The States Have the Constitutional Power to Pass Legislation Prescribing Presidential Ballot Access Requirements Including Determining Whether a Candidate Meets the Eligibility Requirements of Article II, Section 1, Clause 5Article II, Section 1 of the U.S. Constitution tells us that the Electoral College is the mechanism used to elect the President. 3 U.S.C. Sec. 4. Article II, Section 1 also tells us how the Electoral College is filled. It says that the states shall appoint the electors who will make up the Electoral College, determining the manner of electing them and the quantity to be elected. The rest of Article II, Section 1 was changed by the Twelfth Amendment which now prescribes how the voting is done, how the votes are tallied and transmitted to Congress, and how Congress confirms those votes and declares who shall be President. Further state authority over federal elections is found in Article I, Section 4, Clause 1, which delegates to the state legislatures the initial authority for the "Times, Places and Manner" of elections to Congress, with Congress having residual authority to make such regulations. Hence, the Constitution gives to the states the authority over federal elections and specifically to appoint its electors and decide how their votes are processed for the purpose of determining who shall be President. There is therefore no question that states have the power to run their own presidential and vice-presidential elections. Storer v. Brown, 415 U.S. 724, 730 (1974) (the Election Clause, Article I, Section 4, Clause 1 which applies to Congress was intended to grant states authority to protect the integrity and regularity of the election process by regulating election procedure). As part of that process, states must also have the authority over who shall be placed on any ballot to run for president and vice-president.
by Mario Apuzzo, Esq.
March 11, 2011
by Mario Apuzzo, Esq.
March 11, 2011
This state mechanism has been recently confirmed by an April 3, 2009 Congressional Research Service Memo by Legislative Attorney, Jack Maskell, entitled, “Qualifications for the Office of President of the United States and Legal Challenges to the Eligibility of a Candidate,” wherein he stated:
“The mechanics of elections of federal officials within the several states are administered under state law. [footnote 4] The quadrennial presidential election, although required since 1845 to be held on the same day in each state [footnote 5] is, in an administrative and operational sense, fifty-one separate elections in the states and the District of Columbia for presidential electors. States generally control, within the applicable constitutional parameters, the administrative issues, questions, and mechanisms of ballot placement and ballot access. [footnote 6]
State election officials under some state ballot laws might thus require candidate "statements" or "declarations" of candidacy attesting to and/or certifying certain facts as a condition to be on the ballot; in other states, representatives of the established political parties may certify names to the Secretary of State, or the designated elections official may place viable or "recognized" candidates on the presidential preference ballots. [footnote 7] In such cases, opposing political candidates or political parties may have "standing" to legally challenge the placement of a name of an opponent on the ballot, [footnote 8] or state law may specifically provide for a procedure for timely protests to be filed concerning the qualifications of candidates. [footnote 9] Additionally, the relevant election official in the state, such as the Secretary of State, may have authority to exercise discretion to challenge a self-certification or a certification by a political party of a candidate whom the election official believes is not eligible for the office. It would appear to be a matter of state law and interpretation as to whether election officials in a particular state have discretionary authority to question the certification of a party's nominated candidate, or even a self-certification of a candidate, if such election officials were presented with actual probative, documentary evidence to rebut any presumed or self-certified eligibility. In Keyes v. Bowen, the California Supreme Court dismissed a suit against the Secretary of State which challenged President Obama's eligibility and the California electoral votes for him, finding that: "Petitioners have not identified any authority requiring the Secretary of State to make an inquiry into or demand detailed proof of citizenship from Presidential candidates," and thus mandamus (a writ of mandate) was not granted. [footnote 10] However, although no "ministerial duty" or mandatory requirement exists to support a mandamus action, there may still exist discretionary authority in such elections official." [footnote 11]. 11 See, for example, unreported case of Cleaver v Jordan, Case no. 7838 (Calif. Supreme Court minutes, Sep. 26, 1968), cert. denied, 393 U.S. 810 (1968), where California court reportedly upheld discretionary authority of Secretary of State not to list ineligible candidate for President on the ballot; and Jenness v Brown, also unreported, case no. civil 72-204 (S.D. Ohio Sep. 27, 1972), concerning ballot placement of an ineligible candidate in Ohio.”
But the states’ power to regulate election procedure is not without limitations. As the Court explained in Texas Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006):
“States, through the Elections Clause, exercise some regulatory authority over federal elections because "as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes." Storer, 415 U.S. at 730. This authority, however, is not unlimited. Any regulation of time, place, and manner must not violate other portions of the Constitution. See, e.g., Smith v. Allwright, 321 U.S. 649, 661-62, 64 S. Ct. 757, 88 L. Ed. 987 (1944) ("Texas is free to conduct her elections and limit her electorate as she may deem wise, save only as her action may be affected by the prohibitions of the United States Constitution . . . ."). In addition, "while states enjoy a wide latitude in regulating elections and in controlling ballot content and ballot access, they must exercise this power in a reasonable, nondiscriminatory, politically neutral fashion." Miller v. Moore, 169 F.3d 1119, 1125 (8th Cir. 1999).” Id. at 590.
Discussing the qualification clause for Representatives and Senators found at Article I, Section 3, Clause 3 and Article I, Section 2, Clause 2, respectively, in U.S. Term Limits v. Thornton, 514 U.S. 779 (1995), the U.S. Supreme Court stated that "the text and structure of the Constitution, the relevant historical materials, and, most importantly, the 'basic principles of our democratic system' all demonstrate that the Qualifications Clauses were intended to preclude the States from exercising any such power and to fix as exclusive the qualifications in the Constitution." The Court said that a state has no authority to change, add to, or diminish the age, citizenship, and residency requirements for members of Congress specified in their Qualification Clause found at Article I, Section 2, Clause 2 and Article I, Section 3, Clause 3. See also Powell v. McCormack, 395 U.S. 486 (1969) (relying on historical analysis and democratic principles held that the qualifications for Congress are “fixed” in the Constitution and cannot be supplemented by Congress). As Congress is limited in changing, adding to, or diminishing constitutional eligibility requirements for members of Congress, so are the states. See Texas Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006) (same). The same reasoning would necessarily apply to the Presidential eligibility clause found at Article II, Section 1, Clause 5. Under well-established precedent, this qualification clause is exclusive and cannot be changed by a state in definition or application in a way that is contrary to the Constitution. Id. at 589. So we can see that states are not allowed to make their own definitions of eligibility for public office which violate the Constitution. A state can only apply that definition for eligibility as is prescribed by the applicable qualification clause of the Constitution.
“If a statute is unconstitutional as applied, the State may continue to enforce the statute in different circumstances where it is not unconstitutional, but if a statute is unconstitutional on its face, the State may not enforce the statute under any circumstances.” Women's Medical Professional Corp. v. Voinovich, 130 F.3d 187, 193 (6th Cir. 1997). In deciding who shall get on its election ballot, a state has to also make sure that it also complies with its own state statutes and laws. Texas Democratic Party, 459 F.3d at 592.
Mr. Maskell states in his CRS memo that there is no “formal administrative or legal requirement or oversight at the federal level, or specific state requirement to produce a birth certificate for ballot placement.” Hence, several states are now working on legislation the purpose of which is to make sure that presidential candidates who would win an election and assume the Office of President and Vice-President are eligible to hold those offices under Article II, Section 1, Clause 5. As we know, under the “natural born Citizen” clause, no one who is not a “natural born Citizen", 35 years old, and a 14-year resident may be President. Since the federal government does not require it, the states should demand to see documentary evidence showing that a candidate who intends not only to run for such office but also to assume the powers of that office should he or she win the election meets those three requirements and is therefore qualified according to the Constitution. On being a “natural born Citizen” and for those candidates who may have been born in a hospital, that would include, but not be limited to, the candidate producing a certified true copy of a valid long-form birth certificate which contains corroborating information which will enable the state to reasonably conclude that the candidate was born in the specified place and time. Such a requirement is within its powers to protect the integrity and regularity of the election.
Notwithstanding whatever powers the states may have retained under the Tenth Amendment, states cannot alter or add to the meaning of a “natural born Citizen.” As U.S. Term Limits explained in the context of qualifications for Congress, “[f]irst, we conclude that the power to add qualifications is not within the ‘original powers’ of the States, and thus is not reserved to the States by the Tenth Amendment. Second, even if States possessed some original power in this area, we conclude that the Framers intended  the Constitution to be the exclusive source of qualifications for Members of Congress, and that the Framers thereby "divested" States of any power to add qualifications. Id. at 800-01. Indeed, states cannot prescribe a presidential eligibility requirement that goes over and above that included in Article II, Section 1, Clause 5 itself. To do so would be unconstitutional. United States Term Limits, 514 U.S. at 807.
The Constitution does not provide a definition of the “natural born Citizen” clause. Nevertheless, the states can define the “natural born Citizen” clause based on:
(1) the text and structure of the Article II, Section 1, Clause 5 and other parts of the Constitution;
(2) the Founders’ and Framers’ intent in inserting the “natural born Citizen” clause in the Constitution which was for the safety and preservation of the nation by excluding foreign allegiance, influence, and attachment from the Office of President and Commander in Chief of the Military. On July 25, 1787, John Jay wrote a letter to General Washington, who was acting as president of the Constitutional Convention, stating: "Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in chief of the american army shall not be given to, nor devolve on, any but a natural born Citizen" (“born” underlined in the original). http://rs6.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28fr00379%29%29 . On September 2, 1787, George Washington wrote a letter to John Jay the last line of which read: "I thank you for the hints contained in your letter." http://www.consource.org/index.asp?bid=582&fid=600&documentid=71483 . On September 4, 1787, about 6 weeks after Jay's letter and just 2 days after Washington wrote back to Jay, the "natural born Citizen" requirement appeared in the draft of the Constitution. The proposal passed unanimously without debate which does not mean that the proposal was not discussed, for the convention meetings were conducted in secrecy. From the chronology of these events, we can conclude that it was probably Jay’s letter to Washington and his concern about foreign influence infecting the office of the Commander in Chief which motivated the Founders and Framers to insert the clause as part of the eligibility requirements to be President and Commander in Chief.
(3) relevant historical materials such as Emer de Vattel’s, The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758), who told us: “The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see, whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for if he is born there of a foreigner, it will be only the place of his birth, and not his country.”
Another historical reference is Founder historian, David Ramsay, who 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;
(4) interpretation of early Congressional Acts such as the Naturalization Acts of 1790, 1795, and others that followed. These Acts did not distinguish whether the child born to an alien was born in or out of the United States. In either case, the child was not a U.S. citizen and had to naturalize, either derivatively from the naturalizing parent if done before the child reached the age of majority or on his or her own if done thereafter. Since wives followed the national character of their husbands, this law meant that the father of a child born in the U.S. would have to naturalize which would cause both his child and his wife to then become “citizens of the United States,” not “natural born Citizens. Also note that the 1790 Act used the language "natural born citizen" and the 1795 Act repealed the 1795 Act and replaced that clause with "citizen of the United States." This clearly shows that the early Congresses, which included many Founders and Framers, recognized the critical difference between a "natural born Citizen" and a "citizen of the United States. Additionally, Congress never again used the clause "natural born Citizen" in any of its Acts including the Civil Rights Act of 1866 and the 14th Amendment, using rather the clause "citizen of the United States;” and
(5) case precedent of the U.S. Supreme Court such as:
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 and said: “Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says ‘The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives or indigenes are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.’”
Inglis v. Sailors’ Snug Harbor, 28 U.S. 99, 3 Pet. 99, 7 L.Ed. 617 (1830): The majority, which included Chief Justice John Marshall, cited Vattel on the right of election to change one’s allegiance and thus citizenship in the context of the new nation being formed after revolution. The Court found on principles consistent with Vattel’s jus sanguinis and not on the English common law rule of jus soli, that simply being born in New York, after July 4, 1776 and before September 15, 1776, when the British took possession of New York, was not sufficient to establish one’s status as an American citizen, for a child of minor years is incapacitated from making any citizenship election but rather followed the citizenship held or chosen by the father. On the contrary, relying upon principles of the English common law, Justice Johnson and Justice Story, who wrote separate minority concurring opinions, would have found the child born in New York during the same time period a citizen of the State of New York or American citizen, respectively, regardless of the citizenship of his parents. Id. 136 and 164. This case shows what the majority rule was on citizenship and that it followed the Vattelian doctrine that a child when born took on the national character of his or her father (meaning father and mother under the doctrine of merger of the wife’s citizenship into the husband) and did not acquire his or her citizenship from the territory in which he or she was born.
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 and took out of Vattel’s definition the reference to “fathers” and “father” and replaced it with “parents” and “person,” respectively, and stated: “The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As society cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights.” Again: I say, to be of the country, it is necessary to be born of a person who is a citizen; for if he be born there of a foreigner, it will be only the place of his birth, and not his country. . . .”
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, 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. Hence, when Minor said “common law,” it was not referring to the English common law but rather to American common law which had its basis in citizenship matters in natural law and the law of nations. Minor also distinguished between “natural-born citizens” and “citizens.” When Minor spoke of the common law, it referred to the “citizens” and the “natives or natural-born citizens,” explaining that there never has been any doubts that the children born in the country to “citizens” were the “natives or natural-born citizens.” Since Minor was being asked to apply the 14th Amendment, it then applied the common law rule to the 14th Amendment which only speaks of “citizens” and not “natives or natural-born citizens.” It then concluded that any person who is a “natural-born citizen” is necessarily also a “citizen.” The Court, was not, however, willing to go as far as to say that a child born in the country to parents who were not U.S. citizens was even a “citizen” under the 14th Amendment, let alone a “natural-born citizen.” The Court added that “there have been doubts” as to whether that child is even a “citizen.” Having decided that such a child is not a “natural-born citizen,” it left the question of whether such a child is a “citizen of the United States” under the 14th Amendment to another day.
It is important to understand that if the English common law prevailed in the United States to define national citizenship, the Court would not have stated that “there have been doubts” whether children born in the country to alien parents were citizens. Under English common law, there was no doubt that such children would have been “natural born subjects,” for under that law the citizenship of the parents was not a factor in determining subjectship when the child was born in the dominion of the King.
So Minor told us that a child born in the U.S. to non-U.S. citizen parents is not a “natural-born citizen” and that it was not necessary for it to decide whether that child was a “citizen” under the 14th Amendment because the plaintiff was born in the country to U.S. citizen parents, making her an Article II “natural-born citizen.” What is important about Minor is that the U.S. Supreme Court told us that the definition of a "natural born Citizen" is not contained in the Constitution, including the 14th Amendment, nor in any Act of Congress. Rather, Minor defined a "natural born Citizen" under American common law which as we can see was based on natural law and the law of nations as presented by Vattel in Sections 212-217 of The Law of Nations and not under the English common law. It also told us by implication that a child born in the country to parents who are not U.S. citizens is not a “natural-born citizen” and expressly told us that “there have been doubts” as to whether such a child is even a “citizen” under the 14th Amendment. If “there have been doubts” as to whether such a child was a “citizen” under the 14th Amendment, then given that pursuant to the grandfather clause of Article II, Section 1, Clause 5 the standard to be a “natural born citizen” was higher than that to be just a “citizen,” there is no way that such a child could be a “natural-born citizen.” After all, if one cannot satisfy the requirements to be a “citizen,” one surely cannot satisfy the requirements to be a “natural-born citizen."
U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898): The question that Minor did not answer was answered by U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898), in which the United States argued that a child born in the U.S. to alien parents was not a “citizen of the United States” under the 14th Amendment. Ruling against the government, Wong Kim Ark declared a child born in the country to alien parents to be a “citizen of the
” under the 14th Amendment. Wong Kim Ark, citing and quoting Minor and acknowledging its definition that a “natural-born citizen” was born in the country to citizen parents, in no way disturbed Minor’s definition of a “natural-born citizen,” for it was asked to decide only if Wong was a “citizen of the United States” under the 14th Amendment. Wong Kim Ark also allowed Wong to be a 14th Amendment “citizen of the United States” because it found that his parents, while not U.S. citizens, were, among other things, domiciliaries, residents of the United States, and not working in some foreign diplomatic capacity and therefore “subject to the jurisdiction” of the United States. So Wong Kim Ark only ruled that he was a “citizen” It never ruled that he was also “natural born.” The Court cautioned in its opinion in the beginning and at its end that it was only deciding whether Wong was a “citizen of the United States” under the 14th Amendment and also informed us under what limited conditions (born in the U.S. to alien parents who were domiciled and residing in the U.S. and not employed in some foreign diplomatic capacity) it ruled that he so was. It told us that concerning “natural born” status, Wong, being born in the United States to domiciled and resident alien parents which made him born “subject to the jurisdiction thereof,” was as much a “citizen” as a “natural born” child born in the United States to “citizen” parents. Hence, Wong Kim Ark told us that while Wong could be a “citizen” at birth, he could not be a “natural born Citizen.” United States
Perkins v. Elg, 307 U.S. 325 (1939): Other than Minor v. Happersett, Perkins is the only Supreme Court decision to declare someone a “natural born Citizen.” The person was born in the United States to a naturalized U.S. citizen father and citizen mother through derivative citizenship.
The last word on the meaning of a “natural born Citizen” was provided by Minor v. Happersett. It is important to note that the Court decided Minor after the Fourteenth Amendment was passed which tells us that the Court gave us that definition knowing that the Fourteenth Amendment defined a “citizen of the United States” and not a “natural born Citizen.” This same definition had been stated by Rep. John Bingham, who in the House on March 9, 1866, in commenting on the Civil Rights Act of 1866 which was the precursor to the Fourteenth Amendment, stated Vattel’s definition thus: "[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). As we have seen, this definition was confirmed in U.S. v. Wong Kim Ark. Our Supreme Court has never changed this American common law definition and it prevails today. For more information on the meaning of a “natural born Citizen,” please see the many essays on its meaning at http://puzo1.blogspot.com and at www.protectourliberty.org.
While the Constitution does not define a “natural born Citizen,” the states can apply the definition of the “natural born Citizen” clause in keeping with the sources stated herein. What is imperative is that the states apply the “natural born Citizen” clause as intended by the Constitution. See Matter of Kryzan v. New York State Bd. of Elections, 2008 NY Slip Op 8354, 55 A.D.3d 1217, 865 N.Y.S.2d 793, 2008 N.Y. App. Div. LEXIS 8129 (the only requirement of New York’s election law that the candidate be a resident of the State did not violate the Constitution’s Congressional Qualification Clause). Applying the “natural born Citizen” clause in keeping with the Constitution will not violate the fundamental principle identified in Powell that in our representative form of government “the people should choose whom they please to govern them." Powell, 395 U.S. at 547. Applying the “natural born Citizen” clause pursuant to U.S. Supreme Court precedent and other sources herein identified does not create an absolute bar to any one person or a class thereof being able to be President any more than the Constitution itself requires.
The 2008 presidential election presented us with a situation in which putative President Obama has assumed and currently holds the great and singular civil and military powers of the President and Commander in Chief without proper vetting by our media and political institutions. To this date, even though there are millions of concerned Americans asking that Mr. Obama release to the public a certified copy of his long-form, hospital generated birth certificate which would conclusively prove that he was born in Hawaii, he just refuses to do so. These Americans are not satisfied with the electronic image of an alleged 2007 short-form Certification of Live Birth that Obama posted on the internet in 2008. Apart from the question of whether this computer image is authentic, this computer image does not contain the name of the birth hospital, the name of the delivery doctor, and names and signatures of persons who witnessed the birth in Hawaii. The State of Hawaii and the alleged birth hospital, Kapi’olani Medical Center for Women & Children (formerly known as Kapi’olani Maternity & Gynecological Hospital and which has neither affirmed nor denied Obama’s birth there), have also announced publicly that they cannot release Obama’s long-form, hospital generated birth certificate because of federal and state privacy laws and Obama has not given his consent to the release. How can our nation have gotten to the point where a person has been allowed to assume these great powers without having revealed to the people he is supposed to serve the necessary documents which would conclusively show that he was in fact born in Hawaii as he claims? How can a presidential candidate have any reasonable expectation of privacy in his or her birth certificate if the Constitution demands that the President be a “natural born Citizen?” Moreover, Mr. Obama was born a British subject/citizen and a "citizen of the United States" if born in Hawaii. Neither the federal authorities nor the states questioned whether a person born subject to a foreign allegiance, influence, and power can be an Article II "natural born Citizen." The states which have a constitutional duty to protect their citizens simply cannot allow a repeat of such a scenario to occur in the 2012 presidential election.
If any candidate feels damaged by a state’s application of the “natural born Citizen" clause, let that candidate file an action against the state and let the courts decide the issue. A court having to decide the issue will have to examine as the state would have done in applying the “natural born Citizen” clause the text and structure of the Constitution, the Founders’ and Framers’ intent in inserting the “natural born Citizen” clause in the Constitution, relevant historical materials, and case precedent of the U.S. Supreme Court.
Mario Apuzzo, Esq.
March 11, 2011
Revised March 22, 2013
Copyright © 2011
Mario Apuzzo, Esq.
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