Saturday, April 28, 2012

President James Monroe and the “Natural Born Citizen” Clause







   President James Monroe and the “Natural Born Citizen” Clause


                                   By Mario Apuzzo, Esq.
                                         April 28, 2012


James Monroe
Fifth President



I received an email today regarding our fifth President, James Monroe. What struck me as being applicable today was the article that was attached to the email. The article was a little biography on President Monroe. In that article is contained a part that included President Monroe’s concern about possible usurpation in our government. Below is my reflection on this article.


Indeed, President James Monroe, in his First Inaugural Address of March 4, 1817, warned:

"What raised us to the present happy state?...The Government has been in the hands of the people. To the people, therefore...is the credit due...

It is only when the people become ignorant and corrupt, when they degenerate into a populace, that they are incapable of exercising the sovereignty.

Usurpation is then an easy attainment, and an usurper soon found. The people themselves become the willing instruments of their own debasement and ruin...

President Monroe then stated on December 7, 1824, in his 8th Annual Message:

"For these blessings we owe to Almighty God...with profound reverence, our most grateful and unceasing acknowledgments....

Having commenced my service in early youth, and continued it since with few and short intervals, I have witnessed the great difficulties to which our Union has been exposed, and admired the virtue and intelligence with which they have been surmounted...

That these blessings may be preserved and perpetuated will be the object of my fervent and unceasing prayers to the Supreme Ruler of the Universe."

Source: Monroe, James. Dec. 2, 1817, First Annual Message. James D. Richardson (U.S. Representative from Tennessee), ed., A Compilation of the Messages & Papers of the Presidents 1789-1897, 10 vols. (Washington, D.C.: U.S. Government Printing Office, published by Authority of Congress, 1897, 1899; Washington, D.C.: Bureau of National Literature & Art, 1789-1902, 11 vols., 1907, 1910), Vol. II, p. 12, as found at http://www.americanminute.com/ .

President Monroe was most dedicated to preserving the great nation that the United States had become. He saw usurpation as a most serious threat to that preservation.

Why was President Monroe so concerned about usurpation? To whom could Monroe have been referring when he spoke about “an usurper?” How could such a person become “an usurper?” Actually, Monroe answered this question by telling us that it was when the people became “ignorant and corrupt” that an usurper will come to power which in the end would produce the “debasement and ruin” of those same people.

What would make some political leader “an usurper” in the eyes of President Monroe? If it was the President and Commander in Chief of the Military that concerned Monroe, was it lack of being at least 35 years of age, of having at least 14 years of residency in the United States, or not being a "natural born Citizen" (the Article II, Section 1, Clause 5 eligibility requirements) that so worried him? Who else other than the President could be so important and powerful in our government to give Monroe such concern about “an usurper?” Given the structure and balance of power in our government, it could only have been the President to whom Monroe was referring. And would Monroe be so concerned about age and residency or was it lack of being a "natural born citizen" that so worried him? After all, is it not from being a “natural born Citizen” that sole allegiance to and love of only one country from birth come from? Such love and attachment to only one country from birth would surely have been something that Monroe thought was needed for the well-being, happiness, and preservation of the United States.

This concern by Monroe makes the point about how important it is for us as a nation to assure that the “natural born Citizen” clause is not only honored and protected today, but preserved for the well-being and happiness of future American generations. But for this to occur, the nation must make sure that ill-informed or corrupt people do not allow such an usurpation to occur or to continue.

Our current putative President, Barack Obama, does not meet the constitutional definition of an Article II “natural born Citizen.” That definition is a child born in the United States to two parents who at the time of the child’s birth were both either “citizens of the United States” or “natural born Citizens.” Minor v. Happersett, 88 U.S. 162 (1875) ("all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also.  These were natives or natural-born citizens, as distinguished from aliens or foreigners"); United States v. Wong Kim Ark, 169 U.S. 649 (1898) (acknowledging and confirming Minor’s American common law definition of a “natural-born citizens” but adding based on the English common law that “‘[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 [birth in the country]’” (bracketed information supplied)). This American common law definition of a “natural born Citizen” has never been changed, not even by the Fourteenth Amendment, and therefore still prevails today.

When Obama was born, wherever that may be, he was born to a father, Barack Obama Sr., who was a British citizen, and to a mother, Stanley Ann Dunham, who was a “natural born Citizen.” Under both U.S. and British statutory and U.S. common law existing from the time the Constitution was adopted and to the present, Obama was born an English “natural born subject.” Being born an English “natural born subject,” the Founders and Framers and our early Congresses, as they expressed in the Naturalization Acts of 1790, 1795, 1802, and 1855, would not even have considered him to be a “citizen,” let alone an Article II “natural born Citizen.” If he was born in the United States, a fact that he has yet to conclusively show, he can be a “citizen” under the Fourteenth Amendment and 8 U.S.C. Sec. 1401(a), which as interpreted by U.S. v. Wong Kim Ark, granted constitutional birthright citizenship to persons born in the United States to one or two domiciled alien parents, just like a person can be a “citizen” under Congressional Acts which grant statutory birthright citizenship to persons born out of the United States to one or two U.S. citizen parents. But not being born to two U.S. citizen parents, Obama is not and can never be an Article II “natural born Citizen.”

Not being a “natural born Citizen, either because he was not born in the United States or because he was not born to two U.S. citizen parents or both, is Obama the usurper of whom President Monroe warned us?

Mario Apuzzo, Esq.
April 28, 2012
http://puzo1.blogspot.com/
####

Copyright © 2012
Mario Apuzzo, Esq.
All Rights Reserved





Tuesday, April 10, 2012

Update on the Purpura and Moran New Jersey Obama Ballot Access Objection

Update on the Purpura and Moran New Jersey Obama Ballot Access      
                                             Objection


                                       By Mario Apuzzo, Esq.
                                             April 10, 2012
                                       Updated April 14, 2012

Today, April 10, 2012, Nicholas E. Purpura and Theodore T. Moran had their Barack Obama primary ballot objection heard by Deputy Director and Administrative Law Judge, Jeff S. Masin, at the Office of Administrative Law, 9 Quakerbridge Plaza, Mercerville (Hamilton Twp.), New Jersey 08619. The case started about 9:30 a.m. and lasted to about 1:00 p.m. I represented the Objectors. Mr. Obama was represented by Alexandra Hill of the firm of Genova, Burn & Giantomasi of Newark, New Jersey.

We argued that Mr. Obama has not met his burden of showing that he is eligible to be on the New Jersey primary ballot by showing that he is a “natural born Citizen.” We argued that he has not presented any evidence to the New Jersey Secretary of State showing who he is and that he was born in the United States. We also argued that as a matter of law, Obama is not a “natural born Citizen” because he was born to a father who was not a U.S. citizen.

Obama’s attorney made a motion to dismiss the Objection in its entirety. She argued that it was not relevant to being placed on the ballot whether Mr. Obama is a “natural born Citizen,” where he was born, and whether he was born to U.S. citizen parents. She said that no law in New Jersey obligated him to produce any such evidence in order to get on the primary ballot. We argued that Mr. Obama under the Constitution has to be a “natural born Citizen.” We argued that under New Jersey law (the state constitution, statutes, and case law), Mr. Obama must show that he is qualified for the office he wishes to occupy and that includes showing that he is a “natural born Citizen,” which includes presenting evidence of who he is, where he was born, and that he was born to two U.S. citizen parents. We argued that the Secretary of State has a constitutional obligation not to place any ineligible candidates on the election ballot. Judge Masin denied Obama’s motion to dismiss and the case proceeded to trial.

After calling to the witness stand Mr. Moran and Mr. Purpura, who gave testimony as to why they brought the ballot challenge, and introducing documents showing there is a question as to Mr. Obama’s identity, I called Brian Wilcox to testify as an internet image expert. Mr. Wilcox was going to testify on how the Obama April 27, 2011, long-form birth certificate has been altered and manipulated either by computer software or by a human or both, producing a forged documents, and that since the image is not reliable, we need to see the original paper version. Obama’s lawyer objected to my proffered testimony. I then offered that I would not need to have Mr. Wilcox testify, provided that Obama stipulated that the internet image of his birth certificate could not be used as evidence by either Judge Masin or the New Jersey Secretary of States and that he presented to the court or the Secretary of State no other evidence of his identity or place of birth. Judge Masin also asked Obama’s attorney whether she would so stipulate. She did so stipulate, agreeing that both the court and the Secretary of State cannot rely on the internet birth certificate as evidence of Obama’s place of birth and that Obama has produced no other evidence to the court regarding his place of birth. She also argued that Obama has no legal obligation to produce any such evidence to get on the primary ballot. Judge Masin then took the issue under advisement. Having produced absolutely no evidence of his eligibility for the Office of President, Judge Masin will decide whether as a matter of law Obama has a legal duty to produce such evidence before he may be placed on the New Jersey ballot in light of the pending objection filed against him. If he decides that he does, then the Objection will be successful. If he decides that Obama has no such legal obligation, the Objection would fail on the first issue.

The second issue that Judge Masin addressed was whether the definition of an Article II “natural born Citizen” includes the requirement that the child be born to two U.S. citizen parents. Judge Masin relied heavily upon the fact that no court in the nation has yet ruled that Mr. Obama had to have two U.S. citizen parents at the time of his birth. I explained that most cases regarding Mr. Obama have been ruled in his favor on procedural grounds rather than on the merits of the definition of a “natural born Citizen.” He relied heavily upon U.S. v. Wong Kim Ark (1898) and its use of the English common law to define U.S. citizenship. We also discussed the Indiana Ankeny decision and the Georgia ballot access cases. I explained how Wong did not hold that Wong was a “natural born Citizen,” but only a “citizen of the United States” under the Fourteenth Amendment which does not define an Article II “natural born Citizen.” I explained that Wong distinguished between a “citizen” and a “natural born Citizen,” explaining how Justice Gray used Horace Binney’s distinction between both classes of citizens. I argued that it is error to rely upon Wong as though it held Wong to be a “natural born Citizen.”

I argued that the Founders and Framers did not adopt the English common law to define the term, but rather natural law and the law of nations which under Article III became part of the “Laws of the United States.” I explained that the definition of a “natural born Citizen” comes from natural law and the law of nations as commented upon by Emer de Vattel in Section 212 of The Law of Nations (1758), which definition was recognized as American “common-law” in Minor v. Happersett (1875). I also explained that Wong Kim Ark confirmed Minor’s definition (a child born in a country to citizen parents) and did not change it.

I explained that Congress through the Naturalization Acts of 1790, 1795, 1802, and 1855 abrogated the English common law as the law to define U.S. citizenship and that through those acts it told us that a child born in the United States to alien parents was an alien and not a “citizen of the United States.” I went through the historical evidence, including but not limited to Emer de Vattel and St. George Tucker, which shows that the Founders and Framers defined a “natural born Citizen” as a child born in the country to citizen parents and not as the English common law defined a “natural born subject.” I explained how Madison wrote to Washington that at the constitutional convention, the delegates did not adopt the English common law for the new republic. I explained that the English common law continued to have effect in the states, even being included in their constitutions and statutes, but not on the federal level where both the Constitution and Acts of Congress did not do the same as the states did. I explained that there is a constitutional distinction between a “citizen” and a “natural born Citizen,” and that the two terms cannot be conflated and confounded as per Article II, Section 1, Clause 5 and Chief Justice John Marshall in Marbury v. Madison, who told us that each clause of the Constitution must be given its own meaning. Judge Masin also reserved decision on the question of whether a “natural born Citizen” must be born to two U.S. citizen parents.

Judge Masin will be contacting counsel today or tomorrow morning either by telephone or email as to his decision, stating “yes” or “no” on both issues. He will then provide his written decision to the Secretary of State no later than Wednesday, April 11, 2012, at 10:00 a.m. Counsel will be able to object to Judge Masin’s initial decision. The Secretary of State will make the final decision. After her decision, the parties can then appeal to the New Jersey Appellate Division and then to the New Jersey Supreme Court. After that, the parties can appeal to the U.S. Supreme Court.

Update: 

Article II, Section 1, Clause 5 states: “No person except a natural-born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office, who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.”

New Jersey state statutes (N.J.S.A. 19:23-7 and N.J.S.A. 19:23-15) state that a person must be eligible to run for the office he or she seeks. They make no exception for someone running for the Office of President.  N.J.S.A. 19:25-3 provides that a presidential candidate does not have to file his or her consent to be nominated for that office.  But the statute does not say that such candidate does not have to show under the previous cited statutes that he or she is eligible for the office sought. 

Additionally, the New Jersey Secretary of State instructions on her web site to presidential candidates running in the New Jersey primary tell them they must be “natural born Citizens.”

New Jersey statute N.J.S.A. 19:29-1(b) provides that voters can contest the New Jersey election of any candidate who is not eligible for the office he or she seeks.

Upon my request that she so stipulate, Obama’s lawyer agreed during the trial that there was absoulutely no evidence before the court as to who Obama is or where he was born, including excluding from evidence the internet image of Obama’s alleged Certificate of Live Birth he released on April 27, 2011. The ALJ confirmed that to be the case.

Yet, in his decision, the ALJ said that because he does not have to consent to his nomination it did not matter who Obama is or where he may be born because he has no legal obligation to show that he is constitutionally eligible to run in the New Jersey primary for the Office of President.

Not only did he say that Obama has no legal duty to provide the State of New Jersey with any evidence that he is constitutionally eligible to be placed on the New Jersey primary ballot for election to the Office of President, the ALJ also said: “Thus, accepting for the point of this issue that Mr. Obama was born in Hawaii, he is a ‘natural born Citizen’ regardless of the status of his father.” Initial Decision, p. 7. Dr. Conspiracy, in light of the fact that there was absolutely no evidence before the ALJ as to where Obama was born, must be so embarrassed by the finding of the court that at his blog he tries to tell us that it is not true that the ALJ found Obama to be born in Hawaii. But on the contrary, from the quoted language, we can conclude that the ALJ found that Obama was born in Hawaii and therefore based on that fact alone and with no reference to the citizenship of his parents, found that he is a “natural born Citizen.” But he made the finding that he was born in Hawaii without providing any explanation as to what evidence he relied upon to make such a finding. His Initial Decision is silent as to what evidence he relied upon to find that Obama was born in Hawaii. Also, the ALJ relied strictly upon U.S. v. Wong Kim Ark (1898) to rule that Obama, born to an alien father, is a “natural born Citizen.”

On April 12, 2012, Secretary of State, Kimberly M. Guadagno, issued her Final Decision in Nicholas E. Purpura and Theodore T. Moran v. Barack Obama New Jersey Primary Ballot Objection. A copy of her decision may be read here, http://www.scribd.com/puzo1/d/89431332-Final-Decision-of-SOS-in-Purpura-Moran-Ballot-Objection-4-12-12.   She concludes without any explanation: “After full consideration of the record and a review of the exceptions filed, I hereby adopt the ALJ’s Initial Decision in its entirety.”

The next step is an appeal directly to the New Jersey Superior Court, Appellate Division.

Mario Apuzzo, Esq.
April 10, 2011
Update April 9, 2012
Updagted April 12, 2012
http://puzo1.blogspot.com/
####

Copyright © 2012
Mario Apuzzo, Esq.
All Rights Reserved

Friday, April 6, 2012

Objection to Candidate Barack Obama’s Petition of Nomination for the Primary Presidential Election Filed in New Jersey

Objection to Candidate Barack Obama’s Petition of Nomination for the Primary
                                    Presidential Election Filed in New Jersey


                                      By Mario Apuzzo, Esq.
                                              April 5, 2012



Battle of Trenton

Today, April 5, 2012, I filed with the New Jersey Secretary of State in Trenton, New Jersey, the Objection Of Nicholas E. Purpura and Theodore T. Moran To Petition Of Nomination Of Barack Obama, also Known As Barack Hussein Obama II, Barack Hussein Obama, Barry Soetoro, and Barack Hussein Obama Soebarkah. That office reviewed the Objection and decided that it did merit a hearing before an Administrative Law Judge.

The Objection to Obama’s nominating petition is that he has not provided competent and sufficient evidence to the New Jersey Secretary of State showing his identity and that he was born in the United States, and that even if he were born in the United States, he is not and cannot be an Article II “natural born Citizen” because he was not born to two U.S. citizen parents. The Objection therefore demands that the Secretary of State not permit Obama’s name to be printed on the primary and general election ballot.

There will be a plenary hearing on Tuesday, April 10, 2012, at 10:00 a.m. before an Administrative Law Judge at the Office of Administrative Law, 9 Quakerbridge Plaza, Mercerville (Hamilton Twp.), New Jersey  08619. 

The Objection may be read at http://www.scribd.com/puzo1/d/88210603-Purpura-Moran-Objection-to-Obama-Nominating-Petition-4-5-12 .

UPDATE:  The hearing will take place not at 10:00 a.m., as we were initial told by the New Jersey Division of Elections, but at 9:00 a.m.  It will be before Deputy Director and Administrative Law Judge, Jeff S. Masin, on Tuesday, April 10, 2012, at the Office of Administrative Law, 9 Quakerbridge Plaza, Mercerville (Hamilton Twp.), New Jersey 08619.

I have been advised that there are reports on the internet that the court has already dismissed the case and that the hearing has been cancelled.  These reports are false. 

Mario Apuzzo, Esq.
April 5, 2011
Update April 9, 2012
http://puzo1.blogspot.com/
####

Copyright © 2012
Mario Apuzzo, Esq.
All Rights Reserved

Monday, April 2, 2012

The Faux Claims of John Woodman Regarding the “Natural Born Citizen” Clause

The Faux Claims of John Woodman Regarding the “Natural Born Citizen”
                                             Clause


                                   By Mario Apuzzo, Esq.
                                          April 2, 2012



Philadelphia Lawyer
Horace Binney


What is hilarious is how John Woodman, who claims to be a conservative Republican, is running around the internet proclaiming that he has saved the United States, its Constitution, and not only putative President Barack Obama, but also Republicans, Sen. Marco Rubio and Sen. Bobby Jindal (all three were not born to citizen parents, both of whom are citizens of the United States at the time of their birth) from the “Birthers.” He adds that he has proven that Attorney Leo Donofrio’s and my position on the definition of a “natural born Citizen” is nothing but “lies.”

There is plenty of historical evidence that I have provided which shows that John Woodman is nothing more than a creation of his own mind and rhetoric. I have shown that history and legal precedents do not support what he and some others maintain is the definition of a “natural born Citizen,” i.e., any child simply born in the United States, regardless of the citizenship of the parents. I have shown that at the Founding, unlike the states which put in place statutes and state constitutions which retained the English common law on the state level except to the degree those laws were abrogated by the state legislature, the national government did not adopt the English common law for the needs of the national government, but rather the law of nations which was natural law applied to the affairs of nations. In fact, unlike the states, there is nothing in the Constitution or any Act of Congress which suggests that the English common law continued to have any effect on the national level. I have shown that in that connection, we adopted the definition of a “natural-born citizen” as provided by Emer de Vattel in his The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758), where he tells us:

          The citizens are the members of the civil society: bound to this society by
          certain duties, and subject to its authority, they equally participate in its
          advantages. The natives, or natural-born citizens, are those born in the
          country, of parents who are citizens. As the society cannot exist and
          perpetuate itself otherwise than by the children of the citizens, those
          children naturally follow the condition of their fathers, and succeed to all
          their rights. The society is supposed to desire this, in consequence of
          what it owes to its own preservation; and it is presumed, as matter of
          course, that each citizen, on entering into society, reserves to his children
          the right of becoming members of it. The country of the fathers is
          therefore that of the children; and these become true citizens merely by
          their tacit consent. We shall soon see, whether, on their coming to the
          years of discretion, they may renounce their right, and what they owe to
          the society in which they were born. I say, that, in order to be of the
          country, it is necessary that a person be born of a father who is a citizen;
          for if he is born there of a foreigner, it will be only the place of his birth,
          and not his country.

The definition that the law of nations provides, a definition that has been incorporated into American common law and recognized by Congress in 1790, 1795, 1802, and thereafter, is a child born in a country to citizen parents.

I have shown that Article II, Section 1, Clause 5 makes a critical constitutional distinction between an Article I “Citizen of the United States” and an Article II “natural born Citizen.” I have shown that this distinction necessarily means that any U.S. citizen who is not a “natural born Citizen” is only a “Citizen of the United States,” a member of American society and nothing more. I have shown that the Founders and Framers gave us only one and only one definition of an Article II “natural born Citizen” which is a child born in the country to parents, both of whom are citizens of the United States at the time of such birth.  I have shown that the Founders and Framers sought to have a "strong check" on foreign and monarchial influence and to make sure that it stayed out of the administration of government and the Office of President and Commander in Chief of the Military.  I have shown that Congress, through the Naturalization Acts of 1790, 1795, 1802, and 1855, showed us through a process of elimination that only a child born in the country to citizen parents did not come within the naturalization reach of any of those laws which means that it was only that child which Congress deemed to be a “natural born Citizen.” I have shown that influential and highly respected Founders, David Ramsay and St. George Tucker, both limited birthright citizenship after July 4, 1776 to the children of citizens and that Tucker even maintained that the "civil right" to be elected president belonged only to the children of citizens.  I have shown that throughout American history, there has been debate as to the doubtful meaning of a “citizen of the United States,” but never as to the meaning of a “natural born Citizen” whose meaning has never been in doubt.

This time-honored natural law/law of nations/American “common-law” definition of a “natural born Citizen” has also been recognized and accepted by a Founder and member of our U.S. Supreme Court as early as 1814 in The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (Chief Justice John Marshall dissenting and concurring for other reasons). It was also again confirmed by Inglis v. Sailors’ Snug Harbor, 28 U.S. 99 (1830) and Shanks v. Dupont, 28 U.S. 242, 245 (1830). It was again confirmed by Justice Daniels in Dred Scott v. Sandford, 60 U.S. 393 (1857). I have shown that the original American “common-law” definition of a “natural born Citizen” was not changed by either the Fourteenth Amendment or U.S. v. Wong Kim Ark,169 U.S. 649 (1898), which only deal with a “citizen of the United States” and not a “natural born Citizen.” Hence, the same original definition of a “natural born Citizen” was again expressly confirmed by the whole U.S. Supreme Court in Minor v. Happersett, 88 U.S. 162 (1875) and U.S. v. Wong Kim Ark,169 U.S. 649 (1898), and a lower federal court in Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879) and United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890). Finally, this same definition was implicitly confirmed by Slaughter-House Cases, 83 U.S. 36 (1872), Elk v. Wilkins, 112 U.S. 94 (1884), Perkins v. Elg, 307 U.S. 325 (1939) and Schneider v. Rusk, 377 U.S. 163 (1964).

My essays on the meaning of a “natural born Citizen” can be found at this blog, http://puzo1.blogspot.com/.  Additionally, I wrote a brief which Attorney Karen Keifer filed in the Commonwealth Court of Pennsylvania in the ballot challenge in the case of In Re: Barack Hussein Obama, II et al Objection of : Charles F. Kerchner, Jr. and Dale A. Laudenslager. That brief may be read at http://www.scribd.com/doc/83104811/Kerchner-Laudenslager-v-Obama-Ballot-Challenge-Brief-on-Behalf-of-Objectors-Filed-28Feb2012.  That brief thoroughly presents the evidence showing that an Article II “natural born Citizen” is a child born in the United States to citizen parents, both of whom are citizens of the United States at the time of such birth. Finally, on March 20, 2012, I filed a proposed amicus curiae brief in the Fourth Circuit Court of Appeals in the case of Tisdale v. Obama, No. 3: 12-cv-00036-JAG (E.D. Va. Jan. 23, 2012) (order dismissing complaint) (dismissing in forma pauperis complaint pursuant to 28 USC 1915(e)(2)(B)(ii) and holding that “It is well settled that those born in the United States are considered natural born citizens” and that plaintiff’s contentions otherwise are “without merit”), which is currently pending in the Fourth Circuit Court of Appeals in Virginia. That brief, which can be accessed at http://www.scribd.com/doc/86241834/Tisdale-v-Obama-4th-Cir-Appeal-2012-03-20-Apuzzo-Amicus-Brief , contains a shortened version of the evidence and my arguments showing that an Article II “natural born Citizen” is a child born in the United States to citizen parents, both of whom are citizens of the United States at the time of such birth.

One of John Woodman’s latest attempts to discredit me and Mr. Donofrio is found in his article entitled, “Horace Binney Directly Refutes the Mario Apuzzo/ Leo Donofrio Lie that it Takes Two Citizen Parents to Make a Natural Born Citizen,” accessed at his blog http://www.obamabirthbook.com/http:/www.obamabirthbook.com/2012/04/horace-binney-directly-refutes-the-mario-apuzzo-leo-donofrio-lie-that-it-takes-two-citizen-parents-to-make-a-natural-born-citizen/ .  What John Woodman attempts to do is to say that I “lie” when I maintain that to not disturb the definition of an Article II “natural born Citizen,” Wong Kim Ark distinguished between an Article II “natural born Citizen” and a Fourteenth Amendment “citizen.” Justice Gray in Wong Kim Ark said, by quoting from a footnote included by Mr. Binney in his second edition of his paper:

          The right of citizenship never descends in the legal sense, either by the
          common law, or under the common naturalization acts. It is incident to
          birth in the country, or it is given personally by statute. 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.

Id. at 665-66 (citing and quoting Horace Binney, The Alienigenae of the United States Under the Present Naturalization Laws (1853)). Later in his opinion when he provides his holding, Justice Gray again emphasized 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.’” Id. at 693.

In 1898, a wife upon marriage automatically acquired the citizenship of her husband. Hence, the Court recognized that only a child born “in the country” to citizen parents can be a “natural-born citizen.” The Court said that while a child “born in the country” to citizen parents and a child “born in the country” to alien parents are both “citizens” by the mere fact of being “born in the country,” only a child born “in the country” to citizen parents is a “natural-born citizen.” In other words for children born in the country, one born to citizens is a “natural born” citizen and one born to aliens is a “citizen.” The Court, citing and quoting its definition of a “natural-born citizen,” confirmed the definition of a “natural-born citizen” as put forth by Minor v. Happersett, which based that definition on American “common-law” and said “all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens” (emphasis supplied). Id. at 167-68. And on defining a “citizen” under the Fourteenth Amendment and the “subject to the jurisdiction” clause of that amendment, Wong Kim Ark relied upon the English common law and did not disturb Minor’s law of nations/American “common-law” definition of a “natural-born citizen.”

Now John Woodman wants to show that I am a “liar” by having the public view the first and third editions of Mr. Binney’s papers, but keeping from them the second edition which contains the above quoted language in the footnote by Mr. Binney. Here is the first edition, http://pds.lib.harvard.edu/pds/view/4393418?n=1&imagesize=1200&jp2Res=.25&printThumbnails=no , and here is the third edition http://www.jstor.org/stable/pdfplus/3301752.pdf?acceptTC=true& , which are the only two editions that John Woodman presents on his blog. A reading of these editions shows that the footnote does not contain the language quoted above. He does not present the second edition which is the only edition which contains the quoted language as part of the footnote and which Justice Gray relied upon in his Wong decision. The second edition can be read at Mr. Donofrio’s blog at http://naturalborncitizen.files.wordpress.com/2012/02/binney-2d.pdf.

Justice Gray in Wong Kim Ark included the quoted Binney additional language from the second edition of Mr. Binney’s paper, even though the passage does not appear in either the first (December 1, 1853) or the third (Feb. 1854) editions of that paper. Justice Gray explained: “This paper, without Mr. Binney's name and with the note in a less complete form and not containing the passage last cited, was published (perhaps from the first edition) in the American Law Register for February, 1854. 2 Amer.Law Reg.193, 203, 204.” Id. at 666. As we can see, Justice Gray acknowledged all three editions of the Binney paper and said that the footnote in the second edition was the more complete and is the one from which he quoted the Binney passage. As John Woodman knows, using either the first or third editions of the Binney paper is much better for anyone trying to morph a “citizen of the United States” into a “natural born Citizen” and thereby erase the constitutional distinction between the two classes of citizens. It is critical that Justice Gray did not attempt to do what John Woodman tries, for Justice Gray, in the spirit of Chief Justice John Marshall who in Marbury v. Madison, 1 Cranch 163 (1803), cautioned that we cannot simply ignore clauses that are written in the Constitution, did not obliterate a “natural born Citizen” by blending one into a “citizen of the United States.” Rather, Justice Gray left intact Mr. Binney’s full footnote and inserted the complete language into his decision and by so doing acknowledged that he recognized that there are “citizens,” who also include those born in the United States to alien parents, and there are “natural born Citizens,” who only include those born in the United States to citizen parents. Justice Gray acknowledged that while both classes of persons were “citizens,” only the latter, who were born “in the country” to citizen parents, could be “natural-born citizens.” At that time, there probably was no better authoritative source than the second edition of the Binney paper which drove this point clearly home the way that Mr. Binney did in his complete footnote.

By making the quoted Binney passage disappear by only publishing on his blog the first and third editions of the Binney paper, of course, John Woodman, does not have to address what that passage means. Rather than address what the Binney passage means, he would rather attempt to distract us by looking to what Mr. Binney said about French citizenship law in 1854. Still, he fails here, too. He says that Mr. Binney informed that France “rejects the principle of the English law, and of our own laws, that birth within the limits and jurisdiction of France, makes a Frenchman, or a natural born citizen or subject of France absolutely, and provides only for the acquisition of that character by the child so born,” if he or she fixes his or her domicile in France and makes a declaration of citizenship all within one year of arriving at the age of majority. Note that John Woodman does not tell us that France actually used the clause “natural born citizen” which Mr. Binney assumes it did when he says France would once those additional conditions were met give “that character” to a person born “within the limits and jurisdiction” of France. If France uses a class of “citizen” other than a “natural-born citizen” which describes the national character that attached to the person described by Mr. Binney (i.e., attached to a child simply born in France, regardless of the citizenship of his or her parents), then we can conclude that Mr. Binney meant to refer to that other class of “citizen” rather than to “natural-born citizen.”

Hence, until John Woodman adequately (1) addresses all the historical evidence and case law that I have provided on this blog and in my briefs to the courts which convincingly shows that the Founders and Framers defined a “natural born Citizen” as a child born in the United States to citizen parents, both of whom are citizens of the United States at the time of such birth; (2) addresses the meaning of the missing passage which does exist in the second edition of Mr. Binney’s paper and which Justice Gray quotes in Wong Kim Ark; (3) reconciles the quoted passage with Mr. Binney’s statement regarding what the “principle of the English law, and of our own laws,” was; and (4) tells us exactly what in 1854 “that character” was that France gave a person who was simply born in its territory to alien parents, which Mr. Binney rightly or wrongly calls “natural-born citizen,” John Woodman’s comments and rhetoric add nothing to our correct understanding of the meaning of an Article II “natural born Citizen.”

Mario Apuzzo, Esq.
April 2, 2012
http://puzo1.blogspot.com/
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Mario Apuzzo, Esq.
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