The States Have a Right and Duty to Assure Their Citizens That a Presidential Candidate Is an Article II “Natural Born Citizen"

The States Have a Right and Duty to Assure Their Citizens That a Presidential Candidate Is an Article II “Natural Born Citizen”

By Mario Apuzzo, Esq.
March 2, 2011

The Founders and Framers did not set up a monarchy in the new nation that they created. Rather, they created a republic. A republic is a state in which all the people, except those disqualified by law, have a say and opportunity to participate in the administration of the nation and its government and elect representatives to operate their government. Republican government is a government by the people. It is operated by representatives chosen by the people. So through their representatives, the people administer their government. Black’s Law Dictionary 1171 (5th ed. 1979). It therefore becomes critical in a republic with a self-representative form of government that, for the sake of their well-being and self-protection, the people know for whom they are voting and that, in the case of the President, that that person is eligible under Article II of the Constitution to assume the powers of that office should he or she win the election. After all, citizens, who under our form of government are to consent to their government’s existence, should know in advance that their vote will count and not be cast for a person who will not qualify for the Office of President or worst yet, that their vote will be cast for someone who should take by usurpation the great and singular powers of that office while not being eligible to do so.

Hence, running for the Office of President under the 1st Amendment, which guarantees political free speech, is one thing. But winning the election and taking the power of that office under Article II, which does not involve political free speech, is another.

In the Kerchner v. Obama/Congress case, the plaintiffs sued Barack Obama as President Elect before Congress confirmed him as Article II eligible under the 20th Amendment and as President after being sworn in by Chief Justice John Roberts. Hence, at those stages of the political process, Obama had exhausted his free speech rights to run for the Office of President. Plaintiffs sued Obama because he never conclusively proved that he was born in Hawaii and because he is not and cannot be an Article II "natural born Citizen," given that his father was not a U.S. citizen when Obama was born wherever that may be.

Despite the Kerchner and the many other law suits that plaintiffs filed against Obama and others, the courts have allowed Obama to game our honor system.

If no one else is going to protect its citizens, then the States have every right and duty to do so.  States have a right and duty to protect the life, liberty, and property of their citizens. If Congress and the courts, because of political inconvenience, refuse to protect a State’s citizens, then the States must do so by utilizing the 9th and 10th Amendments, their police powers, and their power to run fair elections. That includes making sure through an election process that comports with the Constitution and their own state election laws that the person who will be taking the great civil and military power of the Office of President and Commander in Chief of the Military is eligible to hold that office because he or she meets the "natural born Citizen," 35-years-age, and 14-years-residency requirements of Article II, Section 1, Clause 5 of our Constitution.

The Founders and Framers knew that under English common law (e.g. Calvin’s Case, 7 Coke, 1, 6 James I) and statutes and the municipal laws adopted by many nations, natural allegiance and political and military obligations attach to a child from either being born on its territory or being born to at least one of its citizens. The Founders and Framers knew that the first citizens, who they called “Citizens of the United States,” were born with natural allegiance to Great Britain or to some other foreign sovereignty. The British “natural born subjects” threw off their allegiance to Great Britain through the Declaration of Independence and by adhering to the American Revolution. Others naturalized to become “citizens of the United States.” Being born subjects of foreign powers, the Framers in Article II, Section 1, Clause 5 grandfathered these “Citizens of the United States” to be eligible to be President. But for those to be born after the adoption of the Constitution who would aspire to become President, the Framers demanded that they be born with no foreign allegiance. They called these persons “natural born Citizens.”

To have a person (a future President) born with natural allegiance and political and military obligations solely to the United States, they relied upon natural law and the law of nations definition of a “natural born Citizen,” as codified by Emer de Vattel in Section 212 of The Law of Nations (London 1797) (1st ed. Neuchatel 1758), which is a child born in the country to citizen parents. So, the Framers reserved the special citizenship status of “natural born Citizen” for the Office of President for those born after the adoption of the Constitution. They relied on natural law to provide the clause’s definition. Founder David Ramsay in his 1789 essay, A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789), provides us with insight into the thinking of the Founders and Framers and confirms that they reserved future birthright citizenship to only those born to citizen parents. For more information on David Ramsay and his influence during the Founding, please see my essay, Founder and Historian David Ramsay Defines a Natural Born Citizen in 1789, accessed at this blog at: http://puzo1.blogspot.com/2010/04/founder-and-historian-david-ramsay.html  A copy of David Ramsay's 1789 dissertation can be found at: http://www.scribd.com/doc/33807636/A-Dissertation-on-Manner-of-Acquiring-Character-Privileges-of-Citizen-of-U-S-by-David-Ramsay-1789 The U.S. Supreme Court has confirmed this original definition of a “natural born Citizen’ through several of its cases. For a list of these cases, see my article entitled, Arizona’s Proposed Interstate Birth Certificate Compact Law As Now Written Is Both Unconstitutional and Contrary to the Best Interests of the United States , accessed at http://puzo1.blogspot.com/2011/02/arizonas-proposed-interstate-birth.html . Through these cases, this definition has become the American common law definition of a “natural born Citizen.”

A great majority of Americans satisfy this definition and are therefore “natural born Citizens.” As to the definitions of all other future “Citizens of the United States,” the Framers relied on Congress to provide those through its Article I, Section 8, Clause 4 naturalization powers. And Congress has used that power throughout our history, passing various naturalization acts and even the Civil Rights Act of 1866 which in 1868 was constitutionalized when the 14th Amendment was passed. Anyone who is a “citizen of the United States” under these positive laws but who was not born in the U.S. (or its equivalent) to U.S. citizen parents (father and mother) is a “citizen of the United States,” but not a “natural born Citizen” as intended by the Founders and Framers.

This all means that the States can implement an election process by which they seek to make sure that any person who desires to possess the power of the President and Commander in Chief of the Military meets the natural law/ law of nations/American common law definition of a “natural born Citizen” which as we have seen is a child born in the U.S. (or its equivalent) to U.S. citizen parents (father and mother).

That the candidate produces his or her long-form, hospital generated birth certificate, if available, satisfies the requirement of birth in the U.S. That the candidate provides the identity and citizenship status of the candidate’s parents, if known, satisfies the citizen parent requirement.

The "natural born Citizen" requirement might seem a bit onerous, but the requirement only applies to the singular and all-powerful office of the President and Commander in Chief of the Military and the office of Vice-President, the elections to which come up only every 4 years. More important, the Framers specifically included it in the Constitution for the best interests of the nation. Hence, despite how much political detractors pooh-pooh the “natural born Citizen” clause, scream that Obama’s citizenship is a non-issue, or even expressly state or imply that those who question Obama’s citizenship are at best delusional or at worst racially motivated, it is well worth making sure that a Presidential candidate meets that definition given the critical important role the President and Commander in Chief of the Military plays in the survival and preservation of our nation, its people, and their Constitution.

Mario Apuzzo, Esq.
March 2, 2011
http://puzo1.blogspot.com/
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