Wednesday, February 9, 2011

Biased Media Reporting on the Meaning of an Article II "Natural Born Citizen"

Biased Media Reporting on the Meaning of an Article II “Natural Born Citizen,” by Mario Apuzzo, Esq.

I just read an article at Multi-American written by Leslie Berestein Rojas on February 8, 2011, entitled, “First Arizona anti-birthright citizenship bills falter in state Senate,” at http://multiamerican.scpr.org/2011/02/first-arizona-anti-birthright-citizenship-bills-falter-in-senate/. The article says: “State Senate legislation in Arizona that sought to deny automatic U.S. citizenship to children born to undocumented immigrants failed to register enough support in a committee hearing late yesterday, leading its sponsor to pull the two bills, at least for now.” The article then says that the Arizona Daily Star reported: “There were also several children who spoke against the bill, including 12-year-old Heide Portugal who said she was born in this country but her parents were not and that a measure like this, had it been in effect, would have denied her citizenship.” This writer did not state her personal opinion as to what type of U.S. citizenship this child has.

This article was then reported today, February 9, 2011, at Hispanically Speaking News, with the title, “Anti-14th Amendment Bills Fail in Arizona,” found at http://www.hispanicallyspeakingnews.com/notitas-de-noticias/details/anti-14th-amendment-bills-fail-in-arizona/5109/ . The title of the article and the following comment by the reporter struck me: “Several children spoke critically about the bill, including 12-year-old Heide Portugal, a natural-born citizen, who pointed out that if this bill had been in effect at the time of her birth, she would have been denied citizenship.”

First, let us examine who Hispanic Speaking News is. According to its own web site, “[t]he Hispanically Speaking News (HS News) site, found at http://www.hs-news.com/, is an online daily news site and virtual cultural center where we create and publish valuable, timely and culturally sensitive content in a visually charged manner. Our niche news site is here for you, in English and EspaƱol, with relevant news about and for Hispanics with hyper local content for our launch market - Chicago. There is daily news coverage, original content, cultural commentary, and an ever-growing Hispanic-centric bloggers network, all peppered with some spicy wit to keep you engaged, informed and connected. Our goal is to become your trusted, “GO-TO”, on-line source for all things Hispanic and to elevate the voice of our community; create new influence makers and engage in passionate and reasoned debate around relevant issues.” So as we can see, the owners of the site tell us that the site is a “niche news site.” 

Second, let us examine the content of the “news” reported in this article. Just the title of the article, “Anti-14th Amendment” tells you what side the reporter is on. Indeed, the reporter is already telling us that what Arizona proposes to do is unconstitutional. More important, the reporter, without telling the reader that it is only his or her opinion, tells us that a child born in the U.S. to alien parents is a “natural born Citizen.” But let us examine the reporter’s “opinion.” If this Arizona child was a “natural born Citizen,” under our Constitution, no government could deny her U.S. citizenship. Neither the States nor Congress nor any court has the power to deny a “natural born Citizen” his or her sovereign citizenship. Let us not forget that the citizens made the Constitution and the government and that the Constitution and government did not make the citizens. That is why the Framers used the term “natural” and called birthright citizens “natural born Citizens” and those who are not “citizens of the United States,” showing that this membership status does not derive from positive law or any government but rather from nature. Since time immemorial, “natural” has always included both the place of one’s birth and the parents to whom one is born. There simply cannot be a “natural birth” with one of those elements missing. For this fundamental reason, American federal common law, which is based on natural law and the law of nations, has always defined a “natural born Citizen” as someone born in the country to U.S. citizen parents. See Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (a “natural-born citizen” is a child born in the country to citizen parents) and U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) (a child born in the U.S. to alien parents who are domiciled here and not working in any foreign diplomatic capacity is born “subject to the jurisdiction” of the U.S. and therefore a born 14th Amendment “citizen of the United States; the case also cited the Minor decision and quoted its definition of a “natural-born citizen”). If someone needs a Congressional Act, treaty, or even the 14th Amendment to be a “citizen of the United States,” then that person is not an Article II “natural born Citizen.” Our U.S. Supreme Court should intervene on the side of any “natural born Citizen” whose citizenship rights may be challenged by any government.

On the other hand, when someone is not born a “natural born Citizen,” then Congress can intervene under its naturalization powers granted to it under Article 1, Section 8, Clause 4 of the Constitution. It is then that Congress can create for or deny someone citizenship rights or even impose conditions to be completed after a person’s birth in order to maintain any citizenship status Congress may grant at the time of birth. Since as early as the Naturalization Act of 1790, Congress has exerted its naturalization powers over persons born either in the United States or abroad. Congress’s power over citizenship, however, became limited in 1868 by the 14th Amendment and how the courts interpret that amendment’s “subject to the jurisdiction thereof” clause. Congress has, however, great power under the 14th Amendment which it can exert by defining “subject to the jurisdiction thereof” through Section 5 of that very amendment which allows it to enforce the provisions of the amendment. Also, Congress has great power in matters involving citizenship and immigration under the “plenary power doctrine,” which greatly limits someone’s ability to bring any judicial challenges to Congressional action in this special area.

As we can see, our “news” reporting media outlets are real busy taking a stand on the meaning of an Article II “natural born Citizen.” Here we have the “news” reporter adding his or her personal opinion that this child born in the United States to alien parents is a “natural born citizen.” This type of reporting is designed to prejudice the reading public. It should be combated. When we read or listen to “news” reporting, we have to be careful to distinguish what is the reporter’s mere recitation of confirmed “facts” versus what is the reporter’s personal opinion. Persons interested in learning what the meaning of an Article II “natural born Citizen” is should conduct their own independent research so that they can come to their own conclusion based on reasoned study rather than on what someone, including our own government or a court of law, in a conclusory manner tells them it means.

Mario Apuzzo, Esq.
February 9, 2011
http://puzo1.blogspot.com/
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22 comments:

Mick said...

Media propaganda machine swinging into high gear over Eligibility Bills and "Birthright Citizenship" bills.

Here is the Alinskyan ridicule directed at Kensolving for asking Gibbs about the POTUS reaction to Eligibility bills:

http://www.impeachobamacampaign.com/video-of-the-day-robert-gibbs-ducks-eligibility-question/


Most people mistakenly believe that simple birth in America makes one a US Citizen, even if the parents are illegal aliens. Leonard Pitts (extreme Left Miami Herald Columnist) sniffs that the 14th Amendment "Clearly" gives US citizenship to anyone born in the US, thus the Birthright Citizenship bill in Az. is Unconstitutional, in his column today. Of course he is clueless about "jurisdiction", as most are.

I got into the Lou Dobs show the other day, and he insisted that the 14th Amendment needed to be "amended" to disallow BR Citizenship to children of illegals. I told him that the 14A would certainly not have to be amended, and slipped in that Obama is not eligible nbc even if born in Hi. At that time he started talking over me, saying that the POTUS has every right to hide his BC. Dobbs is the controlled opposition, as are Glenn Beck, Hannity, Levin and all that other cowards with the platform to blow the issue out of the water.

There will be plenty of articles and pundits bloviating about these 2 issues that hit very close to exposing Obama's ineligibility. Lots of misdirection fire will be lain out.

paralegalnm said...

Wong Kim Ark held that a U.S. born child of alien parents, legally domiciled, was under U.S. jurisdiction, therefore a citizen at birth outside of Art I, Sec 8 enumerated power of congress over uniform naturalization law.

Ark also cited the 1795 Uniform Naturalization Act, describing three types of naturalized citizen. The 1802 Act, as revised, was cited in full text, but not in disagreement with the 1795 Act.

The holding in Ark therefore called a 14th Amendment citizen at birth constitutional in scope, and outside congressional definitions.

It was an invalid holding for three reasons:
1) Existing Act already provided a route to citizenship for Ark; either when his parents naturalized, or his own application upon reaching the age of majority. The question of law in Ark was not an insufficiency in the law, but the Chinese Exclusionary Act and Treaty being inequitable.
2) The concept of native birthright citizenship was borrowed from English law, and had no precedent value in the face of existing legislated act, in which citizenship was inherited, or freely adopted.
3) The 14th Amendment's 'under the jurisdiction thereof' clause modified 'born in the United States.' That clause came directly from the 1866 Civil Rights Act, restricting citizenship to those born 'not subject to any foreign power.'

Ark was born subject to Chinese nationality law through his parents. The Exclusionary Law and the Treaty with China were subject to judicial review, not liberal legislation from the bench in direct conflict with existing uniform act.

MichaelN said...

English common law.

Lord Coke - Calvin's case.

Calvin's case was cited in the SCOYUS dicta of Wong Kim Ark case, but these extremely important and essential parts were overlooked either deliberately or the judiciary were just plain wrong in their interpretation.

http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=911&chapter=106337&layout=html&Itemid=27

"There is found in the law four kinds of ligeances: the first is, ligeantia naturalis, absoluta, pura, et indefinita,42 and this originally is due bynature and birthright, and is called alta ligeantia"

"that issue isno subject to the King of England, though he be born upon his soyl, and under his meridian, for that he was not born under the ligeance of a subject,"

"it is nec coelum, nec solum,54 neither the climate nor the soyl, but ligeantia and obedientia that make the subject born"

.

MichaelN said...

The essential part of English common law they didn't tell you, or talk about.

Lord Coke - Calvin's case:

"The laws of nature are most perfect and immutable, whereas the condition of human law always runs into the infinite and there is nothing in them which can stand for ever. Human laws are born, live, and die."

"There is found in the law four kinds of ligeances: the first is, ligeantia naturalis, absoluta, pura, et indefinita,42 and this originally is due by NATURE AND BIRTHRIGHT"

"First, That the ligeance or faith of the Subject is due unto the King by the Law of Nature: Secondly, That the Law of Nature is part of the Law of England: Thirdly, That the Law of Nature was before any Judicial or Municipal Law: Fourthly, That the Law of Nature is Immutable."

"Calvin the Plaintiff NATURALIZED BY PROCREATION AND BIRTHRIGHT"

"that issue is NO SUBECT to the King of England, though he be born upon his soyl, and under his meridian, for that he was NOT BORN UNDER THE LIGEANCE OF A SUBJECT?

MichaelN said...

The essential part of English common law they didn't tell you, or talk about.

Lord Coke - Calvin's case:

"The laws of nature are most perfect and immutable, whereas the condition of human law always runs into the infinite and there is nothing in them which can stand for ever. Human laws are born, live, and die."

"There is found in the law four kinds of ligeances: the first is, ligeantia naturalis, absoluta, pura, et indefinita,42 and this originally is due by NATURE AND BIRTHRIGHT"

"First, That the ligeance or faith of the Subject is due unto the King by the Law of Nature: Secondly, That the Law of Nature is part of the Law of England: Thirdly, That the Law of Nature was before any Judicial or Municipal Law: Fourthly, That the Law of Nature is Immutable."

"Calvin the Plaintiff NATURALIZED BY PROCREATION AND BIRTHRIGHT"

"that issue is NO SUBECT to the King of England, though he be born upon his soyl, and under his meridian, for that he was NOT BORN UNDER THE LIGEANCE OF A SUBJECT?

Mick said...

paralegalnm said,

"Ark was born subject to Chinese nationality law through his parents. The Exclusionary Law and the Treaty with China were subject to judicial review, not liberal legislation from the bench in direct conflict with existing uniform act."



And I think you can narrow the scope of the decision further, and say that the children of UNNATURALIZEABLE resident aliens are citizens if they subject themselves to the jurisdiction of the US at the age of majority.

Horace Gray compared WKA to the children of negro slaves made citizens by the 14A.
His reasoning was that since the parents of those negro slaves were UNNATURALIZEABLE non-citizens, and were legally domiciled in the US, so too were WKA's parents, and therefore WKA, to be equitable, should be allowed to claim US Citizenship.

Dixhistory said...

Seventy-Four Democrats Say Justice Thomas Should Recuse Himself Because of Wife's Lobbying

DixHistory

paralegalnm said...

Mick, Under the 1866 Civil Rights Act, precursor to the 14thA, negro slaves were 'not subject to any foreign power.' As slaves, they were wards of citizens of states, and when 'freedmen' lawful residents with full rights of polity, i.e., citizens.

The judiciary has been wrong from the beginning, that the English common law concept of 'place of birth' was the basic principle, or tenet, of citizenship at birth.

1) British law recognizes both solis and sanguinis citizenship, called citizenship 'otherwise than by descent,' and 'by descent,'* and; 2) while the colonies relied on English common law, jurisprudence and specific state statutes voided English law when replaced by state code, federal act, and the constitution.

The concept of native-born citizenship, or natural born subjects when born within the King's dominion, were void and without legal power once the 1795 Uniform Naturalization Act was made law.

A quick reading of that Act shows the United States solely recognized jus sanguinis citizenship inherited from U.S. citizen parents.

The romantic 'carrying the torch' by the judiciary for English law, and a flawed, tunnel-vision perception of that law, is what J. Gray relied on in his Wong Kim Ark holding.

*According to the 1948 British Nationality Act, Barack Hussein Obama was a citizen 'by descent' if born in Hawaii, 'otherwise than by descent' if born in Kenya.

dancingrabbit said...

Can it be possible natural means..a Kind.

We are looking at this the wrong way..natural born citizen means more than being born to citizen parents and/or on the soil.

The Founders knew Anglo-Saxon history and law.

Looking at the old dictionaries. We find Natural and Kind have the same meaning.

Lets look beyond the Vattel definition.

A Natural born citizen and a Kind born citizen mean the same.

Will not do all the homework..the fun is discovery. Get into the Founders minds.

MichaelN said...

dancingrabbit said...

"Can it be possible natural means..a Kind.
We are looking at this the wrong way..natural born citizen means more than being born to citizen parents and/or on the soil."

'natural born citizen' means being born to citizen parents AND on the soil.

There is nor 'or on the soil'.

paralegalnm said...

dancingrabbit:

When jurist Charles Evans Hughes ran for president against Woodrow Wilson, an article by Breckinridge Long concluded that, "Now if, by any possible construction, a person at the instant of birth, and for any period of time thereafter, owes, or may owe, allegiance to any sovereign but the United States, he is not a 'natural born' citizen of the United States." Now, if only we had journalists like that today.

Laurence Tribe, an author of legal texts, and perhaps even a college professor to Obama, wrote that “The two kinds of citizenship that the Fourteenth Amendment recognizes — citizenship by birth and citizenship by naturalization — are virtually equal.”

Then in footnote No. 20, Tribe states, “They are not, however, actually equal in one perhaps trivial but symbolically potent respect — eligibility for the Presidency. Art II, sec. 1, cl. 5, provides in relevant part that ‘No person except a natural born Citizen, or a Citizen of the Unites States, at the time of the Adoption of this Constitution, shall be eligible to the Office of the President.’ This lone constitutional distinction between native-born and other citizens has been been lambasted by two scholars as the stupidest in the Constitution.”

In my previous comments, supra, I point out that prior to the 1790, and especially the 1795 Naturalization Acts, the courts relied on English law, just as they had done as English colonies. Therefore, from 1787 to 1795, eight years, native birth and habitancy alone were conditions for U.S. citizenship.

This kind of thinking lead to the misinterpretation of the 14th Amendment by Justice Horace Gray in Wong Kim Ark, which controls much of our case law today.

However, the 1795 Act superseded any reliance on English common law and statutes. If you read the 1795 Act, which continued virtually unchanged through the 19th century, a native-born minor child of an alien immigrant only became a U.S. citizen upon naturalization of the father.

Therefore, since 1795, U.S. citizenship is inherited, not a birthright by being born on U.S. soil.

natural-ize -- def. dealienage of a newborn by statutory provisions, or an adult by oath.

natural born citizen -- def. a child born without alienage; See naturalize.

Dixhistory said...

@MichaelN said...There is no and/or on the soil.

Good catch!

Texoma said...

Paralegalnm, where did you get these definitions?

natural-ize -- def. dealienage of a newborn by statutory provisions, or an adult by oath.

natural born citizen -- def. a child born without alienage; See naturalize.

dancingrabbit said...

A natural born citizen is not complicated.

Kind and Natural are the same.

By using the term natural(Kind)..the Founders limited the President to being a descendant of the natural citizens created after the ratification.

They WERE the natives, the naturels, the indigenous peoples.

We have over looked..the meaning of natural and its relationship to Kind.

Look up the word Gecynde.

Bob said...

British common law deals with the right to inherit land and titles of nobility.

It has nothing at all to do with eligibility for office or the right to vote.

The British view is that allegiance is inherited, and can never be renounced.

The United States and Great Britain went to war over this issue (the War of 1812), and since then, no judge in their right mind should ever attempt to bring British common law into their decisions.

This is another reason why the United States law is founded on the likes of Emer. Vattel -- a Swiss and a Republican -- and not on the decisions of a Monarchist like Lord Coke.

MichaelIsGreat said...

"Kenyan Ambassador Admits Obama Was Born In Kenya" at http://www.youtube.com/watch?v=M7BLOcpceRY&feature=related

paralegalnm said...

Texoma:

Where would you prefer I get these definitions?

If I read a word, or term of art, and don't understand its meaning, I go to dictionaries, legal references, and other authorities. Those authorities might be dicta in case law, or commentary and treatises by legal scholars and jurists.

An additional resource is to read just about all of U.S. naturalization law, plus a lot of case law. I have also read (labored) through sections of the British Nationality Act, both the 1948 version and versions going back almost to Gothic times.

If you analyze naturalization act, plus the universal complaint that there is no legal definition of 'natural born citizen,' then the definitions, as written above, are concise and indisputable.

dancingrabbit said...

people concentrate on the word natural..this is the key.

I am not a good writer like the author of this blog and I have difficulty getting my point across.

A natural born citizen is a Kind. This Kind cannot be changed.

Research Kind Natural Native Gecynde in Google Books you will find its meaning.

Texoma said...

Paralegalnm, I agree with those defintions. They appeared to be from a dictionary. I thought that perhaps you had found one from the era of our Founding Fathers, which included these terms and definitions. That would be a big find.

Puzo1 said...

Texoma,

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,” Founding-era historian, David Ramsay, described the original citizens who 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.”

Ramsay said concerning the children born after the declaration of independence, “[c]itizenship 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 “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. He continued that citizenship “as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776….” Id. at 6.

Ramsay explained that birthright citizenship was reserved only for the children of citizens. These would have been the "natural born Citizens" the Framers mentioned in Article II who followed in time the original "citizens of the United States" and who the Framers grandfathered in Article II to be eligible to be President. So we can see from Ramsay that a "natural born Citizen" was a child born to citizen parents.

Ramsay did not follow the English common law but rather natural law, the law of nations, and Emer de Vattel, who also defined a “natural-born citizen” the same as did Ramsay in his highly acclaimed and influential, The Law of Nations, Section 212 (1758 French) (1759 English). Other Founders and Framers would have defined a “natural born Citizen” the same way the Ramsay did, for being a meticulous historian he would have gotten his definition from the general consensus that existed at the time.

Ramsay’s dissertation presents valuable contemporaneous evidence of how the Founding generation defined the original citizens and the future generation of citizens which the Framers called “natural born Citizens.” It is valuable because it is contemporaneous evidence of the public meaning of these terms at the time they were framed and ratified.

Given his position of influence and especially given that he was a highly respected historian, Ramsay would have had the contacts with other influential Founders and Framers and would have known how they too defined “natural born Citizen.” Ramsay, being of the Founding generation and being intimately involved in the events of the time would have known how the Founders and Framers defined a “natural born Citizen” and he told us that definition was one where the child was born of citizen parents.

Ramsay’s article and explication are further evidence of the influence that Vattel had on the Founders in how they defined the new national citizenship. This article by Ramsay is one of the most important pieces of evidence which provides direct contemporaneous evidence on how the Founders and Framers defined a “natural born Citizen” and that there is little doubt that they defined one as a child born to a citizen father and mother.

While Ramsay did not require that the child be born in the country, the Framers, with the exception of children born abroad to parents who were serving in the armies of the state or were engaged in other government service (see Vattel, Sec. 217), did as is evidenced by the Naturalization Acts of 1790 and 1795. This time-honored definition of a "natural born Citizen" has been confirmed by several United States Supreme Court and lower court cases.

For further information, see http://puzo1.blogspot.com/2010/04/founder-and-historian-david-ramsay.html .

Mario Apuzzo, Esq.

paralegalnm said...

Obama supporters often cite 'The Case of Mr. Smith' that was adjudicated administratively.

In Smith, James Madison refuted Dr. Ramsay's excellent petition, mirrored in Mario's cite above, and claimed that 'place of birth' must be the basic principle of allegiance and citizenship.

That was May 22, 1789. One year later, the 1790 Uniform Naturalization Act was passed, which followed Dr. Ramsay's analysis of patrilineal inheritance of nationality.

It is both logical and statutory that the colonial U.S. courts had to rely on English law until legislatures passed their own acts. However, once those acts passed, the English law was void.

However, the judiciary, for some reason, ignored the legislated acts of 1790, 1795, etc. and continued promoting the English legal standard of 'place of birth,' or jus solis.

The result was the incorrect holding of Wong Kim Ark, and today's assumption that being born in the U.S. makes you a citizen.

It also has contributed directly to the fallacy that merely by proving Hawaiian birth makes Obama a natural born citizen.

dancingrabbit said...

The courts have said..since the Founding..the Law of Nations is part of the country's law. It is in the offense clause.

I read..Congress is subject to the Law of Nations.

Doesn't Obama and Congress violate the Law of Nations. Chapter XIX.