without nationality in any foreign country.”

This provision is designed to allow a child born in the U.S. to be born to different types of parents so that he or she can still be considered a “natural born Citizen.” First, this provision is contradictory. The law would allow a child born in the U.S. to one alien parent to be not only a “citizen of the United States” but also a “natural born Citizen.” If a child is born to an alien parent, then that child acquires through jus sanguinis an allegiance and citizenship in the alien parent’s nation. But this provision says that a person who owes no allegiance to any foreign sovereignty is a United States citizen or national. So first the new law allows not only a “citizen of the United States” but also a “natural born Citizen” to have dual allegiance by being born to an alien parent but then it tells us that a person who owes no allegiance to any foreign sovereignty is a United States citizen of national. These provisions are contradictory.

Second, dual citizenship is not prohibited in the U.S. Hence, under the 14th Amendment or Act of Congress, a “citizen of the United States” could be a person who holds allegiance to not only the U.S., but also to some foreign nation. A prime example is Wong Kim Ark to whom the Court gave U.S. citizenship but at the same time recognized that he also had allegiance to and citizenship with China, the nation of his parents. But yet this provision assumes that a “citizen of the United States” does not have any foreign allegiance.

Third, Article II also says that “an immigrant accorded the privilege of residing permanently in the United States” owes no allegiance to any foreign sovereignty. This is simply not our citizenship and naturalization law. A person who is an immigrant and has the privilege to permanently reside in the United States is a permanent legal resident (LPR) or what is commonly known as a “green card” holder. This person has not yet been naturalized and is therefore not a “citizen of the United States” under the 14th Amendment. This person is an alien under our citizenship and naturalization laws. It is therefore not possible that this person would not owe allegiance to some foreign sovereignty.

Fourth, this provision also says that “a person without nationality in any foreign country” also has no allegiance to any foreign sovereignty. But the fact that someone may have no nationality in any foreign country does not mean that that person has no allegiance to some foreign sovereignty. Simply stated, allegiance and nationality are not the same things. Loss of nationality is a very complex matter and cannot be equated with loss of allegiance without any in depth analysis of all the legal ramifications involved.

IV. The Proposed Law Improperly Allows a Child Born to One or Two Alien Parents to Be Included As an Article II “Natural Born Citizen”

As we have seen, Article II of the proposed law provides that a “natural born Citizen” is a child born in the U.S. to “at least one parent who owes no allegiance to any foreign sovereignty, or a child without citizenship or nationality in any foreign country.” As can be seen, the new law defines a legal permanent resident (LPR) as having no foreign allegiance. Hence, under Arizona’s proposed law, the child’s parents could both be non-U.S. citizens or one could be a non-U.S. citizen and the child would be included as a “natural born Citizen.” We have also seen that a legal permanent resident is still considered an alien under our law. The proposed law also includes as a “natural born Citizen” “a child without citizenship or nationality in any foreign country,” without any reference to the allegiance and citizenship of that child’s parents. Hence, Arizona would therefore include as a “natural born Citizen” a child born in the U.S. to one or two alien parents. But such a definition of a “natural born Citizen” is in error.

Why do we need that the child be born to two U.S. citizen parents? Arizona’s proposed law would defeat the whole purpose of the Framers using the natural law definition of a “natural born Citizen” as the standard to be met by any would-be President and Commander in Chief. There is good reason why the Framers relied upon natural law to provide the definition of a “natural born Citizen.” Under natural law which when applied to nations become the law of nations, a “natural born Citizen” is defined as “those born in the country, of parents who are citizens.” Emer de Vattel, The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758). Vattel explains that it is “our extraction, not the place of birth, that gives us rights.” Id. at Section 216. We can see that under natural law and the law of nations, it is the condition of the parents that is critical to making a “natural born Citizen.” Hence, when applying the natural law definition of “natural born citizen,” we have to look only to the citizenship of the parents of the child at the moment of birth. But nations pass positive laws regarding citizenship which impact on the allegiance and citizenship of individuals born in and out of their territory. Hence, we also have to look to the place of birth when nations pass such positive laws concerning the citizenship status of its citizens born either in or out of its national boundaries. Vattel explains that those laws must be followed when a sovereign nation passes such laws. Id. at Section 215.

Under natural law and the law of nations and how the Framers juxtaposed “natural born Citizen” with “citizen of the United States” in Article I and II of the Constitution, a “natural born Citizen” includes all those born with no foreign allegiance and excludes all those born with foreign allegiance. The purpose of having the natural law national character of “natural born citizen” is to show that a person is born with natural allegiance to only one nation. It was because the “natural born Citizen” status gives a person such a natural character from birth that the Founders and Framers chose that natural law status as having to be the one to be held by a would-be President and Commander in Chief of the Military from the moment of birth. Indeed, it was this national character that for them best kept foreign influence out of the Offices of President and Commander in Chief.

A child born in the U.S. to alien parents inherits at birth a foreign natural allegiance from one foreign parent as he or she does from two foreign parents. This occurs under the doctrine of jus sanguinis (inheriting citizenship from one’s parents or other ascendants). With one foreign parent, he or she acquires positive law allegiance to the U.S. from being born on its territory and natural allegiance to the foreign nation of his or her parent by being born to them. With two foreign parents, he or she acquires positive law allegiance to the U.S. and natural allegiance to the two foreign nations of his or her parents. If the child is born out of the United States, he or she will acquire positive law foreign allegiance from the foreign territory on which he or she may be born. The point is that unless the child is born to two U.S. citizen parents in the U.S. which cuts off any possibility that either natural law foreign allegiance, inherited from alien parents, or positive law foreign allegiance, acquired from birth on foreign soil, will attach to the child, he or she will acquire either a natural foreign allegiance or a positive law foreign allegiance. Any one of these conditions under the natural law definition of a “natural born Citizen,” prevents that child from being considered a “natural born Citizen.”

No U.S. Court has ever ruled that a person born on U.S. soil to one or two alien parents is an Article II “natural born Citizen.” On the contrary, the only definition of a "natural born Citizen" ever found in any U.S. Supreme Court case is a child born in the U.S. to citizen parents. As authority for this definition, there exists the following cases: The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (Chief Justice John Marshall, concurring and dissenting for other reasons, cites and quoted from Emer de Vattel, Section 212 of The Law of Nations); Inglis v. Trustee of Sailor's Snug Harbor, 29 U.S. 99 (1830); Dred Scott v. Sandford, 60 U.S. 393 (1857) (Daniels, J., concurring); Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (gives the same Vattelian definition); Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879) (not a Supreme Court case but persuasive); Ludlam v. Ludlam, 26 N.Y. 356 (1883) (not a U.S. Supreme Court case but persuasive); United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (not a U.S. Supreme Court case but persuasive); and U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898) (cites and quotes Minor’s Vattelian/American common law definition of a “natural-born citizen”) and Perkins v. Elg, 307 U.S. 325 (1939) (confirmed that a child born in the U.S. to citizen parents, even if those parents are naturalized U.S. citizens, is a “natural born Citizen”); contra the state case of Ankeny v. Governor of the State of Indiana, 916 N.E.2d 678 (Ind. Ct.App. 2009) (declared that “persons born within the borders of the United States are ‘natural born Citizens’ for Article II, Section 1 purposes, regardless of the citizenship of their parents.” But the court never even raised the issue that there was no proof before the court that Obama was "born within the borders of the United States." In fact, the Ankeny court, while dismissing the plaintiffs' case, never ruled that Obama was "born within the borders of the United States." Nor did it rule that he was a "natural born Citizen." Ankeny mistakenly concluded that the 14th Amendment case of Wong Kim Ark ruled Wong Kim Ark to be a “natural born Citizen” rather than a born “citizen of the United States.” In so ruling, the Ankeny court also incorrectly equated a British "natural born subject" with a U.S. "natural born Citizen" and incorrectly relied upon Wong Kim Ark).

Wong Kim Ark created a new category of a born 14th Amendment “citizen of the United States,” one born in the U.S. to alien parents. It did not in any way amend what an Article II “natural born Citizen” has always been since the Founding. There is plenty of language in the decision which shows that children born in the U.S. to alien parents were “citizens of the United States” while children born to U.S. citizen parents were “natural born Citizens.”

There exists no U.S. Supreme Court decision in which any Justice ever said that a "natural born Citizen" is a child born in the U.S. to one or two alien parents. When defining the clause, they said born in the U.S. to citizen parents. In Minor v. Happersett, the whole Court gave us that definition of a “natural born Citizen” which the whole court also confirmed in U.S. v. Wong Kim Ark.

Also, except for the Naturalization Act of 1790, which was passed by the First Congress and which was repealed by the Third Congress in 1795, the same is true of Congress by process of elimination, i.e., in all its naturalization acts, Congress has never had to tell us that a child born in the U.S. to two citizen parents is a “citizen of the United States.” Since such child is not included in any Act of Congress as needing to be declared a “citizen of the United States,” such child must be a “natural born Citizen.”

There also exists evidence directly from the Founding period which conclusively shows that a "natural born Citizen" was a child born to citizen parents and not to one or two alien parents. In his 1789 essay, A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789), while not using the phrase “natural born Citizen,” Ramsay described the original citizens that existed during the Founding and what it meant to acquire citizenship by birthright after the Founding. The Constitution itself shows that the Framers called the original citizens “Citizens of the United States” and those that followed them “natural born Citizens.”

First, Ramsay told us that there is a difference between a “subject” and a “citizen of the United States” and by the way he describes that difference we surely cannot simply say that for the Founders and Framers a “natural born Citizen” had the same meaning as a “natural born subject.” He said:

"A citizen of the United States, means a member of this new nation. The principle of government being radically changed by revolution, the political character of the people also changed from subjects to citizens. The difference is immense. Subject is derived from the latin words, sub and jacio, and means one who is under the power of another; but a citizen is an unit of a mass of free people, who, collectively, possesses sovereignty. Subjects look up to a master, but citizens are so far equal, that none have hereditary rights superior to others. Each citizen of a free state contains, within himself, by nature and the constitution, as much of the common sovereignty as another. In the eye of reason and philosophy, the political condition of citizens is more exalted than that of noblemen. Dukes and earls are the creatures of kings, and may be made by them at pleasure: but citizens possess in their own right original sovereignty." Id. at 3 (emphasis in the original).

So we can see that with the American Revolution, the Founders and Framers abandoned the notion of a British common law “natural born subject” and replaced it with the new “political character” which they called “citizen of the United States,” a concept that had its genesis in natural law and the law of nations. And this latter term, which Ramsay said described a “political character,” had a meaning which was tied to the form of government chosen by the Founders and Framers, that form being a constitutional republic. It had a meaning that would serve the best interests of a constitutional republic to be led by a representative form of government rather than a monarchial one.

Second, Ramsay then explained the different ways by which the “high character of a citizen of the United States” is acquired in the new republic. He said concerning the children born after the declaration of independence:

"None can claim citizenship as a birth-right, but such as have been born since the declaration of independence, for this obvious reason: no man can be born a citizen of a state or government, which did not exist at the time of his birth. Citizenship is the inheritance of the children of those who have taken part in the late revolution; but this is confined exclusively to the children of those who were themselves citizens…." Id. at 6.

He added that “[t]he citizenship of no man could be previous to the declaration of independence, and, as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776.” Id. And again, “citizenship by inheritance belongs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring….” Id. at 7.

In referring to birthright citizenship, Ramsay did not use the clause “natural born Citizen.” Rather, he referred to citizenship as a birthright which he said was a natural right. But there is little doubt that how he defined birthright citizenship meant the same as "natural born Citizen," "native," and "indigenous," all terms that were then used interchangeably and all which meant that the child was born to citizen parents.

Ramsay did recognize that future U.S. citizenship could also be gained by naturalization. Hence, it is only reasonable to conclude that his birthright citizenship was not limited to only the children of direct descendents of the original citizens but would also be available to the children of naturalized “citizens of the United States.”

Here we have direct and convincing evidence of how a very influential Founder defined a “natural born Citizen.” Noah Webster, 1828, in explaining how an American dictionary of the English language was necessary because American words took on different meanings than the same word in England, placed David Ramsay among great Founders such as “Franklin, Washington, Adams, Jay, Madison, Marshall, Ramsay, Dwight, Smith, Trumbull...”

For more information on David Ramsay and his influence during the Founding, please see my essay, Founder and Historian David Ramsay Defines a Natural Born Citizen in 1789, accessed at this blog at: http://puzo1.blogspot.com/2010/04/founder-and-historian-david-ramsay.html A copy of David Ramsay's 1789 dissertation can be found at: http://www.scribd.com/doc/33807636/A-Dissertation-on-Manner-of-Acquiring-Character-Privileges-of-Citizen-of-U-S-by-David-Ramsay-1789

It is also important to understand that Arizona would allow aliens to rear the child who it declares to be a “natural born Citizen.” Aliens become “citizens of the United States” through naturalization which has a very important purpose in the U.S.

“The process of naturalization was specifically designed by Congress to require a foreign national to demonstrate that he or she is familiar with the history, traditions, and institutions of our society in a way that a native-born citizen would learn from formal education and basic social contact. Congress specifically provided that an alien seeking citizenship status must demonstrate ‘an understanding of the English language’ and ‘a knowledge and understanding of the fundamentals of the history, and of the principles and form of government, of the United States.’ 8 U. S. C. § 1423. The purpose was to make the alien establish that he or she understood, and could be integrated into, our social system.

‘Through the system of citizenship classes sponsored by the Immigration and Naturalization Service and the local school system, the alien is aided in preparing himself for citizenship, and every effort is made to give him fundamental and uniform knowledge of our political and social structure. In order that he may intelligently use this fundamental and uniform knowledge and so that he may be a complete and thoroughly integrated member of our American society, the committee [House Judiciary Committee] feels that he should have a basic knowledge of the common language of the country and be able to read, write, and speak it with reasonable facility.’ H. R. Rep. No. 1365, 82d Cong., 2d Sess., 78 (1952) (emphasis added).

See also 8 U. S. C. § 1424, which precludes aliens who manifest certain opposition to our society or form of government from being naturalized. An alien must demonstrate ‘good moral character,’ 8 U. S. C. § 1427 (a)(3), which was intended by Congress to mean a broad "attach[ment] to the principles of the Constitution of the United States, and [disposition] to the good order and happiness of the United States." H. R. Rep. No. 1365, supra, at 80. See also 8 CFR § 332b (1973), detailing the cooperation between the Immigration and Naturalization Service and local schools conducting citizenship education for applicants for naturalization. The above is sufficient to demonstrate, I believe, that Congress provided that aliens seeking citizenship status prove what citizens by birth are, as a class, presumed to understand: a basic familiarity with our social and political mores and institutions. The naturalized citizen has demonstrated both the willingness and ability to integrate into our social system as a whole, not just into our ‘political community,’ as the Court apparently uses the term. He proved that he has become ‘like’ a native-born citizen in ways that aliens, as a class, could be presumed not to be. The Court simply ignores the purpose of the process of assimilation into and dedication to our society that Congress prescribed to make aliens ‘like’ citizens.

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But the justification of efficient government is an even more convincing rationale. Native-born citizens can be expected to be familiar with the social and political institutions of our society; with the society and political mores that affect how we react and interact with other citizens. Naturalized citizens have also demonstrated their willingness to adjust to our patterns of living and attitudes, and have demonstrated a basic understanding of our institutions, system of government, history, and traditions. It is not irrational to assume that aliens as a class are not familiar with how we as individuals treat others and how we expect ‘government’ to treat us. An alien who grew up in a country in which political mores do not reject bribery or self-dealing to the same extent that our culture does; in which an imperious bureaucracy historically adopted a complacent or contemptuous attitude toward those it was supposed to serve; in which fewer if any checks existed on administrative abuses; in which ‘low-level’ civil servants serve at the will of their superiors -- could rationally be thought not to be able to deal with the public and with citizen civil servants with the same rapport that one familiar with our political and social mores would, or to approach his duties with the attitude that such positions exist for service, not personal sinecures of either the civil servant or his or her superior.” Sugarman v. Dougall, 413 U.S. 634, 659-62 (1973) (Rehnquist, J., dissenting).

So, naturalization is a process that serves to integrate an alien into American society. It is reasonable to conclude that a naturalized parent would pass to his or her children those values, attitudes, and knowledge acquired during this integration process. By allowing a “natural born Citizen” to be a child born to and reared by aliens, the Arizona law would remove the requirement that the child’s parents be “citizens of the United States” by birth or by naturalization. By not requiring that both of the child’s parents be citizens at the moment of birth, the proposed law would allow a child born to and reared by aliens to be eligible to be President.

For more information on why the “natural born Citizen” clause requires that both of the child’s parents be U.S. citizens at the time of birth, see my essay published on September 8, 2009, entitled, The Natural Born Citizen Clause of Our U.S. Constitution Requires that Both of the Child’s Parents Be U.S. Citizens At the Time of Birth , accessed at http://puzo1.blogspot.com/2009/09/natural-born-citizen-clause-requires.html

The Arizona proposed law, in how it defines a “natural born Citizen,” also contradicts Arizona HB 2544, which provides that a candidate for President show by competent evidence that he or she “has not held dual or multiple citizenship and that the candidate’s allegiance is solely to the United States of America.” Clearly, if a child is born to one or two alien parents, under the doctrine of jus soli citizenship, that child will be born with dual or multiple citizenships and not have sole allegiance to the United States.

Article VI provides in pertinent part: “B. This compact shall not take effect until the United States Congress has given its consent pursuant to Article I, Section 10, Clause 3 of the United States Constitution.” I do not see any way that the Congress would ever give its consent to any such proposed law which I will explain in a follow up article also contains many other unconstitutional provisions.

As we have seen, Arizona’s proposed law would completely change the American common law definition of an Article II “natural born Citizen.” In doing so, it would allow foreign influence to make its way into the offices of President and Commander in Chief and thereby dilute the safeguards for the survival and preservation of the nation that the Founders and Framers gave us through the “natural born Citizen” clause. This proposed law is therefore detrimental to the national security and best interests of the United States in how it attempts to re-define an Article II “natural born Citizen.” This proposed law is not only unconstitutional but also ill conceived as to its merits. As now written, it should be allowed to suffer a quick death.

Mario Apuzzo, Esq.
February 24, 2011
Revised February 25, 2011
http://puzo1.blogspot.com/
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Copyright © 2011
Mario Apuzzo, Esq.
All Rights Reserved

35 comments:

Ms. Cris Ericson said...

We need all the photographs we can get of summer parties in Hawaii 1959 because the birth certificate Obama shows, has in the right hand corner, in tiny print, HRS codes, Hawii Revised Statutes, one of which is subject to another HRS code, which proves the certificate was altered and/or amended, - and it is possible that Obama was born Aug. 4, 1959 before Hawaii became a State of the USA on Aug. 21, 1959.

The fact that the current Governor of Hawaii says he remembers Obama's parents at summer parties, and the Governor is around 70 years old, - who is 70 years old and remembers parties a certain particularsummer - UNLESS it was the summer of parties in 1959 when Hawaii becamse a State of the USA?

Cris Ericson
http://crisericson.com

MinutemanCDC_SC said...

Typo alert: ius soli would only make Mr. Obama a dual citizen if it could be proven that he was born in the U.S. . . . but he wasn't.

Three expert witnesses on counterfeit documents have attested that the Hawaii COLB is a FAKE. Every other shred of evidence points to the fact that Barack Obama II was born in Kenya, and everyone in Kenya (and Uganda) knows it. Only the Odinga faction of the Kenyan government is making any attempt to cover it up.
___________________________

Neither Anna Dunham nor Barrack Obama, Snr., were in Hawaii in the summer of 1959. The Dunhams arrived in Honolulu in time for the fall term of 1960. Anna Dunham Obama entered night classes at the Univ. of Washington in the fall term of 1961. After the spring term of 1962, Barrack Obama, Snr., graduated from the Univ. of Hawaii and left for Harvard.

The only summer when Barrack and Anna could conceivably have been seen together at summer parties was 1961, and I doubt even that. I wouldn't put much credence in Hawaii Gov. Abercrombie's memories of Barrack Obama, Snr., and Anna Dunham Obama . . . and not just because they are from fifty years ago.

puzo1moderator said...

For those who may not have seen it before, here is the abbreviated cliff notes version of The Obama Timeline by Don Fredrick. It's good to print this out and have it handy in your travels and debates online regarding Obama's early life.

Obama Early Life Time Line 1961-1995 (Abridged) by Don Fredrick
http://www.scribd.com/doc/45060415/Obama-Early-Life-Time-Line-1961-1995-Abridged-by-Don-Fredrick

The Stacker said...

Minuteman, you are forgetting the distinct possibility that Barack Sr. is not his biological father, only the stand in father at the time of birth or later.

In Dreams of My Father, Obama admits something strange: "Unlike mum, Ruth (Nidesand, another wife of Obama's) has all the documents needed to prove who Mark's father was ..."

To me, Obama looks like he is part Dunham, but his "grandfather" could really be his actual father. They are strikingly similar in appearance. Look at the google image of S.Armour Dunham on the beach and tell me that doesn't look just like Barack.

But back to the story, right from Obama's mouth in Dreams: Why wasn't S. Ann able to prove who Barack's father was, unequivocally???

There are major issues with the original vitals stats, ISSUES (plural). Period. That's why it should never be downplayed by the "He's not an NBC anyway!" crowd. That argument clearly has lost, unfortunately. GET THE DOCUMENTS, people.

Puzo1 said...

I of II

I did not cite or quote from Founder and famous historian, David Ramsay, in my article on the Arizona bill, for I mainly focused on court precedents. But let us not forget his great contribution to providing us with insight into what the Founders and Framers meant when they wrote the “natural born Citizen” clause.

In his 1789 essay, A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789), while not using the phrase “natural born Citizen,” Ramsay described the original citizens that existed during the Founding and what it meant to acquire citizenship by birthright after the Founding. The Constitution itself shows that the Framers called the original citizens “Citizens of the United States” and those that followed them “natural born Citizens.”

First, Ramsay told us that there is a difference between a “subject” and a “citizen of the United States” and the way he describes that difference we surely cannot simply say that for the Founders and Framers a “natural born Citizen” had the same meaning as a “natural born subject.” He said:

"A citizen of the United States, means a member of this new nation. The principle of government being radically changed by revolution, the political character of the people also changed from subjects to citizens. The difference is immense. Subject is derived from the latin words, sub and jacio, and means one who is under the power of another; but a citizen is an unit of a mass of free people, who, collectively, possesses sovereignty. Subjects look up to a master, but citizens are so far equal, that none have hereditary rights superior to others. Each citizen of a free state contains, within himself, by nature and the constitution, as much of the common sovereignty as another. In the eye of reason and philosophy, the political condition of citizens is more exalted than that of noblemen. Dukes and earls are the creatures of kings, and may be made by them at pleasure: but citizens possess in their own right original sovereignty." Id. at 3 (emphasis in the original).

So we can see that with the American Revolution, the Founders and Framers abandoned the notion of a British common law “natural born subject” and replaced it with the new “political character” which they called “citizen of the United States,” a concept that had its genesis in natural law and the law of nations. And this latter term, which Ramsay said described a “political character,” had a meaning which was tied to the form of government chosen by the Founders and Framers, that form being a constitutional republic. It had a meaning that would serve the best interests of a constitutional republic to be led by a representative form of government rather than a monarchial one.

Continued . . .

Puzo1 said...

II of II

Second, Ramsay then explained the different ways by which the “high character of a citizen of the United States” is acquired in the new republic. He said concerning the children born after the declaration of independence:

"None can claim citizenship as a birth-right, but such as have been born since the declaration of independence, for this obvious reason: no man can be born a citizen of a state or government, which did not exist at the time of his birth. Citizenship is the inheritance of the children of those who have taken part in the late revolution; but this is confined exclusively to the children of those who were themselves citizens…." Id. at 6.

He added that “[t]he citizenship of no man could be previous to the declaration of independence, and, as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776.” Id. And again, “citizenship by inheritance belongs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring….” Id. at 7.

In referring to birthright citizenship, Ramsay did not use the clause “natural born Citizen.” Rather, he referred to citizenship as a birthright which he said was a natural right. But there is little doubt that how he defined birthright citizenship meant the same as "natural born Citizen," "native," and "indigenous," all terms that were then used interchangeably and all which meant that the child was born to citizen parents.

Ramsay did recognize that future U.S. citizenship could also be gained by naturalization. Hence, it is only reasonable to conclude that his birthright citizenship was not limited to only the children of direct descendents of the original citizens but would also be available to the children of naturalized “citizens of the United States.”

Here we have direct and convincing evidence of how a very influential Founder defined a “natural born citizen.” Noah Webster, 1828, in explaining how an American dictionary of the English language was necessary because American words took on different meanings than the same word in England, placed David Ramsay among great Founders such as “Franklin, Washington, Adams, Jay, Madison, Marshall, Ramsay, Dwight, Smith, Trumbull...”

For more information on David Ramsay and his influence during the Founding, please see my essay, Founder and Historian David Ramsay Defines a Natural Born Citizen in 1789, accessed at this blog at http://puzo1.blogspot.com/2010/04/founder-and-historian-david-ramsay.html

phil stone said...

Would be much more sensible and time saving if Arizona state legislators would persuade their federal congressional representatives and senators to do what their oaths of office require and open a hearing and investigation on Obama's lack of eligibility. We need to enforce the laws we have - not generate new ones. - old marine Phil Stone

puzo1moderator said...

Here is the email address, telephone, and fax number for the bill's sponsor, AZ Senator Gould. I would recommend people contact him and tell him the proposed bill is a disaster and that a bill addressing simple U.S. citizenship and correcting the misunderstandings of 14th Amendment citizenship should not be conflated with the Article II legal term of art "natural born Citizen" which is solely reserved in the Constitution for the special citizenship qualifications as to whom can serve as President and Commander in Chief of the military. AZ should stick to clarifying how one becomes eligible to get basic Citizenship under the 14th Amendment by clarifying what "under the jurisdiction thereof" means and not try to combine that task with the separate issue of "natural born Citizen" in Article II, Section 1 of the Constitution. The 14th Amendment never uses the term natural born Citizen nor did it address or amend Article II, Section 1. So if you want to make a positive contribution to the effort to give our "civic" undereducated legislators in our nation a lesson in the Constitution, please take the time to contact this AZ legislator and tell them to take this bill back to committee and rework it to remove all references to the legal term of art, natural born Citizen and in that process solicit some legal advice from attorneys very familiar with this issue such as Attorney Mario Apuzzo, Attorney Stephen Pidgeon, or Attorney Leo Donofrio. The legal term of art "natural born Citizen" is defined by natural law, not by man-made laws and is certainly not what this AZ bill SB1308 says natural born citizen means. You could also suggest that if he wishes to learn more about the very special legal term of art in our constitution, i.e., "natural born Citizen", that he read the relevant section of Vattel, The Law of Nations or Principles of Natural Law, Vol.1, Chapter 19, Section 212. Here is the link to send him:
http://www.lonang.com/exlibris/vattel/vatt-119.htm

I have already FAX'd my suggestions to the senator. Please take the time to send some comments, suggestions, and possibly some of Mario's excellent writings to him.

AZ Senator Gould
Email: rgould@azleg.gov
Tel: 602-926-4138
Fax: 602-417-3265

Texoma said...

Ms. Cris Ericson,

There is a blogger by the screen name of "Donna" who, among others, claims to have seen a TV news program in the early 1960s in the Ohio area that included a statement from Ann Dunham saying that she went overseas to have a baby. "Donna" also recalls that Hillary Rodham was featured in this report. She says the TV special report had a title with the word "young" in it, and that it may have been Channel 6 on either CBS or NBC.

Perhaps this is something that you or others could research. I am a bit suspect that someone could have such a good memory.

I read that, according to Obama's book, Ann Dunham was in Chicago the summer of 1960 (or 1959?) working as au pair. Acording to Wikipedia, Hillary (age 13 in 1960) helped canvass South Side Chicago after the close 1960 presidential election.

Texoma said...

Mario,

There is a reference in the 1824 US Supreme Court case of McCreery's Lessee vs. Somerville to what a native born citizen is:

"W. McCreery left at his death no children, but a brother, Ralph McCreery, a native of Ireland, who is still living and who has not been naturalized, and three nieces, Letitia Barwell, Jane McCreery, and Isabella McCreery, the latter being the lessor of the plaintiff, who are the daughters of the said Ralph, and native born citizens of the United States."

These three US-born girls were born to an alien father and were referred in this case as "native born citizens".

Am I reading this case correctly?

Jon said...

Mario Apuzzo is correct, however this discussion does point to the merit of a constitutional amendment that would define two terms left ambiguous:

1. The "soil" of the United States, that is, its incorporated territory, should be more specifically defined.

2. Who is and is not "subject to the jurisdiction" should also be defined, to exclude foreign diplomats and their immediate families.

The obvious intent of this ill-conceived bill is to exclude the children of foreign visitors, but that doesn't work, for a variety of reasons. The solution is to prevent illegal entry by pregnant foreigners.

Carlyle said...

Here is something no one has adequately explained. Obama/Soetoro is not in any way special. When he was in Illinois Senate, he was one of many, at best, and perhaps below average. Same for US Senate.

Certainly and clearly it has been widely and deeply known - at least within the Democratic Hierarchy - since at least 2004 that Obama/Soetoro has all this baggage.

So why didn't they marginalize him from the beginning? They had/have lots of other candidates of all ideological proclivities.

So - what is so special about Obama/Soetoro? Why was it so "necessary" for him to be president that they would run all these gauntlets and haul all this baggage - just for him?

Something doesn't make sense, and/or isn't fully explained yet.

Gail said...

Dear Senator Gould,
I must write to tell you of my concern regarding the effects of this bill. Should it pass, as is, I feel it would open up security issues. Potentially we could end up with a Congress and President of Islamic fundamentalists. That is, of course, a worst case scenario but hell, look at the problems we have had with Obama’s birthright. There has still been no incontrovertible evidence to his citizenship and peace will not be assured until there is. We must offer hope to the children of our undocumented workers that have lived here without incident without putting our national security in jeopardy. I ask you to reconsider the bill as written and conform to the original intent of the Constitution’s meaning of natural-born citizen. Not someone who was lucky enough to make it over the border in time to deliver or someone on vacation in the US. The intent was to be an American, not born of a visitor or of illegal parentage.

Thank You for your consideration in this extremely important issue.
Sent 2/26/11

Gail said...

Dear Senator Gould,
I must write to tell you of my concern regarding the effects of this bill. Should it pass, as is, I feel it would open up security issues. Potentially we could end up with a Congress and President of Islamic fundamentalists. That is, of course, a worst case scenario but hell, look at the problems we have had with Obama’s birthright. There has still been no incontrovertible evidence to his citizenship and peace will not be assured until there is. We must offer hope to the children of our undocumented workers that have lived here without incident without putting our national security in jeopardy. I ask you to reconsider the bill as written and conform to the original intent of the Constitution’s meaning of natural-born citizen. Not someone who was lucky enough to make it over the border in time to deliver or someone on vacation in the US. The intent was to be an American, not born of a visitor or of illegal parentage.

Thank You for your consideration in this extremely important issue.
Sent 2/26/11

Puzo1 said...

I of II

Texoma,

You asked: “There is a reference in the 1824 US Supreme Court case of McCreery's Lessee vs. Somerville to what a native born citizen is: ‘W. McCreery left at his death no children, but a brother, Ralph McCreery, a native of Ireland, who is still living and who has not been naturalized, and three nieces, Letitia Barwell, Jane McCreery, and Isabella McCreery, the latter being the lessor of the plaintiff, who are the daughters of the said Ralph, and native born citizens of the United States.’ These three US-born girls were born to an alien father and were referred in this case as "native born citizens." Am I reading this case correctly?”

Justice Story wrote the opinion in the McCreery’s Lessee case. Justice Story was not referring to a “natural born Citizen,” who since time immemorial has always been a child born in the country to citizen parents. Rather, he was referring to a “citizen of the United States” which in the plural he called “native born citizens of the United States.” In natural law, the word “native” meant the same thing as “natural born.” But the term took on a different meaning when used in a loose fashion. It became an expression used to distinguish between persons who were thought of as and later confirmed by Wong Kim Ark to be “citizens of the United States” “at birth” through birth in the U.S. and persons who were “citizens of the United States” through naturalization in the U.S. after birth.

The central issue in the McCreery case was not the citizen status of the three U.S.-born children of the alien. The Court just simply accepted their citizenship status without any analysis or discussion. Hence, the Court’s reference to the three children born in the U.S. to alien parents being “native born citizens of the United States” is dictum. In any event, we see the U.S. Supreme Court coming out differently on this issue in 1830 in Inglis v. Sailors’ Snug Harbor, 28 U.S. 99, 3 Pet. 99 (1830), where the exact status of a person’s citizenship was central to the Court’s decision and where a majority of the Court accepted the natural law and law of nations jus sanguinis basis for citizenship and did not adopt Justice Story’s English common law jus soli view.

The U.S. Supreme Court in 1830 in Inglis rejected Justice Story’s jus soli rule for U.S. citizenship. In Inglis, Justice Story took the same position that he took in McCreery’s Lessee, that children born on U.S. territory regardless of the citizenship of their parents were “American citizens.” Note now he did not say “native born citizen.” Accepting the English common law jus soli rule, in Inglis he said: “Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.” So, for Justice Story, just being born on U.S. territory, regardless of the allegiance and citizenship of the child’s parents, made the child an “American citizen.” He added that the child could also be an American citizen even if born on territory that was not American at the time of his birth if the child’s parents had elected to be American citizens and were so at the time of the child’s birth and remained so up to the Treaty of Peace of 1783 (this is jus sanguinis).

Continued . . .

Puzo1 said...

II of II

On the contrary, the majority in Inglis, which included Chief Justice Marshall, cited Vattel on the right of election to change one’s allegiance and citizenship during a revolution. The Court found on principles consistent with Vattel’s jus sanguinis and not on the English common law rule of jus soli, that simply being born in the United States (after July 4, 1776 and before September 15, 1776, the latter date being when the British temporarily took possession of New York) was not sufficient to establish one’s status as an American citizen, for a child of minor years is incapacitated from making any citizenship election but rather followed the citizenship held or chosen by the father. For the majority, simply being born on U.S. soil was insufficient to make that child a U.S. citizen, for his national character derived from his parents (under then prevailing law, father meant father and mother) and not from the soil. On the contrary, relying upon principles of the English common law, Justice Johnson and Justice Story, both in the minority, would have found the child born in New York to alien parents a citizen of the State of New York (Johnson) or an American citizen (Story). Id. 136 and 164, respectfully.

This holding by a majority of the U.S. Supreme Court in effect overruled Justice Story’s dictum in McCreery v. Somerville (1824) 9 Wheat. 354, that the U.S.-born children of Ralph McCreery, a native of Ireland, who never naturalized, were “native born citizens of the United States.”
Note that Justice Story in 1834 did acknowledge in his Commentaries on the Conflict of Laws, 47, Sec. 48 (1834), the jus sanguinis citizenship principle as “a reasonable qualification” of the English common law rule but he said that in the present state of the public law the doctrine was not universally accepted. Why would he make such a statement if the majority of the U.S. Supreme Court accepted it in 1830 in the Inglis decision, not to mention that Chief Justice John Marshall, a Founder and also on the Court during the Inglis decision, had already accepted it in The Venus in 1814? Also, Justice Story did not say that the "reasonable qualification" applied in the United States only during the Revolution which is how Obama’s supporters try to explain away the Inglis jus sanguinis majority decision.

When Obama’s supporters cite the Inglis decision, they, like Justice Gray in Wong Kim Ark as shown below, only include Justice Story’s rejected statement which is not part of the majority opinion. They present the case as though it stands for what Justice Story said. What is incredible is that these same Obama supporters will scream “dictum” when anyone presents any case that goes against them on what a “natural born citizen” is (even saying that Minor’s statement that a “natural born citizen” is a child born in the country to citizen parents is dictum), but then will cite and quote dissenting opinions and even statements from a Court that are not only dictum but outright rejected by the majority of the Court.

More incredible is that Justice Gray in U.S. v. Wong Kim Ark, 169 U.S. 649, 659 (1898), to support his argument that the English common law continued to provide the definition for our national citizenship even after the Revolution, cited and quoted only the Justice Story and Justice Johnson part of the Inglis case wherein they advocated the English common law jus soli rule, which we know were only concurring opinions that were in the minority and rejected by the majority of the Court. Justice Gray completely ignored the majority opinion in Inglis which I have shown relied upon the natural law and law of nations jus sanguinis rule for citizenship to declare the demandant, John Inglis, if born in New York to British subject parents, a British subject and not a “citizen of the United States.”

puzo1moderator said...

Hi Jon,

Here is a link to David Ramsay's 1789 dissertation at Mario Apuzzo's SCRIBD.com account:

http://www.scribd.com/doc/33807636/A-Dissertation-on-Manner-of-Acquiring-Character-Privileges-of-Citizen-of-U-S-by-David-Ramsay-1789

A pen said...

Finally, a state steps up to get the NBC issue in front of the supreme court. Let's see them evade this one!

Mario, I hope you get the honor of presenting the AZ defense, wink wink. This is the only path to justice in this upside down system, trickery.

A pen said...

"This proposed law is not only unconstitutional but also ill conceived as to its merits. It should be allowed to suffer a quick death."

Would you present the narrow argument to the Supreme Court that the law would be unconstitutional because it redefined NBC? That would achieve the defining of NBC backwardly by requiring the court to decide what the definition is.

Ignore the other constitutional prohibitions on such a lawmaking by states in order to get to the one single issue at hand.

Puzo1 said...

Gail,

You expressed concern over who may give birth to a “natural born Citizen.” Please note that under the proposed Arizona law, the children born in the U.S. to visitors or to illegal aliens would not be considered "natural born Citizens." Under the bill, at least one parent has to be "subject to the jurisdiction" of the United States at the time of the child's birth. The bill considers a parent who is a "citizen," "national," or "immigrant accorded the privilege of residing permanently in the United States" to be "subject to the jurisdiction" of the United States." Hence, your visitor or illegal alien, not being “subject to the jurisdiction” of the United States, is not a qualifying parent needed to pass on "natural born Citizen" status to his or her U.S.-born children.

Also note that the bill, since it says that at least one parent must be “subject to the jurisdiction” of the United States and it defines legal permanent residents (LPRs who are aliens) as being within that jurisdiction, permits two alien parents to give birth to a “natural born Citizen.”

The problem with the bill is that it uses the 14th Amendment and its "subject to the jurisdiction" clause as a standard in defining what an Article II "natural born Citizen" is. In fact, the bill says that anyone who is born "subject to the jurisdiction" of the United States is a "natural born Citizen."

The bill says that “subject to the jurisdiction” has the meaning that it has under the 14th Amendment. But then the bill defines what “subject to the jurisdiction” is, giving it its own meaning and not that which the courts have given it. It defines it in terms of the parents not having allegiance to any foreign country or the child himself or herself having no “citizenship or nationality in any foreign country.” As I have shown in my article, the bill also erroneously defines the conditions under which a parent would be considered as not have any allegiance to a foreign country.

The 14th Amendment with its jurisdiction clause was never intended to nor does it define a "natural born Citizen." Rather, that Amendment provides a standard for becoming a "citizen of the United States," which is a member of American society. Congress can always decide under its plenary power over citizenship and through Section 5 of the 14th Amendment who it considers to be born "subject to the jurisdiction" of the United States. But Congress cannot without constitutional amendment define a "natural born Citizen."

Per the Founders and Framers, Article II "natural born Citizen" status was reserved for the U.S.-born children of parents who are "Citizens of the United States" and who acquire that national character by natural law or positive law such as Acts of Congress or treaty. Since there was no 14th Amendment when the Framers wrote the "natural born Citizen" clause, it would also include the U.S.-born children of parents who acquire the national character of "citizen of the United States" under the 14th Amendment, another positive law. These persons, who acquire the national character of “citizen of the United States,” not by natural law but rather by positive law, are naturalized “at birth” or after birth.

The battle of how we interpret and apply the 14th Amendment and its jurisdiction clause is an important one. It is important because it determines not only who we as a nation will admit as members of American society but also who we as a nation will permit to be the parents of our "natural born Citizens," who are those citizens that our Constitution make eligible to be President and Commander in Chief of the Military. That is a battle that Arizona should wage to the extent that it can in keeping with the Constitution. But for Arizona to mix that battle with re-defining what is a "natural born Citizen" is ill advised.

Carlyle said...

I would like to repost/requery my question from above.

It seems to me unless we can answer this question, we will never get "it" solved. We will be doomed to nibble around the edges.

To me, EVERYTHING else seems secondary to this.

paralegalnm said...

Excellent article.

Particularly with the advent of suffrage laws in the 1920s, the contribution of the mother as well as the father to nationality complicated things.

I heard an interesting theory that Horace Gray, in Ark, pounded home the jus solis theory in order to substantiate Chester Arthur's eligibility. Leo Donofrio's sister wrote the book on Chester Arthur, so maybe Leo is the one to ask.

'The duality also creates problems for the governments involved. MR. JUSTICE BRENNAN recognized this when, concurring in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 187 (1963), a case concerning native-born citizens, he observed: “We have recognized the entanglements which may stem from dual allegiance . . . .” In a famous case MR. JUSTICE DOUGLAS wrote of the problem of dual citizenship. Kawakita v. United States, 343 U.S. 717, 723 -736 (1952

He noted that “[o]ne who has a dual nationality will be subject to claims from both nations, claims which at times may be competing or conflicting,” id., at 733; that one with dual nationality cannot turn that status “into a fair-weather citizenship,” id., at 736; and that “[c]ircumstances may compel one who has a dual nationality to do acts which otherwise would not be compatible with the obligations of American citizenship,” ibid. Rogers vs. Bellei, 401 U.S. 815 (1971)

Justin said...

I thought Arizona was trying to pass a law that would deny ANY citizenship for children of non resident foreigners or illegals? They weren't going to issue them birth certificates or something.

Also, Mario I would like to hear your thoughts about how "personal" jurisdiction and not just "territorial" jurisdiction play into "subject to the jurisdiction thereof".

Lisa said...

Mario,

Have you seen the article at American Thinker regarding the dual citizenship of Thailand’s Prime Minister Abhisit Vejajjiva?

Yet, another good reason to know the truth about our president.

http://www.americanthinker.com/blog/2011/02/dual_citizenship_could_force_t.html

Thanks for all you do! elspeth

Puzo1 said...

Lisa,

Thank you for sharing that with us.

This is a very interesting article. For quick reading and so no one misses it, here is the content of the article:

"February 28, 2011
Dual citizenship could force Thai leader from office
By: Phil Boehmke

Late last week during a debate in Parliament, Thailand’s Prime Minister Abhisit Vejajjiva publically admitted his dual citizenship for the first time. The 46 year-old Thai/British citizen has been prime minister since December of 2008 (the youngest prime minister in nearly 60 years) after a political career that began with his election to Parliament at the youthful age of 27. Until last week Abhisit had successfully concealed his British citizenship.

According to the UK Daily Mail:

Mr. Abhisit, 46, automatically holds British citizenship because he was born in Newcastle, to parents from a well-off Bangkok family.

He would have to specifically renounce it to lose British citizenship.

But his political opponents have jumped on the admission and claimed that as a British citizen, he can be sued in international court over alleged abuses during his administration’s crackdown on anti-government protests last year.

Under British law citizenship is granted to all persons born in the UK, Commonwealth or British colonies and is also conveyed to children born to British fathers in other countries. Unless specifically renounced British citizenship cannot be surrendered. Many countries including the United States consider a person holding dual citizenship to be ineligible to serve as commander in chief.

Once a rising star in Thailand’s Democrat Party, Abhisit’s popularity has waned since becoming prime minister. Many Thais now openly ridicule Abhisit and refer to him by his English name, Mark. The foreign educated prime minister is seen as an elitist who is out of step with the average citizen and since the bloody clashes between protesters and the army last May his regime has been viewed as dangerous and oppressive by a growing number of Thai citizens.

During his meteoric rise to power the vibrant young leader was able to avoid any proper vetting regarding his background, a matter for regret among the people today.”

Source: American Thinker, February 28, 2011, at
http://www.americanthinker.com/blog/2011/02/dual_citizenship_could_force_t.html

Let us move forward said...

paralegalnm said:
"Leo Donofrio's sister wrote the book on Chester Arthur..."

Please provide reference for this "book".

Thank you.

cpanon said...

Hello
Here is the citation for Donofrio
http://naturalborncitizen.wordpress.com/2008/12/06/urgent-historical-breakthrough-proof-chester-arthur-concealed-he-was-a-british-subject-at-birth/

Must be from an archive as I was unable to find it in the past.

Puzo1 said...

I just read with interest the following article, located at http://www.philly.com/philly/opinion/inquirer/116998798.html.
The article is entitled, "14th Amendment meant to protect American lives," by Daryl Metcalfe, who is a Republican state representative from Butler County, Pennsylvania.

He explains “[t]o protect American lives, liberty, and property, the 14th Amendment must be upheld and defended by enforcing the original intent made clear in congressional debates and understood when it was ratified by the states.”

He goes on to explain the adverse consequences of illegal immigration felt by the states. He then says:

“According to the undisputable original intent of the 14th Amendment, the primary requirements for U.S. citizenship are allegiance to America and physical geography. The framers of the amendment were clear in their intent when defining citizenship:

During an 1866 congressional debate, Ohio Rep. John Bingham, considered one of the founding fathers of the 14th Amendment, stated: ". . . Every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural-born citizen. . . ."

In the Senate, Lyman Trumbull, of Illinois, said: "The provision is, that 'all persons born in the United States and subject to the jurisdiction thereof, are citizens.' . . . What do we mean by 'subject to the jurisdiction' of the United States? Not owing allegiance to anybody else. That is what it means."

He concludes that the Federal government is not doing it job in enforcing our citizenship and immigration laws.

He continues: “In 2007, I founded State Legislators for Legal Immigration (SLLI), which serves as a network for state legislators across the nation who are committed to working together in demanding full cooperation among our federal, state, and local governments in eliminating all economic attractions and incentives for illegal aliens, as well as securing our borders against unlawful invasion. Including Pennsylvania, there are lawmakers from 41 states signed on as members of SLLI.
Working with state legislators and constitutional scholars, legislation has been created that the states can use to correct the misapplication of the 14th Amendment, ultimately putting pressure on Congress to enforce its original intent.

The proposed legislation comprises a bill and a state compact that would eliminate the "anchor baby" status of children born in the United States to illegal-alien parents. The bill clarifies the original intent of the phrase subject to the jurisdiction thereof, and the compact would allow for the designation "natural-born U.S. citizen" on a birth certificate.”

***

At the end he offers: “Contact Daryl Metcalfe via RepMetcalfe.com, and for more information visit StateLegislatorsForLegalImmigration.com.”

I think it would be a good idea to contact Rep. Metcalf to get a copy of the proposed bill and compact he mentions in his article. If the proposed bill and compact are good ones, maybe Arizona could use the same ones.

Let us move forward said...

cpanon:

Thank you for the link, I had read it before. I forgot that Leo collaborated with his sister and they outlined a book.

Does anyone know of a book?

cpanon said...

Cmdr Kerchner, fyi only
Have you thought of making sure all this tremendous data is routinely downloaded and physically posessed by you? I am NOT paranoid, but I know intimately how easy/fungible all digital data is.

Also it would help scholarship if you could inquire if it is even possible to hyperlink each comment as a separate permalink. As an example of still immature this medium is, it would be even better if as Atty Apuzzo is familiar with the hyper-linking of each paragraph was possible. Technically I can tell it is, if conceived properly, it is possible and the true power of the medium. Just so damn immature, and confident in the esteem of their immaturity.

The Stacker said...

Mario,

Doesn't the fact that Roger Calero has been, and was recently, on the ballots of several state expose the problem for what it is?

I know you talked about that being "free speech" or something a long time ago. If that's the case, the courts are right --- eligibility lies solely with the Congress (and electoral college).

How can someone who is admittedly unqualified by our highest law even be allowed on a ballot? Shouldn't this be enough to bring a suit to the Supreme Court to decide WHO is eligible, and who is not, to be on a ballot?

I don't think many people in our nation realize that there is no one that checks but BEYOND THAT, there is a guy who is on the ballot every presidential year who is known to have been born in Nicaragua AND he doesn't deny it / affirms it.

Madness!

Texoma said...

Mario,

Thanks for the great explanation regarding the McCreery case. What struck me about it at first was the labeling of those 3 girls, born in the US to an alien father, as native born citizens, and not as natural born citizens. These girls did not have parents who were both citizens, and so they could not be natural born citizens.

Could it be that they were considered citizens of the state in which they were born in, given that individual states had their own citizenship laws in that time? If so, then the Supreme Court probably just accepted their citizenship status, but then correctly applied the "native born" adjective to them, knowing that the father was an alien.

Dixhistory said...

Leo's Natural Born Citizen page is active again and I like his post this morming on " The Jay Treaty Strongly Indicates That Obama Is Not Eligible To Be President."

DixHistory

Puzo1 said...

Texoma,

One of the central issues in the 1824 case of McCreery's Lessee v. Somerville, 22 U.S. 3549, 9 Wheat. 354 (1824), presented by Justice Story, was not, although it should have been, the citizenship status of the three U.S.-born children of the alien, Ralph M’Creery. Their citizenship status was critical to whether they held good title to land they claimed they inherit from their U.S. citizen deceased uncle in Maryland, for at common law "no person can claim lands by descent through an alien, since he has no inheritable blood." Id. Also, the British statutes that Justice Story applied in an attempt to abrogate the Maryland common law, statute of 11 and 12 Wm. III.ch.6 and 25 Geo. II.ch.39, only benefited someone if he or she were "the King's natural born subject or subjects." But Justice Story quickly glossed over the issue of the citizenship status of the three U.S.-born girls. Justice Story just simply declared them to be “native born citizens of the United States” without any analysis or discussion. Justice Story told us neither when the nieces were born nor the place in the U.S. of their birth. He also did not tell us how he concluded the nieces were “native born citizens of the United States.” Given the probable ages of the two M'Creery brothers and William M'Creery's death in 1814, the nieces were most likely born after July 4, 1776. For example, if Ralph M'Creery was 40 when his brother died in 1814, and he had a daughter when he was 20, she would have been born in 1794. Hence, Justice Story's reference to the three children born in the U.S. to alien parents being “native born citizens of the United States” does not tell us much to go by.

That Justice Story neither discussed nor analyzed the particulars of the citizenship status of the three nieces is important, however, in light of the fact that just 6 years later, in 1830, the U.S. Supreme Court came out differently on this issue in Inglis v. Sailors’ Snug Harbor, 28 U.S. 99, 3 Pet. 99 (1830), where the exact status of a person’s citizenship was central to the Court’s decision and where a majority of the Court accepted the natural law and law of nations jus sanguinis basis for citizenship and did not adopt Justice Story’s English common law jus soli view. Please note that under one scenario considered by the Court, the child in the Inglis case was assumed to be born after July 4, 1776 and before September 15, 1776, the latter date being when the British temporarily took possession of New York. The Inglis majority said that that child, even though born in New York after July 4, 1776, was an alien because her parents were British "natural born subjects."

Hence, under the majority decision in Inglis (which included Chief Justice John Marshall), the three M'Creery girls, even if born in the U.S. after July 4, 1776, because they were born to alien parents, would have been aliens and not "native born citizens of the United States." As I also explained, Justice Story, in the minority in Inglis, also had argued that a child born on U.S. soil to alien parents was an "American citizen." The majority of the Court rejected his position. Because the Inglis case came after the M'Creery's lessee case, the Inglis case would have controlled any future status of such children.

MichaelN said...

http://naturalborncitizen.wordpress.com/2009/09/09/us-government-ruling-from-1885-by-secretary-of-state-thomas-bayard-proves-chester-arthurs-british-birth-was-kept-from-public/