Senator Cruz, Senator Rubio, and Governor Jindal Should Not Be Allowed to Participate in the Presidential Debates Because They, Like De Facto President Obama, Are All Not Natural Born Citizens and Therefore Not Eligible to Be President
By Mario Apuzzo, Esq.
May 25, 2015
Soon, we will see various presidential candidates debate each other for the right to win their party’s nomination for President and ultimately to win the people’s and Electoral College’s vote for that Office. The organizations that will be sponsoring these presidential debates, Commission on Presidential Debates, Fox News, Fox Business Network, Reagan Library Foundation, Salem Media Group, CNBC, ABC, CBS, NBC, Telemundo, and National Review, in keeping with their bylaws, should not allow any person who is not constitutionally eligible for that office to debate. Allowing constitutionally ineligible candidates to debate will only give the false impression to the American people that such persons are constitutionally eligible to be elected President. This result is more damaging to the Constitution and the rule of law, given that the federal courts refused to get involved in the question of whether de facto President Barack Obama is an Article II natural born citizen. There has been mentioned in the news of some individuals who will be vying for the Office of President. These are Senator Ted Cruz, Senator Marco Rubio, and Governor Bobby Jindal. But these individuals, like Obama, are not natural born citizens and hence not eligible to be elected President. They should therefore not be allowed to debate. Allow me to explain.
Article II, Section 1, Clause 5 provides that for those born before the adoption of the Constitution, having satisfied the 35 years age and 14 years residency requirements, being a "citizen" of the United States was sufficient to be eligible to be President. It also provides that for those born after the adoption, only a "natural born citizen" of the United States is eligible to be President. So, with presidential eligibility under Article II, for those born after the adoption of the Constitution, we are looking to define a natural born citizen, not a citizen. We can also see from this constitutional scheme that in the United States there are only “citizens” or “natural born citizens” and that all natural born citizens are citizens, but not all citizens are natural born citizens.
The Framers used the natural born citizen clause to assure that future Presidents and Commanders in Chief of the Military would be born citizens of and in allegiance with only the United States from the moment of birth and throughout their lives. They concluded that such a person would be one to least have sympathies for some foreign power or influence which could result in conflict of interests which could harm the United States and its people.
Since the Framers wrote citizen and natural born citizen into the Constitution, the next question is what do these terms mean? The historical and legal record demonstrates that they did not look to the English common law for the definitions of those terms. Indeed, Justice Noah H. Swayne, commenting on whether the English common law defined a “citizen” or a “natural born citizen,” said: “The constitution uses the words 'citizen' and 'natural born citizens;' but neither that instrument nor any act of congress has attempted to define their meaning. British jurisprudence, whence so much of our own is drawn, throws little light upon the subject . . . . Blackstone and Tomlin contain nothing upon the subject.” United States v. Rhodes, 27 F. Cas. 785, 788 (Cir. Ct. Ky 1866). Rather, that record shows that the Founders and Framers looked to natural law and the law of nations and the Enlightenment for principles which justified and motivated the American Revolution, the Declaration of Independence, and the writing of the Constitution. It was also in natural law and the law of nations that they found their definitions of citizens and natural born citizens.
As their most trusted expert on the law of nations, the Founders and Framers looked to Emer de Vattel. In his, The Law of Nations or Principles of Natural Law, Book I, Chapter XIX, Section 212 (1758) (1797), Vattel defined a citizen as: “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. Id. at Section 212. The Framers also knew from the teachings of both the English common law and the law of nations that citizenship and allegiance can be either inherited from one’s parents (jus sanguinis) or acquired from being born in a country (jus soli). Hence, when the Framers wrote the Constitution, a citizen was any member of the United States made so by any means, which included the American Revolution, Acts of Congress, or treaty. These citizens were subject to the laws of the United States and enjoyed all the privileges, immunities, and rights of all other citizens, including the right of being protected by the United States. The early naturalization Acts of Congress reflected this understanding. As time went on and because of the immediate need to make freed slaves citizens of the United States, the Civil Rights Act of 1866 and the Fourteenth Amendment were added to the list of laws that could make citizens. As we shall see below, these laws, while capable of making one a citizen from the moment of birth or after birth, did not make one a natural born citizen.
The Framers also defined a natural born citizen under natural law and the law of nations. Again looking to Vattel upon whom they would have relied for that definition, he defined a natural born citizen as follows:
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.”
Id. Sec. 212 Citizens and natives. We can see that Vattel expected not the citizens, but the natural born citizens as being the persons upon whom the expectation lied as being the ones who would best protect and perpetuate the civil and political society into which they were born.
Under this natural law and law of nations rule, a natural born citizen had to do nothing other than be born in the county to parents who were both citizens of that country. No law, including any naturalization act or treaty, was needed to make him or her a natural born citizen.
The universal and immutable principle of the law of nations that defined a natural born citizen was incorporated into American national common law. We know this by what the unanimous U.S. Supreme Court said in Minor. There it explained:
At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children, born in a country, of parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens.
Minor v. Happersett, 88 U.S. 162, 167-68 (1875).
So Minor explained that it was this common law to which the Framers looked to define a natural born citizen. Accord U.S. v. Wong Kim Ark (1898) (distinguishing a natural born citizen from a citizen of the United States under the Fourteenth Amendment, said that “[t]he child of an alien, if born in the country” can be a citizen of the United States from the moment of birth by virtue of the Fourteenth Amendment and “is as much a citizen as the natural born child of a citizen, and by operation of the same principle"). Hence, the Framers defined a natural born citizen as a child born in a country to parents who were its citizens at the time of the child's birth. Under that same common law, they saw all the rest of the people as "aliens or foreigners," who could be naturalized under some positive law. With the ratification of the Fourteenth Amendment, those otherwise aliens or foreigners became citizens of the United States “at birth” under Wong Kim Ark’s interpretation of the Fourteenth Amendment.
The definition of a natural born citizen as reflected in American common law became under Article IV, Clause 2 upon ratification of the Constitution the supreme law of the land subject to change under Article V only by duly ratified constitutional amendment.
During the Founding and until the Cable Act of 1922 (ch. 411, 42 Stat. 1021, "Married Women’s Independent Nationality Act") was passed, married parents of children were both either U.S. citizens or aliens. See Minor and Wong Kim Ark (only provided for scenarios in which the child’s parents were both either citizens or aliens). Hence, citizen parents meant that both father and mother had to be citizens. The Cable Act reversed former immigration laws regarding marriage.
Previously, a woman lost her U.S. citizenship if she married an alien, since she acquired the citizenship of her husband. The law did not apply to men who married foreign women, for such women became U.S. citizens. The law repealed sections 3 and 4 of the Expatriation Act of 1907. With this new law, women did not lose their citizenship if they married an alien, provided he was an alien eligible to be naturalized under U.S. law. Marian L. Smith, "Women and Naturalization, ca. 1802-1940," Prologue Magazine 30 (2) (1998). Additionally, under the Act, women who married aliens who were eligible for naturalization could keep their U.S. citizenship, provided they lived in the United States. If they married such aliens and lived on foreign soil for two years, they could lose their U.S. citizenship. In 1931, an amendment allowed females to retain their U.S. citizenship even if they married aliens who were not eligible for U.S. citizenship (e.g. at that time an Asian). The Cable Act was repealed in 1936. The liberation of wives from their husband’s citizenship done by the 1922 Cable Act, an Act of Congress and not a constitutional amendment, has not nor could it amend the constitutional rule that both father and mother had to be citizens at the time of their child’s birth in their country in order to make a natural born citizen.
To date, the American national common law meaning of a natural born citizen has never been changed by any constitutional amendment or decision of the U.S. Supreme Court.
So, a "citizen" of the United States "at birth" is defined by either the Fourteenth Amendment (only if born in the U.S.) or naturalization Act of Congress (if born in or out of the U.S.). Regarding the former, it is any person born in the United States and "subject to the jurisdiction thereof." As to the latter, it includes any person born out of the United States to one or two U.S. citizen parents. Neither the Fourteenth Amendment nor Act of Congress has any impact on the meaning of a natural born citizen, for, not only because they did not exist when the Constitution was adopted and ratified, but also because they did not repeal or amend the natural born citizen clause or define it. Under these well-established rules, a child of one or two alien parents, if born in the U.S., can be a "citizen" of the United States "at birth" under the Fourteenth Amendment. A child born out of the U.S., if born to one or two U.S. citizen parents, can also be a "citizen" of the United States "at birth." But not being born in the United States to two U.S. citizen parents, neither of them can be an Article II "natural born citizen" of the United States, regardless of their "at birth" citizen status, for they are born citizens, not natural born citizens.
De facto President Barack Obama is not a natural born citizen because, even if he was born in the United States, he was not born to two U.S. citizen parents. Obama was born to a U.S. citizen mother, but to a non-U.S. citizen father. His father was a citizen of Great Britain and then Kenya upon it gaining independence in 1963. Senator Ted Cruz is also not a natural born citizen. Unlike Senator John McCain who was born in Panama to two U.S. citizen parents who were serving the national defense of the United States and therefore reputed born in the United States to two U.S. citizen parents, Senator Cruz was born in Canada presumably to a U.S. citizen mother and a non-U.S. citizen father who was a citizen of Cuba and both in Canada for private purposes. Senator Marco Rubio and Governor Bobby Jindal are also not natural born citizens, for while they were born in the United States, they were born to two non-U.S. citizen parents who were citizens of Cuba and India, respectively.
If they are not natural born citizens, then what are they? President Obama, Senator Cruz, Senator Rubio, and Governor Jindal are all "citizens" of the United States "at birth,” but only by virtue of some non-common law positive law. None of them are "natural born citizens" by virtue of common law which provides the only definition of the clause which is a child born in a country to parents (father and mother) who were its citizens at the time of the child's birth. Obama (if born in the United States), Rubio, and Jindal are “citizens” of the United States “at birth,” but only because of the Fourteenth Amendment, by the only fact of being born in the United States. Cruz is a “citizen” of the United States “at birth,” but only because of a naturalization Act of Congress, by the only fact of being born to one U.S. citizen parent. None of them were born with the complete facts and circumstances needed at birth to be a natural born citizen and which allows one to be a natural born citizen and therefore a citizen without the aid of any positive law. They are all missing either birth to two U.S. citizen parents or birth in the United States. Obama was born a citizen of and in allegiance to the United States (through jus soli if he was born in the United States) and Great Britain and then Kenya upon conversion through its independence from Great Britain (through jus sanguinis from his father). Cruz was born a citizen of and in allegiance to the United States (through jus sanguinis if his mother was still a U.S. citizen at the time of his birth) and born a citizen of and in allegiance to Canada (through jus soli) and Cuba (through jus sanguinis from his father). Rubio and Jindal were born citizens of and in allegiance to the United States (through jus soli) and Cuba for Rubio and India for Jindal (through jus sanguinis from both of their parents). They are all therefore under U.S. law not born with sole allegiance to the United States, but also subject to a foreign power and with natural sympathies for those foreign nations, a condition that the Framers did not allow future Presidents and Commanders to have. Being born subject to foreign powers and influence and with such sympathies, they are not nor can they be natural born citizens. Not being natural born citizens, they are not eligible to be President.
These ineligible candidates should not be allowed to participate in the upcoming presidential debates.
Mario Apuzzo, Esq.
May 25, 2015
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Mario Apuzzo, Esq.
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