Monday, January 9, 2012

How Obama’s Enablers Mislead the Public on the Meaning of an Article II “Natural Born” Citizen


  How Obama’s Enablers Mislead the Public on the Meaning of an Article II “Natural Born” Citizen

                                                   By: Mario Apuzzo, Esq.
                                                       October 10, 2011
                                                   Reposted January 9, 2012


    You have got to love Obama’s enablers. They have a web site called, “A Place to Get the REALLY Right Answers About Natural Born Citizenship,” accessed at http://birtherthinktank.wordpress.com/a-place-to-get-the-really-right-answers-about-natural-born-citizenship/. Clearly, the title of this web site refers this web site, “Natural Born Citizen - A Place to Ask Questions and Get the Right Answers,” accessed at http://puzo1.blogspot.com/, which I created in December 2008.

Before I start, I must advise you of two things: first, you will rarely find an Obama enabler who will ever admit that he or she is a lawyer (most of those who admit it have been outed by citizen researchers). The reason for that is that operating under the blanket of anonymity, they get free reign to say whatever they want without any legal or ethical accountability. And they have said some pretty bad things in the past until many of them were outed and so now they are “perfect gentlemen.” Hence, the first thing the owner of this blog tells us is that he or she is not a lawyer. Now it may be true that the owner of that blog is not a lawyer. But what about all the other enablers who feed at that blog under the cover of anonymity? So, we do need to ask ourselves whether these so-called “owners” are just straw owners who take on such tasks to provide cover for Obama’s enabler lawyers who operate in the background under the cloaking device of anonymity.

Second, before I started explaining that there is a difference between an Article II “natural born” Citizen and a Fourteenth Amendment or Statutory “born” Citizen, we hardly saw the clause “natural born” Citizen in the Obama enablers’ arguments. At that time, they were simply content with telling us that Obama was a “Citizen” of the United States or a “native-born citizen,” whether under U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), the Fourteenth Amendment, or any Congressional Act. Now, no matter what case or statute they are speaking about, for these enablers its all “natural born” Citizen. The only citizens they have spared from this label are citizens who are naturalized after birth. I guess they figured that the clause would lose whatever little meaning they have given to it if they pushed it that far.

Let us now examine what Obama’s enablers are peddling on this blog. They must and do attack the Minor v. Happersett, 88 U.S. 162 (1875) decision on two fronts. First, they argue that the definition of a “natural-born citizen” given by the Court is dicta and therefore not binding precedent. But they are wrong. In Minor, the U.S. Supreme Court had to decide whether Virginia Minor, a woman, was a “citizen” in order to determine whether as a “citizen” she enjoyed a constitutional right to vote under the privileges and immunities clause of Article IV. So the Court reasoned that once she was shown to be a “citizen,” it did not matter that she was a woman, unless Missouri could still disqualify a woman from voting because being a “citizen” did not guarantee any person the right to vote. It does not matter whether the Court chose to say that Minor was a “natural born Citizen” or just a “citizen.” Either way, Virginia Minor would advance to the next step in the analysis which was whether as a “citizen” she had the right to vote which Missouri could not abrogate. The Court chose the “natural-born citizen” path. It thoroughly analyzed and considered what a “natural-born citizen” was and after saying that it is a child born in the country to citizen parents, found that Virginia Minor was a “natural-born citizen” and therefore also a “citizen.” After the Court told us what a “natural-born citizen” was, it then made the comment about there being doubts as to whether a child born in the country to alien parents was even a “citizen.” The Court said that it was not necessary for it to decide that question and it did not because Virginia Minor was a “natural-born citizen” which necessarily also made her a “citizen.” So the focus of the Court’s decision regarding citizenship was in defining who the “original citizens” and the “natural-born citizens” were. The Court did not and did not have to answer the question about who was a “citizen” under the Fourteenth Amendment which in the question that it raised involved deciding whether a child born in the jurisdiction of the United States but to alien parents was born “subject to the jurisdiction thereof.” We know that this latter question concerning who was a “citizen” under these circumstances was answered by U.S. v. Wong Kim Ark in 1898 which also confirmed Minor’s definition of a “natural-born citizen” and analyzed whether such a child was born “subject to the jurisdiction” of the United States under the Fourteenth Amendment.

So as we can see, Minor’s analysis and discussion about citizenship was central to the Court’s answering the question of whether Virginia Minor was a “citizen” which it answered by telling us that she was a “natural-born citizen” which automatically made her a “citizen” also. Hence, Minor’s discussion and decision on what a “natural-born citizen” is was central to the Court’s holding regarding citizenship (as I explained the other holding concerned whether voting was a privilege and immunity originally guaranteed by the constitution’s privileges and immunities clause) and not dicta.

Virginia Minor was not a naturalized citizen. Hence, the Court thoroughly discussed the definition of a “natural-born citizen” which it was compelled to do to decide whether Virginia Minor was a “citizen” and as such entitled to privileges and immunities under the Constitution one of which Mrs. Minor contended was the right to vote. The Court’s definition of a “natural-born citizen” was therefore essential to its holding that voting was not a privilege and immunity originally guaranteed by the Constitution and that Mrs. Minor, a woman, even though she was a “natural-born citizen,” did not have a constitutional right to vote. Minor’s definition of a “natural-born citizen” is therefore binding precedent which to this day has not been changed.

Second, Obama’s enablers attack the precedential definition of a “natural-born citizen” provided by Minor. To support their position, Obama’s enablers manipulate both the use of the word “born” and the meaning of the word “naturalized.” Regarding the word “born,” their definition of a “natural born” Citizen which is a child born in the United States and “subject to the jurisdiction thereof” does not include all the elements which should be included. When it comes to Obama, the element which they leave out is birth to citizen parents. They arrive at their truncated definition of a “natural born Citizen” by arguing that Minor v. Happersett did say that a child born in the United States of citizen parents was a “natural born citizen.” But they insist that there exists an ambiguity in the Court’s definition of a “natural-born citizen” because the Court did not say that a person not born in the United States of citizen parents was necessarily not a “natural born Citizen.” They add that the condition of being born in the United States of citizen parents was a sufficient condition, but not a necessary one. They add that the condition is not a definition even if Minor constitutes a precedent. They then conclude that persons born in the United States of citizen parents are “natural born citizens,” but that neither birth in the United States nor birth to citizen parents is required. They conclude that as long as one is a citizen at birth under the Fourteenth Amendment or any Act of Congress, even if born in the United States to one or two alien parents or born outside the United States to one or two citizen parents, one is a “natural born citizen. The fallacy of this argument lies in denying the well-established definition of a “natural born Citizen” and arguing that it is not a definition and then putting forth their own definition which is broader than the correct definition so that they can meet the broader definition (not requiring birth to citizen parents in the case of Obama).

The question is whether Minor’s definition of a “natural-born citizen” is ambiguous. The enablers’ argument that it is ambiguous and that it permits for other birth circumstances which do not exist in that definition is meritless. A definition is not ambiguous merely because it does not expressly rule out every possible other factual scenario which someone claims also fits under that definition. De Leon-Ochoa v. Att’y Gen., 622 F.3d at 353 (reviewing 8 U.S.C. § 1254a). The enablers do not tell us that not one U.S. Supreme Court case or Congressional Act in the history of our nation defines a “natural born Citizen” the way they do (i.e., as being any child born a citizen regardless of place of birth or citizenship of the parents) and that on the contrary, these sources (expect for the Naturalization Act of 1790 which is not relevant to Obama, did not support their position, and which was repealed in 1795) have always defined a “natural born Citizen” as being a child born in the United States to U.S. citizen parents. Hence, there is no ambiguity in this time-honored definition. On the contrary, the Minor U.S. Supreme Court has plainly spoken with affirmative language which comprises a definition on who is an Article II “natural born” Citizen. It has clearly set out by definition who is a “natural born” Citizen. Hence, anyone who does not meet that definition is necessarily excluded from that class of citizen.

Another approach that Obama’s enablers take to attacking Minor’s definition of a “natural born” Citizen is to say that we commit the logical fallacy of denying the antecedent. This fallacy is described as:

If A, then X.
Not A.
Therefore, not X.
This reasoning is fallacious, unless A is a necessary condition which in such case, the logic would not be fallacious. In other words, if A is merely sufficient for X to exist, the fact that A does not exists does not necessarily rule out that X can come into existence by some other factors, e.g. B or C. So if A is a bi-conditional which is expressed as “if and only if,” the logical expression presented would not be fallacious. For example, if Joe has a lot of land, then Joe is rich. Joe does not have a lot of land. Therefore, Joe is not rich. This is fallacious logic, for Joe could be rich by having a lot of gold. But if we said if Joe is breathing, then he is alive. Joe is not breathing. Then he is not alive. We do not question the correct logic of this statement. And it is correct because breathing is not only sufficient but also necessary. So what we are really saying is: “If and only if” Joe is breathing, then he is alive.

Obama enablers argue that we deny the antecedent when we say that under Minor, since Obama was not born to two U.S.-citizen parents, he cannot be a “natural born” Citizen. They add that two U.S.-parent citizenship is only a sufficient condition, and not a necessary one. But the logical error that they make in putting forth this argument is in denying that Minor gave us a binding definition of the clause “natural-born citizen” which affirmatively declared what such a citizen is. Hence, being a definition, the elements expressed are necessary conditions and not sufficient ones. Would these same Obama enablers say while reasoning under the Fourteenth Amendment that “subject to the jurisdiction thereof” is only a sufficient condition and that it is wrong to conclude that if someone is born in the United States but not “subject to the jurisdiction thereof,’ that that person could still be a “citizen of the United States” under that amendment? No, they would not make such an argument because they know that the Fourteenth Amendment provides an affirmative and declaratory definition of citizenship each element of which is a necessary condition to earning the right to have that national character. There is no difference with Minor’s affirmative definition of a “natural born” Citizen, but they deny that Minor put forth a definition, but accept that the Fourteenth Amendment does. There simply is no consistency or logic in how these enablers treat Minor in one fashion but then treat the Fourteenth Amendment in another.

Obama’s enablers then move on to Wong Kim Ark and say that it declared Wong a “natural born” Citizen and that since Obama meets the requirements of that case, he too is a “natural born” Citizen. But straightforward reading of the Wong Kim Ark case shows that it did not do any such thing. Here is the question presented as stated by Wong Kim Ark:

“The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a ‘citizen of the United States’ by virtue of the first clause of the Fourteenth Amendment of the Constitution” (emphasis supplied).

And here is the specific holding of the case:

“The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a ‘citizen of the United States.’ For the reasons above stated, this court is of opinion that the question must be answered in the affirmative” (emphasis supplied). Id. at 705.

We do not see anywhere in the question presented or the holding any reference to “natural born” Citizen. The Court could not have been clearer by telling us twice that it was only deciding whether Wong was a “citizen of the United States.” We clearly see that the case only concerned itself with whether Wong was a “citizen of the United States” under the Fourteenth Amendment (more on the Fourteenth Amendment below). After all, Wong only needed to be a Fourteenth Amendment “citizen of the United States” to avoid being excluded from the United States under the Chinese Exclusion Acts which prohibited persons of the Chinese race, and especially Chinese laborers, from coming into the United States. He did not need to be an Article II “natural born” Citizen which under our Constitution and Congressional Acts is relevant only to the question of whether one is eligible to be President or Vice-President.

The lack of any reference to “natural born” Citizen in Wong Kim Ark’s question presented and holding is critical given that in the opinion itself, the Court said that “[the child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.” Hence, the Court held that Wong, a person born of aliens in the United States, was a “citizen,” since he was “as much a citizen as the natural-born child of a citizen." Indeed, the Court acknowledged that one type of national character is a “citizen,” who is born in the country to “an alien,” and the other type is a “natural born citizen,” who is born in the country to “a citizen.” Under the then-prevailing notion of merger of the wife’s citizenship into that of the husband, “an alien” and “a citizen” actually meant “aliens” and “citizens,” for no other interpretation would make sense. Without such a reading, the two birth circumstances would always give the same result, for if one is born to “an alien,” parent (just one parent), then one would also be born to “a citizen” parent (the other parent). Hence, what the Court said is that a child born in the United States to an alien can be a “citizen,” but by definition not a “natural born” Citizen because a “natural born” Citizen is born to citizen parents, not to alien parents. The Court knew that Wong could not be a “natural born” Citizen because he did not have citizen parents. So, the Court analyzed, relying upon English common law, whether Wong was a “citizen of the United States” under the Fourteenth Amendment. By so doing, the Court did what Minor v. Happersett, 88 U.S. 162 (1875) said was not necessary for it to do, i.e., decide whether being born in the jurisdiction of the United States but to alien parents satisfied the “subject to the jurisdiction thereof” clause of the Fourteenth Amendment.

Again, the Court said “[t]he child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.” It did not say that that child born to aliens is as much a “natural-born citizen” as the natural-born child of a citizen. It said he or she was as much a “citizen.” Here, we see further proof that the Court distinguished between a “natural born” Citizen and a “citizen,” and that it found Wong to be a “citizen,” and not a “natural born” Citizen. So, the Court’s erroneous use of the old English common law applied only to how the Court defined a “Citizen” of the United States, not to how it defined an Article II “natural born” Citizen, the definition for which it cited and quoted Minor. In short, Wong Kim Ark distinguished between a “natural born” Citizen and a “Citizen” by way of definition and also in its question presented and holding.

It is also important to note that Wong Kim Ark did not revisit Minor’s American “common-law” definition of a “natural-born citizen,” which it said was a child born in the country to citizen parents. Clearly, the Court knew that Wong was not born to citizen parents. Hence, if it was going to declare Wong a “natural born” Citizen, it would have had to address Minor’s precedential definition. Such analysis would have necessarily included the Court examining the text of the “natural born” Citizen clause and commenting on the Founders’ and Framers’ intent for including the clause and all the historical evidence which in any way sheds light on the meaning of the clause. We can readily see from the Court’s decision that it did not engage in any such analysis. Since it was only concerned with determining whether Wong was a “citizen of the United States” under the Fourteenth Amendment, which is a different class of citizen than an Article II “natural born” Citizen, it was not necessary for the Court to re-examine Minor’s definition of a “natural-born citizen” or to analyze what the original meaning of the clause was. Hence, we do not find in Wong Kim Ark any such discussion on the “natural born” Citizen clause.

Further evidence that Wong Kim Ark did not declare Wong an Article II “natural born” Citizen may be found in the case of Ankeny v. Governor of the State of Indiana, 916 N.E.2d 678 (Ind.Ct.App. 2009), transfer denied, 929 N.E.2d 789 (2010) (which I will discuss below). The Indiana court acknowledged that Wong Kim Ark did not declare Wong an Article II “natural born” Citizen. But then it attempts to explain that such shortfall is “irrelevant.” Needless to say, its explanation makes very little sense in the context of trying to determine what an Article II “natural born” Citizen is. Here is what the court said in Footnote 14:

“We note the fact that the Court in Wong Kim Ark did not actually pronounce the plaintiff a “natural born Citizen” using the Constitution’s Article II language is immaterial. For all but forty-four people in our nation’s history (the forty-four Presidents), the dichotomy between who is a natural born citizen and who is a naturalized citizen under the Fourteenth Amendment is irrelevant. The issue addressed in Wong Kim Ark was whether Mr. Wong Kim Ark was a citizen of the United States on the basis that he was born in the United States. Wong Kim Ark, 169 U.S. at 705, 18 S. Ct. at 478.”

In its attempt to explain away why Wong Kim Ark did not specifically hold that Wong was a “natural born” Citizen, Ankeny just said that there is no practical difference between a “natural born” Citizen and a naturalized citizen other than that only the former is eligible to be President. But what does that have to do with what Wong Kim Ark held? This explanation is simply not material to the question of what Wong Kim Ark actually held which Ankeny itself concedes--it “did not actually pronounce the plaintiff a ‘natural born Citizen.’” But to Ankeny, Wong Kim Ark’s choice of language is not important notwithstanding that the Founders and Framers when writing the Constitution chose their words carefully and with specific purpose of meaning and Article I and Article II, Section 1, Clause 5 treat a “natural born” Citizen and a “Citizen” of the United States as very distinct and separate classes of citizens when it comes to congressional and presidential office. So Ankeny wants it both ways. It tells us that Wong Kim Ark did not say that Wong was an Article II “natural born” Citizen but then it tells us that based on Wong Kim Ark any person who is born in the United States and “subject to the jurisdiction thereof” is a “natural born” Citizen. It thus becomes quite clear that Ankeny’s attempt to convert Wong Kim Ark’s holding into one involving a “natural born” Citizen when it really only involved a Fourteenth Amendment “citizen of the United States” must fail.

Desperate as Obama’s enablers are, they then further enlist the assistance of Ankeny in their attempt to show us that Wong Kim Ark declared Wong a “natural born Citizen.” I have already shown that Ankeny itself conceded that Wong Kim Ark “did not actually pronounce the plaintiff an Article II ‘natural born Citizen.’” Apart from what Ankeny said about Wong Kim Ark’s holding, a simple reading of Ankeny shows that, while the court may have been correct in finding that the Governor of Indiana had no legal duty to investigate whether Obama was a “natural born” Citizen, it erred when it went beyond those simple independent state grounds which were sufficient to dispose of the case and reached a constitutional issue when it declared what the definition of an Article II “natural born” Citizen is. It said that Minor left open the question of what a “natural born” Citizen was when in fact it left open the question of whether a child born in the United States to alien parents was a “Citizen” of the United States. Ankeny also said that Wong Kim Ark answered the question left open by Minor and declared Wong to be a “natural born” Citizen. While Wong Kim Ark did answer the question left open by Minor, i.e., whether Wong, who was born in the United States to domiciled alien parents, was a “Citizen” of the United States under the Fourteenth Amendment, it did not declare Wong to be an Article II “natural born” Citizen. I have shown above how the question presented in Wong Kim Ark was whether Wong was a “citizen of the United States,” not whether he was a “natural born” Citizen, and that its holding was limited to Wong being a “citizen of the United States,” not a “natural born” Citizen. Additionally, Ankeny is only a state law case and surely does not overrule Minor which confirmed the American “common-law” definition of a “natural-born” Citizen” to be a child born in the country to citizen parents.

Again with further assistance from the state-law case of Ankeny, Obama’s enablers then look to the Fourteenth Amendment for help. They add that Ankeny also relied upon the Fourteenth Amendment to show that any person born in the United States and “subject to the jurisdiction thereof,” regardless of the citizenship of his or her parents, is a “natural born” Citizen. But they do not explain how they go from the amendment’s text referring to a “citizen of the United States” to it saying according to them a “natural born” Citizen. They do not tell us that nowhere in the amendment will we find the words “natural born” Citizen and that nothing in its history or in its debates suggests that its framers included in the amendment “natural born” Citizen status or that they intended by the amendment to create or amend the meaning of an Article II “natural born” Citizen. On the contrary, the amendment was passed during Reconstruction to bestow initial membership in the United States upon freed slaves. This initial membership since the Founding, even confirmed in the grandfather clause of Article II, Section 1, Clause 5, has always been simply called “Citizen” of the United States. Hence, if the amendment were to be used by any other person to gain citizenship in the United States, he or she could only gain that same initial membership which we call “Citizen” of the United States. As proof of this purpose, the amendment only includes the words, “citizens” of the United States. Remember that Article II, Section 1, Clause 5 also speaks of “natural born” Citizens and “Citizens” of the United States. Because the republic was new, the Framers grandfathered the initial members to be eligible to be President. This class included the Founders and Framers themselves who were born British “natural born subjects” and who were naturalized to be “Citizens” of the United States by the power of the Declaration of Independence and by adhering to the American Revolution. But for births after the adoption of the Constitution, it allowed only a “natural born” Citizen to be eligible to be President. This latter class was comprised not of initial members of the United States (only “Citizens” and nothing more), but rather the children of such initial members (children of “Citizens”) or the children of later-generation members (children of “natural born” Citizens). Hence, simply being a born “Citizen” of the United States is not sufficient to be eligible to be President, for in such case, the person’s birth circumstance is missing citizen parents. Any common sense reading of the Fourteenth Amendment would show that its citizenship status is not sufficient for one to be eligible to be President. First, one must be a “natural born” Citizen and not only a “Citizen” of the United States which is the status provided by the amendment. Second, it is not sufficient to simply say that one is born a “Citizen” of the United States under the amendment and therefore a “natural born” Citizen. The Founders and Framers said “natural born,” not just “born.” In order to gain this special status of “natural born” Citizen, one must satisfy the American common law definition of a “natural born” Citizen handed down to us since the Founding and confirmed in both Minor and Wong Kim Ark. One cannot simply obtain the status of a “Citizen” of the United States under the Fourteenth Amendment, Congressional Act, or treaty, even if that status is gained from the moment of birth, for these positive laws neither by affirmative language nor by definition bestow upon anyone the status of a “natural born” Citizen. Moreover, both Minor and Wong Kim Ark said that the Fourteenth Amendment defines neither a “Citizen” of the United States (it does not define what “subject to the jurisdiction thereof” means) nor a “natural born” Citizen. That would mean by referring to neither a “natural born” Citizen nor to defining one. That is why Minor relied on American “common-law” to define a “natural born” Citizen and Wong Kim Ark relied upon English “common law” to define a “Citizen” of the United States.

So has Obama’s enablers’ position improved any by relying on the Fourteenth Amendment and Ankeny which got it like them plainly wrong? Again, the answer is a resounding “no.”

But Obama’s enablers do not stop there. They also provide lower federal court and state law cases that declared persons born in the United States to alien parents “Citizens” of the United States. First, they avoid mentioning that Minor v. Happersett in 1875 said that there were “some authorities” who said that a child born in the United States to alien parents were “citizens.” Minor rightfully said “there have been doubts” regarding whether these “authorities” were correct, given that Congress since 1790 required any child born to alien parents, regardless of the place of birth, to naturalized in the United States in order to become a “Citizen” of the United States. Second, these cases only defined a “Citizen” and not a “natural born” Citizen.

But Obama’s enablers do not end there either. They then attack Emer de Vattel, saying that nobody knew that “dead Swiss guy” who wrote “some book” on some citizenship “stuff.” Needless to say, the historical record and case law is replete with information which shows how influential Vattel was during the Founding in helping our leaders justify the American Revolution, write the Constitution, and constitute the new republic. See, for example, J.S. Reeves, The Influence of the Law of Nature Upon International Law in the United States, 3 Am.J. Int’l L. 547 et. seq. passim (1909) (Vattel exerted such a profound political influence that it is often pointed out that his theories served as the backbone for American independence); Lee A. Casey, David B. Rivkin, Jr. and Darin R. Bartram, Unlawful Belligerency and Its Implications Under International Law, http://www.fed-soc.org/publications/PubID.104/pub_detail.asp (concerning U.S. constitutional analysis, “Vattel is highly important. He was probably the international law expert most widely read among the Framers”). In fact, Vattel continued to be practically applied in our nation for well over 100 years after the birth of the republic. F.S. Ruddy, The Acceptance of Vattel, Grotian Society Papers (1972) (Vattel was mainstream political philosophy during the writing of the Constitution. The Law of Nations was significantly the most cited legal source in America jurisprudence between 1789 and 1820). But as we can see, the importance and practicality of Vattel lives on today.

Finally, and this is Obama’s enablers’ favorite ploy, they say for the Birthers to be right, all smart and consequential people in America would have to be part of some grand conspiracy. They paint the “Birthers” with the same brush and paint that they paint those who question the moon landing, the Kennedy assassination, the 9-11 attacks, and whether there is some plot to create a “One World Order.” But there is nothing conspiratorial about correctly defining an Article II “natural born” Citizen and applying that definition to Obama’s admitted birth circumstances. He has admitted and it is corroborated by documentation that he was born to a non-U.S. citizen father. Hence, he cannot be a “natural born” Citizen. There is no conspiracy in that, my friend.

And so it goes on, for this is how Obama’s enablers must make a living.

Mario Apuzzo, Esq.
October 10, 2011
Reposted January 9, 2012
http://puzo1.blogspot.com/
####

Copyright © 2011
Mario Apuzzo, Esq.
All Rights Reserved



138 comments:

bdwilcox said...

Minor v. Happersett simply dicta? SCOTUS seems to disagree.

"In Minor v. Happersett, 21 Wall. 162, this court held that the word 'citizen' is often used to convey the idea of membership in a nation, and, in that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment of the constitution as since;"

-Ex Parte LOCKWOOD

Christinewjc said...

If readers here have never seen the video at the following link, I would suggest that it be viewed by one and all!

The Steady Drip Blog: GUARANTEED Proof that Obama is a USURPER ~ 100% sourced w/govt documents and the Founders writings!

It is about 15 minutes long and includes government documents and Founders writings that support the claim that Obama is not eligible for the position of POTUS if Obama Sr. (who was never a U.S. citizen) is indeed his father! You may need to pause the video occasionally to read the documents more carefully. This needs to go VIRAL!

Also, there is a challenge to keep "0" off the ballot in GA! The motion to dismiss was denied! Details:

We The People: Court: Obama must be ‘constitutionally’ eligible: Arizona, NH, TN and others to follow?

It is also interesting to share the fact that Elena Kagan blocked many of the eligibility cases as solicitor general:

We The People: The Untold Story: Elena Kagan has been running interference on Obama eligibility hearings.

The fraud, corruption, evil, political maneuverings, illegality and deception coming out of this horrible administration makes Watergate pale in contrast!!!

Puzo1 said...

smrstrauss,

Even assuming that Obama was born in Hawaii, he still is not an Article II "natural born Citizen." He is therefore not eligible to be President.

The Founding generation relied upon natural law and the law of nations for, among many things, its definition of a "natural born Citizen." That definition is a child born in the country to citizen parents.

At the time, the husband and wife were united in citizenship, so if anyone required the father/husband to be a citizen, that meant that the wife/mother also had to be a citizen like the father/husband. The law then was that the wife followed the citizenship of the husband. Hence, a married couple always had the same citizenship, which was that of the husband. Under modern U.S. citizenship and naturalization laws, each couple has and keeps his or her own citizenship, unless intentionally changed through a legal process.

Let us assume that Obama was born in Hawaii to Obama Sr. and Stanley Ann Dunham. Under such birth circumstances, Obama was born to a non-U.S. citizen father and U.S. citizen mother which in the eyes of the Founders and Framers and early Congress makes him a foreigner and alien, and not an Article II "natural born citizen."

Under the Fourteenth Amendment, as interpreted by U.S. v. Wong Kim Ark (1898) , at best Obama, who was born in the U.S. to a U.S. citizen mother but to an alien father, is a "citizen of the United States" from the moment of birth. This means that he did not have to follow any naturalization process after he was born. He became a “citizen of the United States’ automatically at the moment of his birth. But such a “citizen” is not an Article II "natural born Citizen," which comes into being not only at the moment of birth but also because of birth in the country to citizen parents.

James said...

"He became a “citizen of the United States’ automatically at the moment of his birth. But such a “citizen” is not an Article II "natural born Citizen," which comes into being not only at the moment of birth but also because of birth in the country to citizen parents."

I agree on that. It's the statute or the constitutional amendment that gives that person a status of of "Citizen at the moment of birth". However, NBC relies on no statute, law or amemdment and is based on the natural event of being born on US soil to US Citizens.

dr-conspiracy said...

I should correct the false impression that folks are attacking Minor v Happersett. That's a straw man argument. I don't know anyone doing that and I have no problem at all with Minor.

What I an others are doing is to point out that you misrepresent the case. You misrepresent by claiming that the case decided something that it explicitly stated that it wasn't going to decide. You confuse a "sufficient" (the Court's word) condition with a necessary one.

Yes, the Court said that persons born in the US to citizen parents are natural born citizens, but the court also said that it wasn't going to resolve the question of persons born in the United States of alien parents.

I have written a brief article: Understanding Minor v Happersett that cuts through the BS.

http://www.obamaconspiracy.org/2012/01/understanding-minor-v-happersett/

One of your followers commented on my article that you are a lawyer and I'm not. True, however Jack Maskell with the Library of Congress' Congressional Research Service is a lawyer and he agrees with me. The three judges on the Indiana Court of Appeals who decided Ankeny v Daniels are lawyers and they agree with me.

Puzo1 said...

srmstrauss,

With respect to the Naturalization Act of 1790, you quote:

"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."

You then argue that the quoted language only applied to children born out of the United States. I do not agree with your reading of the statute and maintain that you are incorrect. As you know, I have long maintained that the quoted language applies equally to children born in the United States as out of it.

To show me that you are correct and that I am wrong, please, (1) show us where in the text of the statute is found any indication that the language applies only to children born out of the United States, and (2) provide any source or authority outside the actual statute that supports you position with any reasonable argument.

MichaelN said...

dr-conspiracy said...
"Yes, the Court said that persons born in the US to citizen parents are natural born citizens, but the court also said that it wasn't going to resolve the question of persons born in the United States of alien parents."

The question in Minor v Happersett, was whether the children born in the US to alien parents were US citizens or not, not a question as to whether they were "natural born".

Btw, have you come up with an explanation as to what Lord Coke meant by .....

"Calvin the plaintiff, naturalized procreation and birth right"?

Then how about explaining how the status of the parent father is irrelevant in determining a "natural born", where we have Coke stating...

"that issue is NO SUBJECT to the King of England, THOUGH HE BE BORN UPON HIS SOYL, and under his meridian, for that he was NOT BORN UNDER THE LIGEANCE OF A SUBJECT..."

and

"There be regulary (unlesse it be in special cases) three incidents to a subject born.
1. That the PARENTS be under the actual obedience of the king.
2. That the PLACE of his birth be within the king’s dominion. And
3. the time of his birth is chiefly to be considered;"

Neither you nor any of your barking attack dogs have been able to explain that Coke meant other than that according to 17th century English common law, the "subject" status of the parent father was ESSENTIAL to determine his child a "natural born subject".

.

Puzo1 said...

Dr. Conspiracy,

I of II

I do not misrepresent Minor v. Happersett (1898). You and your followers, including Jack Maskell and the Ankeny v. Gov. of Indiana court, do. You yell and scream that I am wrong in how I read Minor. But your vain attempt at explaining away Minor flies in the face of not only the decision itself, but also our well-documented historical and legal development as a republic which is based on ancient and Enlightenment principles of natural law and the law of nations. Any understanding of the meaning of the “natural born Citizen” clause has to start with those intellectual forces which drove America to revolution against Great Britain. It is those very forces which bring us to the inescapable conclusion that the Founders and Framers did not use the English common law to define a “natural born Citizen,” but rather natural law and the law of nations.

We have to consider that the Founders and Framers in Article II and throughout the original Constitution distinguished between a “natural born Citizen” and a “Citizen of the United States.” With that distinction well in mind and followed by Congress since 1790 when it enacted our first naturalization law, the framers of the Fourteenth Amendment used the phrase “citizen of the United States” and not “natural born Citizen.”

The only explicit decision that Minor made regarding citizenship was that a “natural-born citizen” is a child born in the country to citizen parents. The court simply parroted the American common law rule that provides that definition which is grounded on natural law and the law of nations, as “codified” by Emer de Vattel in The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758) (said that the “natives, or natural-born citizens, are those born in the country, of parents who are citizens.” http://www.lonang.com/exlibris/vattel/vatt-119.htm. This same common law rule was espoused by founder-historian, David Ramsay in 1789 (told us that after July 4, 1776, birthright citizenship was preserved only for a child born to U.S. citizens), Chief Justice Marshall in The Venus (1814) (cited and quoted Vattel’s definition of a “natural born citizen”), the majority in Inglis v. Sailors' Snug Harbor (1830), which included Chief Justice John Marshall (said that a child born in New York after July 4, 1776 to British parents was himself a British subject and not an American citizen), Justice Daniels in Dred Scott v. Sandford (1856) (cited and quoted Vattel’s definition of a “natural born citizen”), and the majority in U.S. v. Wong Kim Ark (1898) (cited and quoted Minor’s Vattelian definition of a “natural-born citizen”). There are also other sources that confirm the Vattel/Minor definition of a “natural-born citizen which I will be publishing about in the very near future. As I have also been arguing for quite some time, the Vattel/Minor definition of a “natural-born citizen” also follows a fortiori from the early naturalization acts of Congress such as those of 1790, 1795, and 1802.

What Minor decided not to decide was whether a child born in the United States to alien parents is born “subject to the jurisdiction” of the United States and therefore a “citizen of the United States” under the Fourteenth Amendment. It was not necessary for the Court to make that decision because Virginia Minor was a “natural-born citizen.” Now you can readily see from the different nomenclature included by the Founders and Framers in the Constitution (“natural born Citizen” v. “Citizen of the United States”) that Minor did not call such a potential citizen an Article II “natural born Citizen.” Nor could such a potential citizen be a “natural born Citizen” given the Court’s own definition of the phrase. We know that U.S. v. Wong Kim Ark in 1898 decided that such a person is a Fourteenth Amendment “citizen of the United States.” Wong did not hold that such a person is a “natural born Citizen.”

Continued . . .

Puzo1 said...

II of II

What is also very dishonest is how you and your followers attempt to take away words from Minor and add them to the Fourteenth Amendment and Wong Kim Ark and how everthing that I cite and quote is dicta but everything that you and your people cite and quote is the law of God. There simply is nothing in our history which shows that we adopted the English common law rule of jus soli to define an Article II “natural born Citizen” and the above sources bear that out. Just as a quick example and there are so many, Madison in Federalist No. 42, when looking for a law by which to define a phrase in the Constitution said of the English common law as a possible source that it was “a dishonorable and illegitimate guide” and that rather we should rely on the law of nations for guidance. Nevertheless, Justice Gray decided to use the English common law jus soli rule to define a “citizen of the United States” under the Fourteenth Amendment, but that does not mean that he would have used that same English common law rule rather than the American common law rule to define an Article II “natural born Citizen.” The “natural born Citizen” issue was simply not before the court. There is nothing in the case which warrants extending its limited holding concerning a Fourteenth Amendment “citizen” to encompass a change to the definition of an Article II “natural born Citizen” as provided by Minor, which Wong itself cites and quotes for the definition of a “natural born Citizen.” The “natural born Citizen” issue was not before the Wong Court and therefore the Court provided no rigorous and thorough analysis of the issue, and to attempt to use the Court’s holding which concerns only a Fourteenth Amendment “citizen of the United States” is just asking us to do too much.

Ankeny is simply bad law for many reasons. The main one is that it rests on the incorrect notion that Wong Kim Ark declaring that Wong was a “citizen of the United States” from the moment of birth under the Fourteenth Amendment necessarily means that the Court said he was a “natural born Citizen. Such a position is remarkable given that the Indiana court itself admitted in its own opinion that it is aware of there being in the Constitution “natural born Citizens” and “citizens of the United States” and that the Wong holding did not include “natural born Citizen.” What is also hidden from the public by people like you is that, apart that the U.S. Supreme Court has yet to decide any Obama eligibility case on the merits, Ankeny did not hold that Obama was born in Hawaii or that he is a “natural born Citizen.” I could go on for much, much longer but this will suffice for now.

Mario Apuzzo, Esq.
January 10, 2012

Bob said...

Historians know that the influence of Emer de Vattel and the Law of Nations was very widespread throughout the early years of the nation.

So widespread that the Confederate Courts had to address his arguments AGAINST conscription.

So, de Vattel's volume would have been on the shelf of every judges chamber, if not on the corner of his desk, when Minor v Happersett was decided.

He was so well known, there was no need to cite him by Chapter and Verse.

So, to argue that his definitions were simply DICTA by SCOTUS is ignorance of history.

De Vattel was in the warp and woof of this nation.

Mick said...

"The amendment did not add to the privileges and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had."

That V. Minor was a natural born Citizen was a necessary independent ground for the court to decide whether she was a US Citizen before adoption of the 14A., and whether she already had the "right to vote"

"It is clear, therefore, we think, that the Constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted. This makes it proper to inquire whether suffrage was coextensive with the citizenship of the States at the time of its adoption. If it was, then it may with force be argued that suffrage was one of the rights which belonged to citizenship, and in the enjoyment of which every citizen must be protected. [88 U.S. 162, 172] But if it was not, the contrary may with propriety be assumed. "


Continued>>>>>>

Mick said...

"Thus, by the Constitution, the judicial power of the United States is made to extend to controversies between citizens of different States. Under this it has been uniformly held that the citizenship necessary to give the courts of the United States jurisdiction of a cause must be affirmatively shown on the record."

Minor v. Happersett (1874)


The Court is saying right there, plain as day, that to determine what rights were held by citizens before the 14A, that it must be held that V. Minor would have been a Citizen w/o the enactment of the 14A.

"To determine, then, who were citizens of the United States before the adoption of the amendment it is necessary to ascertain what persons originally associated themselves together to form the nation, and what were afterwards admitted to membership."

Then the money quote, which is clearly a holding, since it is an independent fact in support of the decision. V. Minor was a Citizen w/o the enactment of 14A, and citizens before the 14A had no "right" to vote.

Bob said...

I am always perplexed by those who cite British law for the definition of 'natural-born.'

A 'natural-born subject' has only to do with a 'pedigree' to inherit certain rights and privileges awarded by one's Sovereign, the King.

Except for the same adjective used, the concept would have absolutely nothing to do with the rights and privileges of citizens of a republic, let alone eligibility for Commander-in-Chief.

Its use by SCOTUS in Wong Kim Ark has only to do with the issue of 'pedigree.'

If that is the argument here, then Barack Hussein Obama, Jr. (by his own admission) is by 'pedigree' a Brit, and he was and has NEVER been an 'American' under the laws of 'pedigree.'

When your older brothers are Brits, then you are a Brit, plain and simple.

So, again, those who make that argument are simply ignorant of British law.

Bob said...

The Alien and Sedition Acts in the early years of this nation were designed to force the titled nobility of Europe who were escaping from the French Revolution and the Napoleonic Wars to 'renounce' their inherited rights and privileges, in order to become 'naturalized Citizens' of the United States.

It was a big problem, because the British believed that no one could ever renounce their birthright.

The United States and the British went to war over the matter, when British ships impounded American sailors to serve on Men-of War.

A more modern example: the Olympic runner, Eric Liddell (from Chariots of Fire) was born in China of parents who were British Missionaries. He spoke Chinese, he chose China as his home, and during World War II he died of a brain tumor in a Japanese Internment Camp in China.

He was NEVER considered Chinese by either China or the British, and he represented Britain in the Olympic Games in Paris.

In other words, if you are British, you are British, period.

And, that is our President of the United States, Barack Hussein Obama, Jr.!

bdwilcox said...

Leo Donofrio provides further commentary on Minor v. Happersett.

paleophlatus said...

A petition for a Writ of Quo Warranto has been submitted to the US District Court for the District of Columbia by Montgomery Blair Sibley for the removal of Barack Obama from the office of President. A link to that petition is available here http://www.scribd.com/doc/77432908/Montgomery-Blair-Sibley-v-Barack-Obama-Quo-Warranto-United-States-District-Court-for-the-District-of-Columbia

Kat7 said...

Is this document useful for clarity?

I found it at:
39th Congress Senate and House Debates (December 4, 1865 to July 28, 1866) PP Page 961 of 1920 Page 1291

Here you will find the section referenced on Page is 1291 :
http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=071/llcg071.db&recNum=2

The section of interest says:

“[I] find no fault with the introductory clause [S 61 Bill], 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…. . . ”

This definition seems pretty clear and appears 9 to 32 years before Minor or Wong Kim Ark.

Am I somehow making this to simple?

MichaelN said...

Kat7 said...
<<"39th Congress Senate and House Debates (December 4, 1865 to July 28, 1866) PP Page 961 of 1920 Page 1291
Here you will find the section referenced on Page is 1291 :
http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=071/llcg071.db&recNum=2

The section of interest says:
“[I] find no fault with the introductory clause [S 61 Bill], 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…. . . ”
This definition seems pretty clear and appears 9 to 32 years before Minor or Wong Kim Ark.>>

@ Kat7

Immediately continuing-on from the text you cited, Bingham added:-
..."but, sir, I may be allowed to say further, that I deny that the Congress of the United States, ever had the power or the color of power to say that any man born within the jurisdiction of the United States, not owing a foreign allegiance, is not and shall not be a citizen of the United States.
Citizenship is his birth right, and neither the Congress nor the States can justly or lawfully take it from him"

The point being, that to be a "citizen" is a "birth right", but to be a "natural born Citizen" is both a "birth right" AND "natural" right by descent.

Basically, a born citizen (i.e. "citizen")is by birth right only, but a natural born citizen is by descent and birth right.

This is given weight by the First Naturalization Act of 1790, where decent was the most essential quality required to make a "natural born citizen", but later it was changed to "citizen" albeit still dependent on descent as the qualifying element.

Bob said...

The debate in Congress over the 'natural born Citizen' clause was to advance the Civil Rights of emancipated slaves.

Financially destitute. Chief Justice Taney (who wrote the Dred Scott decision) died during the Civil War, but a number of his fellow justices were still on the Court, and they were prepared to sharp-shoot any attempt by Congress to go too far.

In fact, it was Lincoln's first appointee, Noah Haynes Swayne, who upheld the constitutionality of the 1866 Civil Rights Act in the Circult Court, a decision for which he was roundly criticized.

It took almost 100 years for Swayne's dissenting arguments on subsequent cases to become legal precedent, and they were used in upholding the Civil Rights Act of 1964.

Swayne argued that emancipated slaves were 'natural-born Citizens,' and therefore, they had the right to have their testimony accepted in court.

It was this having standing in Court that fully emancipated the slaves.

It also leads to the opposing argument -- to be denied standing in the Courts is a form of slavery!

A natural-born Citizen has a right to challenge the 'natural-born Citizen' status of an impostor, and if not, then natural-born Citizenship has been reduced to serfdom.

That argument remains to be adjudicated!

Bob said...

MichaelN

You are not quite right -- Congress is empowered by the Constitution only to 'naturalize' Citizens -- so the act of 1790 was a naturalization bill, because it included a residency requriement.

Thomas Jefferson revised the statute to make it clear that children of American citizen who were born overseas were considered to be 'aliens,' and statute that was amended (retroactively) only in 1855.

So, it is not entirely 'descent' that makes one a 'natural-born Citizen.' Also, it is not the location of one's birth that make one a 'natural-born Citizen.'

It is both, with one further proviso. There is a jurisdiction test for the parents as well -- this addressed the issue of the American Indians (and 'half-breed children') who were outside the jurisdiction of the United States, a situation that was corrected only under President Coolidge in the early part of the last century.

So really, only children born in the jurisdiction of the United States of parents who were both citizens of the United States could meet all of the tests for 'natural-born Citizen.'

SaipanAnnie said...

Mr. Apuzzo:

Yesterday and the day before I visited the website of Dr. C.

Much ado was made about you refusing to post oppositional comments.

In my experience, you publish lots of them.

Also, several commenters raged on about your position on Obama's trip to Pakistan - something about you getting the facts wrong and refusing to acknowledge this.

I find these statements inconsistent with the man I know from this blog.

Do you care to enlighten me?

SaipanAnnie said...

Please join me in congratulating Mr. Apuzzo on being named 2011 MAN OF THE YEAR!

http://marthatrowbridgeterribletruth.wordpress.com/2011/12/31/2011-man-of-the-year-award-mario-apuzzo-esq/

Congratulations, Mr. Apuzzo - it's an award well deserved and long overdue.

Kat7 said...

I suppose what I find frustrating is this quote :

"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…. ."

Is quite clear … "to be a "natural born citizen" one must be born IN THE UNITED STATES of CITIZEN PARENTS”.

It seems to me that something so basic gets more and more muddy as debate goes on.

As the average citizen without any legal training I don't give a fig what the argument was over that day in 1866. Or who influenced who for whatever reason or when. I simply care that Bingham said what he said and it was documented for reference today. I did not fine anyone speaking up challenging his words on the “natural born” term in that session. Perhaps I am blind or did not look hard enough.

Trying to second guess what Bingham MIGHT HAVE MEANT, IN WHAT SITUATION OR WHY 146 years after the fact? Is like someone looking at my painting and telling the world I meant to paint the apple green instead of red because in June of 1910 they were not yet red.

Who would be the most trustworthy source?

Am I correct in thinking or even arguing that the OPINIONS on this issue matter not until the SCOTUS decides to get off its duff and actually get involved?

Puzo1 said...

Bob,

I agree with most of what you wrote except the following:

The 1790 Naturalization Act was a naturalization act, not because it included a residency requirement, but because the title clearly indicates it was a naturalization act and because Congress passed the statute under its Article I, Section 8 naturalization powers. Also, the statute only said that such child born abroad to citizen parents “shall be considered as natural born citizens.” At that time in history, such languge indicated naturalization. Also, the statute was only retroactive which indicates that it was intended to operate only as sort of a grandfather clause like the Founders and Framers included in Article II, Section 1, Clause 5.

As I have been arguing for quite some time, the 1790, 1795, and 1802 Naturalization Acts prove that the Founders and Framers did not adopt the English common law jus soli doctrine for U.S. citizenship and that a “natural born Citizen” in their eyes was a child born in the country to citizen parents.

As I have also explained for quite some time, Thomas Jefferson’s early citizenship laws also confirm that he also did not adopt the English common law jus soli rule but rather based citizenship in Virginia on jus sanguinis.

As Minor v. Happersett (1898) shows, there is no “subject to the jurisdiction thereof” analysis required when determining whether one is a “natural-born citizen.” The Court declared Virginia Minor a “natural-born citizen” and therefore a “citizen” without having to engage in “jurisdiction” analysis under the Fourteenth Amendment. Only (1) birth in the United States (2) to citizen parents were the constituent elements needed to be established to prove the status. As Wong Kim Ark shows, “jurisdiction” analysis comes into play only when one or both of the parents of a U.S.-born child are aliens. With one or both parents not being U.S. citizens, it becomes necessary to rely upon Wong Kim Ark and analyze whether at the time of the child’s birth, the child was born “subject to the jurisdiction” of the United States. When both parents are U.S. citizens, there never is a doubt that the U.S.-born child is born within the sole, full, complete, and undivided allegiance and jurisdiction of the United States and therefore necessarily also “subject to the jurisdiction thereof.” In such case, the child’s parents are normally not foreign diplomats or foreign army invaders. Should they be, one could successfully argue that the child is not born within the sole, full, complete, and undivided allegiance and jurisdiction of the United States and also not “subject to the jurisdiction thereof” and therefore the child is neither a “natural born Citizen” nor a
“citizen of the United States.”

All this shows that an Article II “natural born Citizen” is a child born in the country to citizen parents. This means that a “natural born Citizen” is a child who is born in the United States or its jurisdictional equivalent to a father and mother who are both either a “natural born Citizen” or a “citizen of the United States.”

Puzo1 said...

SaipanAnnie,

The Obots look at Attorney Berg’s Pakistan travel “ban” as the gift that keeps on giving. They use it to create a straw man argument against me and declare victory. The point about Obama’s alleged Pakistan travel is that Pakistan was not a place an average American would have traveled to in 1981-82. There was great civil and political unrest there and it was a dangerous place for an American to visit. There was a U.S. State Department travel advisory on it. Visas were good for only 30 days and if one violated one’s stay, one could not just freely leave the country. I am, however, not aware of an actual travel “ban” from the U.S. to that country. But the point is not what type of ban was there, whether a legal travel ban or a self-imposed de facto ban. The point that the Obots hide is that the issue is what passport Obama travelled with to go to Pakistan. I have yet to see or hear of an Obama American passport existing in 1981-81. In short, the true issue is with what passport did Obama travel in 1981-82 to Pakistan, not whether there was a travel ban for Americans to that nation at that time.

Regarding the comment policy on my blog, everyone is welcome to post comments here. I do not deny the posting of any comments unless the comment is really inappropriate. The reason I discuss the Obama eligibility issue in public is so that we all can arrive at the right answer by asking the right questions.

Puzo1 said...

Super Obot scholar, ballantine, goes around the internet ridiculing me for making the following argument: Justice Gray in Elk v. Wilkins, 112 U.S. 94 (1884) held: “Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more ‘born in the United States and subject to the jurisdiction thereof,’ within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.” Id. at 101-02.

I have argued that Justice Gray in Elk 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 and therefore not “citizens of the United States.” We can see that the exception is not only for children born in the United States of ambassadors but also for children of aliens who are born within the “domain” of a foreign government. The “born” provision of both the Civil Rights Act of 1866 and the Fourteenth Amendment only applied to children born in the United States. There was no issue before the Court which concerned children born out of the United States. The American Indian who was the subject of the case was born in the United States territorial limits. Justice Gray wanted to show that just being born in the United States did not make one a “citizen of the United States.” He therefore would not have used examples of children being born out of the United States. In referring to children of aliens who are born within the “domain” of a foreign government, he had to have been referring to children born in the United States to alien parents, for why would he use such an example if it related to children born in foreign countries to citizens of those countries? Clearly, these children born to foreign parents in a foreign nation would have absolutely no basis to claim any United States citizenship. No one ever made any such claim and such a claim hardly needed the Court to proclaim that it had no basis.

Ballantine runs around the internet ridiculing me for saying that “born within the domain of that government” could mean born in the United States. Like I said, ballantine should know the law of his nation. But I will help him a bit here.

As evidence that “born within the domain of that government” also meant born in the United States, we have a naturalization act which Parliament passed in 1541, which for the first time granted “Englishman” status to children born to English parents abroad. These children, born abroad to English fathers, were “from henceforth reputed and taken king's natural subject as lawful persons born within the Realm of England. (Statute 33 Henry VIII c.25, as quoted by Kim (2000), p.158). Discussed at http://people.mags.net/tonchen/birthers.htm#ref18. So we can see that just as “born within the Realm of England” included the foreign nation in whose territory the child was born so would “born within the domain of that government” mean that the child was born in the United States but because of being born to a English father, was therefore treated as though he was born in England.

See also Black’s Law Dictionary which says that the word “domain” refers more than just territory or land, for it also includes “[s]phere of influence. Range of control or rule; realm.” Black’s Law Dictionary 434 (5th ed. 1979).

So as we can see, there is convincing authority that when Justice Gray said “born within the domain of that government,” he meant born in the United States and not only out of it.

SaipanAnnie said...

I have a question.

What with the Obots do, if their main weapon, ridicule, was no longer accessible?

Goodness, they'd be scrambling!

Puzo1 said...

I have argued that anyone who is given U.S. citizenship from the moment of birth but who is not a “natural born Citizen” is in effect naturalized at birth, whether done by the Fourteenth Amenment, Act of Congress, or treaty. Super Obot scholar, ballantine, goes around the internet ridiculing me for arguing that there is such a thing as being naturalized “at birth.” Too bad that scholar ballantine has not read the following:

Dred Scott v. Sandford, 60 U.S. 393 (1856) (the Naturalization Act of 1790 was nothing more than a method of naturalization at birth);

U.S. v. Wong Kim Ark 169 U.S. 649 (1898) (considered persons born abroad to U.S. citizen parents to be naturalized at birth);

Rogers v. Bellei, 401 U.S. 815, 839-44 (1971) (being born abroad to U.S. citizen parents, while conferring citizenship from birth, is nevertheless naturalization “at birth”);

Rogers v. Bellei, 401 U.S. 815, 839-44 (1971) (Black, J. dissenting) (“This provision is the earliest form of the statute under which Bellei acquire citizenship. Its enactment as part of a "Rule of Naturalization" shows, I think, that the First Congress conceived of this and most likely all other purely statutory grants of citizenship as forms or varieties of naturalization. However, the clearest expression of the idea that Bellei and others similarly situated should for constitutional purposes be considered as naturalized citizens is to be found in United States v. Wong Kim Ark, 169 U. S. 649 (1898)”);

Pickney G. McElwee, The Meaning of the Term “Natural Born Citizen” As Used in Clause 4, Section 1 of Article II of the Constitution of the United States Relating to Eligibility for the Office of President (emphasis in the original), Congressional Record-House 15876 (June 14, 1967).
http://www.scribd.com/doc/20829167/Natural-Born-Citizen-Congressional-Record-6-14-1967-p-15875-80. (same);

Jill A. Pryor, The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty 97 Yale L.J. 881 (1988), accessed at http://yalelawjournal.org/images/pdfs/pryor_note.pdf. (“This Note's analysis requires an acceptance of statutory citizens at birth as naturalized (i.e., falling under Congress' naturalization powers) and a rejection of the second assumption, thus broadening the definition of "natural born" to include those naturalized at birth”).

Just to mention a few.

Puzo1 said...

Super Obot scholar, ballantine, goes around the internet ridiculing me for saying that “Citizens of the United States” in Article II, Section 1, Clause 5 were naturalized citizens. Well, the Founders and Framers said that for births occurring after the adoption of the Constitution only a “natural born Citizen” would be eligible to be President. We also know that for births occurring after the adoption of the Constitution, naturalized citizens are no longer eligible to be President. So maybe super Obot scholar ballantine can tell us what type of citizens were those “Citizens of the United States” to whom the Founders and Framers referred in Article II, Section 1, Clause 5, whom they grandfathered to be eligible to be President, provided they had that status as of the time of the adoption of the Constitution.

Reality Check said...

I am challenging the proponents of the two citizen parent theory for the definition of "natural born citizen" to a debate on RC Radio program on January 25th. I have lined up three debaters for the opposite view who are ready to go. To date no one has stepped up as a proponent for this theory.

The debate will be 90 minutes long with the time equally divided. Timing will be strictly enforced. The details are here:

http://rcradioshow.blogspot.com/2012/01/rc-radio-natural-born-citizen-debate.html

Bob said...

The following is from Wikipedia, because it is the simplest summary of a convoluted relationship.

But, if your eyes go round like the proverbial pea in a whistle, that is the whole point: here is a famous real-life example of what the future Chief Justice of the Supreme court John Jay had in mind, when he wanted a 'natural-born Citizen' to be Commander-in-Chief --

Albrecht Wenzel Eusebius von Wallenstein (German: pronunciation); Czech: Albrecht Václav Eusebius z Valdštejna;[1] 24 September 1583 – 25 February 1634),[2] actually von Waldstein, was a Bohemian soldier and politician, who offered his services, and an army of 30,000 to 100,000 men during the Danish period (1625–29) of the Thirty Years' War (1618–48), to the Holy Roman Emperor Ferdinand II. He became the supreme commander of the armies of the Habsburg Monarchy and one of the major figures of the Thirty Years' War.
A successful generalissimo (from 21 April 1628) who had made himself ruler of the lands of the Duchy of Friedland in northern Bohemia, Wallenstein found himself released from service in 1630 after Ferdinand grew wary of his ambition. Several Protestant victories over Catholic armies induced Ferdinand to recall Wallenstein, who again turned the war in favor of the Imperial cause.
Dissatisfied with the Emperor's treatment of him, Wallenstein considered allying with the Protestants. However, Ferdinand had the general assassinated at Eger (Cheb) in Egerland by one of the army's officials, Walter Devereux .

Bob said...

Mario

Re: Your reply of January 12 @ 1:22 PM --

The 'jurisdictional test' I was referring to in the early days of this nation evaporated after the Civil War.

An American was first a citizen of his state.

The most famous of these citizenship decisions was that of Robert E. Lee, who chose his allegiance to Virginia over his allegiance to the United States.

Therefore, by the time that Minor was decided, the decision actually assumes the priority of United States citizenship -- a major shift in outlook.

As Shelby Foote famously stated -- prior to the Civil War the grammar was the United States are: after the Civil War the grammar was the United States is.

James said...

Mario,

Don't be a fool and accept Reality Check's debate challenge. Reality Check is an absolute loyal member of the FogBow and can't not be trusted for a second. It's clearly a trap. Steer clear of Reality Check Radio.

MichaelN said...

This is for all those who erroneously claim the Wong Kim Ark courts decision virtually 'defined' "natural born Citizen"

http://people.mags.net/tonchen/birthers.htm#ref13

Quote:

In Minor v. Happersett and in U.S. v. Wong Kim Ark, the Supreme Court rejected the notion that the meaning of "natural born citizen" can be ascertained from the Constitution, without reference to sources outside the Constitution.

Both cases were decided AFTER the 14th Amendment was ratified in 1868.

If the meaning of "natural born citizen" cannot be determined from the Constitution, it cannot be determined from the 14th Amendment which is part of the Constitution.

Bob said...

It is not at all unusual for U.S. Constitution to have terms in it that require definition from outside the Constitution.

For example: 'letters of marque and reprisal.'

'Obfuscate' and 'blame the victim' are the two most common actions of our Government, and those words are nowhere in the Constitution: but the researchers in Congress have this going in full gear, as they look into the defend Congress against the obvious conclusion that they do not know who is a 'natural-born Citizen.'

Hint: They work for them.

BTW 'a letter of marque or reprisal' is what you will need to have on you, if ever you want a career on the high seas as a 'Privateer.'

MichaelN said...

If a child born outside the limits of the US, to US citizen parents, was considered to be and deemed a "natural born Citizen", according to the US Congress in their first Naturalization Act of 1790, then the child gained US citizenship by descent.

The first Nationality Act of 1790 was the only incidence of the US Congress definition of a "natural born Citizen", no other incidence was promulgated by the US Congress, that made a "natural born Citizen".

In summary, "natural born Citizen" was established by descent.

Although not expressly stated by the US Congress, it went without saying, that a child born WITHIN the limits of the US, to US citizen parents, was also a "natural born Citizen" due by descent.

The first Naturalization Act of 1790 was superseded by the Naturalization Act of 1795, where the "natural born" status was removed from the definition of a child born outside the limits of the US to US citizen parents and the child was defined as a "citizen", yet still the child's citizenship was established by descent.

In summary, "citizen" was established by descent, when the child is born outside the limits of the US to US citizen parents.

This did not change the situation for a child born within the limits of the US, to US citizen parents; this child was still defined as a "natural born Citizen".

Comes the 14th Amendment to the US Constitution in 1868, where "all persons born .......... in the United States" were "citizens of the United States".

This 14th Amendment to US Constitution did not alter the fact that a child born within the US, to US citizen parents, was a "natural born Citizen" by DESCENT.

The 14th Amendment was based on the principle of jus soli and deemed a child born in US as a US "citizen" by birth-right.

Thus a child born within the US, to US citizen parents, who was already a "natural born Citizen" by descent, was included in the super-set of "citizen" by the principle of jus soli.

In summary, a child born in the US is a US "citizen" by jus soli birth-right.

A child born in the US, to US citizen parents, is a "natural born Citizen" by DESCENT and included in the super-set of "citizen", still with jus soli birth-right, but whose "natural born" status is not dependent on the principle of jus soli birth-right.

Jus soli is a superfluous add-on to a "natural born Citizen".

Think about the common and use of words .........one has "natural" parents and "native" country.

The framers of the USC, with great wisdom and foresight, DELIBERATELY CHOSE "natural" in preference to "native" for the wording in the eligibility clause of Article II of the USC.

The Supreme Court of the US confirms the establishment of "natural born Citizen" status by DESCENT in Minor v Happersett of 1874.

.

Bob said...

MichaelN

Not quite right. If you were correct, then children of American servicemen born overseas would be 'natural-born Citizens.'

They are NOT! That sounds unbelievable I know, but they are NOT!

They are statutory citizens, a class of naturalized citizen, because they are made citizens by an Act of Congress. They are 'citizens by birth,' but not 'natural-born Citizens.'

The other half of the equation is equally important, which is the jus soli.

In fact, it is almost better to look at it this way -- if your citizenship status is covered by an Act of Congress, then you are not a 'natural-born Citizen.'

Only those citizens who status the law is silent are 'natural-born Citizens.'

BTW the word 'natural' in 'natural-born' is meant to address the Natural Law, of which Emer de Vattel was a chief proponent.

That is why he is disregarded by the Left -- they argue for the jus civile -- which they can change at whim -- their whim.

MichaelN said...

Bob said...
"MichaelN
Not quite right.
If you were correct, then children of American servicemen born overseas would be 'natural-born Citizens.'
They are NOT! That sounds unbelievable I know, but they are NOT!
They are statutory citizens, a class of naturalized citizen, because they are made citizens by an Act of Congress. They are 'citizens by birth,' but not 'natural-born Citizens.'
The other half of the equation is equally important, which is the jus soli."

Thanks Bob.
I am aware that the child born off-shore, to US citizen parents is only defined as "citizen".

My point is that the principle of descent was common-place with the framers and Congress in the making a "natural born Citizen", from as early as 1790.

This means that when the framers drafted Article II of the USC and it was adopted in 1787, "natural" had nothing to do with "native", and had everything to do with parentage.

To the framers, (hypothetically, even without any consideration for Vattel)the descent principle of jus sanguinis trumped the principle of jus soli.

It was not until the later Naturalization Act of 1795, that the jus soli principle was positively added, and then eventually embedded in the USC via the 14th Amendment.

Ergo: there is no way, the framers of the USC meant for "natural" to mean "native".

Bob said...

If there is a silver lining in all of these arguments, it should be this -- the word 'inalienable' in the Constitution has to be resurrected.

The entire effort of Government in the hands of the Left, and in the hands of this particular office-holder, has been to 'alienate' Americans of their birthright through fraud, deceit, and power-hungry despotism.

'Inalienable' is a Natural Law idea which should be first and foremost the proof right at the top of Mario's long-made argument that Emer de Vattel is not some dusty old treatise but is the foundation under our foundational documents.

The 'elites' simply hate these words in the Constitution like natural and liberty and due process of law, and they are doing everything they can to erase them -- erasing life, erasing liberty, and erasing the pursuit of happiness.

paraleaglenm said...

1) Welcome to smstrauss and drconspiracy.

2) bdwilcox is correct on Minor's holding concerning citizenship being a membership of a nation and its society. However, Minor distinguished that membership from voting rights of women, which had to come later under suffrage.

3) Minor declared as judicial notice that a child born in the United States of two U.S. citizens was, without doubt, a natural born citizen. The question the two camps, jus soli or sanguinis, remains: which determines jurisdiction over nationality at birth, the Soil or the Parentage.

4) Mr. Apuzzo, and others, herald Minor's judicial notice as precedent. However, I Shepardized Minor and no subsequent case followed Minor on the subject of 'natural born citizen' as it applies to the only law in the land depending on that term of art, Article II. That doesn't detract from judicial notice of a judge in 1875 being an accurate picture, contemporaneous with the constitution's original construction.

5) Let's go back further and read an authority in Constitutional law and Conflicts of law, Assoc. Justice Joseph Story. His 'Commentaries' §1473 (1833) analyzes Article II and the 'natural born citizen' requirement.
One year later, his 'Conflicts of Law' §48 describes our 'conflict' and debate. He sides with the jus sanguinis relied on in naturalization statute, and the good sense in that. However, he is concerned that 'public law' (which I interpret as common law dicta and arogatory holdings in the judiciary) made it impossible to resolve the conflict between the two, the legislature's plenary power over naturalization law and abuses of the judiciary.

6) Newt Gingrich nailed it when he declared that the president should extol congress, the lawmaking body, to challenge judicial holdings in conflict with their laws.

Conclusion: We stipulate that there is a conflict between the jus soli camp and those who read from the First Naturalization Act and onward (correctly I might add) that there is NO JUS SOLI, until Wong Kim Ark totally violated jurisprudence to create it.

The Sheriff Arpaio 'Cold Case Posse' is analyzing this argument and it will come into play when they report on Obama's 'forged' Birth Certificate and what rules of law determine Natural Born Citizen Article II Eligibility for a presidential candidate to qualify for a state ballot.

Indeed, they can rely on Minor, declaring as judicial notice that it requires a child born on U.S. soil of two U.S. citizens . . . the other conditions being in a state of conflict due to conflicts of law, vis-a-vis Story's 'Conflicts' §48.

In other words, a candidate who meets Minor's judicial notice in precedent qualifies; all others are not qualified and the issue is a cause de novo.

James said...

Mario,
Is there any chance you might be called as an expert witness in any of the Georgia cases regarding your numerous essays on NBC?

Bob said...

MichaelN

I am sympathetic with your efforts, but you cannot win the argument using de Vattel --

This is my own translation from the French, with the Latin premise added for clarification --

In “The Law of Nations,” in the Book called CITIZENS AND NATIONS, in the Section numbered § 212, de Vattel wrote: “The natives or natural-born CITIZENS (‘les [citoyens] naturels (jus sanguinis) ou indigenes (jus solis)’), are those born in the country, of parents who are CITIZENS (qui sont nes dans le pays (jus solis) de parents citoyens” (jus sanguinis)).”

The last sentence says it all --

dans le pays (in the country on the soil)

de parents (plural)

citoyens (citizens).

The word 'citizen' is key here -- a 'citoyen' is a republican word, as opposed to 'les sujets' (subjects) a monarchical term.

Puzo1 said...

MichaelN,

You said: "It was not until the later Naturalization Act of 1795, that the jus soli principle was positively added, and then eventually embedded in the USC via the 14th Amendment."

The Naturalization Act of 1795 did not add jus soli principles into our national citizenship. What it did was show that the Third Congress “considered” a child born abroad to citizen parents to be “as a citizen of the United States” rather than to be “as a natural born citizen." In both cases, these citizens were naturalized at birth.

Regarding children born in the United States to alien parents, that same Congress continued to treat them as aliens who became naturalized upon the naturalization of their parents if done during their minority and on their own if done thereafter. So there was no jus soli anywhere in either the 1790 or 1795 Acts. The same was repeated in the Naturalization Act of 1802.

All this confirms that the Founders and Framers required birth in the United States along with "citizen parents" as the constituent elements of a "natural born Citizen."

The jus soli that was injected into the Fourteenth Amendment by U.S. v. Wong Kim Ark was done only to create a “citizen,” not a “natural born citizen.”

cfkerchner said...

@Bob,

I think you meant to say unalienable, not inalienable. The words have two slightly different, but and important difference, meaning.

Puzo1 said...

The Obots proclaim: “US law only recognizes 2 types of citizens, natural born and naturalized. That's it.” They then argue that since Obama is not a naturalized citizen, he can only be a “natural born Citizen.”

The Obots avoid like anathema the phrase “citizen of the United States” because Article II’s grandfather clause says that such a citizen was eligible to be President only if he had that status at the time of the adoption of the Constitution. Obama clearly fails that test for he was born 174 years too late.

They also want to avoid talking about a “citizen of the United States” because that is all the Fourteenth Amendment includes in its definition of first generational citizenship. It makes no mention of a “natural born Citizen.”

So the Obots figure that if they can just reduce the possible choices to just a “natural born Citizen” or a naturalized citizen, they got it made, for in their eyes Obama is not a naturalize citizen under any Act of Congress. But the Obot argument fails.

The fallacy in the Obot argument is that the Constitution gives Congress the power to naturalize both “at birth” and after birth. Additionally, Congress constitutionalized their Civil Rights Act of 1866 (a naturalization act for persons born in the United States and “subject to no foreign power”) by way of the Fourteenth Amendment. Consequently, our naturalized citizens include both those naturalized “at birth” and those naturalized after birth. Those that are naturalized “at birth,” like Calvin from Calvin’s Case (1608) who Lord Coke declared through naturalization an English “natural born subject” from birth, are automatically made “citizens of the United States” “at birth,” either under the Fourteenth Amendment (if born in the United States under its jurisdiction, but not born to “citizen parents”) or Congressional Acts (if born out of the United States to one or two U.S. citizen parents). I have shown in the Kerchner v. Obama/Congress case and on this blog that Obama is not a “natural born Citizen” because he was not born in the United States to “citizen parents.” Assuming he was born in Hawaii, because he was not born to “citizen parents,” Obama is therefore under the power of the Fourteenth Amendment in effect a naturalized citizen “at birth,” or what may also be called a “naturalized born citizen,” but not a “natural born Citizen.” So, we can see that the Obots can find no comfort in their natural born/naturalized dichotomy.

MichaelN said...

Addressing this.......

"The Naturalization Act of 1795 did not add jus soli principles into our national citizenship."

I regret not being clearer on this.

To make it clearer.

I think the jus soli was already "added", it's just that the "coin dropped" for the Congress by the time they got to debate the 1795 Act.

The Naturalization Act of 1795, dispensed with describing as "natural born Citizens" those children born off-shore to US parents.
Although these children were still citizens by "natural" descent, as where the children in minority, domiciled in US & born of aliens who naturalized, they (children of US citizens) still needed jus soli birth-right to be both "natural" and "born".
Basically, I am saying that in my observing the change in language, in the 1795 Nat. Act, it became obvious to me that the US Congress realized their "error", thus they tacitly and positively addressed the element of jus soli, (albeit by exclusion of any mention in the text of the 1795 Act) as a necessary quality in the make-up of a "natural born Citizen".
I think they should have only removed "born" and left in "natural"
--------------------------
Puzo1 said...

MichaelN,

You said: "It was not until the later Naturalization Act of 1795, that the jus soli principle was positively added, and then eventually embedded in the USC via the 14th Amendment."

The Naturalization Act of 1795 did not add jus soli principles into our national citizenship. What it did was show that the Third Congress “considered” a child born abroad to citizen parents to be “as a citizen of the United States” rather than to be “as a natural born citizen." In both cases, these citizens were naturalized at birth.

Regarding children born in the United States to alien parents, that same Congress continued to treat them as aliens who became naturalized upon the naturalization of their parents if done during their minority and on their own if done thereafter. So there was no jus soli anywhere in either the 1790 or 1795 Acts. The same was repeated in the Naturalization Act of 1802.

All this confirms that the Founders and Framers required birth in the United States along with "citizen parents" as the constituent elements of a "natural born Citizen."

The jus soli that was injected into the Fourteenth Amendment by U.S. v. Wong Kim Ark was done only to create a “citizen,” not a “natural born citizen.”

cfkerchner said...

@Bob et al,

Here is an essay I found about unalienable and inalienable which explains the difference between the two.

http://www.freedomadvocates.org/articles/legitimate_government/understanding_unalienable_rights_20090805368/

This confusion of terms and language is used by the Obots many times to their advantage to dupe the unknowing in pushing Obama such as natural born and native born. Remember, it all depends upon what "is" means in the statement of one progressive wordsmith language manipulator.

Puzo1 said...

paraleaglenm,

We do not need a case after Minor to declare that its definition of a “natural-born citizen” is precedential. The strength and depth of Minor’s analysis of the question of what is citizenship in general and what is a “natural-born citizen” specifically speaks for itself. The Court’s analysis of whether Virginia Minor was a citizen for purposes of determining whether she was entitled to privileges and immunities under the Constititution which she contented included the right to vote was very thorough. Justice Waite went fully into the whole question of citizenship in all of its aspects. Because of the thoughtfullness of the Court’s analysis of the citizenship question, the Court’s holding regarding that citizenship question is binding precedent.
In any event, U.S. v. Wong Kim Ark (1898) cited and quoted Minor’s definition of a “natural-born citizen” and even quoted Minor’s statement that we look to common law to define a “natural-born citizen.”

I am happy to see that you agree with me that there was no jus soli in our early naturalization acts and that none existed in our laws until Wong Kim Ark invented the notion that we, as a nation, followed the English common law rule of jus soli. The truth is that the early naturalization acts were jus sanguinis based and abrogated English common law and so we had no jus soli rule of citizenship in the United States until Wong Kim Ark came along.

The “natural-born citizen” definition in Minor v. Happersett, i.e., a child born in the country to citizen parents, is the status quo. If Obama does not agree with that definition, since he wants to be President and Article II, Section, 1, Clause 5 states that no person who is not a “natural born Citizen” shall be eligible to be President, the burden of proof is on him to show us that he is correct and that we are wrong.

Bob said...

Cfkerchner

Thanks -- you are right, and the distinctions in words are immense.

BTW -- I have repeatedly used the name Emerich for the first name of Emer de Vattel, following the usual practice.

Then I find out that he has a birth record (unlike some we know), and on that birth record (a baptismal entry) his name is actually 'Emer' so I switched.

While born in Switzerland, he was born on land owned by the King of Prussia (Fredericus Rex), which made him both a citizen of Switzerland and a subject of the King of Prussia.

In his employment, he was an to the Elector of Saxony (in Dresden) [-- remember, the British and many Americans are actually Anglo-Saxons].

He translated everything that was written on the Natural Law from Latin to French, the new language of diplomats everywhere.

This made him eminently well-qualified to know the difference in all of these important issues.

Bob said...

I have been looking at this matter for over 12 years now -- I had friends in the Illinois Senate who had grave doubts about this character Obama a long time ago, but they were Irish and Catholic, and so they kept it to themselves.

But, I really blame the Republicans for the mess we are in.

When they let John Sidney McCain have full run of his ambition, he prepared the soil for Obama.

The New York Times and Washington Post were correct when they challenged McCain's eligibility, but they never looked at his birth certificate, and that was their mistake.

I know Mario thinks that McCain is eligible, but I strongly disagree with him, largely based upon the translation of de Vattel that I gave above.

There is more than the allegiance of the parents, -- the soil counts.

John McCain was allowed by the Republican Party to lie about his birth, and so the Democrats knew that they could lie about Obama's.

I am not talking about Senate Reolution 511 -- I am talking about McCain's primary challenge to George Bush back in 2000.

But Bush was defending his National Guard service, and the Republicans simply did not want to deal with McCain's eligibility.

But this mess has been going on for over a decade, because it seems that few take the Constitution seriously anymore.

Yet, if it has been followed more than 12 years ago now, we wold not have the mess we are in today!

Bob said...

The problem with John Sydney McCain III is that at a time when the best doctors in the world were assigned to the Canal Zone, and the Canal Zone had model medical records for the whole world from the fight against malaria -- with hospital and surgeons so good, people would travel to the Canal Zone from around the world for health services -- there is no record of John Sydney McCain, III being born in the Canal Zone.

Why? Because his parents chose to live in the Republic of Panama and that he was born in the Republic of Panama, for reasons of their own.

World War II and the Vietnam War changed his family, and our knowledge about his family, but could not change the record of his birth!

There is also nothing available in the records of the State Department, either -- and there should have been.

That is why we have Obama, and no birth certificate!

paraleaglenm said...

McCain was born in the Colon hospital, surrounded by the military base. Look at a map.

McCain was, essentially, born on U.S.-controlled territory. He had no 'alienage' requiring definition of citizenship by positive law. Yes, I believe 8 USC 1403 targets Panamanian births, but is not the issue.

McCain was eligible . . . it is disturbing that we can't even get an agreement on that fact.

paraleaglenm said...

Bob -- The reason McCain won the nomination was the first primary states were 'all-or-nothing' delegates. Note that this year they are 'proportional.' Yet, idiots like Sen. Graham are saying that a Romney win in S.C. should cinch the deal and the primary debates should end.

Mr. Apuzzo -- I would be amiss if I didn't point out that Minor, while definitive, is not strong precedent in the face of dozens of other cases misusing the term of art 'natural born citizen.' Even in Minor, the Article II issue is not developed or discussed and, as such, the issue of presidential eligibility is a cause de novo.

That is why I cited the earlier secondary authorities written by Assoc. Justice Joseph Story, which pre-date Minor by 40-years, and were written only 40-years after adoption of the U.S. constitution.

Bob said...

For the few people still interested, this is the only public record we have of the birth of John Sidney McCain, III -- It sounds eerily similar to all that we have for Barack Hussein Obama, II --


What did the English-language Panamanian American newspaper print on Monday, August 31, 1936?

Opening the Panama-American and looking at the front page of final morning edition, Monday, August 31, 1936, we read that it was published in the city of Panama in the Republic of Panama. It’s motto is: “Let the country know the truth and the country is safe.” — Abraham Lincoln.

The front page is preoccupied with the Spanish Civil War, and the bombing of the U.S. Destroyer Kane while flying the U.S. Flag in Spanish waters. Inside, under a byline ‘Atlantic Side Society Notes,” this squib appears: “Lt. and Mrs. John S McCain Jr., of the Submarine Base, are the parents of a son born Saturday afternoon at the Submarine Base Hospital.”

Bob said...

Only the phrases ‘Atlantic Side’ and ‘at the Submarine Base Hospital’ are now important.

The chapter on Admiral “Slew” McCain in Paul Alexander’s, Man of the People: Life of John McCain, records “on August 29, she (Roberta) gave birth to a son. In keeping with the McCain family tradition, he was named John Sidney McCain, III” (p.12).

Another front page story captures our attention. The headline reads: “Colón officer to enter plea in Dist. Court. Officer Shot Fugitive escaping Into Canal Zone.”

The phrase ‘Colón ... fugitive escaping into Canal Zone’ is important, because a fugitive fleeing ‘Zonian’ territory (to use the local idiom) only had to run across Colón’s Calle del Frente (“Front Street”) to make his escape.

On the Atlantic Side, the new and permanent Colón Hospital was built in 1916 out of reinforced concrete on some of the most valuable real estate in the area: it remained under the sovereignty of the Republic of Panama. It was never inside the Canal Zone.

By 1936, both hospitals and their medical facilities were state-of-the-art and world-famous. Travelers aboard passenger ships came to Panama to seek care at Gorgas Hospital (Balboa Heights), because it was “the most beautiful hospital in the world.”

Bob said...

paraeaglenm

I wrote this is 2001

Senator McCain has deliberately blurred his personal history, in order to advance his ambitions to be President of the United States. He has run away from 3,527,550 of his American friends (Census 2000), and by so doing, he suggests their roots are something less than the best — when he ought to have made them proud!

Who were his American friends, and why were there so many of them?

I wrote this shortly after Senate Resolution 511 was passed --

Senator McCain is no different from all the children of Americans CITIZENS in the course of American history born overseas, then all everyone has said, and all everyone has written, is wrong: all of the opinions, all of the arguments, all of the decisions based upon the premise that McCain was born in the Canal Zone of American CITIZENS residing in the Canal Zone are simply wrong. Senate Resolution 511, which overlooks the archived records of the Panama Canal, is both worthless and wrong! Senator McCain cannot be a ‘natural-born CITIZEN.’

What did Congress say in 1937 about children born in Panama after 1904 --they were CITIZENS.

Puzo1 said...

Bob,

It does not matter whether McCain was born in Panama proper or the Panama Canal Zone. In either case, McCain was born “in the country” to “citizen parents” and is therefore a “natural born Citizen.”

The Founders and Framers relied upon natural law and the law of nations to define the new national citizenship . The publicist to whom they relied upon the most to learn what that law said was Emer de Vattel. In Section 217 of this, The Law of Nations, Vattel spoke about birth in foreign nations to parents who are serving “the armies of the state” or to parents who are serving as “ministers at a foreign court.” Vattel said that those children born in foreign nations under such circumstances are “reputed born in the country.”

McCain was physically born in Panama to “citizen parents.” When McCain was born, his parents were serving the U.S. Navy. The U.S. Navy is surely considered a part of the “the armies of the state.” Hence, McCain was born to citizen parents who were serving “the armies of the state.” Under those special birth circumstances, while he was physically born in Panama, he is nevertheless “reputed born in the country” which means that he is considered as having been born in the United States. So it does not matter whether McCain was born in Panama proper or the Canal Zone.

Moreover, at the time of his birth, Panama also practiced jus sanguinis, which means that McCain at his birth did not acquire allegiance or citizenship from Panama. This means that not only was McCain considered to have been born in the United States to citizen parents, but he was also born within the full and complete allegiance and jurisdiction of the United States.

McCain therefore satisfies the time-honored definition of a “natural born Citizen” and also being at least 35 years of age and at least a 14 year resident of the U.S., he was fully constitutionally eligible to be President and Commander in Chief of the Military.

Bob said...

Follow-up --

The ‘Act of August 4, 1937’ (Pub.L. 75-242, 50 Stat. 558) reflects the maternity options available to Americans in the Canal Zone: namely, (a) the Canal Zone (Gorgas Hospital, Balboa Heights) and (b) the Republic of Panama (Colón Hospital, Colón):

The Act was codified in 8 U.S.C. §1403:

“(a) Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a CITIZEN of the United States, is declared to be a CITIZEN of the United States.

“(b) Any person born in the Republic of Panama on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a CITIZEN of the United States employed by the Government of the United States or by the Panama Railroad Company, or its successor in title, is declared to be a CITIZEN of the United States.”

What is clear from this 1937 Act of Congress is that Americans on the Atlantic Side were born in the Republic of Panama, while Americans on the Pacific Side were born in the Canal Zone: the law accurately reflects the jurisdiction of United States at the time.

If you are 'declared a CITIZEN' by an Act of Congress, you are a 'naturalized Citizen.'

John S. McCain III was NEVER a 'natural-born Citizen.'

I am sorry to strongly disagree with those who think otherwise.

Puzo1 said...

Paraleaglenm,

You said: “Mr. Apuzzo -- I would be amiss if I didn't point out that Minor, while definitive, is not strong precedent in the face of dozens of other cases misusing the term of art 'natural born citizen.'”

Response: Please provide one U.S. Supreme Court case which misused the term of art, “natural born Citizen.”

You said: “Even in Minor, the Article II issue is not developed or discussed and, as such, the issue of presidential eligibility is a cause de novo.”

Response: “Natural born Citizen” appears only one time in Article II. I am not aware of any other “natural born Citizen” existing in our Constitution. For Minor not to have developed or discussed the issue of presidential eligibility, to what other “natural born Citizen” could Minor have been referring when it defined the clause?

Bob said...

Mario --

I know your views, and I understand them, but in 1937, Congress did not share your views, and they passed legislation to deal with children of American parents born in the Canal Zone.

And I know what de Vattel said the about military, but you see, that cannot apply to the Canal Zone, because ALL of the Canal Zone was under the Secretary of War, and so if de Vattel was referred to, Congress would not have felt the need to pass its legislation.

This is what Congress thought about this --

By the time it was organized, the Panama Canal was created under authority of the Panama Canal Act of August 24, 1912 (37 Stat. 560, 569). Congress believed it was important that a senior officer of the U.S. Army be in charge of the Canal Zone, so the Governor was directly under the supervision of the Secretary of War.

Senator McCain is a Member of what is supposed to be the greatest deliberative body in the world, and he knew that this legislation applied to him.

Senate Resolution 511 was only a fig-leaf for his ambition.

That is why we are in the mess we are in now!

Puzo1 said...

Bob at 1-16-12, at 2:42 p.m.,

The Founders and Framers in Article I, Section 8, Clause 4 gave Congress the power to make uniform the laws of naturalization. That power did not include the power to take from someone his or her constitutional status. Hence, Congress does not have power to take from someone his or her Article II “natural born Citizen” status established under natural law and the law of nations.

The Congressional Acts that you cite are fine for their intended purpose. But they cannot be used to convert a “natural born Citizen” constitutionally established under natural law and the law of nations into a statutory “citizen of the United States.” Likewise, Congress does not have the power to convert a statutory “citizen of the United States” into an Article II “natural born Citizen.”

In short, the Constitution trumps everything that Congress may seek to undo or do when the Constitution does not permit it.

MichaelIsGreat said...

It is hard to believe but Obama is going to do a second term and he is going to be allowed to do so even though he is NOT a natural born citizen!!!

ALL the legal challenges have been with no tangible results!

Obama is completely above the law, that is in his case, Obama is above the Constitution of the USA!!
His father being a Kenyan, Obama is automatically NOT a natural born citizen because the Constitution of the USA requires that BOTH parents be American citizens for a President of the USA to be a natural born citizen!!

How on earth have we reach this point where this fraud Obama is above the Constitution of the USA and, worse, Obama is going to be able to trample a SECOND TIME the Constitution of the USA by pursuing a second term!!
How on earth is it possible?!!!

Puzo1 said...

Bob,

I do not see how you have addressed my points. First, the meaning of a “natural born Citizen” is not “my views.” That meaning has been record by the historical record and cases of the U.S. Supreme Court. Second, Congress does not have the power to amend the “natural born Citizen” clause. That clause provides a constitutional status which can be changed only by constitutional amendment. Hence, Congress at no time and surely not in 1937 ever amended the clause.

Other than just saying it does not apply, you have not shown how Vattel’s “armies of the state” does not apply to the Canal Zone or Panama proper.

Please do not misunderstand my motivation for defending McCain. The question of whether he is a “natural born Citizen” is one thing. Whether he acted improperly regarding his own eligibility and that of Obama’s is another thing. I am providing what I believe are the correct principles regarding McCain’s eligibility, based on the historical record and case law. I do agree with you that McCain gave Obama a pass on his eligibility. What McCain should have done was argue that Vattel shows that he is a “natural born Citizen” and at the same time shows that Obama is not. It is also suspect that Tribe and Olson to support Resolution 511 did not rely upon Vattel to defend McCain. It is suspect because the moment they would have used Vattel to help McCain, they would have revealed that Obama was not eligible.

Bob said...

Mario --

I agree with everything you say, but one --

That has to do with the facts on the ground.


Communis error no facit jus – ‘What all do wrong, creates no right!’

The Washington Post wrote: “As I reported earlier, the McCain campaign has declined to publicly release the senator’s birth certificate. But a senior campaign official showed me a copy of his birth certificate issued by the ‘family hospital’ in the Coco Solo submarine base.”

That hospital was not built until 1942 -- after Pearl Harbor -- so why did McCain not want to show his birth certificate?

That is because Congress did not recognize de Vattel's 'armies of state' exception and that is because the U.S. Constitution did not recognize de Vattel's 'armies of state' exception. Why? Because U.S. citizens were first citizens of their several States, and the armies were authorized for no more than 2 years.

But specifically, the Canal Zone legislation placed entire population was under the Department of War, so the declaration of Citizenship applied to every American there, including
those troops ‘distributed on military reservations.’

So, Congress granted to Citizen McCain something that he did not have, U.S. citizenship.

Michael Dobbs of the Washington Post accepted everything that Senator McCain said about his until he actually looked into it, and then doubts began to take over.

Bob said...

I understand your argument, but de Vattel himself does not agree with you.

I know that a ‘natural-born CITIZEN’ is derived from the right of nature (jus naturae) that precedes the common law (jus commune). Thus, it cannot be modified or amended by the civil law (jus civile).

‘Natural-born CITIZENS’ are more essential, more basic, more fundamental than the Constitution itself: they are ‘the People.’

But I also know that Article 1 ‘Naturalization Clause’ and the 14th Amendment ‘Citizenship Clause’ are merged into and expanded upon in the Code of Federal Regulations (CFR), but not the Presidential Qualification Clause.

And I also know that in the section numbered § 215, Emer de Vattel wrote: “It is asked whether the children born of CITIZENS in a foreign country are CITIZENS? The Laws have decided this question in several countries, and their regulations must be followed.”

In other words, it is not jus naturae or jus commune, but jus civile! The U.S. Congress has to decide the question. They have: The children of Americans born overseas are Americans by statute.

One major reason Congress cannot do anything differently, is that it has no jurisdiction over the foreign nations where the Armed Forces of the United States are serving (as during the Cold War), and the 14th Amendment requires such jurisdiction.

Puzo1 said...

Bob @1-16-12, at 4:55 p.m.,

You keep saying you agree with me, but then at the same time you keep trying to prove me wrong.
You keep on arguing about McCain’s birth certificate. But as I have shown, his physical place of birth is not controlling, as under natural law and the law of nations he was “reputed born in the country” to “citizen parents.”

You said: “That is because Congress did not recognize de Vattel's 'armies of state' exception and that is because the U.S. Constitution did not recognize de Vattel's 'armies of state' exception. Why? Because U.S. citizens were first citizens of their several States, and the armies were authorized for no more than 2 years.”

My response: Congress in the Naturalization Act of 1790 declared children born abroad to citizen parents as “natural born citizens.” The act did not even require that the parents be serving the national defense of the nation. If Congress was willing to allow such for parents not even serving the national defense of their nation, I cannot imagine that Congress would not have been willing to allow such for parents serving the national defense of their nation.

The Third Congress with the Naturalization Act of 1795 changed “natural born citizen” to “citizen of the United States.” But the act also applied to those born out of the United States. Again, McCain is “reputed born in the country.” Hence, he did not need the 1790 or 1795 Acts to make him a “citizen” or a “natural born citizen.” Rather, he satisfied in his own right the natural law and law of nations definition of a “natural born citizen.” And the First Congress had already shown its willingness to have children born abroad to citizen parents who were not even serving the national defense of their nation to be as “natural born citizens.” Hence, there would not have been any problem for the Founders and Framers to consider McCain a “natural born citizen.”

Concerning your point about armies not being authorized for more than 2 years, I do not see how you think that such time limitation is controlling or some game changer. If citizen parents are serving the armies of the state when their child was born, what does I matter for how long the armies were authorized? The point is that they were serving that army when their child was born and that fact does not disappear by the amount of time the army was authorized.

Also, both Tribe and Olson said that McCain was a “natural born Citizen” because he was born to citizen parents.

Bob said...

Mario --

I agree with your use of de Vattel, but I do not agree how you are reading de Vattel.

This is the way that you need to understand de Vattel.

jus naturae -- natural-born Citizen

jus commune -- native-born Citizen

jus civile -- naturalized Citizen

John McCain and ALL American citizens born overseas are jus civile.

Barack Hussein Obama II (if born on American soil) is jus commune.

But, Americans born of American citizens on American soil are jus naturae.

That is how you must read de Vattel's essay on the Law of Nations, and that is how SCOTUS and Congress have read the Law of Nations.

Anything else just muddies the waters, and will not advance the cause.

Trying to fit John McCain (and others like him (for example, namely Mitt Romney's father) into jus naturae, will never work, and doing so undermines the birthright of jus naturae citizens (like me!).

Congress cannot grant John McCain jus naturae citizenship, and neither can you, or Larry Tribe, or Ted Olson, or Senator Obama, or anyone else either!

You also cannot grant it like it was some form of knighthood like Orrin Hatch wanted to do for Arnold Schwarzenegger, just so his good friend and fellow-senator John McCain, could run for President under the smoke-screen he laid out.

That is why I blame the Republicans for this mess we are in!

One last point, de Vattel makes it perfectly clear that the 'armies of state' exception is jus civile and not jus naturae.

So, that is where I disagree with you.

Mick said...

Puzo1 said,

"What McCain should have done was argue that Vattel shows that he is a “natural born Citizen” and at the same time shows that Obama is not. It is also suspect that Tribe and Olson to support Resolution 511 did not rely upon Vattel to defend McCain. It is suspect because the moment they would have used Vattel to help McCain, they would have revealed that Obama was not eligible."




Mario,

Vattel may be the basis of the meaning of nbC, but he is not US Law; the Constitution, and the SCOTUS are. Minor v. Happersett says that McCain is not eligible, as not born in the US.

Tribe and Olson's definition matches perfectly w/ M v. H. In their advisory opinion, a nbC was "one born WITHIN the territory and allegiance of a nation." Tribe and Olson effectively use the 2 forms of jurisdiction ("within the jurisdiction"-- TERRITORY, and "subject to the jurisdiction"--ALLEGIANCE) that make up nbC, and are in accordance w/ M.v.H. The trick they used, since they knew that neither Obama nor McCain were eligible, was implying that PCZ was "American controlled territory", and thus "within the Jusrisdiction (territory)". We know this is a lie, since US law (FAM7) says military bases are NOT US TERRITORY. PCZ was not owned by the US, it was leased-- US had no ownership control, it was not a "territory" in the sense of say, Puerto Rico. By the Panamnian Constitution McCain could have chosen, by election of residence, Panamanian Citizenship, a choice no natural born Citizen would have.

Also, one must look at the wording of NA1790. It says that those born abroad of US Citizen parents "shall be considered as, nbCs", meaning that they were not nbCs by natural law, but "were considered as" statutorially. That statute was revoked in 1795, and was not reserved to military personnel, so it was not a Vattelian interpretion by statute either. It was a benefit given to the early US Citizens for a short period.

"And the children of citizens of the United States, that may be born beyond sea, or out of the limits..., shall be considered as natural born citizens..."

Resolution 511 talked out of both sides of it's mouth, at once stating that McCain was born outside of the US, but also implied US military bases were US territory, in order to conform w/ Tribe and Olsen's AO.

McCain was not an nbC by the precedent of M v. H. or by Tribe and Olsen's AO. Resolution 511 relied on a NA that gave STATUTORY nbC status that was revoked 213 years before. A total sham and lie.

Bob said...

Another was to look at this is how the Framer's would --

There are certain things that have come from 'Nature's God,' who is the fountainhead of the natural law.

Our unalienable rights, Washington's providential hand, and natural-born Citizenship.

The liberals argue that everything is jus civile -- there are no right to life -- they can take it; there is no right to liberty -- they can confine you; and there is no pursuit of happiness in cradle to grave welfare.

And, the ACLU wants to make sure that the people understand that there is no Nature's God, either.

Lastly, there are attacking 'natural-born Citizenship' by replacing it was the common law 'native-born Citizenship.'

That is why can ignore the fact that Nature's God made Obama a Brit (Kenyan).

Obama (they say) is 'native-born,' and that is 'good enough:' and 'you birthers are nuts!'

But the proper interpretation of de Vattel (who was a Huguenot) is that only Nature's God can create 'natural-born Citizens.'

And, that was the understanding of John Jay: he did not want the mess that is Europe telling Americans who are Americans -- Nature's God would decide that -- but that is what we have now, and we are suffering because of it.

That is how to read de Vattel, and that is how the Framers read de Vattel.

paraleaglenm said...

Appendix B in my blog post http://paraleaglenm.wordpress.com/2011/01/07/who-is-a-citizen-at-birth-or-a-natural-born-citizen/ includes a list of case law discussing natural born citizen as a product of jus soli and English common law, i.e., subject = citizen.

Bob said...

On the matter of citizenship by descent -- it does not exist according to the Opinion of Attorney General Bates -- for this is what he writes --

The Opinion of Attorney General Bates, “It is an error to suppose that citizenship is ever hereditary. It never ‘passes by descent.’ It is as original in the child as it was in his parents. It is always either born with him or given to him directly by Law.” Citizenship, Washington, Government Printing Office, 1863, p. 16

Bob said...

There is also this important quote --


United States v. Wong Kim Ark, 169 U. S. 649, 669, 670 (1898).

Justice Horace Gray quotes from the Second Edition of Horace Binney’s paper, ‘Alienigenae:’ “The notion that there is any common-law principle to naturalize the children born in foreign countries, of native-born American father ‘and’ mother, father ‘or’ mother, must be discarded. There is not, and never was, any such common-law principle.’” Binney, Alienigenae, 14, 20; 2 Am. Law Reg. 199, 203.”

This can only be done by statute.

MichaelN said...

There is a question as to why did the US Congress remove the wording "natural born" that was in the 1790 Naturalization Act when it superseded the act, with the Naturalization Act of 1795.

As far as I can find out, James Madison was in the committee and drafted the 1795 act.

"natural born" was removed from the wording, which had in the 1790 act, described a child born outside the limits of the US, to US citizen parents; the 1795 act redefined such a child as a "citizen".

Important to note that in both instances the child was a citizen by descent.

I tend to believe the change was because, born only to US parents, was not considered sufficient to make one a "natural born Citizen"; two essential qualities were required, i.e. born to US citizen parents and born within the limits of the US.

Only three years after the adoption of the US Constitution, in which Article II sets the eligibility requirement for POTUS, as a "natural born Citizen", the US Congress based the meaning of "natural born" on descent from citizen parents, without any consideration for native birth.

Although the US Congress in 1795 added native birth to the descent quality, it was NEVER the case that the framers considered a native birth as sufficient to make a "natural born Citizen".

It is impossible for the framers of Article II of the USC to have intended "natural born" to mean merely native born.

Puzo1 said...

Bob,

What do you consider a child born to a U.S. citizen mother and U.S. citizen father while on board a U.S. ship sailing in Iranian waters, an alien, a “citizen of the United States,” or a “natural born Citizen?” Please be sure to give the reasons supporting your answer.

Mick said...

Puzo1 said...
"Bob,

What do you consider a child born to a U.S. citizen mother and U.S. citizen father while on board a U.S. ship sailing in Iranian waters, an alien, a “citizen of the United States,” or a “natural born Citizen?” Please be sure to give the reasons supporting your answer."



Simple. Minor v. Happersett---- national law----- not born in the US= not eligible. There is no gray area in the M v. H holding. That is US Law, not Vattel.

Puzo1 said...

Bob @1-17-12 12:28 p.m.,

You said:

“jus naturae – natural born Citizen
jus commune – native-born Citizen
jus civile – naturalized Citizen”

My response:

You are the one who is not reading Vattel properly. For Vattel, either you were a “natural-born citizen” or you were naturalized by law. There was no “native-born Citizen” that was not also a “natural-born citizen.”

Puzo1 said...

Mick,

You said:

"That is US Law, not Vattel."

I guess then "US Law" just came down to us from the heavens, just appearing one day and we don't even know where it came from.

You really do need to think about what someone else says before you simply repeat it.

I am surely curious to see how Bob answers my question and if he agrees with your conclusion.

Mick said...

Puzo1 said...
"Mick,

You said:

"That is US Law, not Vattel."

I guess then "US Law" just came down to us from the heavens, just appearing one day and we don't even know where it came from.

You really do need to think about what someone else says before you simply repeat it.

I am surely curious to see how Bob answers my question and if he agrees with your conclusion."


I kinda resent the implication that I am some kind of mindless echo, but anyway. This is an area I must disagree w/ you Mr. Apuzzo. The holding of M v. H agrees w/ Vattel in essence, and the exception made by Vattel does not have to be accepted by US Law.

The issue of whether birth to members of the military outside of the jurisdiction are nbC has not been adjudicated, but NA 1795 would say that that child would not be nbC, as military personell would be "citizens". The fact that NA 1790 uses the language "shall be considered as" tends to exclude any birth outside of the US from consideration as nbC. M v. H gives the solid Blood/Soil definition, but I suppose that a court can be sought to make the judgement pertaining to military outside the jurisdiction in survice to country. No court has made that decision, but as SCOTUS precedent stands, those children are not eligible.

McCain seeking the SCOTUS, instead of the kangaroo Senate, to make that Declaration would have blown Obama's cover, so M v. H will stand until the question arises again.

Bob said...

Mario --

In light of your questions, I will try to be a little clearer.

I am using de Vattel's lengthy discussion at the start of his book, where he criticizes Baron Wolf for arguing that there is jus naturae for nations.

He rejects the notion. Jus naturae applies only to individuals.

So, in one answer to your question, where it applies to the individual, it is jus naturae.

Then there is the jus gentium, which comprises the jus commune and the jus civile. This is the way nations are built, and he accuses the Roman Emperors of constantly messing them up, so a large part of his treatise is teaching how to keep them straight -- so we have to also.

In the jus commune and the jus civile the United States has answered the questions you have asked, and those answers are found in the U. S. Code.

And so you have my answer.

And I am the one who is correct!

You can read more than 75,000 pages of U.S. Code, and you will find 'native-born Citizens described and regulated; and you will find 'naturalized Citizens' described and regulated; but you will not find 'natural-born Citizens' either described or regulated, because the government has no ability to regulate jus naturae.

That is how you read Emer de Vattel.

Bob said...

Mario -- you disagreed with me about residency as an inherent part of the earliest naturalization bills, and this is the answer to that, but there is also good language concerning citizenship and usurpation (near the end) --

This is what Thomas Jefferson wrote in his 'First Annual Message' on the State of the Union, December 8, 1801

'I cannot omit recommending a revisal on the laws on the subject of naturalization. Considering the ordinary chances of human life, a denial of citizenship under a residence of fourteen years is a denial to a great proportion of those who ask it, and controls a policy pursued from their first settlement by many of these States, and still believed of consequence to their prosperity. And shall be refuse the unhappy fugitives from distress that hospitality which the savages of the wilderness extened to our fathers arriving in this land? Shall opressed humanity find no asylum on this globe? The constitution, indeed, has wisely provided that, for admission to certain offices of important trust, a residence shall be required sufficient to develop character and design. But might not the general character and capabilities of a citizen be safely communicated to every one manifesting a bona fide purpose of embarking his life and fortunes permanently with us? with restrictions, perhaps, to guard against the fraudulent usurpations of our flag; an abuse which brings so much embarrassment and loss on the genuine citizen, and so much danger to the nation being involved in war, that no endeavor should be spared to detect and supress it.'

Bob said...

Mario --

In addition, this is something Jefferson wrote on the integration of jus naturae and jus civilis --

This is what Thomas Jefferson wrote in 'A Bill Establishing Religious Freedom.' (Virginia)

'Section III. And though we well know that this Assemby, elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding Assemblies, constituted with powers equal to our own and that therefore to declare this Act irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passes to repeal the present or to narrow its operation, such act will be an infringements of natural right.'

I guess from this that you could argue that de Vattel himself was in error (and Immanuel Kant did think that de Vattel was hopelessly inconsistent) when he maintained that the citizenship of ambassador's children, and of the 'armies of state' must be treated as if the parents never left the jurisdiction of the United States, which makes it the same as treaty law.

However, it is Congress itself that takes the position (except for Embassies) that military bases overseas are NOT under the jurisdiction of the United States, and it adds, such jurisdiction is required by the 14th Amendment.

That is why I argue that McCain is a derivative citizen by statute (jus civile), and 'naturalized at birth,' and in addition, he knows it.

James said...

Mario,

RC announced on his radio show last night the 3 Obots who will arguing their side of NBC debate on his show next week. I am sure you know these individuals well. They are hard-core Obots. The 3 Obots who will debate are:

Steven Feinstein
Frank Arduini
Patrick Coliono

Again, I strongly encourage not to accept any invitation by RC. RC is Obot and his show is populated by Obots. If you were show up for a debate. Not only would you unmercifully attacked by these Obots but you would by phone callers as well. I don't trust RC for a second and I don't think you should either. These Obots are just looking for a platform to fuel and spread their lies.

Puzo1 said...

Mick @ 1/17/12 10:35 PM,

Indeed, one can gain an advantage by co-opting the stautus quo and placing the burden of proof on those who one maintains want to change that status quo. For sure, that is what Obama has done on the question of whether he is an Article II “natural born Citizen.”

Hence, your attempt to also use that same strategy on me concerning the question of McCain’s eligibility has not gone unnoticed by me. Stay tuned for my reply.

Bob said...

Mario -- These quotes are for others to read, because I think it will help them to shape their thinking, when discussing the value of 'natural-born Citizenship.'

As a kind of background to Minor -- this is the environment that Lincoln dealt with --

This is what Lincoln wrote about the difficulties with 'naturalizing' Citizens.

In his Annual Message to Congress, December 8, 1861, Lincoln wrote:

'There is reason to believe that many persons born in foreign countries, who have declared their intention to become citizens, or who have been fully naturalized, have evaded the military duty required of them by denying the fact, and thereby throwing upon the government the burden of proof. It has been found difficult or impractible to obtain this proof from the want of guides to the proper sources of information. These might be supplied by requiring clerks of courts, where declarations of intention may be made or naturalizations effected, to send, periodically, lists of names of person as naturalized, or declaring their intention to become citizens, to the Secretary of the Interior, in whose department those names might be arranged and printed for general information.

There is also reason to believe that foreigners frequently become citizens of the United States for the sole purpose of evading duties imposed by the laws of their native countries, to which, on becoming naturalized here, they at once repair, and though never returning to the United States, they still claim the interposition of this government as citizens. Many altercations and great prejudices have hretofore arisen out this abuse. It is therefore, submitted to your serious consideration. It might be advisable to fix a limit, beyond which no Citizen of the United States residing abroad may claim th inerposition of his government.

The right of suffrage has often been assumed and exercised by aliens, under pretences of naturalization, which they have disavowed when drafted into the military service. I submit the expediency of such an amendment of the law as will make the fact of voting an estoppel against any plea of exemption from military service, or such other civil obligation, on the ground of alienage.'

Reality Check said...

James said:
"Mario,

RC announced on his radio show last night the 3 Obots who will arguing their side of NBC debate on his show next week. I am sure you know these individuals well. They are hard-core Obots. The 3 Obots who will debate are: ..."

I think James fears his heroes would be embarrassed in an honest debate. He is correct.

Bob said...

Mick --

I hope that I have given you enough to chew on -- Thomas Jefferson and the natural law, Abraham Lincoln and the problems with naturalization of Citizens prior to Minor, the appeal to the US Code where both the the Article 1 ‘Naturalization Clause’ and the 14th Amendment ‘Citizenship Clause’ are merged into and expanded upon in the Code of Federal Regulations (CFR).

I am fully aware of Minor v. Happersett, 21 Wall. 162, 167 (1874), Chief Justice Morrison Remick Waite said: “Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. ... New CITIZENS may be born or they may be created by naturalization.”

And we saw from Lincoln's first State of the Union what a rat's nest 'naturalization' was.

And in the case of Senator John Sydney McCain III, I appeal to Elk v. Wilkins, 112 U.S. 94, 101-102 (1884), the Court said that the Fourteenth Amendment “contemplates two sources of citizenship, and two sources only: birth and naturalization. ... Persons not ... 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.”

And here is another interesting quote for you -- concerning the failure to renounce 'dual Citizenship'

In Theodore Roosevelt’s “Children of the Crucible” (New York, Sept. 9, 1917) published in support of the U.S. at war: “From the melting pot of life in this free land all men and woman of all nations who come hither emerge as Americans and nothing else.” [TR wanted a fusion of ‘born’ and ‘naturalized Citizens,’ ending all ‘dual allegiance.’ But what was his remedy for the American Citizen who failed to renounce ‘completely and without reserve’ his ‘dual allegiance’ (to Germany in this case)?] Banishment! ‘He is not entitled to any part or lot in our country — and he should be sent out of it.’

I hope this doesn't bore you!

Bob said...

Mick --

The following is copyrighted material from the McCain Campaign asking for donations --

[Remember that paraeaglenm told me above that McCain was born in Colon Hospital, and I could 'look it up!']

‘McCain, Dedicated Service’

“Coco Solo was a United States Navy submarine base established in 1918 on the Atlantic Ocean (northwest) side of the Panama Canal Zone, near Colón, Panama.

“Future United States Senator John McCain was born in 1936 at a navy hospital at Coco Solo Naval Air Station.

“Coco Solo Hospital was constructed in the Summer of 1941. The area containing it was transferred from the civil part of the Panama Canal Zone to the naval part when Franklin Roosevelt signed Executive Order 8981 on December 17, 1941. During World War II, Coco Solo additionally served as a Naval Aviation Facility housing a squadron of P-38 Lightning aircraft.”

[Notice the internal contradiction: McCain born in 1936, but the navy hospital at Coco Solo was constructed in 1941 (actually, it was built in 1942).]

Do you think there may have been something wrong here?

After finding several such inconsistencies, the Washington Post also started to have some doubts.

Remember, The McCain Committee raised money, using this material.

This is why Obama has grabbed the Republicans by their soft underbelly, and Mario and others cannot get a hearing!

Bob said...

Mick --

I bring up dual nationality, because it is covered by the Secretary of State's codified regulation: 7 FAM 1111.4 "Dual or Multiple Nationality."

But, did you know that McCain is covered by this regulation as well?

But, like everything else, he has simply chosen to ignore it.

This does not lessen my high regard of Senator McCain as a War Hero.

I only bring this up because we should have found allies among the Republicans concerning the issues surrounding the current occupant of the Oval Office, but all there is is stonewalling.

That is why I gave you the Roosevelt quote on the formal renunciation of dual citizenship.

I only do it as a material observation to the discussion here

Bob said...

I know that Mario believes that McCain is a 'natural-born Citizen,' and I do not --

So, I think it is important the material that is available in 7 FMA 1116.1-4 that reads:

'c. Despite widespread popular belief, U.S. military installations and U.S. diplomatic or consular facilities are not part of the United States within the meaning of the 14th Amendment. A child born on the premises of such a facility is not subject to the jurisdiction of the United States and does not acquire U.S. citizenship by reason of birth.'

Mario has only briefly looked at this language, but in light of what I believe, this is very important information.

It is for this reason that the United States Congress passed legislation awarding Citizenship to Americans living and working in the Canal Zone in 1937.

The parents of Senator John Sydney McCain, III, were living in the Republic of Panama.

That does not change the fact that he was awarded his citizenship (retroactively) by an Act of Congress, and therefore, he cannot be a 'natural-born Citizen,' based on the number of citations that I have given here elsewhere and above.

But, I doubt that I will have changed any minds. But, I have good grounds to think what I do.

Bottom line -- Who cares? McCain lost. (But we are still paying the consequences from the winner!)

Bob said...

Here is an antique citation -- from Google Books

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

It predates the Civil War, and Minor. It says --

"The expression ‘citizen of the United States' occurs in the clauses prescribing qualifications for Representatives, for Senators, and for President. In the latter, the term ‘natural born citizen’ is used and excludes all persons owing allegiance by birth to foreign states."

Bob said...

This is a Democrat writing about the 14th Amendment and the Presidential Qualification Clause -- in 1916.

It is not about race -- it is about being British, however.

Breckenridge Long - an attorney and graduate of Washington University Law School in an article written for the Chicago Legal News, argued that a 'native born citizen' of the US who is also born to a British father is not a 'natural born citizen' by stating – in 1916 – about Presidential candidate Charles Evans Hughes:

“It is not disputed that Mr. Hughes is not a citizen of the United States, but if he had the right to elect, he must have had something to choose between. He was native born because he was born in this country, and he is now a native born citizen because he is now a citizen of this country; but, had he been a 'natural born' citizen, he would not have had the right to choose between this country and England; he would have had nothing to choose between; he would have owed his sole allegiance to the government of the United States, and there would have been no possible question, whether he found himself in the United States or in any other country in the world, that he would be called upon to show allegiance to any Government but that of the United States.”

Kat7 said...

@Reality Check
Don’t be concerned that no one expert on this subject will show up to debate your group of Obama supporters.

Most have argued with FACT until they are blue in the face without hope of cracking through to sanity of any kind.

What is/should be understandable to a 3rd grade student somehow escapes the Obama supporter.

Why?

Who know, who cares?
They decline your kind offer no doubt because it would be a monumental waste of their time. :)

Your assumption that they would lose or are afraid etc. shifts you dangerously close to delusion, fool or stupid.

MichaelN said...

"Mr. Big" (ballantine) champion for the deceivers, in action where his desperate use of fallacy no no bounds.

http://rcradioshow.blogspot.com/2012/01/rc-radio-natural-born-citizen-debate.html?showComment=1326941212728#c6318768247886426289

Texoma said...

I have a different position regarding the eligibility of McCain, which is one that will not ever be resolved unless McCain were to run again for President. I contend that McCain is not a natural born citizen, but that the US Supreme Court might have nonetheless ruled him eligible, since he was not born with a foreign allegiance. If the US Supreme Court were to go by the letter of the law, then McCain would not be eligible. But if they were to go by the intent of the Founding Fathers, which I believe was to have Presidents who were free of conflicting allegiances, McCain would be eligible.

McCain is not a natural born citizen because he was not born on US sovereign territory. Per the 1903 treaty, Panama, not the US, was the sovereign of the Panama Canal Zone, and this included the land used by the US for military bases. The US paid Panama an annual rent for the Canal Zone, which we would not do if we were the sovereign. Also, children born in the Canal Zone to Panamanian parents were not US citizens at birth, but rather Panamanian citizens at birth.

McCain’s situation is similar to that of the foreign-born children of English fathers. In 1541, Parliament passed a naturalization act which granted subject status to foreign-born children of English parents. Parliament decreed that these children were to be “reputed and taken” to be natural subjects. They were deemed to be natural subjects by law, even though they were not natural subjects in fact.

Vattel uses similar language when he considers the foreign-born children of military fathers to be “reputed” born in the country. This “reputing” is being done by man and not by nature. Hence, there is an operation of positive law that deems these children “born in the country” of the citizen father who is abroad. But by the laws of nature alone, these children are in fact born in the sovereign foreign country.

In 1936 (the year of McCain’s birth), Panama law stated that children born in its sovereign territory to foreign citizen parents were not Panamanian citizens at birth. Now, their law did provide that these children could, at the age of majority, automatically become Panamanian citizens if they made that election. However, this provision does not constitute an allegiance at birth, and so McCain was not born with a foreign allegiance.

I believe McCain cared more about becoming President than abiding by the Constitution. Otherwise, he could have questioned his own eligibility, which would have exposed Obama’s ineligibility. Then, I believe the US Supreme Court would have ruled him eligible due to having no foreign allegiance at birth, despite not being a natural born citizen. But I believe McCain did not want to take the chance of being ruled ineligible.

Bob said...

Texoma --

I pointed out that de Vattel constructed his Treatise so that a 'natural-born Citizen' was jus naturae, and that is how the Framers construed it, and set it in the Constitution is such a way that no one could easily amend it or change it, but at the same time placed 'naturalization' among the jus civile authorizations of Congress.

I showed how Thomas Jefferson distinguished between jus civilis and jus naturae.

I showed from his first Annual Message to Congress that Abraham Lincoln was the father of the Immigration and Naturalization Service in the Department of the Interior.

Further, how Thomas Jefferson was concerned about the 'usurpation of the flag' in revising the 'naturalization' laws: In 1802 the law was revised and a 5-year residency required (lowered from 14-years in 1798): later the ‘Act of Feb 10, 1855’ (10 Stat. 604, § 1), reformed the Naturalization Laws to say: “All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth CITIZENS thereof, are declared to be CITIZENS of the United States.”

I meant to make clear that a 'natural-born Citizen' is by jus naturae, the natural law. And, that is how Thomas Jefferson would argue as well (setting aside Emer de Vattel).

Bob said...

Texoma --

Above I mentioned that there were facts on the ground that make McCain's birth history and U.S. Citizenship difficult to parse --


These are some of the facts on the ground relative to John Sydney McCain, III: the motto of Panama-American was: “Let the country know the truth and the country is safe.” — Abraham Lincoln.

‘Atlantic Side Society Notes,” this squib appears: “Lt. and Mrs. John S McCain Jr., of the Submarine Base, are the parents of a son born Saturday afternoon at the Submarine Base Hospital.”

From McCain Campaign literature:

"McCain was born at Coco Solo Naval Air Station in Panama to Navy officer John S. McCain, Jr. (1911–1981) and Roberta (Wright) McCain (b. 1912). At that time, the Panama Canal was under American control, and the McCain family was stationed in the Panama Canal Zone."

Apparently, this information must have come from the newspaper, because no birth certificate is listed for John Sydney McCain, III, in the sequential ledger maintained by the Panama Canal Health Department called, 'Records of Birth.'

We know that Charles Lindbergh made a famous "Circle Flight" over the Panama Canal in September 1929. We also know that cancelled commemorative stamps from the Canal Zone show that "Coco Solo" had its own Naval Post Office at the time.

So the expected information is that "Coco Solo" would appear on the long form as the father’s residence. Instead, we read Colón!

Conclusion: The MCain's did not live in the officer's housing provided at Coco Solo that his campaign material would leave us to believe.

Bob said...

Texoma --

To be fair, Michael Dobbs (Washington Post) followed up on these matters, and the more he looked, the more he seemed to move in the direction of those who have doubts about McCain’s story.

The following is one of his unique contributions to Senator McCain’s record:

A missing FS 240 to establish the right to citizenship: about this Michael Dobb’s wrote: "For what it’s worth, it does not seem that McCain’s parents filed such a form. Looking through State Department records at the National Archives, I found numerous Forms 240 filed for children born in the Canal Zone in 1936, but no such form for Senator McCain. (The fact that his parents did not file the form does not mean that he is not a CITIZEN — just that it could be a little more difficult to prove.)"

Ever more amazing: Mark Seidenberg, Vice Chairman, American Independent Party, in doing background research for the California party, discovered that the 'Registro Civil des Estado de la Baja California, Estados Unidos Mexicanos,' has no record of a marriage between Navy officer John S. McCain, Jr. (b. 1911) and Roberta Wright (b. 1912). Roberta (Wright) McCain claims she was married at a bar in TJ, Mexico on 21 January 1933.

His conclusion, without proof of lawful marriage, John Sydney McCain III would be deemed 'born out of wedlock,' and Roberta Wright lacked the employment standing to transfer citizenship under the 'collective naturalization' of American children born in Panama. His question, how many people looked the other way to allow John Sydney McCain III to serve as a non-citizen naval officer?

One answer might be, Section 1993 (48 Stat. 797) was amended by the Act of May 24, 1934, to permit American women to transmit U.S. citizenship to their children born abroad, regardless of the father’s citizenship. Seidenberg, however, maintains that provision did not apply under 'Special Provisions for Panama.'

c. Legitimation is required for a child born out of wedlock to a male U.S. citizen engaged in qualifying employment. A child born out of wedlock to an American woman employed by the U.S. Government or the Panama Railroad Company acquires U.S. citizenship at birth.

So, since 1934, the United States has had a gender distinction concerning the claim by foreign-born children to U.S. citizenship through an unwed father than through an unwed mother: his unwed mother was not employed by the U.S. Government or the Panama Railroad Company for McCain to acquire U. S. citizenship at birth: http://www.state.gov/documents/organization/86757.pdf

Be that as it may --

By 1938, 'Jack' McCain, concluded his assignment at Coco Solo, and transferred to the Naval Academy in Annapolis to teach.

On December 7, 1941, the Japanese attacked Pearl Harbor in Hawaii. 'Jack' McCain’s family (now including John’s older sister, ‘Sandy,’ and younger brother, ‘Joe’) lived in New London, Connecticut where Submarine Command Headquarters were located.

John Sydney McCain, III, was 5 years old when the news of Pearl Harbor arrived: his father ran from the house and 'rushed to the base at once.' During all of World War II his family rarely saw him.

John Sydney McCain, III, was also 5 years old when President Franklin Delano Roosevelt authorized on December 17, 1941 the purchase of about 40 acres of land along the Rio Coco Solo to build a U.S. Naval Hospital: a 200 bed Naval hospital was constructed in 1942.

So, as I was saying to Mario -- de Vattel does not help answer the citizenship status of Senator McCain --

No Marriage License, No Birth Record, and Counselors Certificate (FS 240).

But, like Obama, we have an autobiography: apparently such a publication without refutation allows the facts contained therein to stand as true.

Bob said...

Senator John Sydney McCain III prides himself as a maverick!

This has led him to make enormous contributions to this country --

His grandfather is one of the great war heroes of World War II.

The problem I have is that (tit-for-tat) his personal story closely mirrors so much the current office holder, that it enforces the GOP 'to look the other way' (as Mark Seidenberg writes).

It is surreal that maybe neither McCain nor Obama thought they would win -- that Hillary Clinton was supposed to be the next President in 2008 -- and so they could safely indulge themselves in a run for President.

It did not work out that way. And we are all suffering from it.

Daniel 4:17 -- 'This matter is by the decree of the watchers, and the demand by the word of the holy ones: to the intent that the living may know that the Most High ruleth in the kingdom of men, and giveth it to whomsoever he will, and setteth up over it the basest of men.'

James said...

Mario,
Any chance you will be attending the hearing Georgia as a witness or just attending? Your input to the NBC argument could be invaluable to any one of the legal teams.

Bob said...

Mario --

I am done talking about McCain -- but like with Obama -- as Joseph Farah from WND says repeatedly -- 'I have hung around politicians a long time -- and they don't hang around the truth.'

You know, they call it 'disinformation.'

It was Navy Ensign John Sydney 'Jack' McCain who married Roberta Wright at Ceasar's Bar in Tijuana, Baja California, Mexico on 21 January 1933 -- we are supposed to believe.

But, it is almost an insult to Mexico, which is a family-oriented nation, because the US Consulate in Tijuana, Mexico, will let any American know that since 1927 all marriages must take place at the Office of Civil Registry.

And at no time prior to the birth of John Sydney McCain, III, did his mother Roberta Wright live in a common law marriage state, or territory, or foreign country, or zone.

Jerry Corsi has made clear to the world that what a politician writes in his autobiography and what the documents really show are often miles apart.

So, back to de Vattel, we are blessed with an enormous pool of citizens under jus naturae.

There is no need to elect anyone to the office of the highest trust who has ANYTHING to hide.

It should almost be an automatic disqualification for office in the eyes of the voter.

Hopefully, it will be in the future.

Texoma said...

Bob, thanks for your very informative replies.

Since McCain is not a natural born citizen, he must then be a naturalized citizen at birth. We have federal statutes (Title 8 Section 1401) which grant citizenship at birth to children who are born with McCain’s circumstances (born abroad to US citizen parents).

If McCain’s question of eligibility had ever made it to the US Supreme Court, I would have preferred that they would have ruled according to the letter of the law, which is that he had to be a “natural born citizen”, and so he would have been ruled ineligible.

However, I think the US Supreme Court, and this is just my opinion, would have instead ruled according to the intent of the Founding Fathers, which I believe was to have Presidents free of foreign and conflicting allegiances, which is the case for McCain. In this respect, requiring the President to be a natural born citizen was a means to an end – that “end” being a President free of foreign influence.

I posted about this before: the “end” that I describe above is supported by the 14-year residency requirement. I believe the Founding Fathers understood that foreign influence came not only from place of birth and the citizenship (and allegiance) of the parents, but also from having lived recently in a foreign country, where one is exposed (especially in the days of our Founding Fathers) to foreign ideas, values, culture, etc.

Bob said...

Texoma --

Thank you for your thoughtful reply -- but couched inside what I wrote is this, and Lincoln pointed to it best, the 'burden of proof would fall upon the government.'

They would never assume it.

Further, the McCain Campaign applied for and accepted Federal matching funds. If McCain was never eligible in the first place, who pays those back?

Third, if McCain knew this in the from the start, what were his possible motives behind McCain - Feingold? I just don't get it! So, I am willing to cut some slack here due to his years as a prisoner of war in service to this country.

I know that in my family that I have 4 great aunts and uncles who their whole life long thought someone else was their father -- when in fact, he was someone else in town. They all died before the truth was known, and that was discovered only by my aunt by accident years later.

The problem is that most of the McCain information is now known to the GOP muckety-mucks, and it has forced their silence, largely because of the Federal matching funds, and so the truth about Obama uncovered by Jerry Corsi is deep-sixed, as they used to say in Washington, DC.

And, frankly, it has made two very fine attorneys, Larry Tribe and Ted Olsen look like tarts at the trough for giving a legal opinion that is based on fiction.

Bob said...

This is another great quote on the issue of 'natural-born Citizen.' --

In the Constitutional Convention, where according to James Madison’s notes, Mr. Gouverneur Morris of Pennsylvania said:

'As to those philosophical gentlemen, those ‘Citizens of the World’ as they call themselves, He owned he did not wish to see any of them in our public Councils. He would not trust them. The men who can shake off their attachments to their own Country can never love any other.'

Today, these words might be considered the words of a bigot!

Puzo1 said...

Bob,

You continue to insist that McCain is not a "natural born citizen." I am starting to wonder why you persist in your argument.

Simply stated, you are applying the wrong law to answer the question.

I have shown that when applying the only law that the Founders and Framers would have applied when they wrote the Constitution, which is not the English common law but rather the law of nations which became American common law, McCain is an Article II "natural born Citizen."

What is historical and legal justice is that the very law that makes McCain a "natural born Citizen" disqualifies Obama from being one. Too bad that McCain did not know that.

Bob said...

Mario --

This is what you write --

I have shown that when applying the only law that the Founders and Framers would have applied when they wrote the Constitution, which is not the English common law but rather the law of nations which became American common law, McCain is an Article II "natural born Citizen."

This is what Horace Binney writes -- from the Second Edition of Horace Binney’s paper, ‘Alienigenae:' “The notion that there is any common-law principle to naturalize the children born in foreign countries, of native-born American father ‘and’ mother, father ‘or’ mother, must be discarded. There is not, and never was, any such common-law principle.’” Binney, Alienigenae, 14, 20; 2 Am. Law Reg. 199, 203.”

Two great authorities: you and Horace Binney, directly and verbatim contradict each other.

So, I look into it further.

And, the more that I look into the facts on the ground concerning de Vattel, Congress, jus naturae, jus gentium, jus commune, jus civile, this is what I find --

If you citizenship status is in anyway at all subject to an Act of Congress, your citizenship status is Article I, not Article II.

BOTH McCain's and Obama's are Article I.

Then I once again looked into the facts on the ground and discovered some amazing things, which I have listed, many of which most people have no clue about.

Actually, the facts on the ground when linked up with Acts of Congress raise reasonable doubts about what McCain's campaign produced.

One of the most famous is a film with Cindy McCain visiting Caesar's Bar in Tijuana, Mexico to tell a sweet story about where Navy Ensign Jack McCain and Roberta Wright were 'married.'

It totally ignores the fact that in Baja California the only place to get married is at office of the registrar (a law in place since 1927) -- that they have claimed that they have no record of the marriage that Cindy is describing before the world.

So, what law are YOU using? After 1934, an unwed mother could certainly transfer U.S. citizenship to her child.

But since she was not in the military, she could not do it from Panama, because of special provisions passed by an Act of Congress. I was not willing to belabor the point, because with legitimization, Navy Lt. Jack McCain could, but that is not the story that Cindy McCain was telling (that's all).

But, to do that makes McCain's citizenship into Article I citizenship.

Back to my point -- if your citizenship is Article I, it is not Article II, and nothing else matters, because of the quote I gave above from Horace Binney -- that there is no common law principle addressing a birth trans mare.

Neither McCain or Obama are 'natural-born Citizens' and almost for identical reasons.

That is my conclusion. He is not a 'natural-born Citizen,' but rather a 'citizen by statute,' and everything else is wrong.

MichaelIsGreat said...

Hello Mr. Apuzzo,

What do you think of Mrs. Orly Taitz's rejoicing when she says:
"I won!!! I won!!! I won!!! Judge Malihi ruled in my favor. Obama’s motion to quash my subpoena is denied! He has to appear at trial and present all the documents that I demanded to produce in my subpoena!" at http://www.orlytaitzesq.com/?p=30563#comments

I have become completely hopeless with the legal system to get the truth on Obama's dishonesty and to prove that Obama is NOT a natural born citizen. Well, I surely would like to be proven wrong by anybody!

MichaelN said...

Bob said ..........
"This is what Horace Binney writes -- from the Second Edition of Horace Binney’s paper, ‘Alienigenae:' “The notion that there is any common-law principle to naturalize the children born in foreign countries, of native-born American father ‘and’ mother, father ‘or’ mother, must be discarded. There is not, and never was, any such common-law principle.’” Binney, Alienigenae, 14, 20; 2 Am. Law Reg. 199, 203.”"

I think Binney was wrong regarding English common law.

Lord Coke - Calvin's case, says.....

"There be regulary (unlesse it be in special cases) three incidents to a subject born.
1. That the parents be under the actual obedience of the king.
2. That the place of his birth be within the king’s dominion.
And 3. the time of his birth is chiefly to be considered; for he cannot be a subject born of one kingdom, that was born under the ligeance of a king of another kingdom, albeit afterwards one kingdom descend to the king of the other.
For the first, it is termed actual obedience, because though the King of England hath absolute right to other kingdoms or dominions, as France, Aquitain, Normandy, &c. yet seeing the King is not in actual possession thereof, none born there since the Crown of England was out of actual possession thereof, are Subjects to the king of England.
2. The place is observable, but so as many times ligeance or obedience without any place within the king’s dominions may make a subject born, but any place within the king’s dominions may make a subject born, but any place within the king’s dominions without obedience can never produce a natural subject.
And therefore if any of the king’s Ambassadors in forein Nations, have children there of their wives, being English women, BY THE COMMON LAWS OF ENGLAND they are natural born subjects, and yet they are born out of the king’s dominions."

Puzo1 said...

I of II

Lucas Smith has posted an article at his blog, wasobamaborninkenya.com, entitled, "A question from Lucas Smith to attorney Mario Apuzzo: If Obama fails to appear for the administrative court hearing in Georgia, tentatively scheduled for January, 26 2012, what legal repercussions could he be confronted with?"

Here is my response to Lucas Smith which I posted at his blog:

Lucas,

Thank you for giving me the opportunity to address this issue on your very informative blog. Here is a quick answer.

The subpoena issued to Obama comes from an administrative court rather than a law court. A court-issued subpoena has the authority of a court order whether it comes from a law court or an administrative one.

Obama just happens to be the President now and would have to take time out of his official schedule to honor the subpoena. Nevertheless, Obama is subpoened as a private individual, not as the President.

Does Obama have to honor the subpoena? The only way to get out of honoring a subpoena is to have it quashed on a motion to quash. Obama tried that and it has so far failed. He can attempt to file a motion for reconsideration. But until the court changes its mind, he must honor the subpoena and here is why.

“It is beyond dispute that there is in fact, a public obligation to provide evidence, see United States v. Bryan, 339 U. S. 323, 339 U. S. 331; Blackmer v. United States, 284 U. S. 421, 284 U. S. 438, and that this obligation persists no matter how financially burdensome it may be. Footnote 10″
“Footnote 10 [I]t may be a sacrifice of time and labor, and thus of ease, of profits, of livelihood. This contribution is not to be regarded as a gratuity, or a courtesy, or an ill-required favor. It is a duty not to be grudged or evaded. Whoever is impelled to evade or to resent it should retire from the society of organized and civilized communities, and become a hermit. He who will live by society must let society live by him, when it requires to. 8 J. Wigmore, Evidence § 2192, p. 72 (J. McNaughton rev.1961).”
Hurtado v. United States, 410 U.S. 578, 589 (1973). This is one case among the many on this issue.

Indeed, Obama, as a member of legally constituted society, has a “public obligation” to provide evidence to a court, whether that court is a law court or an administrative one. His obligation is even greater given that the subpoena touches upon his right to eventually hold a public office should he win the election. Even Congress, which is not a law court, issues subpoenas which must be obeyed at the risk of suffering severe sanctions, including incarceration.

The only way that Obama could avoid the subpoena is to show that somehow he has some privilege that protects him from giving the requested evidence. Again, Obama has been subpoened as a private person, a candidate for public office, not as the President of the United States. From the Georgia court’s ruling on Obama’s motion to quash, we can see that Obama failed to make such a showing that convinced the court that he in fact has such a privilege.

Continued . . . .

Puzo1 said...

II of II

If Obama does not honor the subpoena, the court, applying Georgia law and precedents from federal law, can issue an order to show cause to him ordering him to show cause why he should not be held in contempt. If he still does not comply, then he would be held in contempt of court. The court in such a case will issue sanctions to him, which can include a monetary penalty, an adverse ruling against him in the case itself, or even incarceration. Since he is the currently putative sitting President, the court would probably just opt for an adverse ruling rather than jail. That would be the best option since it gets to the heart of the matter. That adverse ruling would be that Obama has not met his burden of proof to show that he is an Article II “natural born Citizen.” Hence, the court could recommend to the Georgia Secretary of State that Obama’s not be allowed to be placed on the primary ballot. In the end, the Secretary of State will make the ultimate decision.

Additionally, the current sitting President of the United States not honoring a court-issued and properly served subpoena related to whether the President is constitutionally eligible for that very office could also be deemed a “high Crime[] or Misdemeanor[]” under Article II, Section 4, the article dealing with impeachment of the President. Congress could declare such conduct a high crime or misdemeanor and initiate and prosecute impeachment proceedings against Obama and they should.

James said...

Mario,

Send your response to Orly and Hatfield as they will be required to respond if Obama's lawyer files an amended motion to quash. Your legal insights might be helpful in filing a legal response against the quash.

juniper55 said...

WND and Washington Post/AP both picked the Georgia subpoena issue up:

http://www.washingtonpost.com/national/georgia-judge-orders-obama-to-appear-in-court-for-hearing-on-attempt-to-keep-him-off-ballot/2012/01/20/gIQAsayeEQ_story.html?tid=pm_national_pop

http://www.wnd.com/2012/01/judge-rejects-obama-demand-to-quash-subpoena/

I hope this judge is watching his back, and hope he is well protected!

I also sent links to Drudge and Breitbart. Keep pushing this!

Bob said...

MichaelN

The laws of England have only to do with inheritance -- one cannot inherit a title of a liege from a liege lord without allegiance to the liege lord.

If you knew who Horace Binney was, you probably who bow to his knowledge of the law --

He is one of the Philadelphia lawyers whom the idiomatic phrase 'a Philadelphia lawyer' is supposed to conjure up, and a senior advisor in law to Abraham Lincoln, himself a lawyer.

The Presidential Qualification clause comes from Emer de Vattel.

However, there are three areas in his Law of Nations that were specifically rejected by Congress, and I have mentioned two them above: his views on conscription (mostly adjudicated in Confederate courts), which de Vattel rejected but Congress accepted, and his exception for 'armies of state,' which de Vattel accepted, but Congress rejected. I gave the reasons why above, but briefly, Congress did not want 'naturalized Citizens' moving overseas and claiming their children were 'natural-born Citizens' by descent, so they established a residency requirement that they enforced until 1855. Secondly, the limit that Congress could raise an army for was no more than two (2) years, so the families of soldiers were not sent over with the Marines to shores of Tripoli on the Barbary Coast for example, or to the Halls of Montezuma in Mexico City for another.

But now you bring up the third area: embassage.

Have you read about Talleyrand and the XYZ Affair? Well, you should. Because then you will understand why Congress adopted the Alien and Sedition Acts based upon a special message to Congress by President John Adams, and why the United States did not adopt de Vattel's the Ambassadorial exception.

In summary, the children of United States Ambassadors and the children of American service men are covered by the language of the law drafted by Horace Binney that was passed in 1855, and signed into law by President Millard Fillmore -- they are derivative citizens by statute (Article I citizens).

Puzo1 said...

Bob,

You keep insisting that McCain is not a "natural born Citizen" because of some Congressional Act. You fail to realize that Minor said that the meaning of a "natural-born citizen" is found in the "common-law" with which the Framers were familiar when they drafted the Constitution. Based on Minor's definiton of a "natural-born citizen" (tied to citizen parents), we know that that "common-law" was based on the law of nations and not the English common law.

That means that Minor did not look at either the Fourteenth Amendment or Congressional Acts as an aid in defining a "natural-born citizen."

Further, the Congressional Acts do not preclude McCain from being a "natural born Citizen" because according to the "common-law" which Minor said is to be consulted when defining a "natural-born citizen," he was born in the country.

Bob said...

Mario --

You hit the nail on the head!

For de Vattel, 'natural-born' is jus naturae.

For the United States the Law of Nations is jus commune.

Granted.

If you read de Vattel he will say according to jus naturae, 'the child follows the condition of the father,' and then he will list any exceptions.

So exceptions are part of the same common law that Minor refers to.

So, if Congress (and it has) addresses the exceptions by any special provision (and it has), then the jus commune is erased, and replaced with jus civile.

Therefore, if there is an Act of Congress that addresses a particular citizenship, then SCOTUS will address the Act of Congress and not de Vattel (and it has).

McCain is an Article I citizen, and that takes nothing away from Minor.

Bob said...

I have no bone to pick with Senator McCain -- personally, I like him and he was my mother-in-law's Senator, and when she had some difficulties with the U.S. Government, Senator McCain was the only one who came to her rescue, and he worked very hard for her: she could not say enough good things about him.

I use him only as a living example of what can go wrong when the Constitution is not followed and personal ambition gets in the way, because, whatever else he is he is one such living example who is not the current President of the United States.

Bob said...

A quote from Binney's biography --

'By the year 1853 the great increase in the volume of American travel in Europe had made the question of the citizenship of children born in foreign parts a very practical one.

The naturalization laws did not cover such cases, and all attempts at a change in the law had hitherto failed. In fact, one of Mr. Binney's own grandsons was an alien as the law then stood.

During this year he wrote a timely essay on 'The Alienigenae of the United States,' and its publication undoubtedly aided in securing the passage of the Act of February 10,1855 [my comment -- which is now Section 1993 of the Revised Statutes of the United States] -- which established the citizenship of the FOREIGN-BORN CHILDREN OF CITIZENS [my comment -- business travelers, ambassadors, military personnel, you name, are covered by this Act.]

'Congress, I learn,' wrote Mr. Binney shortly afterwards, 'have passed a bill for the relief of the Alienigenae, and, for a wonder, as it was a very reasonable bill, President Pierce has not vetoed it.'

[My comment -- again, that is the 'Act of Congress' I refer to.

It predates Minor by 20 years, so the Chief Justice knew it.]

Puzo1 said...

Bob,

You are tenacious.

The common law provides the rule for defining a "natural born Citizen."

Generally, a statute abrogates the common law.

Vattel also said that with children born out of the country, the positive laws must be followed."

But Congress was not given any power to define a "natural born Citizen." So Congress cannot abrogate the common-law definition of a "natural born Citizen."

The Naturalization Act of 1790provides a rule that defines citizenship generally and also for a limited time deemed some born out the USA as "natural born Citizens." That rule abrogates the common law. The statute did not create or limit "natural born Citizen," for Congress had no power to do that.


The statute provides for status if one is born out of the United States. The statute did not define what being born out of the United States means. Hence, we go back to the common law.

And we then apply the "armies of the state" exception.

So we are back to my position, not yours.

Bob said...

Mario --

I am tenacious only because there is no other person other than McCain to demonstrate all of the arguments pro and con for 'natural-born Citizen' -- that keeps the left silent and out of the argument with their bogus and made up stuff.

I try to stick to history and to facts on the ground.

So, since you are viewing this as legal tennis, this is my volley back --

Chief Justice Taft (in Weeden v Chin Bow, 274 U.S. 660 ff.), notes that persons born abroad (even children of parents who were CITIZENS of the United States) after the ‘Act of March 26, 1790’ (1 Stat. 103), are ‘naturalized’ under power vested in Congress (Article 1, Section 8, Clause 4).

Chief Justice Taft directly refers to the act of 1790, the one in which the clause 'natural-born Citizen' was used.

So, in my view de Vattel has been specifically 'abrogated' (as you use the term).

Bob said...

Mario --

Correction --

Abrogated only in respect to 'natus trans mare'

Otherwise, de Vattel is the U. S. common law definition of 'natural-born Citizen,' as per Minor.

And, that is where I agree with you 100%.

I do not agree with you on McCain, because clearly he was born overseas, and that part of the U.S. common law was abrogated by an Act of Congress, beginning in 1790, and revised several times since.

The revisions were based in every case on the events that I have already listed: the XYZ Affair, Jefferson's election, the invention of the steamship, the Civil War, the building of the Panama Canal, Women's suffrage, all played a part in revisions of the first 1790 naturalization act.

Bob said...

Congress did not provide any exceptions to 'natus trans mare,' military, ambassadors, they all know that unless their children are born 'dans le pays,' they are 'citizens by statute.'

I have a niece and nephew 'born overseas,' they are derivative 'citizens by statute.'

Unless they take up residency in the United States, they will not be able to pass their American citizenship on to their own children.

So far, they have no inclination to do so, because they are Swiss. Since both are now adults that is their choice, and not my brother's, who has returned alone to the United States.

All over the world the story is told of the American sailor who marries a local, and then returns to claim is American citizen son with his new American wife. Obviously, as the captain of his frigate, he is on assignment from the American government, and he is working with the U.S. Consul to Japan.

The name of the mother is Madame Butterfly, and she resolves Pinkerton's dilemma by suicide.

Puccini's Opera conforms closely to U.S. law.

Puzo1 said...

Bob,

Your citation of Weeden v. Chin Bow, 274 U.S. 660, and your comment regarding its reference to the Naturalization Act of 1790 do not help you.

Again, a “natural born Citizen” is defined under American “common-law,” not the English common law, Fourteenth Amendment, or Acts of Congress. See Minor v. Happersett (1875). Acts of Congress go only to providing naturalization for those who are not otherwise “natural born Citizens.”

That is not to say that Acts of Congress, such as the Naturalization Acts of 1790, 1795, and 1802, are not relevant to determining what a “natural born Citizen” is, for it is, among other evidence, those very acts, in the absence of the Constitution expressly doing so, which indirectly tell us what a “natural born Citizen” is.

That American “common-law,” adopted from Vattel’s Section 212, provides the definition of what a “natural born Citizen” is, i.e., a child born in the country to citizen parents. That same “common-law,” adopted from Vattel’s Section 217, also defines for us what “born in the country” means, which definition includes the “armies of the state” exception. Again, under that exception, a child born out of the country to citizen parents who were serving the “armies of the state” is “reputed born” in the country. Hence, such a child is born in the county to citizen parents which makes John McCain a “natural born Citizen” and eligible to be President.

Puzo1 said...

Bob @ 1-22-12 6:44 AM,

The only powers that Congress has are those expressly and by implication given to it by the Constitution. The only power that Congress has with respect to citizenship is to make uniform the laws of naturalization. See Article I, Section 8, Clause 4.

The “natural born Citizen” clause is a presidential eligibility standard expressly established by the Constitution. It cannot be reasonably argued that possessing the power to define a "natural born Citizen" is reasonably implied from having the power to establish who may be naturalized, for the latter power only touches upon removing alienage at birth or after birth while the former touches upon a condition that is granted by nature at birth.

Moreover, the “natural born Citizen” clause is a clause which establishes one of the standards to be President. The other standards are at least 35 years of age and at least a 14-year resident. Like Congress cannot change the age or residency requirements without constitutional amendment, it also cannot change the definition of a “natural born Citizen” without such amendment. Hence, Congress’s naturalization powers do not include the power to change the presidential eligibility clause, for having such power would mean that Congress can at will change the presidential eligibility requirements without constitutional amendment.

So, Congress does not have the power to abrogate American “common-law” which defines an Article II “natural born Citizen.” That American “common-law” is the very law which the People relied upon when they included the “natural born Citizen” clause in the Constitution. See Minor v. Happersett (1875). Congress cannot use its legislative power to amend the will of the People which was incorporated into the Constitution. That will may be changed only by constitutional amendment.

Bob said...

This is how de Vattel introduces this subject on the 'children born at sea,' 'the armies of state,' and 'the house of the minister of state' exceptions to being 'born in the country' (dan le pays)

'It is asked whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and their regulations must be followed. By the law of nature alone, children follow the condition of their fathers, and enter into their rights (Paragraph 212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him; I say 'of itself,' for, civil or political laws may, for particular reasons, ordain otherwise.'

I reference the 'dan le pays' clause, because it is as much an integral part of de Vattel's definition of 'natural-born CITIZEN' as 'of parents who are citizens' to wit --

'The natives, or natural-born CITIZENS, are those born in the country, of parents who are citizens.

The United States has adopted 'civil and political laws' that ordain what 'dans le pays' means for the United States. They 'abrogate' the 'children born at sea,' the 'armies of state' and the 'house of the minister' exceptions addressed by de Vattel, and as de Vattel says himself, 'their regulations must be followed.'

I have given numerous examples where the United States has addressed these matters in law.

I have quoted from SCOTUS in support of my interpretation of those Acts by Congress.

Frankly, you have given none, except to repeat again and again your reading of de Vattel.

So, I have reproduced what he has said in detail, according to Chitty's version, and even de Vattel cannot be made to agree with you.

You have nothing left!

Puzo1 said...

Bob,

Just to give you the abbreviated version of my answer, since the definition of a “natural-born citizen” is based on “common-law,” if that same “common-law” provided the “armies of the state” exception, there is no sound reason why that exception must fail because of some subsequent Act of Congress, when, as I have shown, Congress does not have the constitutional power to define a “natural-born citizen” in the first place.

You are in no position to declare victory.

Bob said...

Mario --

It is amazing your argument!

Emer de Vattel has the power to define a 'natural-born Citizen,' and he has! (But Congress does not, and it hasn't!)

'The natives, or natural-born CITIZENS, are those born in the country, of parents who are citizens.'

I have parsed that definition into its parts for all to read, because de Vattel has based his definition upon the natural law.

Apparently, the natural law does not allow for any exceptions -- if you are not born in the country, too bad -- you are not a 'natural-born Citizen.'

You know what? That is exactly as the Framers decided, that is exactly as Congress decided, that is exactly as SCOTUS decided -- so, just too bad!

Now de Vattel says, but there are three exceptions where we must act as if children were actually 'born in the country,' when if fact they are not (but these are optional).

Now you tell me, that Congress does not have the authority to address de Vattel's own options.

Okay -- then I win!

Because without the options -- since McCain is born overseas -- he is not a 'natural-born Citizen' but rather a 'citizen by statute.'

However, if Congress has the authority to address the options, as they have --

Okay -- I win!

Because Congress says: (in 1855, 20 years before Minor) that if you are not 'born in the country (even in the 'armies of state') you are a 'citizen by statute.'

Congress is consistent in this.

So, who isn't?

Puzo1 said...

Bob,

The Founders, Framers, and the People decided that a “natural born Citizen” would be defined by the “common-law” and not by Congress. And they committed that decision to paper when they wrote the Constitution. You cannot change it by yelling and screaming that Congress should have the power to define a “natural born Citizen,” which as you say should include the power to define under what circumstances one is considered “born in the country” for purposes of satisfying the definition of the clause which we know is a child born in a country to citizen parents.

Again, Congress cannot take away from a “natural born Citizen” what nature gives to him or her.

Bob said...

Mario --

I did not believe I was yelling, but if you think so, I apologize.

I quote from Lord Edward Coke in Calvin's Case (BTW, the 'alien' land Robert Calvin (postnatus) was born in was Scotland rather than England, and his case was used in the end to merge the Crown of England and Scotland, so this is House of Lords stuff, not House of Commons).

'Leges naturae perfectissimae sunt et immutabiles, humani vero juris conditio semper in infinitum decurrit, et nihil est in eo quod perpetuo stare possit. Leges humanae nascuntur, vivunt, moriuntur.'

Translation: 'The laws of nature are most perfect and immutable, whereas the condition of human law always runs into the infinite and there is nothing in them which can stand for ever. Human laws are born, live, and die.'

Thus, even under British law (for those who choose to use it) the 'armies of state' option cannot 'stand forever,' just like the 'born at sea,' and 'house of the minister' options that go with it, so they never were a part of the definition of 'natural-born Citizen' that the United States brought under the common law, because the definition of a 'natural-born Citizen' is written in de Vattel in such a way as to 'stand forever.'

If your logic prevails (if reduced to its foundation)suggests that we should simply use de Vattel and tell Congress to back off, and never address the issue of the 'nati trans mare' at all.

Bottom line -- Congress has taken nothing away from anyone, because even in Calvin's Case, the 'natural-born subject' was born under requirement No 2. 'That the place of his birth be within the king’s dominion.'

So, I beg to differ with you, and I do so on the strongest grounds.

Bob said...

Mario --

I just want the record to show that the peculiar language used by Chief Justice Taft (in Weeden v Chin Bow, 274 U.S. 660), when he said that Congress 'has recognized that persons born abroad (even children of parents who were CITIZENS of the United States) after the ‘Act of March 26, 1790’ (1 Stat. 103), are ‘naturalized’ under power vested in Congress (Article 1, Section 8, Clause 4) -- To wit --

'And the children of CITIZENS of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.

That Taft is addressing in particular the 'nati trans mare' that are the subject-matter of the common law brought over from Emer de Vattel in paragraph 217, calling them 'naturalized' under Article 1 powers.

So, I conclude from this, that already in 1 Stat 103, the 'armies of state' exception that you rely to find Senator John Sydney McCain III a 'natural-born Citizen,' was abrogated by an Act of Congress in and among its earliest legislation.

MichaelN said...

I think the debate about the word "naturalized" is irrelevant.

A "natural born" can be said to be "naturalized".

When a statute merely affirms or is declaratory of an existing natural law, in my opinion, such a statute doesn't take precedence over that pre-existing natural law, nor can said statute, if repealed or superseded by another statute, alter the natural law.

This, I believe is what happened with the first Naturalization Act of 1790, where the US Congress and the Senate "affirmed" or "declared" in the statute that a child born out of the limits of the US, to a US citizen parents was a "natural born citizen".

This principle based on descent and portable obedience & allegiance was a tenet of English common law, although the example given by Lord Coke in Calvin's case, was with regard to English ambassadors and their English wives, I believe that the US Congress and Senate considered US citizens whilst abroad as virtual quasi "ambassadors".

Later the 1790 act was superceded and the wording "natural born" was omitted from the statute, yet "naturalization" by way of the same principle was still maintained, only the wording had been changed.

I believe the wording was removed, simply because the legislators realized that because it (i.e."natural born") was mentioned only once in the USC and that it was specifically descriptive of one who was to be seen as with the highest possible allegiance to the US republic, then the only way such a comprehensive allegiance could be achieved was to tie native birth to natural birth, without any variations of this theme, thus departing from strict adherence to the more lateral English common law application of "natural born".

This "on second thought" reaction as demonstrated in the 1795 act, on the part of the legislators, may well have been due to the legislators at the time of the 1790 act being forgetful of the influential origins of the term "natural born Citizen" and the ramifications of their choice of words when attempting to apply descent citizenship to the children born abroad to US citizens.

Puzo1 said...

MichaelN,

You said:

"I think the debate about the word 'naturalized' is irrelevant.

A 'natural born' can be said to be "naturalized.'"

We must part our ways on this one. We are interpreting the meaning of the clause in the United States and not in colonial England where a "natural born subject" also included naturalized subjects. If what you said is correct, then the "natural born Citizen" clause has no meaning in the United States.

Also, given that the Founders and Framers used the "natural born Citizen" clause specifically for presidential eligibility, they would have accomplish absolutely nothing if what you said were true.

Bob said...

MichaelN

I think you missed a big chunk of American history --

Because from Thomas Jefferson’s first term, on Apr 14, 1802, to the only term of Franklin Pierce, on Feb 10, 1855, these children were ‘ALIENS.’

Yes, ‘ALIENS,’ which created some surprises among the few American CITIZENS who were living abroad.

But, but both the Federalists and Democratic Republicans had debated even sterner restrictions.

(Also, remember, early U.S. Citizenship had also a jurisdictional component from each State.)

After April 15, 1802, unless you were ‘indigena,’ or ‘domestic-born,’ that is, ‘born on American soil and a CITIZEN of any one of the several STATES, you had to meet the same 5-year residency the remaining parts of the ‘Naturalization Laws’ required (lowered from 14-years in 1798), whether your parents were Americans or not.

Most importantly, that was the Law for more than fifty (50) years.

MichaelN said...

Mario.

I don't think you got the giste of what I was trying to convey.

The US Congress & Senate in 1790 (in their minds) "naturalized" a "natural born".

The "natural born" was such, by descent, then the naturalization was declaratory and did not establish "natural born".

The omission of the words "natural born" in the following Naturalization Act of 1795, in my opinion, did not and cannot change the natural law that the US Congress and Senate of 1790 recognized.

You talk about how the English may have granted "natural born" status to those who were alien-born, but this is irrelevant; the very same principle of "natural born" by descent was the way of the English as well, where the subject/citizen status of the father was the primary quality to establish whether one was a "natural born".

As I see it, the only thing that the US Congress and Senate did in the Naturalization Act of 1795, was to raise the bar, to tacitly "include" native birth as essential in recognizing a "true" "natural born", effectively confirming the 1787 framers intended meaning of "natural born Citizen" and that it meant both by descent from the citizen parent AND by native birth-right.

As Lord Coke put it, describing a "natural born" with high allegiance, absolute, pure and indefinite, due "by nature and birth right".

Coke:
"that issue is no subject of the king, though he be born upon his soyl, for he was not born under the ligeance of a SUBJECT"

Replace "subject" with "citizen" and there you have it.

As by descent is a pre-statute, pre-minicipal right, so too is by native birth, but not one or the other are sufficient to meet with the "US precedent for president", it is both that are required as essential in recognizing (not naturalizing) a true US "natural born Citizen".

MichaelN said...

Here's a really useful resource:

http://oll.libertyfund.org/index.php?option=com_staticxt&Itemid=28&a=c

Bob said...

MichaelN

There is little evidence that the words faith and allegiance appear in the concern in the Framers minds in any oaths -- those words do not appear until after the American Civil War -- the earliest oaths use the words 'defend and protect,' as in the Presidential Oath.

That would be expected, since there was a requirement for renounce any titles or allegiance to (personal) foreign sovereigns.

Chisholm v Georgia, a decision written by Chief Justice John Jay has some superb language in it about the sovereignty of the people (over the States), so this I think is why the ideas of 'support and defend' were more important than 'faith and allegiance,' if the ideas of Lord Coke were ever used in American law (hardly ever).

For example, here is the formal oath from a Confederate soldier upon resuming his U.S. citizenship, using a prescribed form.

http://www.historicalshop.com/sitecontents/confederate/documents/oathofallegiance8297.htm

Lord Coke was more concerned about the Crown than about Citizenship in writing Calvin's case.

What I mean by this -- the parallels are accidental.

Bob said...

Here is a sample sentence from John Jay's decision in Chisholm v Georgia, which led to the 11th Amendment to the Constitution --

'At the Revolution, the sovereignty devolved on the people, and they are truly the sovereigns of the country, but they are sovereigns without subjects (unless the African slaves among us may be so called), and have none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty.'

He spends quite a lot of time distinguishing a nation of compacts (the United States) from the feudal system of Great Britain (a prince as executive).

MichaelN said...

Bob said.............
"Lord Coke was more concerned about the Crown than about Citizenship in writing Calvin's case.
What I mean by this -- the parallels are accidental."

I suspect that the Framers were very knowledgeable in, and conversant with English common law and Lord Coke as well as a myriad of other lessons and principles found in history, foreign examples and from amongst their contemporaries.

I believe that the framers were very observant of the qualities required by the English to make a 'natural born" in 17th century England and were also "tuned" into Vattel's principles.

My point is that the English requirements basically don't differ from those of Vattel, where a subject/citizen father AND native birth in the realm of the father's subjectship/citizenship, were absolutely essential in recognizing a "natural born".

The term "natural born" incorporated into it the native birth-right, along with the paramount, essential quality of natural descent from the natural genetic parents.

The descent principle was paramount both to the English and apparently also the framers in 1787 and the US Congress and Senate, only three years later in 1790 with their enactment of the first naturalization Act of 1790, where descent was the ruling factor in recognition of a "natural born".

In light of the fact that with the adoption of the USC, it was the citizens of the US who became collective sovereigns, and as such when off-shore, it is reasonable that they were considered as quasi "ambassadors", much like the example cited by Lord Coke, where the children born outside the realm to English ambassadors and their English wives, were deemed as "natural born"(as Coke stated) "by the common law of England", I believe that the framers in their original concept recognition of a "natural born", leaned toward the English principle, holding descent as the primary and paramount criteria, leaving native birth in US as unimportant and possibly intended it to be kept up their sleeve in reserve for possible future addition.

Then later, around 1795, with all the fuss and paranoia that developed throughout the course of establishing suitable naturalization rules, with questions of residency and domicile, the Congress and Senate (guided by James Madison, with least fan-fare as possible) tacitly "included" native birth as an essential quality in the make-up of a "natural born" by dropping the wording from the 1795 Nat. Act, even though native birth was probably strongly considered (influenced by Vattel) as an inclusion back in the framing period, native birth was put aside without saying, because of all the complications that went with it in the framing period. i.e. English colonial remnants, Torys, spies, slaves, merchants, monarchists, etc.

In both instances (English CL and Vattel)the recognized status of "natural born" had nothing to do with eligibility criteria for the high office of president of a republic.

The framers of the USC "invented" the term "natural born Citizen", just the same as they "invented" the US Constitution, it was their recognition of the law of nature, that caused them to select a term that was unique to the situation at hand, i.e. a term that best described an entity that was a product of the nation and it's sovereign citizenry with the least risk of inclination toward foreign interests.

Although the principles that define and recognize "natural born" may be commonly shared, the "natural born" in the context of USC has no precedent for eligibility qualifications for POTUS republic.

"natural born" was by the law of nature, as a state of being, by descent, it could not be legislated by man either in constitution or statute to establish or remove such a status, it could only only recognized and adopted as a criteria.

MichaelN said...

The Current INS Officially Recognizes A Delineation Between Natural-Born and Native-Born.

http://naturalborncitizen.wordpress.com/2012/01/25/the-current-ins-officially-recognizes-a-delineation-between-natural-born-and-native-born/

Wulfrano Ruiz Sainz said...

What Apuzzo should do is go to Kenya and fly to the US all of Aboma's relatives as witnessess to his african birth.