By: Mario Apuzzo, Esq.
June 22, 2011
Alexander McLeod (1774-1833)
Snopes.com has recently published an article in which it says it has debunked the claim that putative President Barack Obama Social Security number of 042 xx-xxxx is false. The article also proclaims that Obama is a “natural born Citizen.” The article may be read at http://www.snopes.com/politics/obama/birthers/ssn.asp. There are various problems with Snopes’ analysis of the claim that Obama is using a false Social Security number and with its conclusion that Obama is an Article II “natural born Citizen:”
I. Snopes only addresses the on-line created story of French immigrant, Jean Paul Ludwig, who was born in 1890 and died in Honolulu in 1981. Snopes tells us that Mr. Ludwig's number was 045-26-8722 which is different from Obama's 042-xx-xxxx. How nice for someone to feed false stories into the "news" and then have Snopes debunk them.
II. Snopes does not address the question of whose Social Security number is Obama using. That he is using someone else's Social Security number has been well analyzed by private investigators Neil Sanky and Susan Daniels. For a thorough explanation on Obama using a false Connecticut Social Security number, go to http://www.youtube.com/watch?v=IZlaIS5o9Vs in which Ms. Daniels explains that the Connecticut SS number belonged to a person born in 1890 whom she has not yet been able to identify. She also debunks the Jean Paul Ludwig theory. Ms. Daniels explains that the first three digits of the number were based on the location from where someone applied for the Social Security number. She clearly explains that it has nothing to do with one’s place of birth. She also explains that there is no evidence that Obama ever lived in Connecticut and that there is no other explanation that she has found showing why or how a 15-year-old Obama living in Hawaii would have applied for the Social Security number while using a Connecticut address on the application for that number. See also Ms. Daniels and Mr. Sanky’s response to this Snopes article at http://obamareleaseyourrecords.blogspot.com/2011/06/private-investigators-respond-to-snopes.html.
In her video presentation and response, Ms. Daniels explains that based on the record, Obama would have had to obtained that false number in March or April 1977, when he was 15 years old. She arrives at that conclusion because the Social Security number that precedes his by one number was issued on March 21, 1977. She states: “Obama allegedly got his CT number of 042-68-4425 in March ’77, which can be proven since the person before him -4424 and after him -4429 both got theirs then.” But we should ask ourselves, what is a 15-year-old teenager going to high school in Hawaii in the Spring of 1977 doing obtaining a false Social Security number? Something just does not make sense.
Ms. Daniels explains how she found Obama’s Selective Service registration record which also contains the same Connecticut Social Security number. She believes that the Selective Service registration was fraudulently done in 2008. She explains how someone floated in the public domain a letter allegedly from the Selective Service office in which it acknowledges Obama’s having applied and obtained the registration number in 1980. The problem that she identifies is that the government form which is the acknowledgement itself shows in small print at the bottom that it was not printed until 2007. Hence, the Selective Service letter, along with the Social Security number and Selective Service registration, is fraudulent also.
What is also telling is that Ms. Daniels was not able to find any indication that Obama used his Connecticut Social Security number prior to the appearance of the number on his September 4, 1980 Selective Service registration. Other than this Selective Service registration, the first time Daniels could find Obama using the Connecticut “042″ number was in 1986 in Chicago. This is very odd given that Obama has stated that he did have employment when he was young. It is reported by PolitiFact.com that Obama’s first job was at a Baskin Robbins in Honolulu and it also provides a complete list of all of Obama’s employments. Here is the entry: “1975 or 1976 — ice cream scooper, Baskin-Robbins — Honolulu — Obama claims to have lost his taste for ice cream during this, his first job, the duration of which is not publicly known.” http://www.politifact.com/truth-o-meter/statements/2009/apr/15/joe-scarborough/heres-scoop-obama-has-worked-ice-cream-business-am/ ; http://www.usnews.com/news/obama/articles/2007/01/16/ten-things-you-didnt-know-about-barack-obama (this January 16, 2007 article reports: “He [Obama] says he hasn't liked ice cream since working at Baskin-Robbins as a teenager”); http://letustalk.wordpress.com/2008/07/20/obama-summer-jobs-used-to-work-at-baskin-robbins/ (this July 20, 2008 article states that Obama was in high school when he had his Baskin Robbins job). “The workers and manager at the ice cream shop confirmed that Mr. Obama worked there. Unfortunately, no one remembers him because back then they weren't there.” http://www.bluemaumau.org/6621/presidentelect_barack_obamas_first_job (this December 31, 2008 article implies that Obama first worked there in 1979). What is odd is that while there might be a record of him working there, no actual person has stepped forward to say that he or she actually remembers Obama working there.
On another note, since the Baskin and Robbins workers and managers were able to confirm that Obama worked there, the records that they looked at should also reveal what Social Security number Obama used back then. Snopes should investigate that matter and report back to all of us.
While Snopes is in the investigative mood, it should also find Obama’s first passport and tell us the date of issue and what Social Security number he used on his passport application. Snopes should also find some of Obama’s early school records and tell us which records first show a Social Security number for Obama and what that number is. If Snopes really wants to debunk the claim that Obama is using a false Social Security number, one would think that it, with its vast debunking resources, would take these steps and report back to all of us with its findings.
Ms. Daniels also tells us that Weather Underground member, Bill Ayers, in one of his books brags about how he could easily obtain false Social Security numbers. Jack Cashill writes in World Net Daily: “Bill Ayers, terrorist and Obama close friend, of his years in the Weather Underground writes: ‘We invented all kinds of ways to obtain false identity papers, and got busy building multiple sets of ID for each of us and for every contingency. . . . We soon figured out that the deepest and most foolproof ID had a government-issued Social Security card at its heart.’” http://www.wnd.com/index.php?pageId=275861.
We know of the relationship between Ayers and Obama. According to Jack Cashill, there is a strong probability that Ayers even wrote Dreams from My Father. http://www.cashill.com/natl_general/did_bill_ayers_write_1.htm; http://www.c-spanvideo.org/program/Decons. Ms. Daniels believes that we can probably look to Ayers as the person who helped Obama get his false Social Security number.
III. Snopes’ explanation (relying on Wikipedia) regarding the use of 042 and the claim that the number is "reserved for Connecticut residents" which Obama never was, also does not solve anything. Snopes concedes that before 1973 the first three numbers given to a Social Security number designated the location of the Social Security Office which issued the original Social Security card. It also explains that since 1973 (when all cards began to be issued from one central location in Baltimore), that number "'has been based on the ZIP code in the mailing address provided on the application for the original Social Security card'" (quoting Wikipedia). It explains that a mailing address does not equate to someone's place of birth or even place of residence. But Snopes provides no explanation how Obama ended up with the Connecticut 042 number, regardless of whether he obtained his number either before or after 1973. Why does Snopes not produce evidence that Obama's original application shows that he provided a mailing address with a zip code that would generate the 042 assignment?
I do not see what the big mystery is. But then with Obama it is par for the course. Orly Taitz has asked the Social Security Administration through the Freedom of Information Act for a copy of Obama's Social Security application documents. The documents, assuming they are real, can easily debunk any claim that Obama is using a false Social Security number. But, Obama, in his Obamaesque style, has not voluntarily provided a copy of those documents. I submit to Snopes that it would better spend its time investigating that and pressing Obama for a copy of those documents so that it can really debunk the claim that Obama is using a false Social Security number.
IV. Finally, we come to Snopes' most incorrect statement. It says that since Obama is a "natural born Citizen," his grandmother would have no reason to appropriate someone else's Social Security number.
First, the veracity of the claim that Obama is using a fake Social Security number does not depend on proving that his grandmother appropriated it.
Second, Article II, Section 1, Clause 5, provides: “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; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a resident within the United States.” Under this eligibility clause, I have argued since December 2008 that one must show that he or she is not only a “citizen” of the United States to be eligible to be President, but also a “natural born Citizen” of the United States. http://puzo1.blogspot.com/2008/12/two-constitutional-obstacles-obama-has.html. I also made this argument in the case of Kerchner v. Obama/Congress. The case was first hear in the New Jersey Federal District Court and reported at Kerchner v. Obama, 669 F.Supp.2d 477 (D.N.J. 2009). Never reaching the merits of the questions of whether Obama conclusively proved that he was born in Hawaii or that he meets the constitutional definition of an Article II "natural born Citizen, the District Court dismissed the case because of standing and political question. I appealed the case to the 3rd Circuit Court of Appeals, whose decision is reported at Kerchner v. Obama, 612 F.3d 204 (3rd. Cir. 2010). The Third Circuit, also not reaching the merits of the case, affirmed the lower court, saying the plaintiffs did not have Article III standing. Probably the most important statement that any court made in all the Obama cases is that made by the Circuit Court in footnote 4 of its decision where it stated: “We need not discuss Appellants’ contention that “the original common law definition of an Article II ‘natural born Citizen’ . . . is a child born in the country to a United States citizen mother and father’ . . . . That assertion goes to the merits of whether President Obama is in fact eligible to hold office, which we cannot address unless Appellants first establish Article III standing.” I then filed with the U.S. Supreme Court a petition for a writ of certiorari which the Court, again not reaching the merits, denied. The U.S. Supreme Court denial of the petition is reported at Kerchner v. Obama, 131 S.Ct. 663 (2010). In short, no court ever decided the merits of the Kerchner case in which I argued that Obama has yet to conclusively prove that he was born in Hawaii and that even if he was born in Hawaii, he is not an Article II "natural born Citizen" because when he was born he was born to a non-U.S. citizen father, hence not meeting the original common law definition of an Article II “natural born Citizen” which is a child born in the country to a United States citizen mother and father. In my briefs to the courts, I cited all the pertinent U.S. Supreme Court case law, Emer de Vattel, and many other historical sources which you will also find discussed by me in my many essays on "natural born Citizen" on this blog. No court has yet reached the merits of the question of whether Obama is an Article II “natural born Citizen.” Obama must therefore make that showing and Congress and each individual State should compel him to do so.
The text of the Constitution, common law history, legislative history, and U.S. Supreme Court precedent show that an Article II “natural born Citizen” is a child born in the United States or its jurisdictional equivalent to citizen parents. Let us analyze how I come to this conclusion.
Let us start with the text of the Constitution. The Framers of the Constitution called all those who made up the citizenry of the new nation “citizens of the United States.” We know this from reading these Articles. Article I, Section 2, Clause 2 provides that, in addition to being at least 25 years old and when elected to be an “Inhabitant” of the State in which he shall be chosen, a Representative must be a “Citizen of the United States” for 7 years. Article I, Section 3, Clause 3 provides that, in addition to being at least 30 years old and when elected to be an “Inhabitant” of the State in which he shall be chosen, a Representative must be a “Citizen of the United States” for 9 years. The Framers provided in Article I, Section 2 and Section 3 the eligibility requirements for then and future Representatives and Senators, respectively, which were, among other things, that each had to be at least a “Citizen of the United States” for 7 and 9 years, respectively. We also know from Article I, Section 2 and Section 3 that a “Citizen of the United States” is a naturalized citizen, for those sections speak of the person being eligible for the offices of Representative and Senator if he or she is a “Citizen of the United States” for 7 and 9 years, respectively. Clearly, such requirements do not mandate U.S. citizenship from the moment of birth.
Regarding Presidential eligibility, Article II, Section 1, Clause 5 provides: “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; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a resident within the United States.”
So, these clauses together show that the Framers during the period that the grandfather clause of Article II, Section 1, Clause 5 was in effect, allowed naturalized citizens to be eligible to be President. After the grandfather clause expired, it was no longer sufficient to be simply a “citizen of the United States” to be eligible to be President, for such citizens also include naturalized citizens. Rather, one had to now show that one was a “natural born Citizen” which was not a naturalized citizen.
Our early Presidents¬, being born British "natural born subjects," were all naturalize¬d by the Declaratio¬n of Independen¬ce and by adhering to the Revolution¬. The first President to be a “natural born Citizen” was Martin Van Buren. The early Presidents were allowed to be President because of the grandfathe¬r clause g of Article II, Section 1, Clause 5 which says that a person who was a "citizen of the United States" at the time of the adoption of the Constituti¬on was eligible to be President. But the article also says that for those born after the adoption of the Constituti¬on, they have to be "natural born Citizens."
So these clauses also tell us that the members of the United States are called “Citizens of the United States.” With the capitalization of “C” in citizen not having any importance, we can simply call them “citizens of the United States.” The Framers of course knew that there would be more “citizens of the United States” made in the future by nature or by law. Those made by nature would be “natural born” while those made by law would not be. Those made by nature would continue to be “natural born Citizens” and those made by law would be naturalized. Of course they did not have to provide for those citizens who would be made by nature but they did have to provide for those who would be made by law.
The Framers gave Congress the power to “establish an uniform Rule of Naturalization.” Article I, Section 8, Clause 4. Under its naturalization powers, Congress was given the power to make someone a naturalized “citizen of the United States,” “at birth” or after birth. The Framers knew that Congress would use its naturalization power to naturalize persons to be “citizens of the United States” not only after birth but also “at birth” and thus make them “born” citizens. Hence, if the Framers meant to give Congress the power to make “natural born Citizens,” given that Congress could make someone a “born” citizen through its naturalization powers, they would have written in Article II “born” citizen rather than “natural born” citizen. Rather, the Framers did not give Congress the power to make a naturalized born “citizen of the United States” a “natural born Citizen,” for they required that such citizen be “natural born” which based on natural law only nature and no law could make. This means that for “natural born Citizens,” the Framers did not permit that a law could create such a status, but did require that the status be acquired naturally without the aid of any law. All this tells us that a “natural born Citizen” is a “citizen of the United States” that becomes so by nature and not by any law.
Now let us turn to understanding the purpose and intent of the “natural born Citizen” clause. Why did the Founders and Framers include the “natural born Citizen” clause as part of the Presidential eligibility requirements? It is evident why the Founders and Framers chose it as the standard for any would-be President to meet. The historical record informs us what the Framers’ intention was in adopting the clause. The clause was added to the Constitution shortly after John Jay sent a letter dated July 25, 1787, to George Washington expressing concern about ‘‘Foreigners’’ attaining the position of Commander in Chief. 3 Max Farrand, The Records of the Federal Convention of 1787, at 61 (1911). So, when John Jay wrote to Washington, he was concerned with anyone with foreign influence becoming Commander in Chief of the Military. Hence, he meant to tell him that no foreigner or naturalized person be allowed to become Commander in Chief.
Jefferson also expressed his concern with foreign influence making its way into the government. The citizenship law that he wrote in 1783 gives us insight into why he wrote his citizenship law the way he did. In Chap. XVI of his 1783 law, he started:
“I. WHEREAS it is the policy of all infant states to encourage population, among other means, by an easy mode for the admission of foreigners to the rights of citizenship; yet wisdom and safety suggest the propriety of guarding against the introduction of secret enemies, and of keeping the offices of government in the hands of citizens intimately acquainted with the spirit of the constitution and the genius of the people, as well as permanently attached to the common interest….”
CHAP. XVI. An act for the admission of emigrants and declaring their right to citizenship.
The Founders and Framers also wanted to make sure that no hereditary monarch could ever gain control of the new constitutional republic and to keep their influence out of the all-powerful and singular office of the Chief Executive and Commander of the military. Their use of the “natural born Citizen” clause and the birth circumstances that it requires assured them that the President and Commander of our military could not be of royal parents (a U.S. citizen must renounce all titles of nobility) and had sole and undivided natural allegiance to the U.S. from the moment of birth by the child not inheriting any other foreign allegiance by jus soli (citizenship by right of the soil) or jus sanguinis (citizenship inherited from one’s parents). It is reasonable to conclude that the Founders and Framers therefore meant to exclude from the Office of President and Commander in Chief to the greatest degree possible anyone born with foreign influence. The historical record shows that they would have sought to exclude from being eligible to be President anyone with foreign influence inherited at birth not only from one’s place of birth but also from one’s parents.
The Founders and Framers sought to keep out foreign influence and monarchial government from the Office of President and Commander in Chief by requiring that anyone born after the adoption of the Constitution had to be a “natural born Citizen” in order to be eligible for those offices. Through that definition, they sought to prevent any foreign or monarchial influence from attaching to the child when born by requiring that he or she be born in the country to citizen parents. The following sources show that a “natural born Citizen” is a child born in the United States to citizen parents:
(1) Samuel von Pufendorf, in his The Whole Duty of Man According to the Laws of Nature (William Tooke trans., Ian Hunter & David Saunders, eds., Liberty Fund 2003) Book II, Chapter 6 (1691), stated: “Moreover, Citizens are either Originally so; that is, such as are born in the Place, and upon that Account claim their Privileges: Or else Adscititious; that is, such as come from Foreign Parts. Of the first Sort, are either those who at first were present and concerned in the forming the said Society, or their Descendants, whom we call Indigenae, or Natives.”). Here we see that Pufendorf explained that after the original citizens are born in a land in which they form a new society, only children of citizens are entitled to birthright citizenship.
The Founders and Framers studied Pufendorf. For example, Jefferson was particularly influenced by Pufendorf’s Of the Law of Nature and Nations which he cited in his 1770 argument to the Virginia court in Howell v. Netherland, 1 Va. (Jeff) 90, 90 (Va. Gen. Ct. 1770). In 1770, Jefferson represented Samuel Howell who sought freedom from his status as an indentured servant slave. Citing Pufendorf, b. 6. c. 3.s. 4. 9, he argued: “Under the law of nature, all men are born free, every one comes into the world with a right to his own person, which includes the liberty of moving and using it at his own will. This is what is called personal liberty, and is given him by the author of nature, because necessary for his own sustenance.” Argument in the case, Howell v. Netherland, 1 Va. (Jeff) 90, 90 (Va. Gen. Ct. 1770), reprinted in 1 Writings of Thomas Jefferson 373, 376 (Paul Leicester Ford ed., G.P. Putnam’s Sons 1892-1899. The Road to Monticello, at 84. He argued that the law of nature prevented the alienation of slavery continuously from one generation to another. See Aaron Schwabach, Jefferson and Slavery, 19 T. Jefferson L. Rev. 63, 65 (1997); Aaron Schwabach, Thomas Jefferson as an Unsuccessful Advocate for Freedom in Howell v. Netherland, 20 T. Jefferson L. Rev. 129 (1998). Jefferson relied upon the law of nature to define a person’s rights and liberty. The Virginia Supreme Court did not liberate the servant notwithstanding Jefferson’s natural law argument. But what this shows is that Jefferson looked to natural law to define a person’s status and not the English common law. As Hayes explains, “[i]ntensifying his study of natural law from the mid-1700s, Jefferson discovered how to solve the unjust laws the English imposed upon the American colonies. When something as venerable as the English rule of law could be undermined by capricious laws that abused its subjects, a more just and permanent system of laws remained, natural law, which transcended any laws a political state could devise. . . . The Road to Monticello, at 85.
(2) Emer de Vattel, in his The Law of Nations, Sec. 212 Citizens and natives (London 1797) (1st ed. Neuchatel 1758), explained:
“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.”
As we can see, Vattel in his title of Section 212 distinguished between “Citizens” and “natives,” just as the Founders and Framers did in Article II, Section 1, Clause 5, using the words “citizen of the United States” and “natural born Citizen.” Vattel also defined a “natural-born citizen” as a child born in the country to citizen parents. The Founders and Framers studied and were greatly influenced by Vattel. J.S. Reeves, The Influence of the Law of Nature Upon International Law in the United States, Am. J. Int’l L., Vol. 3 (1909) 547 et seq. (Vattel exerted such a profound political influence that it is often pointed out that his theories served as the backbone for American independence). The Founders and Framers believed that the first duty of any nation and its people is the duty of self preservation. They specifically sought the preservation of republican government. Apart from their reliance on the spiritual, they looked to law to accomplish that end. The historical record is replete with information showing that the Founders, Framers, and early political leaders looked to natural law and the law of nations for help in preserving the new nation and solving the many national problems with which they were faced during the early years of the republic. Indeed, while the States continued to apply the English common law to solve their local legal problems, the national political leaders did not look to the English common law for needed solutions on the national level. Rather, they looked to the law of nations which they also considered to be common law that was part of the supreme law of the land and therefore binding on the nation. And Vattel was their favorite when it came to looking to the most respected authority on the law of nations. R.G. Natelson, The Original Constitution 49 and 69 (2010) (“Vattel was probably the Founders’ favorite authority on international law . . . .” and his, treatise, The Law of Nations, was their favorite).
(3) Founder historian, David Ramsay, “was a doctor from South Carolina who wrote one of the earliest and best known nationalist histories of the American Revolution.” He was one of the writers of pamphlets on the Constitution between 1787 and 1788. The Online Library of Liberty. http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Fperson=3847&Itemid=28. In his A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789), explained 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. Ramsay would have been in a position to know how the Founders and Framers defined a “natural born Citizen.” For more information on Ramsay and the importance of his contribution to understanding what a “natural born Citizen” is, see my essay entitled, Founder and Historian David Ramsay Defines a Natural Born Citizen in 1789, available at http://puzo1.blogspot.com/2010/04/founder-and-historian-david-ramsay.html.
(4) The First Congress passed the Naturalization Act of 1790 (Act of March 26, 1790, 1 Stat. 103). This Act provided as follows:
"United States Congress, 'An act to establish an uniform Rule of Naturalization' (March 26, 1790).
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such Court that he is a person of good character, and taking the oath or affirmation prescribed by law to support the Constitution of the United States, which Oath or Affirmation such Court shall administer, and the Clerk of such Court shall record such Application, and the proceedings thereon; and thereupon such person shall be considered as a Citizen of the United States. And the children of such person so naturalized, dwelling within the United States, being under the age of twenty one years at the time of such naturalization, shall also be considered as citizens of the United States."
The membership of the First Congress contained 20 persons who had been delegates to the Constitutional Convention, 17 signers of the Constitution, eight of whom were members of the Committee of Eleven that drafted the "natural born Citizen" clause.
As we can see, a child born anywhere in the world to U.S. citizen parents was “considered as a natural born Citizen.” This was typical naturalization language in the 18th century. Timothy Cunningham, A New and Complete Law-Dictionary, or, General Abridgment of the Law (1783) (defined “naturalization”). Also, a child born anywhere, which necessarily included the U.S., to alien parents was an alien and became a “citizen” derivatively when his or her parents naturalized if done before reaching the age of majority or upon naturalization in his or her own right if done thereafter.
(5) The Third Congress then passed the Naturalization Act of 1795 (Act of January 29, 1795, c. 20, 1 Stat. 414). The 1795 Act repealed the 1790 Act. This Act repeated the same language as the 1790 Act concerning children born to alien parents. The big change that it made was that children born abroad to U.S. citizen parents “shall be considered as citizens of the United States.” Hence, we can see that in the 1795 Act, Congress did not declare these children to be considered as “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.” With respect to children born abroad to U.S. citizen parents, this act removed their status as “natural born citizens” and replaced it with “citizens of the United States.” This shows how important it was to our early Congresses to distinguish between a “natural born Citizen” and a “citizen.”
The membership of the Third Congress included Oliver Ellsworth (April 29, 1745 – November 26, 1807) an American lawyer and politician, a revolutionary against British rule, a drafter of the United States Constitution, an the third Chief Justice of the United States; Roger Sherman (April 19, 1721 – July 23, 1793) was an early American lawyer and politician. He served as the first mayor of New Haven, Connecticut, and served on the Committee of Five that drafted the Declaration of Independence, and was also a representative and senator in the new republic. He was the only person to sign all four great state papers of the U.S.: the Continental Association, the Declaration of Independence, the Articles of Confederation and the Constitution; Rufus King (March 24, 1755 – April 29, 1827) was an American lawyer, politician, and diplomat. He was a delegate for Massachusetts to the Continental Congress. He also attended the Constitutional Convention and was one of the signers of the United States Constitution on September 17, 1787; and other Founders and Framers.
President George Washington signed both of these Acts. As we can see from the text of the early Naturalization Acts, our early Congresses 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 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 the child would have to naturalize which would cause both his children and his wife to then become “citizens of the United States.” These Acts show that during the Founding, a child born in the U.S. to aliens was considered a “foreigner” who needed to naturalize either derivatively through his or her parents before becoming of majority age or on his or her own thereafter. After all, under the law of nations, the U.S. expected foreign nations to honor its proclaiming that those born abroad to U.S. citizen parents were U.S. citizens. So the U.S. would have done the same for these nations for the children born in the U.S. to their citizens. And let us remember that Jay recommended to Washington that a “foreigner” not be allowed to be Commander in Chief but rather only a “natural born citizen.”
The language of the 1790 and 1795 Acts was also followed by subsequent naturalization acts that preceded U.S. v. Wong Kim Ark (1898). The same requirement of having to be born to citizen parents was followed in the Act of April 14, 1802, 2 Stat. 153, and Act of Feb. 10, 1855, 10 Stat. 604 and in the acts of . Additionally, by an Act of March 26, 1804, the widow and children of an alien who had declared his intention to become naturalized, became citizens upon their taking the prescribed oaths provided by law. Again, Congress did not specify whether the child had to be born in or out of the United States for the law to apply. Hence, the law also applied to any child born in the U.S. to alien parents.
As we can see from a reading of the text of these early naturalization acts, they did not provide that any person by mere birth in the United States was a “citizen of the United States.” With respect to children born in the U.S., it was the citizenship of a child’s parents which determined whether the child was a citizen or not. Even if the child was born in the United States, if his or her parents were not U.S. citizens, the child was nevertheless not recognized to be born a citizen and had to naturalize derivatively or on his or her own. Under these acts, only if a child was born in the United States to U.S. citizen parents was he or she not required to naturalize under these acts. As to children born abroad, if they were born to U.S. citizen parents, they were naturalized at birth and needed no further naturalization. These Congressional Acts abrogated any English common law rule that may have prevailed in the colonies before the revolution and the Constitution was adopted. Courts such as the one that decided Lynch v. Clarke, 1 Sandford Ch. 583 (N.Y. 1844), therefore, had no reason to apply and were in error to apply the English common law to define national citizenship in the United States. It was not until the Civil Rights Act of 1866 and the Fourteenth Amendment that our nation got laws --as interpreted by U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), which in lieu of requiring U.S. citizen parents and relying upon English common law engaged in an expansive reading of the Civil Rights Act’s “not subject to a foreign power” clause and the Fourteenth Amendment’s “subject to the jurisdiction thereof” clause--that together granted the status of a Fourteenth Amendment “citizen of the United States” to children born in the U.S. to one or two domiciled alien parents. This new status granted by Wong Kim Ark is not to be confounded with an Article II “natural born Citizen” status which is part of our common law and incorporated into the supreme law of the land and which always required and still requires two U.S. citizen parents.
Early judicial support for this reading of our early naturalization laws may be found in the following case law from our U.S. Supreme Court.
(6) In The Venus, 12 U.S. (8 Cranch) 253, 289 (1814), a prize case, Chief Justice John Marshall, concurring and dissenting for other reasons, joined by Justice Livingston, cited Vattel and provided his definition of natural born citizens. The first thing he had to do which was standard in a prize case was to determine the citizenship status of the parties. He 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.’” So when quoting Vattel, Chief Justice Marshall referred to the original citizens of a society as “citizens.” When referring to their children, he called them the “natives or indigenes.” Of importance is the fact that the U.S. Supreme Court in subsequent decisions translated the word “indigenes” to “natural born citizens.”
Our United States Supreme Court decided The Venus in 1814, at the beginning of the republic. The Justices sitting on the Court were men who were intimately associated with the American Revolution. Nearly all these men either participated in the American Revolution, or their fathers did. Being witnesses and heirs of the Revolution, they would have gained first hand knowledge of what the Framers of the Constitution intended when they drafted the Constitution. All but one justice involved in The Venus decision knew the Framers and had direct access to them. One justice was a clerk at the Constitutional Convention in Philadelphia.
Why is The Venus case important to understanding what the Founders and Framers meant when they wrote the “natural born Citizen” clause? The insight that members of a Court have at a given time in history is important in our jurisprudence. As the Court stated in United State v. Morrison in reference to interpreting the Fourteenth Amendment, “[t]he force of the doctrine of “stare decisis” behind these decisions stems not only from the length of time they have been on the books, but also from the insight attributable to the Members of the Court at that time. Every Member had been appointed by President Lincoln, Grant, Hayes, Garfield, or Arthur–and each of their judicial appointees obviously had intimate knowledge and familiarity with the events surrounding the adoption of the Fourteenth Amendment.” United States v. Morrison, 529 U.S. 598, 622 (2000). One of the members of the court was Chief Justice John Marshall. Justice Marshall, as the other justices, would have been in a position to know how the Founders and Framers defined the first citizens and their descendents.
Obama’s defenders contend that The Venus is about domicile during war and not citizenship. On the contrary, such statements are nothing more that an attempt to mislead people that The Venus case had nothing to do with citizenship and only dealt with the issue of domicile in the context of a war. This is the same approach that Obama’s defender have taken when discussing the Inglis case (discussed below). The truth of the mater is that given the nature of a prize case, the first thing the court has to determine is the allegiance and citizenship of the parties and whether the parties ever acquired any rights allowing the person to act as though adopting a different allegiance and citizenship. Domicile is important in this analysis. But domicile comes into play in analyzing whether the person has acquired special commercial privileges which arises from being domiciled in a foreign country. Clearly, the analysis must first start with citizenship before we may consider whether the person ever acquired these special commercial privileges as a result of changing his or her domicile. Authorities have recognized how central to a prize case both allegiance and citizenship are and that any proper resolution of such a case must start there. “Under such a usage, in the numerous cases of prize and capture with which, up to the close of the last war, the Federal Courts were crowded, the rights of parties in suit, under the law of nations, depended on their citizenship, and that on their allegiance.” 3 The New Englander, Massachusetts and South Carolina 414 (1845). http://books.google.com/books?id=gGNJAAAAMAAJ&pg=PA414&dq=Vattel++"natural+born+citizen"&as_brr=4&cd=5#v=onepage&q=Vattel%20%20%22natural%20born%20citizen%22&f=false (emphasis in the original). So we can see that citizenship and allegiance have long been recognized as being central to a prize case. Despite this clear evidence, Obama’s defenders refuse to admit that The Venus, a case in which the Court had to first reach the question of what the citizenship status of the parties was and then decide whether those parties had done acts such as change their domicile which then would have given them commercial rights to act on behalf of another nation, is important as relating to defining a “citizen” and a “natural born Citizen” as conceived by the Founders and Framers for the new constitutional republic.
What Obama’s defenders also fail to recognize is that we are looking for historical references to help us find the meaning of "natural born Citizen." Clearly, Justice Marshall, who was an influential Founder, quoting from Vattel when the Chief Justice defined "the natives or indigenes" which is the exact language used by Samuel von Pufendorf in his, The Whole Duty of Man According to the Laws of Nature. Chief Justice Marshall was also quoting from Vattel’s, The Law of Nations, Or, Principles of the Law of Nature, Sections 211-212 (1758 French edition, 1759 first English translation). Both of these natural law writers defined who the original citizens and their descendents were. Justice Marshall would have been in a position to know how the Founders and Framers defined the first citizens and their descendents and the fact that he relied on natural law and the law of nations as presented by Pufendorf and Vattel is critically important to the question of how the Framers defined a “citizen” and a “natural born Citizen” in the new nation.
The fact that Chief Justice Marshall relied on natural law and the law of nations as presented by Pufendorf and Vattel is critically important to the question of how the Framers defined a “citizen” and a “natural born Citizen.” It is also critically important to see that in defining who was a national citizen of the United States, a controlling issue in a prize case, he did not refer in any way to the English common law or to any type of formulation of that law as explicated by Blackstone. If the new nation was still using the English common law to define our national character, Chief Justice Marshall would have used that law when analyzing the citizenship status of the parties rather than natural law and the law of nation. We can see from his decision that he did not but rather used natural law and the law of nations as the basis for defining the new national citizenship in the United States.
(7) Alexander McLeod (1774-1833), who was born in Scotland in 1774 and came to America in 1792, in A Scriptural View of the Character, Causes, and Ends of the Present War (2nd ed. 1815), a sermon he gave to the Christian community, http://books.google.com/books?id=kLUTAAAAYAAJ&pg=PA170&dq=%22doctrine+of+allegiance+%22+inauthor:McLeod&hl=en&ei=IXH_TcfHH4rk0QHpt5zKAw&sa=X&oi=book_result&ct=result&resnum=1&ved=0CCoQ6AEwAA#v=onepage&q=%22doctrine%20of%20allegiance%20%22%20inauthor%3AMcLeod&f=false, denounced the English monarchy as cruel, unjust, and ungodly. Writing concerning the War of 1812, he explained that the United States had every right to go to war with Britain because of its violation of Americans' right to life, liberty, and property. Among other things, he denounced England’s attachment to perpetual allegiance and how England used the concept to enslave American citizens to whom it laid claim and its own subjects. He argued that a person, being born equal and free, has a natural right to expatriation from his or her native country. He explained that allegiance and protection are the essence of any society. He said that members of society give their allegiance to a society in return for that society’s protection. He explained that being born on a piece of land does not create allegiance to a society. He said that it is being born to parents who are members of that society that creates the true bond that morally connect the child to that society and best provides for the preservation of that society. McLeod stated:
“3. Allegiance and protection are reciprocal; and 'protection is the foundation upon which the claim of allegiance rests. When the foundation is removed, the edifice falls of course.
I readily admit, that there is something in the idea of native country, which is intimately connected with the doctrine of allegiance. It is not, however the spot of earth, upon which the child is born, that connects him with the national society; but the relation of the child's parents to that society.
In the ordinary concerns of life there is no need of such minute distinctions; and there is too little discrimination, exercised by the greater part of men, to be able to understand it. Even statesmen art not always wise; and designing men find it their interest to keep up a confusion of ideas upon important subjects. In the present discussion, nevertheless, it is necessary, that I distinctly state the true bond, which connects the child with the body politic. It is not the inanimate matter of a piece land, but the moral relations of his parentage. Let a child be born within the walls of a church, that does not make him a church member; but if the parent or parents be in connexion with the church, so is the offspring. Visible society, as it is provided for in the constitution of human nature, naturally seeks to perpetuate its own existence, by conferring upon children the membership of their parent. Each citizen too is supposed to reserve for his off spring the benefits of society. The Governor of the universe approves of this provision. Thus it is, that the country of the father is that of the child, and not because he happened to be born in its territory. Residence produces an attachment. Education cherishes affection for the scenes of early life; but only moral relations lay the foundation for moral obligation. It is the enjoyment of the privileges of society, that lays the foundation for obedience to its authority. It follows from this, that protection being the end of civil government, the sovereign has no other claim upon the allegiance of the subject, than what arises from the protection which he affords. As is the protection which I ask and receive, so is the fealty which I owe. If I ask none, I am under no allegiance: If I receive none, I have nothing to return. It is the very essence of despotism to claim authority over me without an equivalent.* . . . .
* " By the law of nature alone, children follow the condition of their fathers, and enter into all their rights. The place of birth produces no change in this particular—for it is not naturally the place of birth that gives rights, but extraction. Children born at sea—out of the country—in the armies of the state-in the house of its ministers at a foreign court, are reputed native citizens. Every man, born free, may examine whether it be convenient for him to join in the society for which he was destined by his birth. If he finds that it will be of no advantage to him to remain in it, he is at liberty to leave it."
Vattel, Sec. 216—220.” Id. at 170-71.
Here we see how McLeod relied upon natural law and the law of nations to describe who Vattel called a “natural born Citizen.” What is telling is that he cited and quoted Vattel. We also witness McCleod arguing as Vattel did in The Law of Nations that society has a duty to preserve itself and that it does so “by conferring upon children the membership of their parent.” Hence, McLeod like Vattel said that a “natural born Citizen” is a child born to citizen parents. McLeod also cited and quoted from Vattel and holy scripture to support his argument that man has a natural right to expatriate. Id. at 171-80. McLeod, being a Presbyterian pastor, was a man of religion. http://www.covenanter.org/McLeod/alexandermcleod.htm. He also said that God provided the definition that he gave of such a citizen. This statement is important given that the Founders and Framers had very strong religious convictions. In fact, the Founders and Framers saw natural law and the law of nations as having a divine source. It cannot be doubted that someone like McCleod gives us true insight into how the Founders and Framers defined a “natural born Citizen.”
(8) 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);
(9) In 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. . . .’” While the Fourteenth Amendment overruled this case’s ruling that blacks were not “citizens of the United States,” Justice Daniels’ definition of a “natural born Citizen” was never changed but rather confirmed by subsequent U.S. Supreme Court cases.
(10) Slaughter-House Cases (1872) (the Fourteenth Amendment’s “‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States”);
(11) In Minor v. Happersett, 88 U.S. (21 Wall.) 162, 167-68 (1875), the U.S. Supreme Court provided Vattel’s definition of a “natural born Citizen” without citing him by name. The Court did not refer to the English common law when defining that clause but rather to Vattel’s law of nations definition. The Court 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).
The Minor Court had to first determine whether Mrs. Minor was a citizen in order to decide whether she had any constitutional right to vote. The Court concluded that she was a “natural born Citizen” under the natural law, law of nations/common law definition that it gave of that term. Hence, the Court’s resolving the issue of whether she was a citizen and that she was a “natural born Citizen” was central to the Court’s overall decision. As I have stated on this blog in previous articles and comments, the Court’s definition of a “natural born Citizen” is therefore binding precedent.
Why did the Court have to first decide whether Mrs. Minor was a citizen? Mrs. Minor argued that since she was a citizen of the United States, she enjoyed the privileges and immunities of a citizen under Article IV, Section 2. She added that the right of suffrage was a privilege that belonged to the citizens. Finally, she argued that under the Fourteenth Amendment, the State of Missouri was precluded from abridging her right to vote. Hence, the Court was required to determine if Mrs. Minor was a citizen in order to address her argument that the Missouri statute and constitution that denied her the right to vote were unconstitutional. Because the Court had to decide the question of Mrs. Minor's citizenship, its ruling as to what a "natural born Citizen" is and that she was a "natural born Citizen" is not dicta but rather precedential. The Court disagreed with Mrs. Minor and ruled that voting was not a privilege or immunity granted to citizens. It said that being a citizen did not guarantee one the right to vote. Hence, it ruled that the Missouri laws which denied her the right to vote were constitutional.
Minor left open the question of whether a child born in the U.S. to alien parents was even a “citizen”, let alone a “natural born Citizen.” As we have seen above, under the then-prevailing Congressional naturalization acts, a child born anywhere, which necessarily included the U.S., to alien parents was an alien and became a “citizen” derivatively when his or her parents naturalized if done before reaching the age of majority or upon naturalization in his or her own right if done thereafter.
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 in national citizenship matters had its basis 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, or 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.” For a further discussion on Minor v. Happersett, see my January 2, 2009 essay entitled, OBAMA CANNOT BE A “NATURAL BORN CITIZEN” UNDER MINOR V. HAPPERSETT, 88 U.S. 162 (1875) found at http://drorly.blogspot.com/2009/01/obama-cannot-be-natural-born-citizen.html.
(12) Writing for the U.S. Supreme Court in Elk v. Wilkins (1884), Justice Gray explained that a born citizen under the Fourteenth Amendment owes "no allegiance to any alien power" at the time of birth on U.S. soil and that a born citizen must be born within the full and complete jurisdiction of the United States. In Elk, Justice Gray ruled that a native Indian, even though born on the territory of the United States but on an Indian reservation, was not a citizen of the United States under the Fourteenth Amendment, even if he later severed his ties with his tribe and “fully and completely surrendered himself to the jurisdiction of the United States.” Id. 99.
Regarding the Fourteenth Amendment, Justice Gray stated:
"The main object of the opening sentence of the fourteenth amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes, (Scott v. Sandford, 19 How. 393;) and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside. Slaughter-House Cases, 16 Wall. 36, 73; Strauder v. West Virginia, 100 U.S. 303, 306."
"This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof.' The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts; or collectively, as by the force of a treaty by which foreign territory is acquired. Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indiana 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." Id. at 101-02.
Justice Gray in his decision stated that (1) the children of subjects of any foreign government born within the domain of that government, or (2) the children born within the United States, of ambassadors or other public ministers of foreign nations” were not born subject to the jurisdiction of the United States. We can see that the exception is not only for children of ambassadors but also for children of aliens. Hence, Justice Gray was not relying on the English common law rule which did not contain the exception to “natural born subject” status for children born to aliens.
In interpreting the “subject to the jurisdiction thereof,” Justice Gray also looked to the Civil Rights Act of 1866 which declared citizens of the United States “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.” 14 Stat. 27; Rev. Stat. Sec. 1992.
Justice Gray then explained that no one can become a citizen of a nation without its consent. He said that it is the requirement that a nation consent to have someone be its citizen which prevents creating dual allegiance and citizenship. Id. at 103. He added that a nation’s consent to a person being its citizen relates to granting that person citizenship from birth or citizenship by naturalization. Id. at 104-09. If a person was not born “subject to the jurisdiction” of the United States, he or she could not be a born citizen and would have to naturalize if he or she wanted to be such a citizen.
Justice Gray stated: “The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” Hence, “subject to the jurisdiction” meant that the new born owed absolute allegiance only to the United States and to no other nation and that the United States had full and complete power over the child at the time of birth. The Court held Elk was not “subject to the jurisdiction” of the United States at birth. Elk was not born subject to the jurisdiction of the United States because he “owed immediate allegiance to” his tribe, a vassal or quasi-nation, and not to the United States.
Hence, as we can see, some temporary or local allegiance of the alien mother or father would cause the child not to acquire complete and absolute allegiance to the United States at birth. Since Elk was born subject to a foreign power at the time of his birth and thereby could not be declared a citizen by birth, he had to naturalize in order to become a citizen. This ruling was rendered moot when native Americans were granted citizenship in the Indian Citizenship Act of 1924. By logic and policy, there is no sound basis why the Elk holding did not equally apply to disqualify a child from being granted birthright citizenship if born in the United States of one or both alien parents given that that parent’s foreign country’s potential claim to citizenship and allegiance over the child would render that child born subject to a foreign power. But as we shall see, Justice Gray changed his definition of what being “subject to the jurisdiction” of the United States meant when he wrote the Court’s decision in United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898). Justice Harlan dissenting, with Justice Woods joining, would have found Elk to be a “citizen,” because he was “born in our territory, owing no allegiance to any foreign power, and subject, as residents of the States, to all the burdens of government.” Id. 122-23. It was that Elk did not owe any allegiance to any foreign power which qualified him to be a “citizen.”
(13) In United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898), the U.S. Supreme Court per Justice Gray explained that a “citizen of the United States” under the Fourteenth Amendment is a child born or naturalized in the United States and “subject to the jurisdiction thereof” but an Article II “natural born Citizen” is a child born in the United States to citizen parents, citing and quoting Minor v. Happersett for that definition. Wong Kim Ark modified Elk v. Wilkins by showing that there is a distinction between a born “citizen” of the United States under the Fourteenth Amendment and a “natural born Citizen” of the United States under Article II and said: “The foregoing considerations and authorities irresistibly lead us to these conclusions: The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens…Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate…and his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen…’” which means that a child born in the U.S. to domiciled alien parents is as much a “citizen” as the “natural born” child born in the U.S. to U.S. citizen parents but the former is a “citizen” of the United States while the latter is a “natural born Citizen” of the United States.
The question that Minor did not answer was answered by Wong Kim Ark, wherein 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 Fourteenth Amendment. This argument was totally consistent with the then-existing Congressional naturalization acts. Ruling against the government, Wong Kim Ark declared a child born in the country to domiciled alien parents to be a “citizen of the United States” under the Fourteenth 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 Fourteenth Amendment. Wong Kim Ark also allowed Wong to be a Fourteenth 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 decided only the “citizen” part of Wong’s status. It never decided whether he also had the “natural born” part. 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 Fourteenth 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 was so.
So Wong cited and quoted Minor and its definition that a “natural-born citizen” is a child born in the country to citizen parents. Wong then decided that a child born in the country to alien parents who were domiciled in the U.S. was “subject to the jurisdiction” of the United States and therefore a "citizen" under the 14th Amendment. It is critical that the Court did not say that Wong was completely subject to the jurisdiction of the United States but only that he was subject to that jurisdiction. Note the Court did not rule that he was an Article II "natural born Citizen" which the Court told us was defined by Minor. Rather, the Court told us that he was a "citizen" under the 14th Amendment.
(14) Perkins v. Elg, 307 U.S. 325 (1939) (confirmed that a child born in the United States to a naturalized U.S. citizen father and naturalized citizen mother, the mother being derivatively naturalized by marrying a U.S. citizen, was a “natural born Citizen.”
So, while a “citizen of the United States” is any citizen so made by positive law such as the Fourteenth Amendment, Act of Congress, or treaty, a "natural born Citizen" is by nature a child born in the country to citizen parents. Vattel, Sections 212-217. Such a citizen, being fully and completely in the allegiance of the United States and fully and completely subject to the jurisdiction thereof, does not need any positive law such as the Fourteenth Amendment, statute, or treaty to remove any natural foreign alienage to make him or her a U.S. citizen.
Assuming that he was born in Hawaii and also assuming that his parents are who he says they are, Obama does not meet the definition of an Article II "natural born Citizen." At his birth, his mother was a United States citizen. According to Obama and his recently released alleged long-form Certificate of Live Birth, along with the immigration file of Barack Hussein Obama (“Obama Sr.”), Obama Sr. is Obama’s natural father. Obama has conceded and Obama Sr.’s immigration file confirms that Obama Sr. was a British national. 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 under that same law and by descent 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.
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 “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," 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. 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 the Founders and Framers decided was 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.
Consequently, Obama is not a "natural born Citizen," of the United States given that, being born to a father who was a British citizen and not a U.S. citizen, he was not born within the full and complete allegiance and jurisdiction of the United States. If Obama was born in Hawaii, he would be a born “citizen” of the United States under the Fourteenth Amendment, but he is not able to show that he is an Article II “natural born Citizen” of the United States.
Third, even if Obama is a "natural born Citizen," having that status does not prove that he is not using a false Social Security number. Snopes should look into how many "natural born Citizens" use false Social Security numbers every day for one reason or another.
We have seen how Snopes has got it wrong with Obama's Social Security number. But Snopes' gravest error is in declaring Obama to be a "natural born Citizen." We have seen that at best, he could be a Fourteenth Amendment "citizen of the United States." But he is not and cannot be an Article II "natural born Citizen."
Mario Apuzzo, Esq.
June 22, 2011
Updated June 26, 2011
Copyright © 2011
Mario Apuzzo, Esq.
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