By Mario Apuzzo, Esq.
March 20, 2011
I just read the following article at Independent.ie. Its web site says that it is “Ireland’s number one news and information portal.” It adds that it “provides up to the minute news content and services to a global audience.” Independent.ie is part of Independent News & Media PLC, a leading international newspaper and communication group. Its web site has this to say about the group:
“Independent News & Media PLC [INM] is a leading international newspaper and communications group, with its main interests in Australia, India, Ireland, New Zealand, South Africa and the United Kingdom. Spanning four continents, 10 major markets and 22 individual countries, INM has market-leading newspaper positions in Australia (regional), India, Indonesia, Ireland, New Zealand and South Africa. In the United Kingdom, it publishes the flagship national title, The Independent, as well as being the largest newspaper group in Northern Ireland.
Across these regions, the Group publishes over 200 newspaper and magazine titles, delivering a combined weekly circulation of over 33 million copies, with a weekly audience of over 100 million consumers and includes the world's largest read newspaper, Dainik Jagran, in India. The Group has established a strong and growing online presence, with over 100 editorial, classified and transactional sites.”
Now for an excerpt from the March 20, 2011 article:
"THE people of Moneygall can expect more than the usual madness when President Barack Obama swings by in May -- specifically lots of snooping and sniping from supporters of the "birther" movement, an ardent group of radicals who claim Obama is not a natural-born US citizen -- and thus has no legitimate claim on the Oval Office.
Obama, who has been knocking down claims that he was really born in Kenya and/or that he is a Muslim and/or a British subject since the start of his campaign, recently stirred the pot when he started making fun of the president wasn't-born-here crusade.
Last weekend, at the Gridiron Club dinner, Obama had everyone in stitches when he instructed the band to play Bruce Springsteen's Born in the USA instead of Hail to the Chief. And last Thursday, when the president addressed guests at the St Patrick's Day lunch on Capitol Hill, he went out of his way to tease those who "are still bent on peddling rumours about my origins", before putting his Moneygall ancestry squarely in play. "Today, I want to put all those rumours to rest," he laughed. "It is true my great-great-great-grandfather really was from Ireland. It's true. Moneygall, to be precise. I can't believe I have to keep pointing this out."
But Obama might be forced to change the tenor of his tune by the time he hits Offaly. Last Thursday, potential 2012 presidential candidate Donald Trump amped up the conspiracy theories saying he finds it "strange" that nobody knew Obama as a child in Hawaii.
"He grew up and nobody knew him. You know? When you interview people, if ever I got the nomination, if I ever decide to run, you may go back and interview people from my kindergarten. They'll remember me," Trump said on Good Morning America. "Nobody ever comes forward. Nobody knows who he his until later in his life. It's very strange. The whole thing is very strange."
Read more: http://www.independent.ie/lifestyle/independent-woman/celebrity-news-gossip/us-diary-obama-irish-trip-wont-help-him-with-birthers-2586480.html#ixzz1H9UqdfjI
Now let us examine just what is wrong with this insidious article. Just what may a “birther” be? A “birther” is a person who wants to see our Constitution’s Article II, Section 1, Clause 5 “natural born Citizen” clause respected and protected by our nation.
It was the fear of foreign influence invading the Office of Commander in Chief of the military that prompted John Jay, our first U.S. Supreme Court Chief Justice, to write to George Washington the following letter dated July 25, 1787: “Permit me to hint, whether it would be wise and seasonable to provide ‘a strong check’ to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen (underlying "born" in the original). Jay’s recommendation did make it into the Constitution. Article II, Section 1, Clause 5 of the Constitution provides in pertinent part: “No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President. . .” In this clause and in Articles I, III, and IV, the Founding Fathers distinguished between "Citizen of the United States" and "natural born Citizen." Per the Founders, while Senators and Representatives can be just “Citizens of the United States,” the President must be a "natural born Citizen."
The Founders and Framers put their ultimate trust in “the Laws of Nature and of Nature’s God” and not in the laws of mankind and human political and legal institutions. The Declaration of Independence, preamble. The “natural born Citizen” clause is a manifestation of this trust. Through this clause, the Founders sought to guarantee that the ideals for which they fought would be faithfully preserved for future generations of Americans. The Founders wanted to assure that the Office of President and Commander in Chief of the Military, a non-collegial and unique and powerful civil and military position, was free of all foreign influence and that its holder has from birth sole and absolute allegiance, loyalty, and attachment to the United States. Indeed, the Founders and Framers demanded that a would-be President, born after the adoption of the Constitution, be born with sole allegiance to and unity of citizenship in the United States. The “natural born Citizen” clause was the best way for them to assure this birth circumstance.
Basically, the birthers make two different arguments which have their basis in the definition of a “natural born Citizen.” So what is this definition? Natural law and the law of nations which became American common law provide that a “natural born Citizen” is a child born in the United States (or equivalent) to a U.S. citizen father and mother. This definition was included in the immensely important and influential 18th century treatise of Emer de Vattel, The Law of Nations, Or, Principles of the Law of Nature, bk 1, c. 19, secs. 212-217 (London 1797) (1st ed. Neuchatel 1758) (1759 first English translation), and confirmed by the following U.S. Supreme Court cases:
The Venus, 12 U.S. (8 Cranch) 253, 289 (1814): Chief Justice John Marshall, concurring and dissenting for other reasons, cited Vattel and provided his definition of natural born citizens.
Inglis v. Sailors’ Snug Harbor, 28 U.S. 99, 3 Pet. 99, 7 L.Ed. 617 (1830): the Court, which included Chief Justice John Marshall, held that a child born after July 4, 1776, in New York to British subjects was himself a British subject.
Dred Scott v. Sandford, 60 U.S. 393 (1857): Justice Daniels concurring cited Vattel and The Law of Nations and provided his definition of “natural born citizens.”
Slaughter-House Cases, 83 U.S. 36, 21 L.Ed. 394, 16 Wall. 36 (1872): In explaining the meaning of the Fourteenth Amendment citizenship clause, stated in dicta that “subject to the jurisdiction thereof,” “was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
Minor v. Happersett, 88 U.S. 162, 167-68 (1875): Providing the same Vattelian definition without citing Vattel, and not in any way referring to the English common law as a source for the definition of a “natural born Citizen,” 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 (emphasis supplied). Minor did not cite Vattel but as can be seen the Court’s definition of a “citizen” and a “natural-born citizen” are taken directly out of Vattel’s The Law of Nations, Section 212.
Elk v. Wilkins, 112 U.S. 94 (1884): This was a decision of the U.S. Supreme Court written by Justice Gray. Justice Gray stated: “Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes, (an alien though dependent power,) although in a geographical sense born in the United States, are no more 'born in the United States and subject to the jurisdiction thereof,' within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.” Hence, the Court rejected mere territorial jurisdiction (e.g., a child born on U.S. soil to alien parents) and rather required complete, political jurisdiction (e.g., a child born on U.S. soil to U.S. citizen parents) in order for a child to be entitled to birthright citizenship. This meant being born with full and complete jurisdiction in the United States and not being born with a qualified or partial jurisdiction such as arises when a person is born with an allegiance to a nation other than the United States which occurs by being born in the United States to one or two alien parents.
U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898): This was another U.S. Supreme Court decision written by Justice Gray which held that a child born in the United States to alien parents who were domiciled and residing in the United States and not employed in any foreign diplomatic service was born “subject to the jurisdiction” of the United States and therefore a Fourteenth Amendment born “citizen of the United States.” Here, he distinguished between a “natural born Citizen” and a “citizen of the United States.” On “natural born Citizen,” he cited and quoted from Minor v. Happersett which as we have seen relied upon Vattel and quoted his definition of “natural born Citizen.” But in defining the new born “citizen of the United States” under the 14th Amendment, he relied on the English common law to define such a citizen. In giving the nation a new type of born “citizen of the United States,” one born in the United States with allegiance to not only to the United States but also to a foreign power, the Court per Justice Gray abandoned the position that it had taken in Elk that birthright citizenship under the 14th Amendment meant being born with complete and absolute jurisdiction to the United States which also meant being born with sole allegiance to the United States. In rendering his decision, Justice Gray disregarded the intended rule under the 14th Amendment that “natural born citizens” and naturalized citizens are equal in every respect except that only the former are eligible to be President. Under Justice Gray’s holding, after birth naturalized citizens have to take an oath of allegiance renouncing all foreign allegiance before being admitted to American membership but his born “citizens of the United States,” who are born with foreign allegiance, do not. His holding also allows persons to become born “citizens of the United States” without the consent of the nation while requiring it for those who become naturalized “citizens of the United States” after birth. In any event, Justice Gray did not alter the meaning of a “natural born Citizen,” but rather just provided for a new type of born dual allegiance “citizen of the United States.” Not being “natural born Citizens” under natural law because of being born with foreign allegiance, and rather becoming “naturalized born Citizens of the United States” under positive laws such as the 14th Amendment and 8 U.S.C. Section 1401(a), it is the latter citizens, along with those who under other Congressional Acts or treaties become naturalized “citizens of the United States” after birth, who go on to procreate and become the parents of “natural born Citizens.”
This definition of a “natural born Citizen” was also confirmed by Rep. John Bingham. In the House of Representatives on March 9, 1866, when commenting on the Civil Rights Act of 1866, which was the precursor to the 14th Amendment, he confirmed Vattel’s definition as the standard for defining a “natural born Citizen” when he proclaimed: "[I] find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen. . . . ” John A. Bingham, (R-Ohio) US Congressman, March 9, 1866 Cong. Globe, 39th, 1st Sess., 1291 (1866), Sec. 1992 of U.S. Revised Statutes (1866).
So as we can see, the original and only definition of a “natural born Citizen” includes all those who were not born with any foreign allegiance and excludes all those born with foreign allegiance. In order to acquire this birth status, the definition of a “natural born Citizen” contains as necessary elements both U.S. place of birth (jus soli) and U.S. parentage (jus sanguinis), for birth allegiance and citizenship may attach to a child from either one of these sources. One “birther” argument focuses on Obama’s alleged place of birth. These concerned Americans want nothing more than to be assured that their President and Commander in Chief was born in Hawaii as he says he was. There exists a substantial amount of evidence that gives them enough concern to want to know for sure that their putative President was in fact born in Hawaii. This evidence may be reviewed at, A Catalog of Evidence - Concerned Americans Have Good Reason to Doubt that Putative President Obama Was Born in Hawaii , http://puzo1.blogspot.com/2010/05/catalog-of-evidence-concerned-americans.html . Despite this great amount of evidence, Obama to this day refuses to release to the public a valid copy of his long-form, hospital generated birth certificate which would but an end to the place of birth controversy. Nor is he willing to allow his alleged birth hospital, Kapi’olani Maternity & Gynecological Hospital (now called Kapi’olani Medical Center for Women and Children) to publicly confirm that he was born there.
Another “birther” argument focuses on Obama’s parentage. They argue that Obama fails to meet the “natural born Citizen” eligibility test because when he was born in 1961 (wherever that may be), he was not born to a United States citizen mother and father. At his birth, his mother was a United States citizen. But under the British Nationality Act of 1948, his father, who was born in the British colony of Kenya, was born a Citizen of the United Kingdom and Colonies (CUKC) which by descent under that same law made Obama himself a CUKC. Prior to Obama’s birth, Obama’s father neither intended to nor did he become a United States citizen. Being temporarily in the United States only for purpose of study and with the intent to return to Kenya, his father did not intend to nor did he become even a legal resident or immigrant to the United States. So under this 1948 statute, foreign allegiance attached to Obama at the moment of his birth. Our own laws recognized this foreign allegiance attaching to Obama. The point is clearly made when we consider that while John McCain was born in Panama to U.S. citizen parents, our Senate still considered him a “natural born Citizen.” This recognition by our own Senate of a foreign-born child as a “natural born Citizen” shows the power and influence that the citizenship of parents has in matters of citizenship and naturalization, creating enough allegiance to the United States to trust that person to be President and Commander in Chief of the Military even though born in a foreign country.
The U.S. State Department has confirmed that Obama was born with dual allegiances. Leventhal cites FactCheck.org to state, "Obama was originally both a U.S. citizen and a citizen of the United Kingdom and Colonies from 1961 to 1963 given that his father was from Kenya, which gained its independence from the British Empire in 1963. Upon independence, Obama became both a U.S. and Kenyan citizen from 1963 to 1982 [sic should be 1984], and solely a U.S. citizen after that." The entry "The Obama Birth Controversy" was written by Todd Leventhal, the chief of the Counter-Misinformation Team for the U.S. Department of State.
Obama may be a born “naturalized citizen of the United States” under the 14th Amendment or a Congressional Act (if he was born in Hawaii). But he is not an Article II "natural born Citizen of the United States," for upon Obama's birth his father was a British subject and Obama himself by descent was also the same. Hence, Obama was born subject to a foreign power and with foreign allegiance. Obama lacks the birth status of natural sole and absolute allegiance and loyalty to the United States which only the President and Commander in Chief of the Military and Vice President must have at the time of birth. Being born subject to a foreign power, he lacks sole allegiance and unity of citizenship to the United States from the time of birth which assures that required degree of natural sole and absolute birth allegiance and loyalty to the United States from birth, a trait that is constitutionally indispensable in a President and Commander in Chief of the Military. Like a naturalized citizen, who despite taking an oath later in life to having sole allegiance to the United States cannot be President because of being born subject to a foreign power, Obama too cannot be President.
The “natural born Citizen” clause serves a critical purpose today as it always has and must be enforced in every Presidential election. The President has immense power, both civil and military. The clause assures the American people that their President does not have any allegiances, loyalties, or attachment to any nation other than the United States. In our nuclear world, it will avoid having a President who may hesitate to act quickly and decisively in a moment of crisis due to some internal psychological conflict of allegiance or loyalty. It will avoid any foreign nation expecting and pressuring the President to act in their best interest instead of that of America. The clause also gives the American people the best chance that they will not be attacked or have their fundamental form of government altered from within the Office of President. Knowing the President is a “natural born Citizen,” the American people will trust their President with their lives. Finally, such a President can expect that the military will give him or her full trust and obedience. Read more at Why the “Natural Born Citizen” Clause of Our Constitution Is Important and Worth Preserving , http://puzo1.blogspot.com/2009/08/why-natural-born-citizen-clause-is.html .
What the Independent.ie “news” organization fails to understand is that a majority of Americans are “birthers,” concerned about any one of these issues or all of them. Looking for answers to these legitimate questions can hardly qualify these concerned Americans as “radicals.” Rather, these are concerns that are important to many Americans, and this news organization should study and understand them before publishing such reckless and irresponsible statements about a majority of Americans.
Mario Apuzzo, Esq.
March 20, 2011
Copyright © 2011
Mario Apuzzo, Esq.
All Rights Reserved
P.S. Posted by CDR Kerchner (Ret)
Update with data from a new survey released today -- 20 March 2011:
Only 9% of those surveyed in a recent poll believe that Obama has shown that he is constitutionally eligible to be the President:
A Catalog of Evidence - Concerned Americans Have Good Reason to Doubt that Putative President Obama Was Born in Hawaii