Tuesday, February 15, 2011

The Citizenship Status of Our 44 Presidents



By: Mario Apuzzo, Esq.
Published: February 14, 2011
Revised: February 16, 2011

A famous Holmesian dictum provides that "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.). There have been 43 Americans that have served as President (not including Barack Obama). Ten were born before 1787. Until Martin Van Buren (who was born in 1782 or six years after the signing of the Declaration of Independence) became President in 1837 (making him the 8th president), all the Presidents had been born before 1776 to parents who, undoubtedly, at the time considered themselves to be loyal subjects of one of the British Kings. The president following Van Buren, William H. Harrison (the 9th president), was also born before 1776 to parents who were British “natural born subjects.” All Presidents born before July 4, 1776, were born British “natural born subjects.” Those early presidents were naturalized to become “Citizens of the United States” through the Declaration of Independence and by adhering to the American Revolution. These presidents included Washington, Adams, Jefferson, Madison, Monroe, Adams, Jackson, and Harrison. Article II, Section 1, Clause 5, allowing anyone who was a “Citizen of the United States” at the time of the adoption of the Constitution to be eligible to be President, grandfathered these presidents to be eligible. All presidents born after 1787, except for Chester Arthur and Barack Obama, met the “natural born Citizen” criteria, i.e., born on U.S. soil to a mother and father who were themselves U.S. citizens at the time of the President’s birth. Neither Arthur nor Obama were “natural born Citizens” at the time of birth. Arthur was born to an alien father who also made his U.S. citizen mother an alien. Obama was born to a non-U.S. citizen father who never became a U.S. citizen and, being here only on a temporary student visa, was never even an immigrant. There have been 46 Americans that have served as Vice-President (not including Mr. Biden). Ten were born before 1787. All Vice-Presidents born after 1787, except for Chester Arthur, met the “natural born Citizen” criteria. Fourteen Vice Presidents have gone on to be President.

Some believe that John Tyler was our first "natural born Citizen" President. They believe that a President had to be born after the adoption of the Constitution in 1787 in order to be a “natural born Citizen.” Since Tyler was born in 1790 in Virginia, they conclude that he was the first President to be a “natural born Citizen.” I do not agree with this approach to determining who our first "natural born Citizen" President was.

The citizens made the Constitution and their government. The Constitution and government did not make the citizens. The citizens had the unalienable rights to life, liberty, and the pursuit of happiness granted to them by nature and their Creator and not by the Constitution or government. On July 4, 1776, our first Americans declared independence from Great Britain and created the new American community of free and independent states. July 4, 1776 is therefore the critical date which established American citizenship. The Articles of Confederation and Perpetual Union, the first constitution of the United States, which went into use in 1777 and which were formally ratified on March 1, 1781, officially recognized the nation as the "United States of America." Hence, all those who helped create the new nation became its members and therefore its citizens. These were the first "Citizens of the United States," which Article II, Section 1, Clause 5 grandfathered to be eligible to be President provided they were born before the adoption of the Constitution.

Hence, anyone born after July 4, 1776 in the U.S. to parents who became "Citizens of the United States" as a result of the Declaration of Independence and by adhering to the American Revolution was born in the country to U.S. citizen parents and therefore a "natural born Citizen." The First Congress in the Naturalization Act of 1790 even extended the “natural born Citizen” status to persons born abroad to U.S. citizen parents. The Third Congress, through the Naturalization Act of 1795, repealed the 1790 Act and declared such children born abroad to U.S. citizen parents to be considered as “citizens of the United States” and not “natural born Citizens.”

The first President to be born after July 4, 1776 in the U.S. to parents who became "Citizens of the United States" on July 4, 1776 was Martin Van Buren, who was born in 1782 in New York. He was therefore the first President to be a "natural born Citizen." Tyler was the second President to be born under these birth circumstances which makes him the second President to be a "natural born Citizen."

Let us now examine how President James Buchanan, who had an Irish father, Woodrow Wilson, who had an English mother, and Herbert Hoover, who had a Canadian mother, were “natural born Citizens.” As we have seen, President Thomas Jefferson, whose mother was born in England, and Andrew Jackson, whose parents were both born in Ireland, were grandfathered to be eligible to be President. Chester Arthur, not being either grandfathered or a “natural born Citizen,” will be treated separately.

When determining whether a child born in the U.S. is an Article II “natural born Citizen,” the question is not whether the parents of the child are foreign born. Rather, the question is whether they are “citizens of the United States” at the time of the child’s birth in the United States. In Minor v. Happersett, 88 U.S. 162, 167-68 (1875), our U.S. Supreme Court, providing the same definition of a “natural born citizen” as did Emer de Vattel in his The Law of Nations, Section 212 (1758), but without citing Vattel, and not in any way referring to the English common law, stated:

"The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens."

Id., 169 U.S. at 679-80. So as we can see, the Supreme Court told us that a “natural born citizen” is a child born in the country to citizen parents. See also, U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898) (distinguished between a “natural born Citizen” and a “citizen of the United States” and cited Vattel and quoted his definition of “natural born Citizen” as did Minor v. Happersett but relied on the English common law to define a born “citizen of the United States” under the 14th Amendment).

The status of being “citizens of the United States” can be acquired by the parents by either being “natural born Citizens” or by becoming “citizens of the United States” by naturalization under an Act of Congress or treaty or if born in the U.S. under the 14th Amendment. The case of Perkins v Elg 307 U. S. 325 (1939) makes the point and shows how a child born in the U.S. to naturalized parents was declared a “natural born Citizen.” The central question in the Perkins case dealt with whether the Elg child lost her U.S. birth citizenship status because of the acts of her parents and not because of anything she elected to do or some treaty or Act of Congress. But the case is also important in understanding the meaning of a “natural born Citizen.”

Under out naturalization laws, citizenship can be derived from a close relation to a family member. Historically, a number of U.S. laws have provided for the automatic naturalization of children or wives (not husbands) of naturalized U.S. citizens. In some periods of our history, these laws provided that married women derived citizenship from their husband and had no control over their status. Under the Act of 10 February 1855, a woman automatically became an American upon marrying a U.S. citizen or following the naturalization of her foreign husband. Kelly v. Owen, 74 U.S. 7 Wall. 496 (1868). The 1922 Married Women's Act (or the Cable Act) finally severed the link between naturalization and marital status for most women.

Marie Elg's parents emigrated from Sweden to the U.S. in 1906. In that same year, Mr. Elg naturalized and became a U.S. citizen. Under the then existing naturalization laws (Act of 10 February 1855), his wife automatically became a U.S. citizen through the U.S. naturalization of her husband. Hence, when Marie Elg was born in the U.S. in 1907 both her mother and father were U.S. citizens. Marie Elg was therefore a child born in the United States to U.S. citizen parents. The Court found that “[o]n her birth in New York, the plaintiff became a citizen of the United States. Civil Rights Act of 1866, 14 Stat. 27; Fourteenth Amendment, § 1; United States v. Wong Kim Ark, 169 U. S. 649.” Additionally, the lower court found Elg to be a “natural born Citizen.” The U.S. Supreme Court affirmed this finding. The Court therefore gave a child born to naturalized “citizens of the United States” the right to run for President. The U.S. Supreme Court in Elg therefore once again affirmed the American common law definition of a “natural born Citizen” which is a child born in the country to citizen parents, a definition that was confirmed during the Founding by Emer de Vattel in his The Law of Nations, Section 212 (1758). On the other hand, no U.S. Supreme Court decision has found a child born to one or two alien parents to be an Article II “natural born Citizen.”

So as we can see, a “natural born Citizen” can be produced by being born in the U.S. to naturalized parents who are “citizens of the United States.” Also, under our old naturalization laws, once a woman married a U.S. citizen, she herself automatically became a U.S. citizen derivatively from her husband. These laws apply to show that three of the six Presidents listed were “natural born Citizens.” Jefferson was not a “natural born Citizen” but, adhering to the revolution, was a “citizen of the United States.” Under Article II, Section 1, Clause 5, he was grandfathered to be eligible to be President. Jackson, also became a “citizen of the United States” by adhering to the revolution and also grandfathered to be eligible to be President. Buchanan’s father naturalized to become a “citizen of the United States” prior to his son’s birth. Wilson’s mother became a “citizen of the United States” when she married her husband who was a “citizen of the United States.” Hoover’s mother became a “citizen of the United States” when she married her husband who was a “citizen of the United States." So except for Jefferson and Jackson who were grandfathered, all these presidents were born in the U.S. to parents who were at the time of their birth “citizens of the United States.” They were all “natural born Citizens.”

The only exception to all this, apart from Barack Obama, is Chester Arthur. Chester Arthur (1881-1885), was born on October 5, 1829 in Fairfield, Vermont. His father, William Arthur, when eighteen years of age, emigrated from Co. Antrim, Ireland. His father did not become a naturalized U.S. citizen until 14 years after Chester Arthur’s birth. Chester Arthur’s mother, Malvina Stone, was born April 29, 1802 in Berkshire, Franklin, Vermont. Hence, Chester Arthur was born to a father who was not a U.S. citizen at the time of his birth. Because the citizenship of the wife merged into that of the husband, this made Arthur born to an alien mother and father. He was therefore born with dual citizenship of the United Kingdom and the United States. It is believed that Chester Arthur lied numerous times about his past to hide the fact that when he was born his father was not a U.S. citizen and to therefore obfuscate his ineligibility to hold Vice-Presidential and Presidential office. What is most telling is that Chester Arthur also burned all personal records just prior to his death. Chester Arthur was challenged during his Vice Presidential bid on the ground that he was not born in the United States. No one challenged Chester Arthur on the ground that even if he were born in the United States, he was still not an Article II “natural born Citizen” because of his father’s foreign citizenship at the time of his birth which also made his mother an alien. Hence, the Chester Arthur example is not and cannot be treated as any precedent since the nation was not aware of the truth about his father’s and mother’s non-U.S. citizenship status at the time of his birth. Gregory J. Dehler, Chester Alan Arthur: The Life of a Gilded Age Politician and President, Published by Nova Science Publishers, Incorporated, 2006, ISBN 1600210791, 9781600210792, 192 pages; http://naturalborncitizen.wordpress.com/2008/12/06/urgent-historical-breakthrough-proof-chester-arthur-concealed-he-was-a-british-subject-at-birth/. Also see the research done by attorney Leo Donofrio on the Chester Arthur issue which can be found at http://naturalborncitizen.wordpress.com/2008/12/06/urgent-historical-breakthrough-proof-chester-arthur-concealed-he-was-a-british-subject-at-birth/.

The Founders and Framers wrote the Constitution in a way that best provided for the protection of our unalienable rights to life, liberty, and the pursuit of happiness. They sought to do that by giving us a constitutional republic and providing for the survival and preservation of that republic. In the governmental scheme that they gave us, they provided for the Office of President and Commander in Chief, a singular and all-powerful office involving the concentration of both civilian and military power into one person. Because of such concentration of power in one individual, the Framers recognized that such offices also presented great risk to the republic and its people. They therefore gave us the “natural born Citizen” clause as one basis for eligibility to such offices. Through the “natural born Citizen” clause, they instructed us that such power must fall into the hands of a person who can be trusted with it to the greatest degree possible and that such guarantee is of much greater importance to the survival and preservation of the constitutional republic than the fleeting politics and personal favor of having one person necessarily occupy that office. What is profound is that the Founders and Framers put their trust in “Nature and Nature’s God” and not in political and legal institutions to accomplish that end.

For more information and research on the meaning of an Article II “natural born Citizen,” please see the many essays at this blog, http://puzo1.blogspot.com/.

Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg, NJ 08831
Tel: 732-521-1900
Fax: 732-521-3906
http://puzo1.blogspot.com/
© 2011 Mario Apuzzo, Esq.
All Rights Reserved
####

P.S. A copy of this report may be downloaded at SCRIBD.com at this link:
http://www.scribd.com/doc/48894388/The-Citizenship-Status-of-Our-44-Presidents

P.P.S. Cross link to a report by CDR Charles Kerchner (Ret) on the citizenship status of all 44 presidents:
http://puzo1.blogspot.com/2011/02/list-of-us-presidents-eligibility-under.html

92 comments:

Mick said...

Mr Apuzzo,
I believe the reason for the book "Dreams", and the whole discussion about Obama's father before the election was to get the knowledge of Obama's father's non citizenship in the minds of the public.
He knows CA's history, and knows that it is not precedent, and he wants to set a precedent. He didn't count on guys like you and Leo figuring it out, so now he's stuck with the BC Conspiracy theory.
NO ONE in the media talks about the father's non citizenship now, because they are not allowed, and that's telling.

Let us move forward said...

Although his father was not naturalized "to the satisfaction of Congress" at Chester Arthur's birth, he did have a weaker claim to citizenship in the United States prior to 1828. The public was not aware of the questions associated with his father's citizenship status until Arthur became vice president elect, even then the eligibility question focus was always on his birthplace. Congress refused to investigate his citizenship status, and Arthur refused to address any questions about it.
The fraud in the 1880 election extended beyond Arthur's lies about his early life and birth situation. Arthur had made a deal with the Democratic Machine in New York to throw the National Election for a local victory. (see Reeves) Without New York, the Garfield/Arthur ticket would not have won. There was also some vote buying, dealing, etc. in the Ohio Valley.

paralegalnm said...

1) I think John Tyler was, technically, the first president eligible under the Article II natural born citizen clause.

2) Spiro T. Agnew was not eligible to the VP, or presidency.

3) The only evidence of Arthur's birth date as related to his father's naturalization was the family bible, where people in those days recorded births. Like a good shyster, as Arthur was, he burned the bible.

Bill Cutting said...

[take exception to the assertion that it was unknown that Arthur’s father was not a US citizen at the time Arthur was born. You’re correct that the historical record says little on this subject. However, a lawyer and Democratic operative named A. P. Hinman made an investigation on Arthur’s origins in his attempt to prove Arthur was born in Canada. He visited Arthur’s home town and took statements from many local people. Hinman even wrote a book about his research, titled “How a British Subject became President of the United States.”]

In answer to a comment to a person who writes an Obot disinformation blog called the OCT.

A.P. Hinman was a Republican and known to Authur.

This was documented in the Brooklyn Daily Eagle. Who covered everything Hinman did in regards to this matter.

I suspect Reeves made the "Democratic Operative" story up to fit his story.

http://www.scribd.com/doc/32131194/Hinman-a-Straight-Republican-1889

After reading this and the other BE docs I have posted, let me know if you think A.P. Hinman knew CA was Born A British Subject.

Bill Cutting said...

[After reading this and the other BE docs I have posted, let me know if you think A.P. Hinman knew CA was Born A British Subject.]

Sorry I was in a hurry.

Just to clarify

I mean't born on US soil, father not a US citizen. Thus a Natural Born British Subject.

http://www.scribd.com/doc/32131188/Fiery-Hinman-1888

Puzo1 said...

paralegalnm,

You do not state the reason why you believe that John Tyler was our first "natural born Citizen" President. You might believe that a President had to be born after the adoption of the Constitution in 1787 in order to be a “natural born Citizen.” Since Tyler was born in 1790 in Virginia, you might conclude that he was the first President to be a “natural born Citizen.” I do not agree with this approach to determining who our first "natural born Citizen" President was.

The citizens made the Constitution and their government. The Constitution and government did not make the citizens. The citizens had the unalienable rights to life, liberty, and the pursuit of happiness granted to them by nature and their Creator and not by the Constitution or government. On July 4, 1776, our first Americans declared independence from Great Britain and created the new American community of free and independent states. July 4, 1776 is therefore the critical date which established American citizenship. The Articles of Confederation and Perpetual Union, the first constitution of the United States, which went into use in 1777 and which were formally ratified on March 1, 1781, officially recognized the nation as the "United States of America." Hence, all those who helped create the new nation became its members and therefore its citizens. These were the first "Citizens of the United States," which Article II, Section 1, Clause 5 grandfathered to be eligible to be President provided they were born before the adoption of the Constitution.

Hence, anyone born after July 4, 1776 in the U.S. to parents who became "Citizens of the United States" as a result of the Declaration of Independence and by adhering to the American Revolution was born in the country to U.S. citizen parents and therefore a "natural born Citizen." The First Congress in the Naturalization Act of 1790 even extended the “natural born Citizen” status to persons born abroad to U.S. citizen parents. The Third Congress, through the Naturalization Act of 1795, repealed the 1790 Act and declared such children born abroad to U.S. citizen parents to be considered as “citizens of the United States” and not “natural born Citizens.”

The first President to be born after July 4, 1776 in the U.S. to parents who became "Citizens of the United States" on July 4, 1776 was Martin Van Buren, who was born in 1782 in New York. He was therefore the first President to be a "natural born Citizen." Tyler was the second President to be born under these birth circumstances which makes him the second President to be a "natural born Citizen."

paralegalnm said...

Mr. Apuzzo,

Yes, I chose the adoption of the constitution in 1787, versus the Declaration of Independence or Ratification.

Perhaps the Ratification date is more correct, as the signator perfected the incorporation of the United States. However, the final form as approved and first signed was in 1787.

The Declaration formalized the rebellion and going into a hot war. The citizens you describe were merely declaratory, whose legal power existed at the point of a gun and hopes of formalized organization of the 13 States into a federal union.

My point is supported by the fact that only 13% of colonists supported the uprising . . . you may challenge that fact, as it is only from memory. But, my point is made.

Either way, the term of art 'natural born citizen' was in the constitution as adopted Sept 17, 1787, and then ratified in that form by all of the states a year later.

It is a fine point, indeed. Worth arguing over a good cigar . . .

Let us move forward said...

Bill Cutting:

Kelly, the NYC Democratic machine boss was a neighbor of Arthur and both were Irish, a very distinct social class at that time. It is said that they were personal friends.

Conkling, Arthur's mentor, powerful Senator, and NYC Republican machine boss, parsed his political allegiance when it appeared that Hayes would not be elected President. Money and Power were the main interests of the machines and their bosses then, just like today. Political associations were just a means to that end.

The 1880 NYC election shenanigans are recorded not only in Reeves, but also in Dehler and the Brooklyn Eagle. The Democrats in NY were appalled by Kelly's sellout.

Bob said...

The American Revolution was a direct attack on the old common law doctrine of 'perpetual allegiance,' which denied 'Citizens of the United States' the right to renounce obligations to their sovereign, King George III.

The press gangs of the War of 1812 refused to recognize the 'renouncement' of the early American Presidents, when they swore allegiance to the United States, or that of any American Citizen onboard U.S. ships at sea.

There is no evidence anywhere that Chester Arthur 'renounced' his allegiance, nor that the present occupant of the Oval Office renounced his allegiance that he openly admits in the Factcheck entry -- but the earliest American Presidents DID renounce their allegiance to the British crown.

Puzo1 said...

Obama supporters in their effort to combat the time-honored concept of allegiance at birth come up with all different ways that a foreign country could demand allegiance from someone at the time of his or her birth. After building all these hypothetical examples, they then say that such a complex scheme is unworkable and causes the U.S. to lose it sovereignty in deciding who will be its citizens. They also maintain that the notion of allegiance at birth is absurd because babies do not know anything about allegiance. They then conclude that therefore a “natural born Citizen” is simply a person born in the U.S. and “subject to the jurisdiction thereof.” Again, for them being born in the U.S. or even abroad to one or two alien parents does not disqualify one from being a “natural born Citizen,” even though such birth circumstances cause the child to be born with a foreign allegiance. Their arguments have no merit.

The Constitution includes both “natural born Citizens” and “Citizens of the United States.” These terms have a very different meaning. The historical record and U.S. Supreme Court case law show that a “natural born Citizen” excludes all those born with foreign allegiance and includes all those not born with foreign allegiance, according to U.S. law. This describes a child born in the U.S. (or equivalent) to U.S. citizen parents. These birth circumstances produce no foreign allegiance in the child under U.S. law. Under these birth circumstances, the child gains “natural born Citizen” status by natural law and not by positive law.

On the other hand, a “citizen of the United States,” who is also not a “natural born Citizen,” excludes all those born with foreign allegiance and not naturalized and includes all those born with foreign allegiance and naturalized, “at birth” or after birth, according to U.S. law. This describes a child born in the U.S. to one or two alien parents or born abroad (not serving the national defense of the U.S.) to one or two U.S. citizen parents (the naturalized “at birth” group) or born abroad and naturalized in the U.S. (the naturalized after birth group). These birth circumstances produce in the child under U.S. law (under concepts of jus soli and jus sanguinis) not only allegiance to the U.S. at birth but also allegiance to a foreign power at birth. Under these birth circumstances, the child needs a positive law (the 14th Amendment, Act of Congress, or treaty) to declare him or her a “citizen of the United States” which again is not the same as a “natural born Citizen.”

Under conflict of laws principles, it is U.S. law that decides the question of citizenship, not foreign law. Of course, if U.S. law recognizes foreign law as being relevant, than that foreign law applies in deciding the issue. But even in such case, it is still U.S. law that is deciding the issue of citizenship status.

In short, under the definition of a “natural born Citizen” put forth, the definition is easily workable. Also, the U.S. is not losing any sovereignty in applying the definition.

jdoug6 said...

The hack lawyer Jeffrey Toobin on CNN's Anderson Cooper ('poor little rich boy') asserted that Wilson and Hoover had mothers not born on U.S. soil, conveniently failing to mention that both women had been naturalized prior to their sons' (and future presidents) births. Such legal 'experts' need to be called out for their patent deception and obfuscation of historical facts.

daddynoz said...

I wondered as to this in DEC08. I'm glad you wrote something providing perspective in the matter.

http://thenaturalbornpresidency.blogspot.com/2009/01/first-post-natural-born-presidency-and.html

daddynoz said...

I wonder sometimes as to the education and analytical capacity of pundits and politicians. Most still affirm that mere native birth sufficient to eligibility without listening to the likes of Mr. Apuzzo for the counter argument. Those with significant voice appear absolutely unaware of Venus, CRA of 1866, legislative intent of the 14th, Happersett, and the reality of the watershed of Wong Kim Ark (native born citizenship irrespective of the nationality of the parents). Of course, there is no discussion on the nonsensical acceptance of a "dual citizen" non-commital in their allegiance vs naturalized who are required to abjure and renounce, the idea that originalism if applied to the founding document is easily understood with regard to a branch of power held by a single citizen charged with responsibility as commander in chief of the armed forces, and that the legal criteria for office is of greater import than the "hope" offered by a single citizen. The media needs a primer on our contentions.

Puzo1 said...

daddynoz,

The Founders and Framers wrote the Constitution in a way that best provided for the protection of our unalienable rights to life, liberty, and the pursuit of happiness. They sought to do that by providing for the survival and preservation of the constitutional republic. In the governmental scheme that they gave us, they provided for the Office of President and Commander in Chief, a singular and all-powerful office involving the concentration of both civilian and military power into one person. Because of such concentration of power in one individual, the Framers recognized that such offices also presented great risk to the republic and its people. They therefore gave us the “natural born Citizen” clause as one basis for eligibility to such offices. Through the “natural born Citizen” clause, they instructed us that such power must fall into the hands of a person who can be trusted with it to the greatest degree possible and that such guarantee is of much greater importance to the survival and preservation of the constitutional republic than the fleeting politics and personal favor of having one person necessarily occupy that office. What is profound is that the Founders and Framers put their trust in “Nature and Nature’s God” and not in political and legal institutions to accomplish that end.

js said...

the ratification date only goes to the exclusion of ineligibility...

.not to the establishement of citizenship and natural born citizenship...neither of which the exclusionary clause addressed...

the US could recognized citizenship on and after 4 Jul 1776...anyone born before independence were naturalized citizens if they were part of the revolution...natural born citizens could only exist after idependence...anyone born between independence and ratification were eligible to be POTUS as long as they were citizens when they were born...naturalized or natural born doesnt matter...the natural born clause actually doesnt exclude anybody for qualification to be POTUS until after ratification...so anyone born to 1 or 2 citizen parents would be eligible up until the constitution was ratified...if they were born after ratification only natural born citizens could be POTUS...

paralegalnm said...

"So far as we can judge by the laws of Carolina, and the practice and decision of that state, the principles I have adduced are supported; and I must own that I feel myself at liberty to decide, that Mr. Smith was a citizen at the declaration of independence, a citizen at the time of his election, and consequently entitled to a seat in this legislature."

The Founders' Constitution
Volume 2, Article 1, Section 2, Clause 2, Document 6
The University of Chicago Press
The Papers of James Madison. Edited by William T. Hutchinson et al. Chicago and London: University of Chicago Press, 1962--77 (vols. 1--10); Charlottesville: University Press of Virginia, 1977--(vols. 11--).

Puzo1 said...

js,

You are correct. The standard for citizenship is one thing and the standard for presidential eligibility is another. The former changed with July 4, 1776 while the later changed with the adoption of the Constitution in 1787.

Puzo1 said...

paralegalnm,

Thank you for posting that on William Smith. It supports my position that U.S. citizenship acquired a different character on and after July 4, 1776 and not in 1787 when the Constitution was adopted.

Smith was born before July 4, 1776. Please note that while Madison based his decision on whether Smith was a "citizen" on the "laws of Carolina," Article II's "natural born Citizen" clause provided a completely different standard for citizenship for Presidential eligibility. The former was used to determine whether one was a "Citizen of the United States" for purposes of eligibility for the offices of Representative, Senator, and grandfathered President while the latter was used for Presidents who were born after the adoption of the Constitution. After the adoption of the Constitution, the standard was made more vigorous, with mere birth in the jurisdiction of the U.S. not being sufficient. Under that more exacting standard, birth to U.S. citizen parents was also required.

phil stone said...

Are people born to our military out of the country (such as McCain) considered to be born on US soil ?? I think Vattel thought so but we were not building an overseas empire at the time our constitution was written so we may not have considered this in our use of the term "natural born citizen". Atty Apuzzo please clarify for me - Phil Stone

pixelpatriot said...

John Sidney McCain III was born on August 29, 1936 in Colon Hospital, Colon Panama, according to the Panama Canal Health Department not in the Panama Canal Zone, which is authenticated by Donald Lynn Lamb representing the Panama Railroad Company with authority over the Hospital in Colon; and according to the Hay-Banau-Varilla Treaty of November 18, 1903 that has 26 articles in which the two pertinent to the status of the city of Colon under that Treaty refer to the Convention for the Construction of a Ship Canal says that the Colon Panama, the birth city cited on McCain’s 1936 long form birth certificate where he was witnessed being born, and where his parents resided, Colon, Republic de Panama, is not part of the Canal Zone, quote: ARTICLE I The United States guarantees and will maintain the independence of the Republic of Panama. ARTICLE II The Republic of Panama grants to the United States in perpetuity the use, occupation and control of a zone of land and land under water for the construction maintenance, operation, sanitation and protection of said Canal of the width of ten miles extending to the distance of five miles on each side of the center line of the route of the Canal to be constructed; the said zone beginning in the Caribbean Sea three marine miles from mean low water mark and extending to and across the Isthmus of Panama into the Pacific ocean to a distance of three marine miles from mean low water mark WITH THE PROVISO THAT THE CITIES OF PANAMA AND COLON and the harbors adjacent to said cities, WHICH ARE INCLUDED WITHIN THE BOUNDARIES OF THE ZONE ABOVE DESCRIBED, SHALL NOT BE INCLUDED WITHIN THIS GRANT …” and therefore, McCain is not a natural-born Citizen as he was not born on U.S. Territory or the USA and is not eligible for the Presidency with the U.S. Constitution Article II Section One Clause 5

MichaelN said...

SCOTUS judiciary it seems, rely on Wonk Kim Ark holding, where the comparison was made between a 'natural born subject'& a US 'natural born Citizen', based on and with reference to Calvin's case (Lord Coke)

This error based holding has apparently been left unchallenged to date.

What was not mentioned in the WKA court was this from Lord Coke - Calvin's case.

Quote: "Calvin, the plaintiff, naturalized by PROCREATION and birthright"

sanguinis

and also Coke's holding that for the high allegiance of a English NBS, born to a non-alien subject parent, was due by "NATURE and birthright"

Two ESSENTIAL qualities.

Unless I have a completely wrong understanding of 'procreation', it seems to me that the error in the holding in WKA court must be corrected and the sanguinis principle recognized by the court.

A good place to start might be with the state of Indiana case of Ankeny, by filing of a writ of error with SCOTUS.

This may be a 'back-door' way to 'force' SCOTUS' to address the US NBC issue and keep the Obama question out of play on that front.

phil stone said...

to pixelpatriot - thanks for your help - but I knew all that about McCain - that is why I called him simply born out of the country - my question was about Vattel's idea that children of military people born out of the country while on an assignment by the government(such as McCain) should be considered as born on US soil - and how this has been resolved. Phil Stone

cfkerchner said...

To Phil Stone:

Current U.S. law and the State Department's own Foreign Affairs Manual point out that military bases in foreign countries are currently NOT consider U.S. soil.

Vattel's section 217 argues that those serving in the Armies of the State in foreign lands are said to have not quit the territory of their country. Vattel likewise in section 214 argued that those born at sea in international waters on a shipped flagged to the home country were also have said to still be reputed to have been born within its territories. Thus Vattel addresses some common-sense logical exceptions to the pure natural law definition he offered in 212 that a natural born Citizen is one born in the country to parents who are Citizens of that country. And in those days if the woman say was foreign born and became betrothed and married to the father, the wife obtained the Citizenship of the husband my marital fusion. Thus having parents of different Citizenship was rare in the 18th and 19th century.

You can read the basic definition of who/what is a Citizen of the country and who/what is a natural born Citizen of the country laid out in section 212 of Vattel's Law of Nations, Chapter 19, and his caveats to that in following sections at this link:
http://www.lonang.com/exlibris/vattel/vatt-119.htm

The issue of the exception for children born to parents while in to their country in service in the armies of the state overseas could be addressed via international treaties and the status of forces agreements with the various nations we have military bases in. But as of now the State Dept advises people to send the wife home to the USA to have the child born in the USA to avoid any issues of dual Citizenship at birth and claims of foreign allegiance on the child by birth in a foreign country.

This matter is tangential and not relevant to Obama's situation since his father was never a Citizen no matter where Obama was born.

But the issues of McCain's natural born Citizenship status is what kept him quiet about Obama's in the 2008 election, imo.

Read and study Vattel's Volume 1 and also the many essays here by Attorney Mario Apuzzo to learn more about "natural born Citizenship" per natural law, the body of law known as the law of nations, and U.S. Supreme Court decisions which touch on the legal term of art - natural born Citizen.

Hope this helps.

Puzo1 said...

Phil Stone,

I of II

The question presented is whether presidential candidate, John McCain, is an Article II “natural born Citizen.” I answer this question in the affirmative.

There is evidence that during the Founding and when the Constitution was written, place of birth did not matter to the Founders and Framers. What they focused on first was whether a person was a citizen. After that if a child was born to citizen parents he or she became a “natural born Citizen,” regardless of where the person was born. David Ramsay, in his A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789) told us that after July 4, 1776, birthright citizenship was preserved only for a child born to U.S. citizens, making no mention of place of birth. In his 1789 article, Ramsay first explained who the “original citizens” were and then defined the “natural born citizens” as the children born to citizen parents. He 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. As we can see, Ramsay put forth a definition of a “natural born Citizen” that only depended upon the child being born to U.S. citizen parents with no mention of place of birth.

The same definition is reflected in the First Congress’s Naturalization Act of 1790. In the Naturalization Act of 1790, the First Congress was willing to allow a child born out of the United States to parents who were “citizens of the United States” to be considered as a “natural born citizen.” The First Congress consisted of 17 signers of the Constitution. That this First Congress, with the signature of President George Washington, passed such a law is very strong evidence that the other Framers of the Constitution must have believed the same. It also shows that these Founders and Framers probably believed that natural law and the law of nations provided the rationale for such a doctrine.

But the Third Congress, again with President George Washington’s signature, in the Naturalization Act of 1795 for children "born out of the limits and jurisdiction of the United States" to citizen parents removed their status as "natural born citizens" and said that their status would now be that of "citizens of the United States." This Congress could have had various reasons for changing the law, including a growing mistrust for people who may be born out of physical territory know as the United States. But that this Congress did this does not mean that anyone born physically out of the United States to citizen parents cannot be a "natural born Citizen." In other words, saying someone is a “citizen of the United States” does not mean that one is not a “natural born Citizen,” for “citizens of the United States” include “natural born Citizens.” A person is still able to argue that Congress’s modern version of the 1795 Act, 8 U.S.C. Sec. 1401(c) does not preclude a finding that someone is a “natural born Citizen” because both that statute and the 14th Amendment’s “in the United States and subject to the jurisdiction thereof” should be interpreted under American common law. Under that common law and under the proper circumstances, even though he or she was born “out of the country,” that birth is nevertheless deemed to be "in the United States and subject to the jurisdiction thereof.” 14th Amendment and 8 U.S.C. Sec. 1401(c).

Continued . . .

Puzo1 said...

II of II

McCain can show that he is a “natural born Citizen” by utilizing American common law. Under that common law and under the proper circumstances, even though he was born “out of the country,” his birth is nevertheless deemed to be "in the United States and subject to the jurisdiction thereof.” 14th Amendment and 8 U.S.C. Sec. 1401(c).

It does not matter if McCain in 1936 was born in the Panama Canal Zone or Panama proper. Wherever he was born, he was born there to parents who were U.S. citizens and serving in the armies of the state. Emer de Vattel at Section 217 of The Law of Nations (1758) informs that someone born under such circumstances is “reputed born in the country; for a citizen, who is absent with his family on the service of the state, but still dependent on it, and subject to its jurisdiction, cannot be considered as having quitted its territory.” We know from the historical record and case law that the law of nations became part of “the Laws of the United States.” Article III, Section 2.

Additionally, when McCain was born in Panama in 1936, that nation did not grant jus soli citizenship (granting citizenship to someone by merely being born on the soil of a nation). That means that even though McCain was born on its territory, because he was born to U.S. citizen parents, Panama did not expect him to have any allegiance to that nation. Hence, Panama did not grant him its citizenship.

So McCain can successfully argue that he was born “in the United States and subject to its jurisdiction” because he was born to parents who were U.S. citizens serving the armies of the state and who, not having quit their country, were still subject to its jurisdiction, all of which also shows that he was born “in the United States, and subject to the jurisdiction thereof.” Hence, McCain under the 14th Amendment and 8 U.S.C. Sec. 1401(a) would be a “citizen of the United States.” But because he is able to prove that he was also born to U.S. citizen parents, he is not only a “citizen of the United States” under these positive laws but also a “natural born Citizen” under natural law and the law of nations. Hence, McCain is included as a “natural born Citizen” because he was born without any foreign allegiance. Being born a “natural born Citizen” under the Constitution, Congress is prevented by the same Constitution from using any act to take that status away from McCain. Hence, being a “natural born Citizen,” McCain is therefore eligible to be President and Commander in Chief.

Mario Apuzzo, Esq.

MichaelN said...

Ok, a writ of error is only good for criminal cases, but .......

Seems like Rule 60 has an opening.

See "(a)"oversight or omission"
(6)any other reason that justifies relief"
(d) Other Powers to Grant Relief. This rule does not limit a court’s power to:
(1)entertain an independent action to relieve a party from a......proceeding
The court may do so on motion or on its own, with or without notice."

Rule 60. Relief from a Judgment or Order

(a) Corrections Based on Clerical Mistakes; Oversights and Omissions. The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court’s leave.

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59 (b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.

(c) Timing and Effect of the Motion.
(1) Timing. A motion under Rule 60 (b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.

(2) Effect on Finality. The motion does not affect the judgment’s finality or suspend its operation.

(d) Other Powers to Grant Relief. This rule does not limit a court’s power to:

(1)entertain an independent action to relieve a party from a judgment, order,or proceeding;
(2) grant relief under 28 U.S.C. § 1655 to a defendant who was not personally notified of the action; or
(3) set aside a judgment for fraud on the court.

(e) Bills and Writs Abolished. The following are abolished: bills of review, bills in the nature of bills of review, and writs of coram nobis, coram vobis, and audita querela.

MichaelN said...

Re: Rule 60

"Fraud on the Court Law & Legal Definition

Fraud on the court occurs when the judicial machinery itself has been tainted, such as when an attorney, who is an officer of the court, is involved in the perpetration of a fraud or makes material misrepresentations to the court. Fraud upon the court makes void the orders and judgments of that court.

In Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985), the court stated "Fraud upon the court is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. ... It is where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function --- thus where the impartial functions of the court have been directly corrupted."

Mick said...

Hello Mr. Apuzzo.

You claim that Panama did not grant "birthright" citizenship at the time McCain was born. I have heard otherwise. Do you have a direct citation of this? I seem to remember Donofrio posting direct wording from the Panamanian Constitution that granted "birthright citizenship".

If what you're saying is the case, why would McCain have any motivation to protect Obama? I mean, birth abroad w/o any foreign jurisdiction would not be something to hide from in his case, especially to a war hero, and may provide a clear exception, where Obama's foreign father is a clear cut violation. Especially since Obama sponsored Res. 511
(of course that could point to collusion and treason too).

My understanding is that MOST countries did grant "birthright citizenship" at that time, but that now it is fairly rare, which of course could force exceptions to "jus soli" of the nbc requirement.
It seems that you and Lt. Col. Kerchner may disagree on this issue (McCain), and I know that you disagreed w/ L. Donofrio about it. If he kept quiet about Obama, that must mean that McCain thought himself ineligible. No? If he was indeed eligible then Obama would easily be vanquished.

While Vattel seemed to make an exception for children born of military parents when deployed abroad, that doesn't necessarily mean that the America adopted the same idea, does it? Do you know if the Congressional record of 1795 reflects any discussion of this?
They could have left "natural born" out of NA 1795 because:

1) NA 1790 made it (nbc status) a positive law, in violation of natural law. As a matter of fact USC 8 S1401 does define nbc, but doesn't name it nbc, just citizen (those born in the US AND subject to the jurisdiction thereof).

2) They may have figured that they had violated the constitution by amending the founders original concept of jus soli AND jus sanguinas w/o the Constitutional Convention (amendment process).

3) they were guarding against those countries w/ "birthright citizenship" doctrines, where dual jurisdiction may be attained.

I noticed that someone said above that Agnew was not eligible. My research says that his Greek Immigrant father was here for 20 years in the US before Spiro was born, so he was surely naturalized in some way (maybe even by mass naturalization treaty?) before the birth. As a matter of fact, Spiro's father even worked for the Democratic Party at the time. This parallels Rubio, who's Cuban parents were here for 12 years before Marco was born (of course naturalization of the parents would need to be verified if C. Arthur is any example). Jindal also poses questions. He was certainly born in La., but of non citizen parents (both Indian), but I have heard that India did not grant Jus sanguinas citizenship at the time, leaving Jindal w/ no competing jurisdiction. Do you have knowledge of that?

I know I have a lot of questions, thankyou in advance for your time and consideration.

juniper55 said...

Does anyone know if Bobby Jindal or Marco Rubio have been approached to see if they would be willing to fill out the paperwork to run for President, simply to test NBC eligibility? Even if they have no intention of actually running?

I couldn't find when either of their parents were actually naturalized.

paralegalnm said...

I thank 'js'for the concise distinction between July 4th 1776 citizenship and 'adoption/ratification' citizenship. Perhaps one could say that 'adoption' (as mentioned in Art II) was Parliamentary while 'ratification' was contract? Or, perhaps 'time of adoption' alone is a constitutional measure of time of citizenship?

As Mr. Apuzzo noted, James Madison was rightly applying S. Carolina colonial law to Mr. Smith, prior to the 'time of adoption of this constitution.'

As for Mr. Apuzzo's comment on U.S. soil requirements, citizenship, if not natural born citizenship, required only U.S. parents, with the caveate of U.S. residency.

Residency requirements in current Immigration and Nationality law is what tripped up Atty. Phil Berg in declaring Obama a non-citizen. If Obama was born in Kenya, Dunham only required two years of U.S. residency, post age fourteen-years, per 8 U.S.C. 1409 to confer U.S. citizenship, pending abandonment of the father.

Mr. Berg insisted the five-year residency requirement applied.

The Stacker said...

Mario, you said,

"But the Third Congress, again with President George Washington’s signature, in the Naturalization Act of 1795 for children "born out of the limits and jurisdiction of the United States" to citizen parents removed their status as "natural born citizens" and said that their status would now be that of "citizens of the United States." This Congress could have had various reasons for changing the law, including a growing mistrust for people who may be born out of physical territory know as the United States. But that this Congress did this does not mean that anyone born physically out of the United States to citizen parents cannot be a "natural born Citizen." In other words, saying someone is a “citizen of the United States” does not mean that one is not a “natural born Citizen,” for “citizens of the United States” include “natural born Citizens.”

This just doesn't make sense. I'm with you 100% on the fact that parents determine the natural born status of the child, but your logic just isn't right here. The 1795 Act pits the status of those born to two citizen parents (1790 Act) versus the sole variable being their location at birth. While 1795 calls these "citizens" it redefines what 1790 says, which you report, to saying that if you aren't born here you are NOT a "natural born citizen".

Did anyone else think this same thing?

phil stone said...

Atty Apuzzo- I had thought that McCain might be eligible per Vattel and the question has been nagging me for some time but I could not connect the dots. Thank you for your (as always) very clear answer and explanation. - Phil Stone

Puzo1 said...

paralegalnm,

Does Obama’s mother give Obama U.S. citizenship if he was born out of the U.S in 1961? I disagree with your assessment and agree with Attorney Phil Berg that Obama’s mother cannot give Obama U.S. citizenship if Obama was born out of the U.S. You are applying the wrong statute for Obama’s birth which occurred in 1961. If Obama was not born in the U.S., under the applicable statute he would not qualify to obtain U.S. citizenship from his U.S. citizen mother. A child born in wedlock and abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth under Section 301(g) INA, provided the citizen parent was physically present in the U.S. for the time period required by the law applicable at the time of the child's birth. (For birth on or after November 14, 1986, a period of five years physical presence, two after the age of fourteen is required. For birth between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen are required for physical presence in the U.S. to transmit U.S. citizenship to the child). http://travel.state.gov/law/info/info_609.html.

While there are some on the internet who claim that Obama was born out of wedlock which if true would cause a different statute to apply (one that he can satisfy to get U.S. citizenship from his U.S. citizen mother), there is no legally established evidence that the marriage between Stanley Ann Dunham and Barack Obama Sr. was anything but legal and judicially accepted. Hence, the statute to apply is the one that applies to married couples.

Because Obama was born in 1961, the 10 years with 5 years after 14 years rule applies, not the 5 years with 2 years after 14 years rule (which is the one upon which you are relying). Obama’s mother, born on November 29, 1942, was 18 years old when she gave birth to Obama on August 4, 1961. She was 117 days short from being 19 years old. But she had to be at least 19 years old (14 years old plus 5 years of U.S. physical presence) to satisfy the legal requirement of Section 301(g). Hence, if Obama was born in Kenya, under the Fourteenth Amendment, he is neither a U.S. citizen by birth on U.S. soil nor one by naturalization. (There is no existing evidence that Obama was ever naturalized.) Nor would he qualify to be a U.S. citizen by any act of Congress by being born abroad to a U.S. citizen parent. If this scenario is accurate, i.e. not born in the U.S., it can be reasonably argued that Obama is an illegal alien.

Finally, if Obama was born in the U.S., he acquires the status of a “citizen of the United States” under the 14th Amendment, not to be confused with the status of a “natural born Citizen” under Article II. In such case, the citizenship and age of the mother is not relevant to him acquiring such status. On the other hand, with Obama not being able to be an Article II “natural born Citizen” because he was born to a non-U.S. citizen father and Obama seeking to be at least a “citizen of the United States” under some Congressional Act, the citizenship and age of the mother comes into play only if Obama was born out of the United States.

Mick said...

Mr. Apuzzo,

My research tells me that Panama did give "birthright Citizenship" to those born w/in it's territory.
Also McCain was made a US Citizen by statute by the Act of Aug 4, 1937, Pub. L. No. 75-242, 50 Stat. 558.

This Law conferred US Citizenship on the children of American parents born between 1904 and 1937 in Panama and the PCZ.
McCain was born in 1936, and was made a US Citizen by statute in 1937, therefore in my opinion, he cannot be a natural born Citizen. This would explain why he made the deal not to speak about Obama's lack of eligibility. See Page 3, #7 Below:

http://books.google.com/books?id=pH9EdFwbl7cC&pg=PA3&lpg=PA3&dq=act+of+aug+4,+1937+pub.l.+No.75-242&source=bl&ots=0Hton0GZFT&sig=bKNDgDh94OT29QQTMUUDv5IU0nQ&hl=en&ei=BqNdTdq4Do-Utwey7typCw&sa=X&oi=book_result&ct=result&resnum=1&ved=0CBYQ6AEwAA#v=onepage&q&f=false

Ted said...

See this; it’s for real; the SCOTUS WILL FINALLY CONSIDER “natural born citizen” ineligibility of BHO. Here’s why: the cocky district court judge didn’t rule on lack of standing!!!!!! And, respondents failed to timely respond to petitioner’s motion to recuse Obama judges, hence recusal must be granted, giving enough SCOTUS judges to have conference. This is real folks!!!! See:

http://www.wnd.com/index.php?fa=PAGE.view&pageId=264897

Ted said...

...and it's now even on Drudge in Red!

js said...

http://www.wnd.com/index.php?fa=PAGE.view&pageId=264897

js said...

hollister might win the day...

but beyond that...what is the impact of BHO if he actually was given citizenship in indonesia...this is also another document on the web...showing barry soetoro as an indonesian citizen...

Would BHO have to make a formal declaration at/after the age of 18 to reclaim his US Citizenship? If so...it is very likely that we have an indonesian citizen in the office of POTUS...which is intolerable at the least.

Puzo1 said...

Mick,

When John McCain was born in Panama in 1936, Panama did not recognized automatic jus soli citizenship.

Panaman nationality and citizenship was provided for in the Panaman Constitution of February 13, 1904. Article 6 provided in relevant part:

“Article 6. The following are Panamans:

(1) All those born or who may be born in the territory of Panama, whatever the nationality of their fathers may be.

(2) Children of Panaman father or mother, born in another territory, if they take up their domicile in the republic and express their intention to become Panaman.”

***

Collection of Nationality Laws of Various Countries as Contained in Constitutions, Statutes and Treaties 458 (Richard W. Flournoy Jr. and ,
Hudson, Manley O. Hudson ed. 1929). http://books.google.com/books?id=0VWXmxCcnz0C&pg=PA458&lpg=PA458&dq=Act+of+October+19,+1928+Panama&source=bl&ots=azTnCoDefz&sig=b77SpsKm57roLVGNrFlGhptYezk&hl=en&ei=QrZdTfT9GIGglAerscX2Cg&sa=X&oi=book_result&ct=result&resnum=1&ved=0CBYQ6AEwAA#v=onepage&q=Act%20of%20October%2019%2C%201928%20Panama&f=false . As can be seen, this 1904 constitutional provision allowed one to acquire Panaman citizenship by either jus soli or jus sanguinis.

McCain was born in 1936. By that time, Article 6 of the Constitution was amended by the Act of October 19, 1928. Hence, when McCain was born, there was in force in Panama Act of October 19, 1928, which replaced Article 6 of the National Constitution. That Act provided in relevant part:

“Article 6 of the National Constitution shall read as follows:
The title Panaman may be acquired by birth or naturalization. The children of Panaman parents born in the republic or outside of it, provided in the latter case the parents are Panamans by birth, are Panamans by birth. Those who are born in the republic of foreign parents shall be called Panamans if within the year following their majority they declare to the Executive Power that they choose Panaman nationality and prove that they have resided in the republic during the six years previous to said declaration.
The status of Panaman by naturalization may be granted to: (a) Children born of alien parents in the republic who opt for Panaman nationality in the manner indicated in the previous paragraph, without having had the residence explained in the same . . . .”

Id. at 468. See also, The Devil Makes Some Damned Deals or John McCain, Hero to Zero at Mach 6.66, found at http://www.birthers.org/misc/DevilDetails.html (explains that John McCain is a “natural born Citizen” but he did not know how to prove it which caused him to not question Obama on his eligibility and thereby compromise his oath to his country to protect and defend the Constitution against all enemies foreign and domestic). This Act removed automatic jus soli citizenship from the Constitution and allowed only for automatic jus sanguinis citizenship. This new law provided that those who were born in the republic of foreign parents could be Panamans if within the year following their majority they declared to the Executive Power that they chose Panaman nationality and satisfied the residency requirement. I have not seen any evidence that McCain ever accepted Panaman citizenship. Hence, under the 1928 Act, McCain never acquired Panama citizenship. Therefore, when McCain was born in Panama in 1936 to U.S. citizen parents, he did not become a Panaman. On the other hand and as I have explained, under American common law, he did become a “natural born Citizen.” Because he was born to U.S. citizen parents who were serving "in the armies of the state," under American common law it can be argued that he was "reputed born in the country," the United States. Hence, he does not need to be declared a “citizen of the United States” by the Act of Aug 4, 1937, Pub. L. No. 75-242, 50 Stat. 558, but rather was a “natural born Citizen” from birth in 1936.

Puzo1 said...

What is amazing is that those who are providing cover for Obama when commenting on the legislation being proposed by our states regarding a candidate needing to prove that he or she was born in the United States before getting on the presidential ballot do not say that such legislation would not present any problem for Obama to meet. Rather, they argue that it is unconstitutional.

Bob said...

"Hence, the Chester Arthur example is not and cannot be treated as any precedent since the nation was not aware of the truth about his father’s and mother’s non-U.S. citizenship status at the time of his birth."

Even if it were a "precedent", no amount of precedents can override a Constitutional requirement. That can only be done via a Constitutional amendment.

Texoma said...

I don’t consider McCain to be a natural born citizen.

Panama, not the US, was the sovereign of the Canal Zone, and this evidenced not only by the 1904 treaty (where the US was given control “if it were sovereign”) but also by the fact that we paid Panama an annual rent.

The Canal Zone included the territory occupied by military bases, and the Department of State’s Foreign Affairs Manual states that overseas military bases are not part of the US.

So, whether McCain was born in Colon, Panama or on a naval station in the Canal Zone, he was not born in the sovereign territory of the US. By the relevant statute in effect in 1936, McCain was a citizen at birth, but not a natural born citizen.

Panama’s Constitution, as amended in 1928 states that children born to foreigners in Panama would be considered Panamanian citizens if, after their 21st birthday, they opted for said nationality.

Regarding Vattel’s Chapter 217 (Children born in the armies of the state), Vattel does not refer to these children as natural born citizens. Could this be due to the unfortunate cases of children born to foreign mistresses of citizen husbands serving abroad? These children are “reputed” born in the country and follow the condition of their father, but would they not also have the citizenship of their foreign citizen mother? On the other hand, in Chapter 212, Vattel clearly identifies both the father and mother (“parents”) as citizens, and the children born in the country to these citizen parents are natural born citizens.

MichaelN said...

It's not only amazing, it's amusing.

If they were so cock-sure that Obama meets the eligibility requirements for POTUS, then they should be 'champing at the bit' and fully in favour of & supportthe matter going to SCOTUS & the states' new bills.

Btw, none of the 'legal experts' over at Politijab/TheFogBow can explain what Lord Coke - Calvin's case meant when he said ...

"Calvin the plaintiff, naturalized by PROCREATION and birthright'

You really should take a look at the pack-attack behavior of these desperados.

Have agood laugh at this lot ......

http://www.thefogbow.com/forum/viewtopic.php?f=25&t=3548&start=1975
----------------------

"Mario said...

What is amazing is that those who are providing cover for Obama when commenting on the legislation being proposed by our states regarding a candidate needing to prove that he or she was born in the United States before getting on the presidential ballot do not say that such legislation would not present any problem for Obama to meet. Rather, they argue that it is unconstitutional."

paralegalnm said...

re: Puzo1 post 2/17 @ 1:31 PM

Mr. Berg did not apply the fact pattern of Mr. Obama, Sr. being married to Kezia, prior to marrying Stanley Ann Dunham.

In 1961, a bigamist marriage is void ab initio. Therefore, a Kenyan out of wedlock birth U.S. residency requirement is only two-years under 8 U.S.C. 1409.

Mr. Berg refused to relent, claiming the Kenyan marriage was a 'village marriage' and therefore not recognized by the U.S.

I replied with the Hague Conventions on marriage; that any marriage celebrated and recorded was recognized by signators to those conventions. http://www.legallanguage.com/resources/treaties/hague/1978-march-14th-convention-2/

The 1978 Conventions replaced those of 1902. I am assuming they are similar, but if a case arose or you called me on that point in debate, I would have to concede the point until looking up the 1902conventions.

Cf. 1961 Montana v. Kennedy (366 U.S. 308 (1961)). The court ruled that a child born abroad prior to May 24, 1934, to an American citizen mother did not acquire American citizenship at birth, since at that time citizenship at birth was transmitted only by a citizen father. Although subsequent legislation conferred upon American women the power to transmit citizenship to their children born abroad, such legislation was not retroactive and did not bestow citizenship on persons born before the enactment of such legislation.

Cf. The 1922 Cable Act, and subsequent Acts preserving U.S. citizen women U.S. nationality, even though married to alien husbands.

paralegalnm said...

re: Puzo1
Part II

I've gone through previous Hague conventions, namely the 1902 in French.

However, the pre-1978 conventions were limited to Europe, and Kenya finally moved towards English occupation after the Mau Mau rebellion.

So, English law would govern, and the 'village' marriage to Kezia would be respected as solemnized.

In Kenya, Dunham might not be admitted as a wife as a kafr . . . and in the U.S. Kezia would be admitted as the sole wife.

MichaelN said...

http://www.facebook.com/people/Chief-Justice-John-G-Roberts/27083#!/people/Chief-Justice-John-G-Roberts/27083?sk=friends

jayjay said...

The Mar. 4, 2011 conference date for SCOTUS on 10-878 (Hollister) should be interesting.

I wonder if Mario might wish to do an Amicus brief or, if too late for that, to submit a similar rehearing brief re recusal not done thereby corrupting the outrcome of the Kerchner et al case.

At any rate, kudos to John Hemenway for sticking with it!!! Let's hope the court will tell us why recusals were not done as requested. Perhaps some limp-wristed text such as "... it was a recusal request not a petition so it was therefore optional ..." aor even the escapist political statement - "... it;s up to each Justice to evqaluate and decide ...".

Maggie said...

Mario you might like to comment on something that I came across recently.

I am an Australian and I live in Canberra. During 1984-85 I lived in the USA because my husband had a posting to Wright Patterson Air Force base.

First point to make: one of our friends had a baby whilst the husband was on posting to Wright-Patterson (they were in the previous class).


Second point: In late January I met an American woman (from Texas) whose husband is in the USAF on posting to Canberra. She had a daughter in Canberra.

The woman told her son in my hearing that her daughter was not an Australian citizen because the American Embassy said that the Australian citizenship would not be recognized.

I assume the Embassy issued her with a birth certificate.

Comment please.

Third point: my Australian aunt married a citizen of the USA (who had Mexican parentage) and she did not become an American citizen until well after her children were born. My understanding is that my cousins are not NBC because of their mother's citizenship status. This is something that I have always understood.

Puzo1 said...

Texoma,

The question of whether McCain is a "natural born Citizen" is not controlled by the place of McCain's birth. Rather, what controls it is whether he was born to U.S. citizen parents and whether he can be considered as having been born in the U.S.

Vattel said that children born in the country to citizen parents were "natural born citizens." McCain was born to citizen parents. Was he born in the country? Vattel explains that being born abroad in the armies of the state is reputed born in the country. Hence, McCain, being born in Panama in the armies of the state is reputed born in the U.S. Hence, McCain was born in the country to citizen parents. Therefore, McCain is a "natural born Citizen."

As far as the Foreign Affairs Manual goes, it only speaks about military bases as a physical place and that is it. That manual only tells us that simply being born on a military base is not equivalent to being born in the U.S. It does not address the Vattel issue of the child's parents serving in the military and the child being reputed born in the U.S. In any event, births abroad for military families probably occur in city hospitals rather than on the military base. Someone can correct me on this if I am wrong.

McCain does not need any statute to acquire the national character of a "natural born Citizen."

Under the 1928 constitutional amendment, McCain was not born a Panaman. Nor did he ever became a Panaman upon becoming of age or any time thereafter.

You said regarding Vattel’s Chapter 217 (Children born in the armies of the state), Vattel does not refer to these children as natural born citizens. But he does not have to. He told us that a child born in the country to citizen parents is a natural born citizen. Vattel simply tells us that being born abroad to citizens serving in the armies of the state is reputed born in the country. A fortiori if that child is born under such circumstances to citizen parents, under Vattel's definition, he or she is a "natural born citizen."

Finally, you said "could this be due to the unfortunate cases of children born to foreign mistresses of citizen husbands serving abroad? These children are “reputed” born in the country and follow the condition of their father, but would they not also have the citizenship of their foreign citizen mother?" You have misunderstood Vattel. Vattel said "for a citizen, who is absent with his family on the service of the state..." Hence, Vattel is telling us that the woman is not the soldier father's mistress, but rather his wife. The word "family" in the 18th century was normally used to show that unit that came about by a man and woman marrying each other and having children.
Wade E. Pickren and Alexandra Rutherford, A History of Modern Psychology in Context 29 (2010). http://books.google.com/books?id=z6HgrARx06QC&pg=PA30&dq=meaning+of+family+in+1700&hl=en&ei=YPJeTdqZIsKB8ga8-eyYDA&sa=X&oi=book_result&ct=result&resnum=8&ved=0CGYQ6AEwBw#v=onepage&q&f=false.
And this is McCain's exact situation, his mother and father being legally married.

A pen said...

TITLE 18 Part1 Chapter47 S1015

§ 1015. Naturalization, citizenship or alien registry
(f) Whoever knowingly makes any false statement or claim.... Subsection (f) does not apply to an alien if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of making the false statement or claim that he or she was a citizen of the United States.

Isn't this defining a NBC as a defense because congress can not legislate away the rights of a NBC?

Texoma said...

Mario,

Thank you for your thoughtful response. Respectfully, I still disagree.

I did read what Vattel said about the citizen being absent with his family, and you make a good point that Vattel was talking about children born in wedlock. Having conceded that point however, there are cases of children born to the foreign mistresses of citizen fathers (including those with families), and these children would not be natural born citizens of the father’s country. Would you contend that Vattel would consider these children to be dual citizens: citizens of the father’s country (reputed born in the father’s country and following the condition of the father) and citizens of the mistress’ country?

In Chapter 217, Vattel says that the child is “reputed” born in the country of the father (and granted, of his wife) serving abroad. But the child is reputed born in the country of the citizen father by the laws of man and not by the laws of nature. By the laws of nature, the child is in fact born in the foreign country. By the laws of nature, this child would not be a natural born citizen of the father’s country.

In Chapter 212, Vattel says that a natural born citizen is born in the country to citizen parents. By the laws of nature, this child is in fact born in the country and in fact born to a father and a mother who are both citizens. No human interpretation (such as “reputed”) is needed to establish the child’s citizenship, for these are indisputable and self-evident facts.

Under Panama’s constitution McCain had the legal option of claiming Panamanian citizenship at age 21. This is because Panama, not the US, was the sovereign of the Canal Zone. By the laws of nature, McCain was in fact born in the country of Panama and born to US citizens. By the relevant statute (a human law) in effect in 1936, McCain was a citizen at birth, but not a natural born citizen.

The Stacker said...

Mario, did you see my former post? I don't understand your point of possibly equating "citizens" and "NBCs" if we are talking about what they clearly define, which was that children "born out of the limits and jurisdiction" of the US to citizen parents are not NBCs.

According to this language it is clear: if you are born in a US base or shared territory you are NBC, because I believe that would account for limits and jurisdiction. However, if you are born in a foreign country, you cannot be NBC because even if you are subject still to the jurisdiction of the US (are you?) why would they need to make a new Act of 1795 making this a clear and unmistakable (concerned) point?

Puzo1 said...

The Stacker,

You are not reading the Naturalization Act of 1795 properly. That Act did not say as you state that one born abroad to citizen parents was not a "natural born citizen."

As I have argued, a "citizen of the United States" includes both "natural born Citizens" and naturalized citizens. Hence, calling someone a "citizen of the United States" does not tell you whether that person is a "natural born Citizen" or a naturalized citizen.

With respect to children born abroad to parents who were “citizens of the United States,” Congress said in the Naturalization Act of 1790 that such children “shall be considered as natural born citizens”

In the 1795 Naturalization Act, Congress said that such children “shall be considered as citizens of the United States.”

Hence, we can see that in the 1795Act, Congress did not automatically declare these children to be “natural born Citizen” as it did in the 1790 Act, but rather left if up to those having interest to show that the child was born a “natural born Citizen.”

After the 1790 Act, Congress has never attempted to define an Article II “natural born Citizen” again, probably realizing that as the Framers signaled, a “natural born Citizen” needs no law to so define one and it has no power to alter the Framers’ definition of the term, for to do so would be exercising a power it does not have and amending the clause without constitutional amendment. So what Congress did was simply declare these children to be “citizens of the United States,” and made no statement as to whether those children were or were not “natural born Citizens.” By saying that they were “citizens of the United States,” Congress did not say that they could not be “natural born Citizens.” Congress therefore left it up to the person to show that he or she is a “natural born Citizen.”

Puzo1 said...

Texoma,

At this point we really do not disagree. You just now present a different factual situation. Now you ask what would be the citizenship status under Vattel's rules of a child born abroad to a U.S. citizen father serving in the armies of the state and to an alien mother when the couple is not married. The law of nations rule was that if the child was born in a legitimate marriage, he or she inherited the citizenship of the father (meaning parents). If the child was born to a couple who was not married, then the child acquired the citizenship of the mother.

So in your example, under Vattel, the child born abroad to a foreign mistress and a U.S. citizen father serving the armies of the state would not be a U.S. citizen let alone a "natural born Citizen." The child would acquire the citizenship of his or her foreign mother. Not having any U.S. citizenship, the child would not be a dual citizen. Today, our naturalization laws (8 U.S.C. Sec. 1409(a)) do not follow this result, for such a child, satisfying all conditions of the Act of Congress, could be a "citizen of the United States" "at birth" which is not a "natural born Citizen."

Mick said...

Hello Mario,
Thank you for your reply. Are you saying that McCain may have been bamboozled into keeping quiet about Obama when he was eligible all along? Then why doesn't he speak now?

Our concept of jurisdiction allows an adult child born of dual allegiance to claim citizenship at the age of majority also, we just don't spell it out literally like the 1928 Panamanian Amendment. He would only have that opportunity if he was born in Panama. Wouldn't he be a "Panamanian National" until the age of 16, when he would have to set up residence in order to become a full Panamanian citizen by age 22?

He could have probably gotten a Panamanian passport by the age of 16, correct?

Why do his protectors rely on the amended NA 1790 instead of the 1928 Amendment to the Panamanian Constitution?

I don't mean to argue, just trying to wrap my head around the degree of treason committed by this supposed "war hero". Somehow I really find it hard to believe that he thought he was ineligible, when he in fact was. And if he knew he was eligible then his actions are even worse. I guess he should have had you as his lawyer.

Bill Cutting said...

"Calvin the plaintiff, naturalized by PROCREATION and birthright'

You really should take a look at the pack-attack behavior of these desperados.

Have agood laugh at this lot ......
--------------------------------

What a hoot!

Good read MichaelN,you really boxed them in.

No wonder they post as anon internet attorney's.

Who would hire these fools,except the USG of course. LOL

paralegalnm said...

Mick, If I may offer a few thoughts? . . .

Naturalization law 'dealienages' foreign nationality. It does so, as codified per Art I, Sec. 8 powers of congress, by determining which nationality prevails at birth, or through a formal process of oath and renunciation as an adult.

If McCain had no alienage at birth, no naturalization law was required. Therefore, he was a natural born citizen, as opposed to a naturalized citizen.

Prior to the 2008 election, and the January 2009 Certification of Electoral Votes, I notified John McCain and 76 other congressmen that under laws of descent, Obama was not a natural born citizen.

For some reason, however, the notion that Obama was proven born in Hawaii dispelled any movement towards due diligence.

If the 'born in the United States . . . are citizens' clause stands alone, then the 'under the jurisdiction thereof' clause is pure redundancy. Yes, some say it refers to diplomats and active military on foreign soil, but that is already a specific and traditional exemption.

'Born in the U.S.A.' as the Gold Standard of citizenship has been followed law since Wong Kim Ark. However, the judge in Ark refused to exercise mandatory authorities, such as the 1790 Act, et seq, which defined how a minor child of an alien acquired citizenship. Instead, the judge elevated English common law practices relied upon in the colonies prior to the 1790 Act to a principle of constitutional law.

How? He misinterpreted the 'born in the United States' clause of the 14th Amendment, without concerning himself that that very clause was derived directly from the 1866 Civil Rights Act, saying a person born in the U.S. 'not subject to any foreign power' was a citizen at birth.

Chief Justice Fuller pointed in dissent that such an interpretation ignored the conundrum, or inconsistency/conflict resulting when one considered that children of U.S. citizens born abroad were also U.S. citizens at birth. The 'jurisdiction' of U.S. nationality laws was preserved by the parents meeting U.S. residency requirements.

Immigrants to the U.S. have reciprocal rights, and foreign jurisdiction over their children born in the U.S. is eventually lost, due to the U.S. residency requirements being met, and . . . the successful naturalization of the father/parent.

That is how the 1790 Act works, and that function of law was consistently followed, even within today's laws . . . except the Court Mandated Born in the U.S.A. birthright, Judge Gray in Wong Kim Ark called a citizen by force of constitutional Amendment, outside of congress' Art I powers.

The law, however, states that if Gray is determined to have misinterpreted the 14th Amendment, his holding is fraudulent and must not be followed. Gray also violated clear principles and rules of jurisprudence, and therefore the laws of citizenship at birth (that allowed Obama to sneak into office as a native-born, not natural born citizen) from Wong Kim Ark to Plyler vs Doe are invalidated and no longer followed law.

chuck said...

@jayjay and Mario

Is this reconsidering of Hollister/Hemenway by SCOTUS very unusual? Perhaps Mario could submit an Amicus brief, just in case, as you said.

Do you suppose Gov. Abercrombie's announcement has anything to do with it, or warnings from others that without listening to our complaints concerning Constitutional violations we are no longer a nation of laws and that may lead to civil war?

I wonder if they are concerned about Obama's agenda being held in contempt (drilling and perhaps Obamacare)?

Are they concerned about Obama's interference in the ME uprisings? The announcement came before the Wisconsin Protests, but I wonder how SCOTUS feels about that? Do they see things coming apart?

It is an encouraging sign, but we have been disappointed so many times I hate to get excited.

jayjay said...

paralegalnm/ Mario:

Certainly Justice Gray in WKA did this country a massive disservice with his ruling/opinions warping away from his pervious opinions.

Perhaps it's time for SCOTUS to revisit WKA with an eye toward its clear use in unconstitutional results. Many cases have relied on the erroneous WKA findings to help pervert our system of laws, possibly because Gray - like Sotomayor and Kagan in the Kerchner and Hollister actions - should have recused himself since appointed by Arthur and might presumably be in the same light as to 2 Obama appointments, but did not which has clearly opened Pandora's Box for us all.

As for McCain's nbC status, I think it is far more murky that Obama's (assuming that O's frequently stated "daddy was an alien" story is correct). Mario has told us several times that he believes McCain would be an nbC due to Vattel's "army of the state" out clause. I'm not so sure since that term is, if anything, less well defined than the nbC clause itself (which comparatively is well-defined by Vattel). Does "army of the state"
mean only a wartime army serving on military orders to actively fight for the country??

Or perhaps it means something else since in Vattel's day standing armies were normally posted on "home" soil rather than performing construction activities or supervision of what might be military or welfare projects (if that's what the Canal was)??

The point is that McCain's status needs much more court definition of terms that does that presumed for Obams. There would be a lot more legalistic i's to be dotted and t's to be crossed by a correctly formulated court action and we cannot merely assume that Vattel's "AOTS" is defined. There are many arguments yet to be made on that score, I think.

What about someone in what becomes legally-defined as AOTS if he is born to his US parents while transiting another country on leave or while being transferred by the military body??

Do any acts/existance of an AOTS need to be so declared by Congress?? ... by Executive Order?? ... someone sneeding in the DNC/RNC???

And I'm sure there is even more required as clarification - Obama's nbC determination is a relative piece of cake. McCain's is not.

Texoma said...

Mario, thanks for your response concerning the citizenship status (according to Vattel) of a child born out of wedlock to a foreign mistress of a US citizen father, serving abroad.

However, we are still in disagreement regarding McCain.

Basically, I believe McCain to be ineligible because he was, by the laws of nature, "in fact" born in the sovereign territory of Panama, as opposed to being "reputed" born in the United States, by a human interpretation.

Please refer back to the last few paragraphs of my earlier comment for a more complete explanation. Thanks.

Puzo1 said...

paralegalnm,

The greatest problem that so many who use the “Gold Standard,” “Born in the U.S.A.” and who state that Obama was born in Hawaii and therefore he is eligible to be President is that they do not understand the difference between a “natural born Citizen” and a “citizen of the United States.” Others have learned of this difference but for various reasons refuse to admit it.

The Founders and Framers did not include in the Constitution the British common law clause, “natural born subject,” which included those who were truly “natural born” under natural law and those who were given that status by positive laws in the form of naturalization laws. Rather, the Framers made a strong distinction between the truly “natural born” and the naturalized when they gave us the terms “natural born Citizen” and “citizen of the United States” in Article I and II of the Constitution.

In Article I, the Framers said that “Citizens of the United States” were eligible to be Representatives (requiring a minimum of 7 years of having that status) and Senators (requiring a minimum of 9 years of having that status). In Article II, Section 1, Clause 5, the Framers told us that a “Citizen of the United States” could be eligible to be President if born before the adoption of the Constitution. They added that for those born after its adoption, only a “natural born Citizen” could be eligible to be President. We can see from these provisions that the Framers told us that the term “Citizen of the United States” included both “natural born Citizens” and naturalized citizens. Hence, to say today that someone is a “citizen of the United States” does not tell us whether that person is a “natural born Citizen” or not a “natural born Citizen” which can only be a naturalized citizen “at birth” or after birth.

The Framers gave us the “natural born Citizen” clause to make sure that a would-be President was born with unity of citizenship and sole natural allegiance to the United States which status requires the unity and union at the time of the child’s birth of U.S. birthplace with U.S. birthparents. Just being a “citizen of the United States” under the 14th Amendment, a positive law (a U.S. v. Wong Kim Ark “citizen of the United States”), does not show that one is an Article II “natural born Citizen” under natural law, for one can become the former without satisfying the definition of the latter. For example, one can be born in the U.S. to one or two alien parents and be considered a “citizen of the United States” under the 14th Amendment. But that same person would not be an Article II “natural born Citizen” which requires that one be born in the U.S. (U.S. birthplace) to U.S. citizen parents (U.S. birthparents). In short, it is insufficient to simply say that Obama is a “citizen of the United States.” He has to show that he is a “natural born Citizen.”

Puzo1 said...

Texoma,

You said: “Basically, I believe McCain to be ineligible because he was, by the laws of nature, "in fact" born in the sovereign territory of Panama, as opposed to being "reputed" born in the United States, by a human interpretation.”

Please cite one authority on natural law that agrees with you.

On the contrary, by the law of nature alone, place of birth does not take away from someone what nature has given to him or her. By the law of nature, children follow the condition of their parents. See Emer de Vattel, The Law of Nations, Section 215 (London 1797) (1st ed. Neuchatel 1758) (“By the law of nature alone, children follow the condition of their fathers [meaning both parents], and enter into all their rights; the place of birth produces no change in this particular, and cannot of itself furnish any reason for taking from a child what nature has given him . . . . ” ) and David Ramsay, A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen 6 (1789) (citizenship “as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776….”).

We will therefore have to agree to disagree.

Puzo1 said...

jayjay,

You put importance on the reason for why someone might be located in a foreign land serving “the armies of the state,” suggesting that if it is not for “wartime” activities or if it is for some peaceful mission such as for “construction activities or supervision of what might be military or welfare projects (if that’s what the Canal was),” the Vattel "armies of the state" rule would not apply. I do not agree that Vattel would have denied the benefit of his rule to someone serving his nation’s national defense in a peaceful capacity.

First, Vattel in Section 217 also provides the benefit of his “reputed born in the country” rule to those born abroad to citizen parents who may be providing service to their nation “in the house of its ministers at a foreign court.” We provide this same foreign diplomat parent exception to jus soli citizenship under the 14th Amendment. I do not believe there is any “wartime” activity going on in any such house of ministers. Why should the latter be given the benefit of the rule but not the former simply because the former might not be engaged in an actual war?

Second, your “wartime” requirement would render the rule almost unworkable. How do we decide on the nature and extent of the “wartime” activity which would satisfy your rule?

Third, in our nation, we have thousands of military troops deployed overseas involved in peaceful missions that are important to our national defense and promote the interests of the United States. Even though some member of the military might be abroad on some “peaceful” mission, that mission may be no less important to the national defense than an actual military operation. In fact, in the end, the “peaceful” mission could turn out to be more critical to our national defense than an actual military conflict. Why should these persons be deprived of the benefit of Vattel’s rule simply because they may not be engaged in an actual “war?”

McCain’s parents to whom he was born were in Panama officially serving the national defense and interests of the United States at the time of his birth. I think that is sufficient to deem McCain to be born in the United States. Since he was born in the United States to citizen parents, he is a “natural born Citizen.”

Puzo1 said...

Has everyone noticed how all the Obama supporters when telling us what the 14th Amendment or some Act of Congress says about citizenship now all say that those laws make the citizen a "natural born Citizen." Until the Obama issue of eligibility came up, these laws were normally quoted as saying that they made one a "citizen of the United States." But now from some magic, the word "natural born Citizen" somehow has made its way into all our citizenship laws. How stupid do these persons think the American people are?

Texoma said...

Mario,

My authority is none other than Vattel himself, who clearly stated that a natural born citizen is someone born in the country to citizen parents. The word “reputed” does not appear here, and that is because the child is in fact (a fact of nature) born in the country. Just as it is a fact of nature that everyone is the product of a father and a mother, it is a fact of nature that everyone is born somewhere.

Citizenship in the country of the parents is what the law of nature will not take away from a child, even if born in a foreign country. But nature can add a condition to the foreign-born child, and that condition is the citizenship of that foreign country when that country recognizes the principle of jus soli. In this case, the foreign-born child is no less a citizen than one born in the country of his parents, but because the foreign country (that recognizes the principle of jus soli) places a claim on the child’s citizenship, that child is not born with the complete unity of citizenship that is required of a natural born citizen.

I contend that our Founding Fathers understood that some foreign countries recognized jus soli and others did not, and that the list of countries that did or did not continually changed. In Article II Section 1, I suppose they could have said “no person born with foreign allegiance”, which would allow a person born abroad (to US citizen parents) in a non-jus soli country to be President, but they chose not to phrase it that way. They instead used the term “natural born citizen” which ruled out the possibility of any foreign allegiance at birth. This way, the Founding Fathers did not have to worry about which countries did or did not recognize jus soli, or how any of these countries legally interpreted that principle. No foreign country can lay any legitimate claim on the citizenship or allegiance of a child born to US citizen parents in the sovereign territory of the US.

Per the 1928 amendment to the Panamanian constitution, Panama did not operate fully on the principle of jus soli, for a child born to foreigners in Panama was not a citizen of Panama at birth. However, by Panamanian law, that child was granted at birth an option to become a Panamanian citizen at the age of majority. McCain was born in the sovereign territory of Panama, and he was granted that option (legitimately granted to him by Panama) due to the fact of his birth in Panama, regardless of whether he had any intentions of claiming that option.

Puzo1 said...

Texoma,

A "natural born Citizen" excludes all those born with foreign allegiance and includes all those born with no foreign allegiance.

When Vattel speaks about being born in the country, he includes place of birth because he knew that normally, being born on a foreign soil will produce allegiance and citizenship that attach to the nation in whose territory one is born. Hence, the definition of a "natural born Citizen" which produces no doubts is a child born in the country to citizen parents. Under these birth circumstances, one is surely born with no foreign allegiance.

But Vattel explained that just being born out of the country does not “of itself” cause one not to be a "natural born Citizen." He explained that the positive laws of the nations involved have to be followed in that regard. Under both the laws of Panama and the U.S., McCain's Panaman birth did not produce any allegiance or citizenship in Panama. Therefore, McCain was not born with any foreign allegiance. Hence, McCain is a "natural born Citizen." His birth in Panama produced no effect denying him that status.

It does not matter what McCain could have done latter in life with his “natural born Citizen” status or that he could have acquired Panaman citizenship, for that is the case for any "natural born Citizen," who under natural law as recognized by our own positive laws can cast of his or her allegiance and citizenship and take on new ones. That one can acquire other allegiances and citizenships later in life does not alone deprive one of his or her “natural born Citizen” status.

jayjay said...

Mio:

I understand that your interpretation of Vattel's "Armies of the State" gives McCain a nbC status, however in your response you transmute the point(s) I was making in that McCain's status is a good bit less clear than Obama's. I was making no claim as to his nbC status one way or the other as you appear to think.

I am not claiming that the points are or should be interpreted a certain way but merely that they have never been formally interpreted in a definitive Court proceeding as has (as you have pointed out) Obama's nbC. I am saying that your interpretation is your interpretation only and not necessarily that of the Court (since such has never been before the Court that I know of).

McCain's status is altogether different from Obama's and would need to be decided formally, presumably by SCOTUS decision(s), even more so than Obama's since it is both less clear and more convoluted. As an example, note that Vattel uses the term AOTS but never the term "Navies of the State" or "Military of the State". Does this mean that McCain's male parent being in the Navy is not included in AOTS since in Vattel's time there were clearly Navies - but he does not mention them nor say MOTS. He says "Armies". Obviously this might be construed to include the Naval or other military duty but it might also mean only an Army on some politically-designated duty - e.g., an occupying force. I would think a Court, being prudent, would need to consider this point as well as others.

I understaand your belief that such definition is automatic yet you assert no legal background showing Vattel meant such a definition in a comparable context.

That's the point(or points) I was making and not presuming a definition one way or the other but merely that there are many such points WRT McCain's status which is by no means as straightforward as that of Obama. I do not presume any status for McCain, but I do believe that Obama is NOT a nbC. With McCain I could not care less.

If someone wishes to pursue McCain's status in court, poower to them. Stating that he is or is not a nbC is pointless without considerable further formal legalistic definition as you have done so well in your legal essays on Obama's status. Kudos!!

Puzo1 said...

jayjay,

Please note that in French, “armée” is not limited to our notion of army. Rather, it also includes air and naval defenses. For example:

Volontaire De l'Armée de Terre (land army)

Chef d'État-Major de l’Armée de l’Air (French: Chief of Air Staff; French Air Force) (airforce)

Commanadant Organiques de l'Armée de la Marine (navy)

I agree with you that all this is virgin territory. We have never had eligibility issues such as those concerning Obama and McCain come up in our nation.

jayjay said...

Mario:

I don't doubt that your description of the French meaning of the terms you present is likely correct in today's world. It may or may not have been the same in the Vattel era, though, and that's something the court would have to sort out along with, no doubt, many other issues and circumstances that neither of us has mentioned.

I certainly agree that it's virgin territory for both the courts AND the citizens of this country but AFAIC we're well past the time that it needs to be thoroughly and assiduously addressed formally for the benefit of all and to preclude future chicanery practiced by those of the politicial persuasion.

I hope that John Hemmenway makes headway in his Hollister action (SCOTUS 10-878) WRT eligiility, but I sort of suspect that the Court is very likely to chicken out (again). I would be dumbfounded if the two justices recuse and the court votes a hearing on merit. I wonder, should that happen, if if would be possible to resubmit Kerchner et al to the court for some sort of reconsideration based upon the earlier non-recusal.

I guess we'll see before too long as the conference date is March 4, 2011.

8by8 said...

I found this very interesting. a different way to look at the issue. I ask for comments. Is this person correct or does he make errors. I dont know. It was posted some time ago at the Post & Email in the comments section.

http://www.thepostemail.com/2010/07/11/arizona-governor-can-force-obama-to-prove-hes-eligible-or-not/


DCBikerJohn says:
Saturday, July 17, 2010 at 4:47 AM
Can we get beyond the birth certificate and read the Constitution? The evidence of his ineligibility not Obama’s to hide. Rather, it’s in PLAIN SIGHT – if we could just look away from the blinding light of the birth certificate and READ THE CONSTITUTION.

A natural born citizen of the United States is not simply a person who is a US citizen from birth nor is it simply a person born in the United States, or both. A natural born citizen of the United States is a person who is not born in the jurisdiction of a government other than the government which was established by the Constitution. This is why the Constitution exempts so many US-born people from having to satisfy the natural born citizen requirement: because they were not natural born citizens despite their birth in the Untied States. There were many people who born in the United States and who were US citizens from birth BEFORE the adoption of the Constitution. They were born under the jurisdiction of a different government than that one established by the Constitution. WHY else would the Constitution open wide the door to truly foreign-born persons to the Executive unnecessarily? That is, if there were natural born citizens being born as early as July 4, 1776, the Constitution would have expired the exemption on that date instead of the much later date of the ratification of the Constitution (1788).

President Zachary Taylor was born in the United States in Virginia in 1784. He was born under the jurisdiction of the government established by the Articles of Confederation and Perpetual Union. He was NOT a natural born citizen of the Untied States for the purposes of eligibility to the presidency, an office created by the Constitution. The Constitution rightly exempted him (and all those of similar circumstances) from having to satisfy the natural born citizen requirement (should they seek the presidency).

When Barack Hussein Obama II was born in Honolulu, he was born in the jurisdiction of a government other than the one established by the Constitution, namely the government established by the British Sovereign. He is not a natural born citizen no matter where in the universe he was born because through his British father he too was subject to the British Sovereign and her foreign government at the moment of his birth.

Can we get beyond the birth certificate and read the Constitution? The evidence we seek is not Obama’s to hide.

The Constitution was a revolution against a different government, namely that government established in the United States by the Articles of Confederation and Perpetual Union. People born under its jurisdiction were just as foreign to the presidency as people born under the jurisdiction of the British Sovereign. The Presidency is a creature of the Constitution. The Constitution tests the president’s exclusive loyalty twice: the Oath of Office requirement and the Natural Born Citizen requirement. Neither allow dual loyalties to a foreign government.

The very text of the Constitution alone supports the opinion that Barack Hussein Obama II is NOT a natural born citizen of the Untied States. We don’t need his cooperation in releasing his birth certificate. We don’t need a court order to release his birth certificate. We just need to become familiar with our Constitution and our history, and then explain it to others.

Texoma said...

Mario,

I believe that a natural born citizen has exclusive allegiance (no foreign allegiance) to the nation solely by the laws of nature, which makes moot the existence of or lack of positive law (such as the case of a foreign country not practicing the principle of jus soli). When a child is born in the country to citizen parents, the existence of or lack of positive law (in either the home or foreign country) has no effect on the exclusive allegiance at birth of that child to the nation.

If we were to accept the lack of a foreign country’s positive law to allow a child born abroad to US parents to be born without foreign allegiance, then what would be the citizenship status of a child in the two cases below?

1. A child is born in the US to foreign citizen parents whose home country does not practice jus sanguinis. Is this child born without foreign allegiance, and if so, would the child be a natural born citizen?

2. A child is born in the US to parents who are not US citizens but who have expatriated themselves from their home country (renounced their allegiance) or whose citizenship in the home country has been removed by their home country. This could be the case of political exiles. Is this child born without foreign allegiance, having been born to parents who are citizens of no country, and if so, would the child be a natural born citizen?

I would not consider the child in the two cases above to be a natural born citizen because the child was not born in the country and to citizen parents (Vattel’s definition). I believe the Founding Fathers wanted Presidents with a strong exclusive allegiance at birth that was based upon both US soil and US citizen parents. I don’t think they would have accepted a weaker exclusive allegiance at birth that, as a result of the lack of a foreign country’s positive law, was based on either US soil or US citizen parents.

While McCain was not born with a foreign allegiance to Panama, he was born with an option (by Panamanian positive law) of becoming a Panamanian citizen at the age of majority. This option is different from the case of someone not born in Panama who wishes to naturalize and become a Panamanian citizen at the age of majority. The difference is that McCain simply had to act on that option, and Panama would have been obliged to accept him as a citizen, whereas the person who was not born in Panama would have to apply for citizenship, with no guarantee that Panama would accept the application. McCain was born with a foreign country positive law option that he would not have had with a birth in the sovereign territory of the US.

Puzo1 said...

Texoma,

Your two examples do not prove your point. A natural born Citizen is a child born in the U.S. to U.S. citizen parents. According to Vattel, a child inherits his or her “love of country” (allegiance for a nation) from his or her parents and not from the place of birth. Hence, the two U.S. citizen parents are necessary for the child to inherit that allegiance. You do not satisfy Vattel’s definition by simply saying that the non-U.S. citizen parents do not have any citizenship or allegiance to any foreign country. In such cases what is lacking is that those parents do not have U.S. allegiance and citizenship to pass on to their child. Therefore, in both your cases the child would not be a “natural born Citizen.” So my McCain position has no relevance in your two examples.

With respect to being “born in the country,” again, according to the law of nature and Vattel, “the place of birth produces no change in this particular [that children follow the condition of their parents], and cannot of itself furnish any reason for taking from a child what nature has given him.” Vattel, Section 215. Hence, Vattel told us that by the law of nature place of birth does not produce allegiance or citizenship. Hence, under the law of nature, the child is not acquiring his or her allegiance and citizenship by being born in any particular place. But yet Vattel said that a “natural born Citizen” is one “born in the country, of parents who are citizens.” Id. 212. One would then wonder if he said that place of birth produces no change in what a child inherits from his parents, why did he say that a “natural born Citizen” is one “born in the country?” Vattel said that by the law of nature alone (“of itself”), place of birth has no effect on the allegiance and citizenship that a child inherits from his or her parents. But he also said that countries can pass “civil or political laws” regarding children being born on their territory and that those laws must be followed. Hence, the need to have the child born in the country is to avoid the child being born on foreign soil which under the positive laws of that foreign jurisdiction could cause that child to be born with allegiance and citizenship to that foreign nation. In such a case, the child, even though born to citizen parents, would not be born without any foreign allegiance. Since that child would not be born without any foreign allegiance, that child could not be a “natural born Citizen.” So Vattel gave us a definition of “natural born Citizen” which if followed in all cases will give us without any doubt a person born with sole natural allegiance and loyalty to the nation of his parents. But as he explained, the definition does not mean that a child cannot be born out of the country. Provided that being born out of the country can be reputed to be born in the country, then the case of the child acquiring foreign allegiance and citizenship is avoided. Under our law which controls how we define our citizens, that child will be born in the U.S. to U.S. citizen parents. Hence, that child would be a “natural born Citizen.”

McCain was born to U.S. citizen parents from whom he inherited the natural right to be a U.S. citizen. He is also reputed born in the U.S. because his U.S. birthparents were officially serving the national defense of the U.S.

McCain even has a stronger case for showing he is a “natural born Citizen” because Panama did not have jus soli citizenship when he was born on its territory. Hence, the laws of Panama did not in the first place give him any allegiance or citizenship in Panama. So there is also no need to have him be reputed born in the U.S.

At birth, McCain had sole natural allegiance to the U.S. He acquired no other allegiance at his birth. It does not matter what he could have done later in life with his U.S. citizenship or acquiring some other allegiance and citizenship, for all “natural born Citizens” have such options. McCain therefore satisfies Vattel’s definition of a “natural born Citizen.”

Puzo1 said...

8by8

Regarding the article by DCBikerJohn, I agree with basically everything that he said except the statements concerning when U.S. citizenship started. The potential change in national character from British subject to “citizen of the United States” occurred on July 4, 1776. I said “potential” because all those born before July 4, 1776 had to make an election to become Americans after July 4, 1776 and up to before the Treaty of Peace of 1783. It did not occur with the adoption of the Constitution. The citizens made the Constitution and the new government. The Constitution and new government did not make the citizens. There are cases which show this, one of which is the Inglis case:

“The rule as to the point of time at which the American ante nati ceased to be British subjects, differs in this country and in England, as established by the courts of justice in the respective countries. The English rule is to take the date of the treaty of peace in 1783. Our rule is to take the date of the declaration of independence. . . . And if the right of election is at all admitted, it must be determined, in most cases, by what took place during the struggle, and between the declaration of independence and the treaty of peace. To say that the election must have been made before, or immediately at the declaration of independence, would render the right nugatory.” Inglis v. Sailors’ Snug Harbor, 28 U.S. 99, 3 Pet. 99(1830). So as we can see, the declaration of independence is the critical start date, not the date of the adoption of the Constitution.

The writer is also mistaken in saying that President Zachary Taylor was not a “natural born Citizen.” Actually, as I have explained in my essay, President Martin Van Buren (our 8th President) was the first “natural born Citizen,” being born on 1782 (after July 4, 1776) in New York to parents who became “citizens of the United States” by adhering to the American Revolution. President Taylor, being born in 1790 in Virginia to parents who were “citizens of the United States” became our second president to be born a “natural born Citizen.”

The writer also does not give importance to the Articles of Confederation and Perpetual Union. He is also mistaken about that. The Articles were the first Constitution of the United States of America.

However, the conclusion that the writer draws that Obama is not a “natural born Citizen” because he was born with allegiance to Great Britain is correct.

Mick said...

Hello Mario,

I'm pretty sure that you must know. Did India grant citizenship to the children of 2 Indian citizens born abroad when Jindal was born?
If not, then Jindal would be born stateless, and was naturalized automatically when his parnets naturalized, correct?

Puzo1 said...

Mick,

Jindal was born in the U.S. to alien parents. Under Wong Kim Ark, he is a born "citizen of the United States." It does not matter what India says about his citizenship. This does not mean that he is an Article II "natural born Citizen." Under the Indian Constitution, Jindal is also a citizen of India since he was born to Indian parents. Hence, like the Founders and Framers, he was born subject to a foreign power. The difference is that the Founders and Framers could use the grandfather clause to be eligible to be President, but Jindal like Obama, cannot.

You might want to read this interesting article on dual citizenship which states:

“Dual Citizenship and Indian Scenario

On January 9, 2003, the then Indian Prime Minister, Mr Atal Behari Vajpayee, made along awaited statement: India would grant dual citizenship to certain groups of Persons of Indian Origin. Indian-Americans got the connection they had long wanted with their home country. Analysts both in the United States and India view the granting of dual citizenship, and the growing political mobilization of the Indian-American community, positively. In the United States, Indian-Americans are seen as the educated, technologically savvy, and wealthy minority that not only has a growing political influence but a group that could attain a bargaining power. In India, the Indian-American community is now viewed as helping further Indian foreign policy and security goals as well as contributing towards its economic development.

Cases of Dual or Multiple Nationalities under the Indian Constitution

Provisions concerning Indian nationality are embodied in the Constitution, which also contains special regulations concerning persons migrating to India from Pakistan and vice versa. It is obvious that the provisions incorporated in the Constitution leave open numerous possibilities for the occurrence of dual nationality. Thus, any person born in India is Indian although he may also possess a second nationality jure sanguinis. A descendant of Indian parents or grandparents, born outside India but registered as an Indian citizen, will have dual nationality if he also possesses the nationality of his country of birth. This may be an important matter, since many Indians living outside India may in this way acquire dual nationality, that of their country of birth and that of India.” *** http://www.legalserviceindia.com/articles/dual_cet.htm.

As you can see from this article, the problem of dual citizenship is not going away so easily. Now we can see why the Founders and Framers wanted only a “natural born Citizen” to be President and Commander in Chief. A child born in the U.S. to U.S. citizen parents under American law has sole allegiance to the U.S. It is only under these birth circumstances that one is born with no foreign allegiance and is therefore a “natural born Citizen.”

paralegalnm said...

Well said, Mr. Apuzzo.

May I add that India relies so much on the English common law that its proceedings are in the English language.

The seminal Rogers vs Bellie case (there is a pun in there somewhere) admits the conundrum of dual nationality caused by the Wong Kim Ark fiasco. [cite omitted]

While Ark continues to sully, or Bellie (sic) the legislative intent of the 14th Amendment, and proper application of both 8 U.S.C. 1401 and 1952 INA § 301, we suffer the vagaries of feudal English law by way of judiciary conflation of 'natural born subject' and 'natural born citizen.'

Meanwhile, over a century of violation of jurisprudence leaves the clear and sanguin language of the 1790 and 1795 Acts ignored like the red-headed stepchild of law, i.e., the minor child of an alien born in the U.S., or abroad, is naturalized a U.S. citizen upon naturalization of the father.

Texoma said...

Mario,

I provided those two examples to challenge your point that the absence of a foreign country’s positive jus soli law allows for the foreign-born child of citizen parents to be a natural born citizen.

You quote from Vattel saying that by the laws of nature, birthplace produces no citizenship. But if there is no citizenship that can be transmitted to a US-born child from the non-citizen parents, then what citizenship is the child born with? The 14th amendment (positive law) would confer US citizenship to the child. But in the absence of positive law, natural law would be what confers US citizenship to the child, which would come naturally from the place of birth. Therefore, by the laws of nature, birthplace does indeed confer citizenship.

You said that a "natural born Citizen" excludes all those born with foreign allegiance and includes all those born with no foreign allegiance. Well, the US-born child in these examples is born with no foreign allegiance, which satisfies what you said, and so according to your logic the child would be a natural born citizen.

I understand how you arrive at the conclusion that McCain is a natural born citizen. And you may be right. Nonetheless, I believe that parents and birthplace are the two natural facts involved in every birth, and that by the laws of nature, they both contribute to the citizenship of the child, and that both are needed for a child to be a natural born citizen. Place and parentage are the two halves of the natural born citizen equation.

Finally, while McCain was not born with a foreign allegiance, he was born with a foreign guarantee (per Panamanian law) of citizenship at the age of majority, should he so choose. This is not the same option that a person born in the US to US citizen parents has, for there is no guarantee that Panama would accept such a person’s application for citizenship.

Puzo1 said...

paralegalnm,

I share your frustration. Here is a prime example of how the courts have treated the early naturalization Acts of Congress. Lynch v. Clarke, 1 Sandf. Ch. 583, 3 N.Y.Leg.Obs. 236 (N.Y. 1844) is a state case that is cited by Obama supporters as support for their theory that the Founders and Framers used the English common law to define national citizenship in general and the “natural born Citizen” clause specifically. United States v. Wong Kim Ark, 169 U. S. 649 (1898) also relied on the case in arguing for the English common law. What the Lynch court said regarding the Naturalization Acts of 1790, 1795, 1802, 1804 is incredible. That court said that even though Congress did not say that the clause regarding the children born to aliens becoming naturalized when their parents so naturalize applied only to children born abroad, the general language chosen by Congress was over inclusive (meaning it should not apply to children born in the U.S.) and not necessary. Hence, the court simply ignored what Congress wrote. I guess the Lynch court knew better than Congress what language it should have chosen.

The Lynch court even went further. It said that the meaning of the text of these earlier naturalization statutes relating to children would be decided by how Congress dealt with widows in citizenship statutes in 1804. The Lynch court justified its finding that the naturalization statutes meant to apply only to children born abroad by arguing that Congress in 1804 did not distinguish between U.S. citizen widows and alien widows so therefore there should not be a distinction between children born in the U.S. and children born abroad. The court continued that it should be presumed that these earlier Congresses were referring only to children born abroad just like the 1804 Congress meant to refer only to alien widows who would also have been born abroad. But on what reasoned basis are we to bind Congress in 1790, 1795, and 1802 when addressing children with what Congress did in 1804 for widows?

Additionally, the Lynch court failed to address the doctrine in 1804 that wives upon marriage acquired the same citizenship as their husbands. The old doctrine of unity of husband and wife provided that whatever citizenship the husband had, his wife had. If the husband was an alien, the wife would also be an alien. And if the husband was a U.S. citizen, his wife would also be a U.S. citizen. There was therefore no need for Congress to distinguish in its statutes between U.S. citizen widows and alien widows, for a widow simply had the same citizenship status of her deceased husband. So the Lynch court gave a completely invalid argument for how it interpreted the early naturalization statues passed by Congress.

Puzo1 said...

Texoma,

You have to give me an example of how a child could be born in the U.S. to parents who do not have any allegiance or citizenship to any nation in the world. Your hypothetical has to have some factual content that I can understand in order for me to answer you.

Vattel said that the place of birth by the law of nature does not “of itself” take away from the child what nature has given to him or her in the form of allegiance from the parents and therefore the right to join the society of his or her parents. He explained, however, that nations pass positive laws in this regard which must be followed.

A “natural born Citizen” is, indeed, born with sole allegiance to the U.S. Therefore, it only follows logically that a “natural born Citizen” cannot be born with any foreign allegiance. Hence, a “natural born Citizen” includes all those born with no foreign allegiance and excludes all those born with foreign allegiance.

You call the option that McCain had to acquire Panaman citizenship “a guarantee to Panama citizenship” which you submit should disqualify him from having the national character of a “natural born Citizen.” You have simply made this up. If I am wrong, can you cite any source which supports you position? Moreover, whatever “guarantee to Panaman citizenship” you say he might have later in life does not erase the fact that he was born to U.S. citizen parents in what is reputed to be the United States. He has satisfied Article II and that is all he has to do.

Finally, I have written, citing for support Pufendorf, Vattel, Ramsay, Chief Justice John Jay, Chief Justice John Marshall, various U.S. Supreme Court cases, and numerous other historical sources, that a “natural born Citizen” is a child born in the country to citizen parents. So we do not disagree on this.

mr-slippery said...

I've been following this blog for some time, and especially enjoyed the discussion about Senator McCain's Natural born status.

I think I now know the reason why the senate resolution affirming NBC status on McCain incorrectly states that he was born on a military base and not a sovereign part of Panama.

It's not that the people drafting this resolution were unaware of the Natural Laws' exception for oversees military families - it's because they probably did.

If Vattel/Law of Nations were used as the standard for determining NBC in McCain's case, it would also have to be used in Obama's case, and Obama would have been disqualified on the spot due to his dual citizenship at birth.

By not using the Law of Nations rational to help McCain overcome the fact that he was born in a sovereign Panamanian territory, they avoid disqualifying Obama based on the "born to citizen parents" standard also from Vattel.

So in wording the resolution as they did, it leaves room "for reasonable people to disagree" about whether "Law of Nations" or "English Common Law" sets the standard for natural born citizenship.

I'm not a lawyer or scholar, but I think I have a good bead on smarmy Politians.

Texoma said...

Mario,

In Poland in 1968, some 15,000 Jews were stripped of Polish citizenship and ordered out of the country. Many of them ended up in the US as stateless political refugees. It is very likely that a number of these refugees had children born to them in the US before they became naturalized US citizens. These children would not have had Polish citizenship transmitted to them from their stateless parents, and hence they could not have been born with a foreign allegiance.

I don’t have the actual text of the 1928 version of Panama’s constitution, but in his 2006 book “Between alienation and citizenship: the evolution of Black West Indian society in Panama 1914-1964”, Trevor O’Reggio says: “The Legislative Act of October 19, 1928 amended Article 6 [of Panama’s constitution] stating that those persons who were born in the Isthmus [of Panama] of foreign parents would be considered Panamanian citizens if, after their 21st birthday, they opted for said nationality.” The words “would be” denote a guarantee of action under the highest law of Panama – their constitution.

I have come to agree with you on your McCain stance in one respect, but not in another. It has to do with the intent of the Founding Fathers with the natural born citizen clause. Their concern, as expressed by Jay, was with foreign influence and allegiance. McCain was not born with foreign influence or allegiance, and hence he meets the intent of the Founding Fathers as they used the term “natural born Citizen” in Article II Section 1 Clause 5. In this respect, McCain is an Article II Section 1 natural born citizen.

However, McCain is not a natural law natural born citizen as defined by Vattel, for that person is one who is born in the country to citizen parents, and McCain was “in fact” not born in the sovereign territory of the US.

MichaelN said...

English common law which is touted as the source to define ‘natural born’ has been misrepresented in the courts and subsequently by those who with blind faith, have followed the mistaken reading of the particular English common law case.

That case was Calvin’s case in which a child born In England to an alien father visiting England as a friend, would be born an English ‘natural born subject’. (NBS)

So it has been opined that therefore a child born in US to an alien is a ‘natural born Citizen’.

Sure the child born in England to a friendly alien is an English NBS, but in England the alien is considered a ‘subject’ (aka a ‘citizen’ in US terms)

But in US, an alien is not considered a ‘Citizen’, the alien must apply and be granted citizenship by due process.

So basically to be an English NBS, one had to be born in England to a ‘subject’ (aka an alien visiting as a friend)

The status of the father mattered.

Ergo: it took TWO qualities to be met to be an English NBS, and they were ‘nature’ or ‘procreation and birthright’

Here is a quote from Calvin’s case that proves this

“Calvin the Plaintiff naturalized by procreation and birth right …”

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

This was NEVER mentioned in the courts, either deliberately omitted when citing English common law, or by error in reading what Lord Coke actually said in Calvin’s case.

Fact:
even in English common law, it takes of the parents and of the soil, to make a ‘natural born subject’ of England and it takes the same to make a ‘natural born Citizen’.

i.e. Sanguinis and soli.

This omission of “by procreation and birthright” has lead to error, and the error has festered over time and been parroted by majority of legal community as if it is true that it is only of the soil (soli) that matters.

But it is NOT TRUE …………. it takes BOTH the citizenship status of the father and born in the land of the father’s citizenship to make a ‘natural born’.

MichaelN said...

Think, Wong Kim Ark opinions where, in opining on the definition of 'natural born Citizen', they omitted Lord Coke's CRUCIAL statement in reporting Calvin's case, where Coke said "Calvin the plaintiff, naturalized by PROCREATION and birthright"
----------------------------
"Fraud. An intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. A false representation of a matter of fact… which deceives and is intended to deceive another so that he shall act upon it to his legal injury. … It consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him injury… –Black’s Law Dictionary Fifth Edition, page 594."

MichaelN said...

"Then take into account the case of McNally v. U.S., 483 U.S. 350, 371-372, Quoting U.S. v Holzer, 816 F.2d. 304, 307
Fraud in its elementary common law sense of deceit… includes the deliberate concealment of material information in a setting of fiduciary obligation. A public official is a fiduciary toward the public,… and if he deliberately conceals material information from them he is guilty of fraud"

Puzo1 said...

MichaelN,

Excellent research and analysis.

That is why I have argued in my essays that anyone who gains the national character of "citizen of the United States" under the 14th Amendment, any Act of Congress, or treaty who cannot show that he or she is a "natural born Citizen" under natural law, i.e., that he or she was born in the country (or its equivalent) to U.S. citizen parents, is necessarily at best a "naturalized born citizen of the United States" and not a "natural born Citizen of the United States." Being naturalized at birth, no further naturalization under Congressional naturalization laws is necessary as is the case for those who are naturalized after birth.

The notion of being naturalized at birth is nothing new. As we have seen, Lord Coke recognized it in Calvin’s Case.

The Founders and Framers were aware that Congress has the power to naturalize persons at birth. That is the reason they said "natural born Citizen" and not just "born Citizen." As we can see from Hamilton, who in his Presidential eligibility clause only required that a would-be President be "born" a citizen, the Framers were aware of that option. But they rejected it and chose "natural born."

Mick said...

Alert:

Arizona is attempting to pass an eligibilty law that says a person born to at least ONE US Citizen is a natural born Citizen.
Wonder what that meeting w/ McCain was all about a few weeks ago?

http://www.azleg.gov/FormatDocument.asp?inDoc=/legtext/50leg/1r/bills/sb1308p.htm

jburns1969 said...

Mr. Apuzzo, thank you for the website, very informative and the posters make some excellent points.

The facts clearly support the position that Obama is not eligible to be POTUS. The SCOTUS now has the duty and responsibility to make a ruling upholding the Constitution. The question is "Will they?" or will they make an excuse that the law and definition of nbC is not clear.

I also wonder if Obama has enough honor to resign and avoid the Constitutional crisis that he has created or will he attempt to obfuscate the law much the same way he has in the gulf, among others.

After a ruling by the SCOTUS would the Senate and House be required to Impeach Obama if he does not resign?

Also, if Obama is ruled ineligible to be POTUS does Biden become President or is he ruled out also because he was on the ticket also?

Genevieve said...

if his father was from Kenya, then he
was probably conceived in Kenya, so how 9 months later, he was born in Hawaii???? and be a us citizen???
Doesnt make sense.
it's a cover up...

mayalibre said...

One thing that rarely gets mentioned is that President Obama variously lived abroad with his mother and stepfather when he was young. It means he has had a PASSPORT for a very long time. When a person moves around, sometimes things get lost, and if someone would do research into how many replacement birth certificates are requested every year from Vital Statistics offices, it would be clear that not everyone has a "baby book" original with inky little footprints... But clearly he was citizen ENOUGH, when young, to have a passport. And once a PASSPORT is in hand, an original birth certificate becomes less crucial, plus if misplaced a duplicate can always be requested.

As to the consideration of "natural born", it's suspicious to say the least that the right wing, which purports to support the 10th amendment and states rights, actually questions the right (and ability) of the State of Hawaii to certify whether someone was born there!

And as to the false claim that both parents need to be a citizen in order for a child to also be a citizen, I propose you take it up with the United States Code.

Currently, Title 8 of the U.S. Code fills in the gaps left by the Constitution. Section 1401 defines the following as people who are "citizens of the United States at birth:"

(a) Anyone born inside the United States

(b) Any Indian or Eskimo born in the United States, provided being a citizen of the U.S. does not impair the person's status as a citizen of the tribe

(c) Any one born outside the United States, both of whose parents are citizens of the U.S., as long as one parent has lived in the U.S.

(d) Any one born outside the United States, if one parent is a citizen and lived in the U.S. for at least one year and the other parent is a U.S. national

(e) Any one born in a U.S. possession, if one parent is a citizen and lived in the U.S. for at least one year

(f) Any one found in the U.S. under the age of five, whose parentage cannot be determined, as long as proof of non-citizenship is not provided by age 21

(g) Any one born outside the United States, if one parent is an alien and as long as the other parent is a citizen of the U.S. who lived in the U.S. for at least five years (with military and diplomatic service included in this time)

Thus, Barack Obama qualifies under paragraph (a), but EVEN IF he were born in Kenya (which the State of Hawaii certifies he did not), he would still qualify under paragraph (g).

It's amazing to me that so many right wingers follow arguments that are built on INTERNATIONAL law (Law of Nations), not United States law. International law does not supercede US law or the Constitution.

Now, it may be a good idea to change our current law to require both parents to be citizens. I could see that, and it would solve many of our current immigration problems. But to pretend that that is, right now, our actual law? It's ludicrous. Work to change the law if you don't like it! Don't pretend that it's other than it is.

The main thing that comes across in the whole birther issue is that somebody is slinging koolaid, crafted to SEEM like right wing sensibility, when in fact it is all built on lies advanced by globalists who despise our Constitution and our laws. It doesn't take much googling to see that Orly Taitz is a "former" socialist and Israeli agent. A very smart woman but with obsessive-compulsive disorder and questionable motives. She has filed with dozens of judges, of all political persuasions, and now they are finally just throwing her out and may soon slap her with contempt for wasting the court's time on frivolous crap that makes no sense *in* US law. Honestly, birthers need to wake up to how they are being manipulated by the very people they hate -- socialist globalists -- who WANT international law to supercede the Constitution.

http://www.usconstitution.net/consttop_citi.html

Linda said...

Mr. Apuzzo, You said that " Buchanan’s father naturalized to become a “citizen of the United States” prior to his son’s birth. " I have not been able to find any supporting documents or references online. Could you post a link?

Thanks

Daleth Hall said...

Thank you, Mayalibre, for pointing out that President Obama was born a US citizen regardless of whether he was born in Hawaii, Kenya or for that matter on the moon. You hit the nail on the head.

Mr. Apuzzo is absurdly misleading when he says, "no U.S. Supreme Court decision has found a child born to one or two alien parents to be an Article II 'natural born Citizen.'” It is equally true to say that "no U.S. Supreme Court decision has found a child born to one or two alien parents NOT to be an Article II 'natural born citizen.'" That question has never been put to the US Supreme Court, so obviously there aren't any decisions on it one way or the other.

There are only two ways to become a US citizen. Either you are born one, or you are naturalized. The opposite of a "natural-born citizen" is a "naturalized citizen." It is naturalized citizens (and, of course, noncitizens) who cannot become president. Anyone who was BORN a US citizen is eligible to be president.

And as for Chester A. Arthur, the debate about his citizenship was not about the fact his dad was British when he was born. His dad was British (and under US law at the time, his mom, though American, could not pass her nationality on to her children if they were born abroad--unlike the 20th century, when American women such as Obama's mom DO pass their nationality to their children). Chester A. Arthur was born British, through his father, but he was born American because he was born in Vermont. Like Obama. THAT debate has been over for 130+ years.

The debate about whether Arthur was hiding something is different: there were rumors Arthur was born in Canada, not America, in which case he wasn't American because back in 1829 American mothers could not pass their nationality to their children. THAT was what Arthur allegedly hid information about--not the date of his dad's naturalization. For instance:
http://www.msnbc.msn.com/id/32440943/ns/politics-more_politics/t/obama-birthplace-flap-evokes-arthur-debate/#.UEKACESAF9k

But Obama was born to an American born and raised mother in 1961, a time when women's rights had advanced enough that American mothers could pass American citizenship to their children no matter where the kids were born. That's why it DOES NOT EVEN MATTER where Obama was born.

It's a false debate. The only reason we're having it is because some Republicans, desperate to find some justification for their refusal to respect a democratically elected president, latched on to this totally imaginary problem and stopped listening to reason and law.

Jay U. said...

I found resources of short biographies of US Presidents:

http://us-presidents-short-biographies.blogspot.com/