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Sunday, November 29, 2015

A Citizen is One Thing, But a Natural Born Citizen is Another

A Citizen is One Thing, But a Natural Born Citizen is Another

By Mario Apuzzo, Esq.
November 29, 2015


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Understanding that a citizen of the United States (“citizen”) is one thing, but that a natural born citizen of the United States (“natural born citizen”) is another is the key to understanding what a natural born citizen is.  To avoid constitutional error, it is critical that these two classes of citizens not be conflated, confounded, and confused.  There are different way by which one can become a citizen.  But none of that does or should change what a natural born citizen is.  
Why is it important that we understand the constitutional distinction between a citizen and a natural born citizen and give the correct meaning to a natural born citizen?  It is important because the Framers looked to the natural born citizen clause, apart from the Electoral College, through its requirement of absolute allegiance and love of country, as a means to provide for the safety and national security of the republic.  They looked to the natural born citizen clause as a way to keep monarchical and foreign influence out of the singular and powerful civil Office of President and military Office of Commander in Chief of the Military.   The Framers saw such monarchical and foreign influence as an insidious way to destroy what they had so greatly sacrificed to build. 
The historical record is replete with examples showing how the Framers sought to keep monarchical and foreign influence out of the Office of President and Commander in Chief of the Military.  For sake of brevity, I shall focus on this one example.  Alexander Hamilton gave a speech to the Convention on June 18, 1787.  He read to Convention his Propositions for A Constitution of Government.  See Works of Alexander Hamilton  (page 393); 3 Max Farrand, The Records of the Federal Convention of 1787, at 617 (1911)  (Farrand).  This speech contained a sketch of a plan which has become known as the English Plan.  This plan can be read here, http://avalon.law.yale.edu/18th_century/debates_618.asp .  James Madison informed us in his Convention notes that “[i]t meant only to give a more correct view of his ideas, and to suggest the amendment which he should probably propose to the plan of Mr. R. in the proper stages of its future discussion.  Although this plan was not formally before the Convention in any way, several of the delegates made copies . . . Farrand.  at 617.  Hamilton proposed in his Propositions that the "supreme executive authority of the United States to be vested in a Governor. . ." and that he also be the "commander-in-chief. . ."  In this initial sketch, Hamilton did not include any eligibility requirements for the supreme executive authority who he would call the President rather than Governor in his later draft of the Constitution.  In his speech to the Convention, Hamilton advocated an executive for life.  The reason that he gave for such a life position was the following:  “The Hereditary interest of the King was so interwoven with that of the Nation, and his personal emoluments so great, that he was placed above the danger of being corrupted from abroad-and at the same time was both sufficiently independent and sufficiently controuled, to answer the purpose of the institution at home. one of the weak sides of Republics was their being liable to foreign influence & corruption. Men of little character, acquiring great power become easily the tools of intermedling Neibours.”  Id.  Here we can see that Hamilton was very concerned with the harm that could be done to the nation by an executive who was corrupted by foreign influence and intrigue.
This “sketch of a plan of government” was not formally presented to the Convention, but delegates, including James Madison, had various copies of this plan.  Farrand, at 617.  This plan does not include Hamilton’s “born a citizen” language which he included in his later draft of a constitution. 
On July 25, 1787, about five weeks later, John Jay wrote a letter to then-General Washington, who was acting as president of the Constitutional Convention, stating:
"Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Command in chief of the american army shall not be given to, nor devolve on, any but a natural born Citizen" (“born” underlined in the original).
John Jay reminded General George Washington of the importance of remanding back to the original concerns of the people and offered his presentation, to which George Washington offered, verbatim, to the convention.  Alexander Heard and Michael Nelson, Presidential Selection 123 (Duke University Press 1987) via Google Books.
Jay demanded that there be a "strong check" on foreign influence infiltrating the national government in general and the Office of Commander in Chief of the Military specifically.  A “natural born subject,” as defined by the English common law, which permitted dual and conflicting allegiance at birth, would not have provided that strong check on foreign influence for which Jay was looking. 
On September 2, 1787, George Washington wrote a letter to John Jay the last line of which read:  "I thank you for the hints contained in your letter."  4 Documentary History of the Constitution of the United States of America 1786-1870, p. 269 (1905).   While the Committee on Detail originally proposed that the President must be merely a citizen as well as a resident for 21 years, the Committee of Eleven changed "citizen" to "natural born citizen" without recorded explanation.  On September 4, 1787, about six weeks after Jay's letter and just two days after Washington wrote back to Jay, the "natural born citizen" requirement appeared in the draft of the Constitution.  Here is the first style of the clause as presented by the Committee of Eleven:
(5) 'Sect. 2. No person except a natural born citizen or a Citizen of the U. S. at the time of the adoption of this Constitution shall be eligible to the office of President; nor shall any person be elected to that office, who shall be under the age of thirty five years, and who has not been in the whole, at least fourteen years a resident within the U. S.'
Madison's notes of the Convention http://www.nhccs.org/dfc-0904.txt .
The proposal passed unanimously without debate which does not mean that the proposal was not discussed, for the convention meetings were conducted in secrecy.  Another reason that there was no debate is probably that the definition that was used of a natural born citizen was of such universal acceptance that it satisfied all laws then know to the Framers. 
At the close of the Convention, Hamilton gave to Madison another document which does contain in Article IX provision for the election of a President and the “born a citizen” language for eligibility.  Ferrand wrote that Hamilton gave this “paper” to Madison at the end of the Convention and that Hamilton “would have wished to be proposed by the Convention:  He had stated the principles of it in the course of the deliberations.”  p. 619.   Farrand also wrote that Hamilton’s paper “was not submitted to the Convention and has no further value than attaches to the personal opinions of Hamilton.”  p. 619.  This draft of the Constitution is not to be confused with his sketch of a plan of government (the British Plan) which he read to the Convention on June 18, 1787.
Elliott’s Debates has additional information on this proposed constitution.  He explains: 
No. 5.
Copy of a Paper communicated to James Madison by Col. Hamilton, about the close of Convention in Philadelphia, 1787, which, he said, delineated the Constitution which be would have wished to be proposed by the Convention. He had stated the principles of it in the course of the deliberations.
Note.— The caption, as well as the copy of the following paper, is in the hand-writing of Mr. Madison, and the whole manuscript, and the paper on which it is written, corresponds with the debates in the Convention with which it was preserved. The document was placed in Mr. Madison’s hands for preservation by Col. Hamilton, who regarded it as a permanent evidence of his opinion on the subject. But as he did not express his intention, at the time, that the original should be kept, Mr. Madison returned it, informing him that he had retained a copy. It appears, however, from a communication of the Rev. Dr. Mason to Dr. Eustis, (see letter of Dr. Eustis to J Madison, 28th April, 1819,) that the original remained among the papers left by Col. Hamilton.
In a letter to Mr. Pickering, dated Sept. 16 1803, (see Pitkin’s History, Vol. 2, p. 259—60) Col Hamilton was under the erroneous impression that this paper limited the duration of the presidential term to three years. This instance of the fallibility of Col. Hamilton’s memory, as well as his erroneous distribution of the numbers of the “Federalists” among the different writers for that work, it has been the lot of Mr. Madison to rectify; and it became incumbent, in the present instance, from the contents of the plan having been seen by others, (previously as well its subsequently to the publication of Col. Hamilton’s letter,) that it, also, should be published.
Elliott’s Debates:  Volume 5 Appendix to the Debates of the Federal Convention, Note 5.  http://teachingamericanhistory.org/ratification/elliot/vol5/appendix/ 
This subsequent draft of a constitution provided that the President be either at that time a citizen of one of the States or be “born a citizen of the United States.”  Article IX Sec. 1 in Appendix F of the Hamilton Plan of 1787 read:  “No person shall be eligible to the office of President of the United States unless he be now a citizen of one of the States, or hereafter be born a citizen of the United States.”
Hamilton gave his paper to Madison before the convention came to an end which we know occurred on September 17, 1787, the date the delegates signed the Constitution.  Hamilton served on committees that drafted convention rules and provided for writing style.  We can reasonably assume that since the document was in the hands of these two influential Founders and Framers, they would have discussed Hamilton’s presidential citizenship proposal with others making decisions at that time.  While we do not know exactly what happened during the convention regarding Hamilton’s “now a citizen of one of the States” and “born a citizen of the United States” concept, we do know that they were both rejected and “natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution[]” was accepted.  We can see that the Framers did not accept merely being a citizen of the United States at birth.  Rather, they demanded that future presidents be natural born citizens. 
Hamilton did provide his paper containing the “born a citizen” language to James Madison.  Additionally, he most likely also discussed his paper with other Convention delegates, even if he did not submit his paper to the Convention.  Ferrand stated that Hamilton “had stated the principles of it in the course of the deliberations” of the Convention.  Id. at 619.  It is hard to accept that Hamilton would have gone through all that effort to draft that proposed constitution and not share its principles with the Convention delegates prior to the end of the Convention.  Hence, enough delegates probably knew about Hamilton’s “born a citizen,” but no one made any suggestion that the Constitution read “born a citizen” rather than “natural born citizen.”
What is critical to understand about the Hamilton “born a citizen” language is that it shows that he did not request that the President be a “natural born citizen.”  So he knew that the definition of the clause was a child born in the country to citizen parents.  By advocating born a citizen, anyone who was made a citizen from the moment of birth by positive law [Endnote 1] such as an Act of Congress would have been eligible to be President.  This would have included children born out of the United States to U.S. citizen parents and even children born in the United States to alien parents who should by positive law be made citizens from the moment of birth.  But the Convention adopted “natural born citizen” and not “born a citizen,” which means that the delegates wanted a more stringent standard than just born a citizen.  So then how did the Framers define a natural born citizen? 
To understand who the natural born citizen are, we must first understand who the citizens are.  Our U.S. Supreme Court has many times looked to the principles of the English common law and William Blackstone to understand what the Framers meant by various terms and phrases that they used in the Constitution.  But Blackstone did not define either a citizen or a natural born citizen.   “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) (Justice Noah H. Swayne).  In fact, Minor v. Happersett, 88 U.S. 162 (1875) did not look to the English common law to define a citizen.  Minor explained who the citizens were in a general way thus: 
Before its adoption the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several States, yet there were necessarily such citizens without such provision. There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an [p166] association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association. He owes it allegiance and is entitled to its protection. Allegiance and protection are, in this connection, reciprocal obligations. The one is a compensation for the other; allegiance for protection and protection for allegiance.
For convenience it has been found necessary to give a name to this membership. The object is to designate by a title the person and the relation he bears to the nation. For this purpose the words "subject," "inhabitant," and "citizen" have been used, and the choice between them is sometimes made to depend upon the form of the government. Citizen is now more commonly employed, however, and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the States upon their separation from Great Britain, and was afterwards adopted in the Articles of Confederation and in the Constitution of the United States. When used in this sense it is understood as conveying the idea of membership of a nation, and nothing more.
Id. at 165-66. 
The Founders and Framers were greatly influenced by natural law and the law of nations.  Their favorite writer on the law of nations was Emer de Vattel, and his treatise, The Law of Nations (1758) was constantly in their hands in the early years of the republic.  Vattel did not define the citizens, simply saying in Section 212 of his treatise that they “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.”  We can understand why Vattel would not have defined the citizens other than to say that they were the members of a civil and political society, for each society defined its members based on its own historical development and positive laws.  As we saw, Minor added that being a citizen under the Constitution did nothing more than “convey[] the idea of membership of a nation, and nothing more.” 
Again, without mentioning the English common law or Blackstone, but rather expressing concepts of natural law and the law of nations, Minor then explained who the original “citizens’ were during the Founding of the free and independent states and then the United States as a nation: 
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.
Looking at the Constitution itself we find that it was ordained and established by "the people of the United States," [n3] and then going further back, we find that these were the people of the several States that had before dissolved the political bands which connected them with Great Britain, and assumed a separate and equal station among the powers of the earth, [n4] and that had by Articles of Confederation and Perpetual Union, in which they took the name of "the United States of America," entered into a firm league of [p167]friendship with each other for their common defence, the security of their liberties and their mutual and general welfare, binding themselves to assist each other against all force offered to or attack made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever. [n5] 
Whoever, then, was one of the people of either of these States when the Constitution of the United States was adopted, became ipso facto a citizen -- a member of the nation created by its adoption. He was one of the persons associating together to form the nation, and was, consequently, one of its original citizens. As to this there has never been a doubt. Disputes have arisen as to whether or not certain persons or certain classes of persons were part of the people at the time, but never as to their citizenship if they were.
Id. at 166-67. 
Having examined the concept of who the original citizens were, now we have to consider who the natural born citizens were.  Minor said that “additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization.”  Id. at 167.  It is in telling us about those additions to the citizens that Minor then told us how the Framers defined a natural born citizen.  The Framers had one and only one definition of a natural born citizen.  How do we know that?  The unanimous U.S. Supreme Court in Minor informs us.  There it held: 
The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [p168] 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. The words "all children" are certainly as comprehensive, when used in this connection, as "all persons," and if females are included in the last they must be in the first. That they are included in the last is not denied. In fact the whole argument of the plaintiffs proceeds upon that idea.
Id. at 167-68. 
The Court explained that neither the original nor amended Constitution (with the Fourteenth Amendment) defined a natural born citizen.  It said that we had to look outside the Constitution for a definition of the clause.  It held that the definition of a natural born citizen existed at common law the nomenclature with which they were familiar.  Explaining what that common law provided, it said that “all children” born in a country to “parents” who were its citizens were “natives, or natural-born citizens,” and that all the rest of the people were “aliens or foreigners,” who would need a naturalization Act of Congress in order to become a citizen of the United States.  Here we can see that like when it defined citizens, the Court did not rely upon the English common law and Blackstone, who explained that any child born in the King’s dominion and under his jurisdiction, regardless of the citizenship of the child’s parents, was a natural-born subject.  Rather, Minor’s definition of “natives, or natural born citizens” was a paraphrase of the definition of those terms provided by Emer de Vattel who in his The Law of Nations, Section 212 (1758) (1797) explained:  “The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” 
So, Minor looked to the law of nations and not to the English common law for the Framers’ definition of a natural born citizen.  Chief Justice John Marshall in The Venus, 12 U.S. 253, 289 (1814) (Marshall, C.J., concurring) and Justice Daniel in Dred Scott v. Sandford, 60 U.S. 393, 476 (1857) (Daniel, J., concurring), had done the same, citing and quoting the law of nations and Vattel at Section 212 and not the English common law and Blackstone.  Hence, when Minor said that a natural born citizen was defined “at common-law,” it was not referring to the English common law.  Rather, it was referring to American national common law which incorporated the citizenship principles of the law of nations. 
Minor explained that if one was a natural born citizen, there was no doubt that one was a citizen.  Hence, accepting that Virginia Minor was a natural born citizen, it held that she was a citizen.  After the Court defined the natural born citizens and told us that anyone who was a natural born citizen was without any doubt a citizen, the Court raised the question sua sponte whether there could be other “citizens” by birth “within the jurisdiction.”  This question regarding other “citizens” did not involve the “natural born citizens,” who the Court had just defined through an all-inclusive and all-exclusive definition (the Court said that under that common law all the people who did not meet that definition were “aliens or foreigners”).  So the Court did not raise any question of whether there could be other birth circumstances that could serve as the basis for making one a natural born citizen.  These other children were different from those that were natural born citizens because unlike them, they were born to alien parents.  In fact, the Court even referred to these children as belonging to another “class.”  The Court said that “some authorities” included these other children as “citizens” also.  The Court, however, said that “there have been doubts” whether they were citizens.  So, not only did the Court explain that those children could not be natural born citizens, it also said that it was doubtful whether they were even just citizens.  The Court was referring to The Slaughter House Cases, 83 U.S. 36 (1873) which stated that children born in the United States to alien parents were not citizens of the United States under the Fourteenth Amendment.  In the end, the Court explained that it was not necessary for it to solve the doubts involving whether the children of that other class were citizens.  For sure, it was not necessary because Virginia Minor was born in the country to parents who were its citizens which made her a natural born citizen.  Knowing that Virginia Minor was born in the country to parents who were citizens, which made her a natural born citizen, provided the Court with sufficient information for it to decide the question of whether Virginia Minor was a citizen. 
The Court finally held that “all children born of citizen parents within the jurisdiction are themselves citizens,” meaning that all children who were natural born citizens were citizens.  Accepting both that rule to be true and that Virginia Minor satisfied that rule was sufficient for the Court to hold that she was a citizen.  It simply was not necessary for the Court to explore any other avenues by which Virginia Minor could be a citizen.  Indeed, she was a natural born citizen which without any doubt ipso facto made her a citizen and that is all she had to be in order for her to have standing to make her Fourteenth Amendment argument that as a citizen of the United States, she had a privilege or immunity that created a constitutional right to vote which the State of Missouri could not abridge by making or enforcing any law against her.  The Court in the end held that citizenship did not constitutionally give one the right to vote and so Missouri could through its laws decide that it would not allow women to vote.  But the Court's ultimate holding regarding a woman’s right to vote has absolutely no bearing on the court’s ratio decidendi that it applied to defining the citizens and the natural born citizens, an analysis which makes its definition of a natural born citizen binding precedent.
So Minor confirmed the Framers’ definition of a natural born citizen.  It also left open the question of whether a child born in the United States to alien parents could be a citizen of the United States under the Fourteenth Amendment.  Again, the Court demonstrated that there was only one way to become a natural born citizen which was to be born in the country to parents who were its citizens.  But it also explained that there were different avenues by which one could become a citizen.  It explained that one way was for a person to satisfy the naturalization Acts of Congress.  Another way was to satisfy the requirements of the Fourteenth Amendment which it chose not to analyze and left to be done another day. 
The majority of the United States Supreme Court in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) answered in 1898 the Fourteenth Amendment question regarding birth in the United States to alien parents which Minor left open in 1875.  It is the seminal case for interpreting and applying the Fourteenth Amendment’s citizenship clause, which establishes thereunder who may be a “citizen” of the United States from the moment of birth, to persons who are born in the United States, but who do not satisfy Minor’s common law definition of a natural born citizen.  Wong Kim Ark thoroughly analyzed the question of who was included as a citizen of the United States under the Fourteenth Amendment and it showed that people like Wong, born in the United States to alien parents who were legally domiciled and permanently residing in the United States and neither foreign diplomats nor military invaders, were citizens of the United States from the moment of birth by virtue of the Fourteenth Amendment, but they could not be natural born citizens by virtue of the common law which Minor explained defined a natural born citizen.
Wong Kim Ark explained that “[t]he Constitution of the United States, as originally adopted, uses the words "citizen of the United States," and "natural-born citizen of the United States" and that “[t]he Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."  Id. at 654.  Hence, Wong Kim Ark also confirmed that the Fourteenth Amendment did not define a natural born citizen.  The Court then explained that “[i]n this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. Minor v. Happersett, 21 Wall. 162; Ex parte Wilson, 114 U.S. 417, 422; Boyd v. United States, 116 U.S. 616, 624, 625; Smith v. Alabama, 124 U.S. 465. The language of the Constitution, as has been well said, could not be understood without reference to the common law. Kent Com. 336; Bradley, J., in Moore v. United States, 91 U.S. 270, 274.”  Id. at 654.  Hence, Wong Kim Ark, like Minor, explained that the Court could use the common law to interpret the Constitution, Article II in Minor and the Fourteenth Amendment in Wong Kim Ark. 
While it acknowledged Minor’s definition of a natural born citizen and the common law it relied upon to arrive at that definition, in rendering its decision it did not rely upon American national common law, but rather on colonial English common law.  It did not rely on the former because it was not defining an Article II natural born citizen, but rather a different clause of the Constitution, as amended, the Fourteenth Amendment.  In fact, Wong Kim Ark said that it was not constrained by any rule of “international law” or the municipal laws of any foreign nation in interpreting the Fourteenth Amendment.  Rather, it resorted to looking to and using colonial English common law as an aid to construing the Fourteenth Amendment’s “subject to the jurisdiction thereof” clause.  It found that under the English common law, a child born in the King’s dominion to alien parents who were neither foreign diplomats nor military invaders were born subject to his jurisdiction and entitled to his protection, and therefore English natural-born subjects.  It found that this rule had been continued in the new free and independent states after the Declaration of Independence and the adoption of the Constitution, by the states selectively adopting the English common law through their constitutions and reception statutes.  By the force of that state practice, it ruled by analogy that a child born in the United States to alien parents who were permanently domiciled and resident in the United States and neither foreign diplomats nor military invaders was born in the United States and “subject to the jurisdiction thereof.”  Hence, that child was a “citizen” of the United States from the moment of birth by virtue of the Fourteenth Amendment.  Relying on the English common law’s exceptions to being born in the King’s dominion and within the jurisdiction of the King, it also explained that any child born in the United States to foreign diplomats or military invaders would not be born subject to its jurisdiction and therefore not a citizen of the United States under the Fourteenth Amendment. 
So Wong Kim Ark resolved the question of the meaning of the Fourteenth Amendment’s “subject to the jurisdiction thereof” clause, as applied to children born in the United States to alien parents, by resort to the colonial English common law, which under its notion of broad allegiance, treated non-diplomatic and friendly aliens present in the King’s dominions as his subjects.  It used the colonial English common law to interpret the meaning of the Fourteenth Amendment’s “subject to the jurisdiction thereof” clause, not the meaning of an Article II natural born citizen.  In conducting its jurisdiction analysis, it did not reinterpret the natural born citizen clause under the English common law, for Minor had already demonstrated that its definition was to be found in American common law.  In fact, no U.S. Supreme Court that ever provided the definition of a natural born citizen relied upon any jurisdiction analysis when defining a natural born citizen.  Actually, Wong Kim Ark recognized that a natural born citizen was a different type of citizen than a citizen of the United States at birth under the Fourteenth Amendment.  “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.” Emer de Vattel, The Law of Nations, Section 212 (1758) (1797).  “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.”  Minor 88 U.S. at 167.  “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.” Wong Kim Ark, 169 U.S. at 665 (citing and quoting Horace Binney, “Alienigenae of the United States,” 22, note (2nd ed. Philadelphia, December 1, 1853). As we can see, both Vattel and Minor said a natural born citizen was a child born in the country to parents who were its citizens.  Justice Gray in Wong Kim Ark agreed.
Another crucial point needs to be addressed.  What did Vattel and Minor mean when they said “children” and “parents” as in all “children” born in the country to citizen “parents” were natural born citizens?  Under the law of nations and at common law, children meant legitimate children.  Hence, using the term children suggested that the father and mother were married or at least that the child was legitimated at some point.  Under the law of nations and at common law, “parents” could only mean father and mother.  In fact, Vattel throughout The Law of Nations, when referring to parents, spoke about a child’s father and mother.  Under the common law doctrine of coverture, a wife upon marriage (femes covert) become one with her husband.  She acquired the citizenship and allegiance of her husband, whether her husband was a citizen or an alien.  At the Founding and until the passage of the Cable Act in 1922 (ch. 411, 42 Stat. 1021), there was no such thing as a husband having one citizenship and the wife having another.  This father and mother interpretation of Vattel has been confirmed by our U.S. Supreme Court which has always interpreted Vattel’s “parents” to mean both father and mother.  In their concurring opinions, Chief Justice John Marshall in The Venus (1814) and Justice Daniel in Dred Scott did just that.  Minor provided a scenario where the child’s parents were both either citizens or both aliens.  The same occurred in Wong Kim Ark, where the Court explained that a child born in the country to an alien parent is as much a “citizen” as the natural born child born in the country to a citizen parent.  This statement can have sense only if both parents are either aliens or citizens.  So, both Minor and Wong Kim Ark provided scenarios wherein the child’s parents are both either citizens or both aliens.  See also Lynch v. Clarke, 1 Sandf.Ch. 583, 3 NY Leg. Obs. 236 (1844)  (confirms the same scenario when it said:  “it is insisted that the national rule is that of the public law, by which a child follows the status of its parents (emphasis in the original);” “Suppose a person should be elected President who was native born, but of alien parents . . .;” and “every person born within the dominions and allegiance of the United States, whatever were the situation of his parents”); Ankeny v. Governor of the State of Indiana, 916 N.E.2d 678 (Ind. Ct.App. 2009) (stating in footnote 12 “that the Court in Minor contemplates only scenarios where both parents are either citizens or aliens, rather in the case of President Obama, whose mother was a U.S. citizen and father was a citizen of the United Kingdom”).  This reasoning followed from our nation adopting the common law doctrine of coverture that the wife acquired the citizenship of her husband.  Hence, the word “parents” in both Vattel’s and Minor’s definition of a natural born citizen could not mean that one parent had one citizenship and another had a different one; it could only mean father and mother who had the same citizenship at the time of the child’s birth.  This law of nations and common law rule regarding parents having the same nationality is reflected in the 1961 Convention on the Reduction of Statelessness.  Article 2 provides: “A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born within that territory of parents possessing the nationality of that State,” in effect providing that a foundling is to be treated and considered as though she satisfies the definition of a natural born citizen under the law of nations.  Hence, the common public understanding of “parents” at the time the Constitution was adopted and ratified was that parents meant father and mother, with the spouses acquiring the citizenship of the husband, and children meant legitimate children of those parents.  So, at the time of the adoption and ratification of the Constitution, legitimate children were born either to two citizen parents or to two alien parents.  Under the ancient maxim partus sequitur patrem (children follow the condition of their parents), those children inherited the citizenship and allegiance of their parents.   
Finally, other convincing evidence demonstrating that the Framers defined a natural born citizen as a child born in the country to citizens parents are the Naturalization Acts of 1790, 1795, 1802, and 1804.  The only children Congress did not seek to reach with its naturalization powers in these Acts were children born in the United States to U.S. citizen parents.  There was no constitutional basis for Congress to do that, for these children were the natural born citizens.  What is also most telling is that in these naturalization Acts, Congress treated children born in the  United States to alien parents as aliens and in need of naturalization.  This Congressional naturalization rule was not changed until after the U.S. Supreme Court in Wong Kim Ark held that children born in the United States to qualifying alien parents were citizens of the United States from the moment of birth. 
What this historical and legal evidence (not meant to be exhaustive) shows is that there is only one definition of a natural born citizen.  That definition is a child born in a county to parents (father and mother) who were its citizens at the time of the child’s birth.   But there can be different definitions of a citizen.  Those other definitions exist under the Fourteenth Amendment, naturalization Acts of Congress, and treaties, all positive laws.  We can argue, for whatever reasons, about what those other definitions of being a citizen should be under those particular positive laws.  But whatever we agree or disagree on with respect to a citizen under those laws, none of that changes or can change the Framers’ original common law definition of a natural born citizen which under the Constitution is a child born or reputed born in the United States to parents, meaning a married father and mother, who were U.S. citizens at the time of the child’s birth.  The Framers adopted this definition of a natural born citizen into the Constitution.  As such, it is the supreme law of the land and cannot be changed unless done so by a duly ratified constitutional amendment. 
Even if today we were to relax the requirement of parents having to be married due to Fourteenth Amendment equal protection requirements, we would still be left with the requirement that the father and mother be both U.S. citizens at the time of the birth of their child in the United States.  Finally, the Cable Act of 1922, which for the first time gave to women the right to have a separate citizenship and allegiance from that of their husbands, did no more than that; it did not nor could it amend the definition of a natural born citizen which required that both parents be U.S. citizens at the time of their child’s birth in the United States. 
For sure, the United States would never deny its protection to a natural born citizen, for no other foreign nation can make any legitimate claim based on its sovereign authority to that person’s citizenship and allegiance based on either jus sanguinis or jus soli, for under the American national common law’s definition of a natural born citizen, i.e., a child born in a country to parents who were its citizens at the time of the child’s birth, both right of blood and right of soil merge into the child at the moment of birth to create a unity of citizenship and allegiance in the child at the time of birth.  Hence, that child is born with allegiance only to the United States and to no other nation.  Simply stated, all the nations of the world recognize that person to be only a citizen of the United States and of no other nation.  The Framers commanded that future Presidents and Commanders be born with sole allegiance to the United States.  In contrast, citizens at birth under the Fourteenth Amendment and naturalization Acts of Congress, who do not meet the definition of a natural born citizen, while born with allegiance to the United States, are also born with citizenship and allegiance to some foreign nation, under the Fourteenth Amendment, citizenship in and allegiance to the foreign nation of one or both alien parents, and under a naturalization Act of Congress, citizenship in and allegiance to the foreign nation in which born and/or of an alien parent.  These citizens “at birth” are made citizens at birth only by operation of law, the Fourteenth Amendment or Act of Congress, and not by universal principles of natural law and the law of nations, recognized and adopted by American national common law. 
It is treason upon the Constitution and the Framers’ command that for the sake of the national security of the republic, for persons born after the adoption of the Constitution, no person except a natural born citizen is to be eligible to be President and Commander in Chief of the Military, to interpret the natural born citizen clause out of the Constitution and replace it with how we may today define under the positive laws of the Fourteenth Amendment or naturalization Acts of Congress a citizen of the United States at birth, a person who, if not also a natural born citizen, is not born with sole allegiance to the United States.   
With these principles to guide us, we can only conclude that de facto President Barack Obama, Senator Ted Cruz, Senator Marco Rubio, and Governor Bobby Jindal are all not natural born citizens.  None of them were born in the United States to parents who were both U.S. citizens at the time of their children’s birth. 
Obama, assuming he was born in the United States, is a citizen of the United States at birth, but only by virtue of the Fourteenth Amendment.  He is not and cannot be a natural born citizen under the common law because while he was presumably born in the United States to a U.S. citizen mother, he was born to a non-U.S. citizen father.   
Cruz was born in Canada, presumably to a U.S. citizen mother and a non-U.S. citizen father.  He can be a citizen of the United States at birth, but only by virtue of a naturalization Act of Congress (section 301(a)(7) of the Immigration and Nationality Act of 1952).  He is not and cannot be a natural born citizen under the common law because, while he was born to a U.S. citizen mother, he was not born in the United States and he was born to a non-U.S. citizen father. 
Rubio and Jindal were born in the United States to two non-U.S. citizen parents.  They are both citizens of the United States at birth, but only by virtue of the Fourteenth Amendment.  They are not and cannot be natural born citizens under the common law because, while they were born in the United States, they were born to two non-U.S. citizen parents.    
__________________ 
Endnote 1:  The concept of "positive law" has existed since the beginning of ordered legal systems. Positive law includes constitutions, statutes, case law, and any other law adopted by whatever sovereign has power to make law at any given moment in time.  It has been said by many political and legal philosophers throughout the ages that positive law has its origin in what man perceives to be natural law and God's law, or what Thomas Jefferson in The Declaration of Independence called “the Laws of Nature and of Nature’s God,” meaning the laws of nature and the laws of nature's God.  
Mario Apuzzo, Esq.
November 29, 2015
http://puzo1.blogspot.com
####

Copyright © 2015
Mario Apuzzo, Esq.
All Rights Reserved  

120 comments:

cfkerchner said...

Excellent Mario. A real tour de force.
CDR Kerchner (Retired)
http://www.ProtectOurLiberty.org

Mario Apuzzo, Esq. said...

I of II

Charles 17121 posted a question and comment on my previous article. He/she asks:

Question: Did not the Fourteenth Amendment to the US Constitution give Newly Freed Slaves the right to US Citizenship? The Fourteenth Amendment did not give a pathway to US Citizenship to babies born on US Soil to non US Citizen parents. The so called Anchor babies. Even Mario Apuzzo Esq. gets it wrong. Donald Trump was right, Anchor Babies are a misreading of the Fourteenth Amendment by both politicians and the US Supreme Court.

~~~~~

Here is my response:

The Civil Rights Act of 1866 said: “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”

The Fourteenth Amendment provides in relevant part: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

As we can see, Congress in the Fourteenth Amendment abandoned the negative "not subject to any foreign power" language and adopted the more liberal affirmative language of "subject to the jurisdiction thereof" language.

The U.S. Supreme Court in U.S. v. Wong Kim Ark (1898) interpreted the Fourteenth Amendment's "jurisdiction" clause to mean merely subject to the laws of the United States. Since it found that even alien parents could give birth to children in the United States who could be citizens under the Fourteenth Amendment, it did qualify its definition of jurisdiction by also requiring that the child's parents be domiciled and permanently residing in the United States, and neither foreign diplomats nor military invaders. In other words, the Court required that if one was to be entitled to the status of a "citizen" of the United States from the moment of birth under the Fourteenth Amendment (not to be conflated, confounded, and confused with an Article II "natural born citizen" of the United States), at a minimum one had to be born in the United States while his or her parents were subject to the full power and authority of the United States, domiciled and permanently residing in the United States, and neither foreign diplomats nor military invaders.

The Fourteenth Amendment also provides at Section 5: "Congress shall have power to enforce this article by appropriate legislation." It can be reasonably argued that Congress has the power under the Fourteenth Amendment to exclude by appropriate statute anyone from its birthright citizenship benefits who is born to parents who it considers as not being domiciled and permanently residing in the United States. This power would be in effect no different than that which Congress could utilize to pass a statute prohibiting a child born in the United States to a foreign ambassador or a military invader from being a citizen of the United States. This power, which can be coined a "Wong Kim Ark citizenship exclusion," can be asserted not only directly under the very text of the Fourteenth Amendment, but also indirectly under Congress's power under Article I, Section 8, Clause 4 "[t]o establish an uniform Rule of Naturalization. . . throughout the United States." Section 8, Clause 18 of Article I also provides that Congress shall have the power "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other powers vested by this Constitution in the Government of the United States, or any Department of Officer thereof."

Continued . . .

Mario Apuzzo, Esq. said...

II of II

Our U.S. Supreme Court has consistently found that Congress has great plenary powers over citizenship, immigration, and naturalization matters. Enforcing the Constitution and the laws made in pursuance thereof on the question of who shall be admitted to citizenship of the United States under the Fourteenth Amendment's jurisdiction clause should pass constitutional muster, provided such laws are not discriminatory as to defeat the original purpose of the Fourteenth Amendment which was to remove race, color, and previous condition of servitude as disqualifying factors for acquiring the status of a citizen of the United States.

Through such appropriate legislation, Congress could determine whether a person who either enters the United States illegally or entered legally and then whose presence becomes illegal is to be considered as being domiciled and legally residing in the United States. If Congress answers “no,” then children born to such persons would not be citizens of the United States under the Fourteenth Amendment. Such children, to become citizens of the United States, would either have to wait until their parents naturalized during their minority, or file their own naturalization petition upon reaching the age of majority. In the meantime, both the parents and the children would be subject to removal from the United States.

Mario Apuzzo, Esq. said...

I of II

Charles 17121 posted a question and comment on my previous article. He/she asks:

Question: Did not the Fourteenth Amendment to the US Constitution give Newly Freed Slaves the right to US Citizenship? The Fourteenth Amendment did not give a pathway to US Citizenship to babies born on US Soil to non US Citizen parents. The so called Anchor babies. Even Mario Apuzzo Esq. gets it wrong. Donald Trump was right, Anchor Babies are a misreading of the Fourteenth Amendment by both politicians and the US Supreme Court.

~~~~~

Here is my response:

The Civil Rights Act of 1866 said: “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”

The Fourteenth Amendment provides in relevant part: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

As we can see, Congress in the Fourteenth Amendment abandoned the negative "not subject to any foreign power" language and adopted the more liberal affirmative language of "subject to the jurisdiction thereof" language.

The U.S. Supreme Court in U.S. v. Wong Kim Ark (1898) interpreted the Fourteenth Amendment's "jurisdiction" clause to mean merely subject to the laws of the United States. Since it found that even alien parents could give birth to children in the United States who could be citizens under the Fourteenth Amendment, it did qualify its definition of jurisdiction by also requiring that the child's parents be domiciled and permanently residing in the United States, and neither foreign diplomats nor military invaders. In other words, the Court required that if one was to be entitled to the status of a "citizen" of the United States from the moment of birth under the Fourteenth Amendment (not to be conflated, confounded, and confused with an Article II "natural born citizen" of the United States), at a minimum one had to be born in the United States while his or her parents were subject to the full power and authority of the United States, domiciled and permanently residing in the United States, and neither foreign diplomats nor military invaders.

The Fourteenth Amendment also provides at Section 5: "Congress shall have power to enforce this article by appropriate legislation." It can be reasonably argued that Congress has the power under the Fourteenth Amendment to exclude by appropriate statute anyone from its birthright citizenship benefits who is born to parents who it considers as not being domiciled and permanently residing in the United States. This power would be in effect no different than that which Congress could utilize to pass a statute prohibiting a child born in the United States to a foreign ambassador or a military invader from being a citizen of the United States. This power, which can be coined a "Wong Kim Ark citizenship exclusion," can be asserted not only directly under the very text of the Fourteenth Amendment, but also indirectly under Congress's power under Article I, Section 8, Clause 4 "[t]o establish an uniform Rule of Naturalization. . . throughout the United States." After all, anyone who is not a “natural born” citizen of the United States and is made a “citizen” of the United States under the Fourteenth Amendment or naturalization Act of Congress is in truth naturalized to be a citizen of the United States albeit at birth. Section 8, Clause 18 of Article I also provides that Congress shall have the power "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other powers vested by this Constitution in the Government of the United States, or any Department of Officer thereof."

Continued . . .

Mario Apuzzo, Esq. said...

II of II

Our U.S. Supreme Court has consistently found that Congress has great plenary powers over citizenship, immigration, and naturalization matters. Enforcing the Constitution and the laws made in pursuance thereof on the question of who shall be admitted to citizenship of the United States under the Fourteenth Amendment's jurisdiction clause should pass constitutional muster, provided such laws are not discriminatory as to defeat the original purpose of the Fourteenth Amendment which was to remove race, color, and previous condition of servitude as disqualifying factors for acquiring the status of a citizen of the United States.

Through such appropriate legislation, Congress could determine whether a person who either enters the United States illegally or entered legally and then whose presence becomes illegal is to be considered as being domiciled and legally residing in the United States. If Congress answers “no,” then children born to such persons would not be citizens of the United States under the Fourteenth Amendment. Such children, to become citizens of the United States, would either have to wait until their parents naturalized during their minority, or file their own naturalization petition upon reaching the age of majority. In the meantime, both the parents and the children would be subject to removal from the United States.

Jim Delaney said...

Did the Nationality Act of 1795 effectively change the 1790 definition of who is a natural-born citizen?

As I read your analysis it appears that "anchor babies" cannot be US Citizens at birth. If that is correct, why does Congress need to act to deny anchor babies citizenship? Merely to clarify and underscore what is already law?

Thank you, sir, for your scholarly analysis of what, to me, has become a deliberately confused issue.

Finally, do you know anything about the current status of the Cold Case Posse investigation into Obama's issues of fraud and, therefore, eligibility. I've heard some disturbing reports about the Posse's being a scam and/or bust. Can't seem to get a cogent, balanced response from anyone on this subject. Thanks again.

Mario Apuzzo, Esq. said...

Jim Delaney,

I of II

1. Did the Nationality Act of 1795 effectively change the 1790 definition of who is a natural-born citizen?

~~~~~

Here is the 1790 Act:

United States Congress, “An act to establish an uniform Rule of Naturalization” (March 26, 1790).

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such Court that he is a person of good character, and taking the oath or affirmation prescribed by law to support the Constitution of the United States, which Oath or Affirmation such Court shall administer, and the Clerk of such Court shall record such Application, and the proceedings thereon; and thereupon such person shall be considered as a Citizen of the United States. And the children of such person so naturalized, dwelling within the United States, being under the age of twenty one years at the time of such naturalization, shall also be considered as citizens of the United States. 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: Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed.

The Naturalization Act 1790 is just that, a naturalization Act, passed pursuant to Congress's power to make uniform the rules of naturalization throughout the United States. The power to naturalize does not include nor can it the power to make one a natural born citizen as surely as the power to make one a couple's adopted child does not include the power to make one a couple's natural child.

As to children born in the United States, the act treated children born to alien parents as aliens and in need of naturalization. Those children were considered as citizens of the United States if they were dwelling in the United States and upon the naturalization of their alien parents if done during the child's minority. If parents did not naturalize during their children's minority, then the person would have to file his or her own petition for naturalization after reaching the age of majority.

As to children born out of the United States, the Act said that children born out of the United States to citizen parents "shall be considered as natural born citizens." This is no different from the many naturalization acts passed in England and the colonies which took one, who was not a subject/citizen, and made one for all intents and purposes a natural-born subject, including acquiring that status after their birth. Surely persons made subjects/citizens after their birth were not true natural born subjects/citizens. Under English common law, the standard was natural-born subject, and under the Constitution it was natural born citizen, and the naturalization acts were only saying that those naturalized persons now enjoyed the privileges, immunities, and rights of a natural born subject/citizen. The Acts did not make those persons into true natural born subject/citizens.

Continued . . .

Mario Apuzzo, Esq. said...

II of II

Congress was more precise and removed any confusion with the Naturalization Act of 1795 which, with the leadership of then-Representative James Madison, and President George Washington, repealed the 1790 Act and then provided that children born in the United States to alien parents continued to be treated the same as they were in the 1790 Act, i.e., as aliens, and children born out of the United States to U.S. citizen parents "shall be considered as citizens of the United States."

Cleary, Congress and President George Washington, along with many Founders and Framers, made it known that children born in the United States to alien parents were aliens and that those born out of the United States to U.S. citizen parents were to be considered as citizens of the United States, not considered as natural born citizens, let alone true natural born citizens.

The only logical conclusion to be drawn from the 1790 and 1795 Acts (along with those of 1802 and 1804) is that a natural born citizen was a child born in the United States to parents who were U.S. citizens. There was no other way to be a citizen of the United States by birth in the country. As to those born out of the country, even to U.S. citizen parents, the best they could be were "citizens" of the United States, and not "natural born" citizens of the United States. So this is the definition of a natural born citizen which Congress, James Madison, President Washington, and many Framers and Founders recognized and accepted as is evidenced by the 1790 and 1795 Acts.

2. As I read your analysis it appears that "anchor babies" cannot be US Citizens at birth. If that is correct, why does Congress need to act to deny anchor babies citizenship? Merely to clarify and underscore what is already law?

~~~~~

Under current practice, "anchor babies" are citizens of the United States from the moment of birth by virtue of the Fourteenth Amendment. The U.S. Supreme Court has never directly ruled on the question. What I offered in my analysis is a way for Congress to address the issue, without having to resort to a constitutional amendment.

3. Finally, do you know anything about the current status of the Cold Case Posse investigation into Obama's issues of fraud and, therefore, eligibility. I've heard some disturbing reports about the Posse's being a scam and/or bust. Can't seem to get a cogent, balanced response from anyone on this subject.

~~~~~

If you can't get a "cogent, balanced response from anyone on this subject," why would you want to publicly repeat that you have "heard some disturbing reports about the Posse's being a scam and/or bust?"

Kanbun said...

Mario,
Your work continues to be the only sane analysis of the NBC issue. It is most disturbing that politicians who would otherwise be held in high esteem, just ignore the NBC requirement for POTUS to serve their own personal political aspirations. I refer particularly to Cruz, Rubio and Jindhal, but especially the two senators both of whom certainly know exactly what they are doing. Further, not a peep from anyone in the media as to this deception. Wouldn't it be interesting for someone to ask these guys to explain (define) NBC in the context of the information you so eloquently provide?

My question is this. At the time of ratification, would any of these three even be citizens, and, if not, how can someone who would not be a citizen at the adoption of the constitution ever be a natural born citizen?

Patriarch said...

Kindly forward this link to ALL presidential candidates & their campaign directors with the admonition: "You have been warned that your disregard of article 2 section 1 of the US CONSTITUTION WILL NOT BE OVERLOOKED BY THE CULTURALLY LITERATE PATRIOTS WHO VOTE.

I T IS APPATRENT YOU Expect TO GARHER THE CULTUALLY ILLITERATE's votes. NOT ON MY WATCH!"


Give me LIBERTY OR GIVE ME DEATH.

I HAVE JUST BEGUN TO FIGHT

I HAVE JUST ONE LIFE TO GIVE TO MY COUNTRY & I PLEDGE MY LIFE, MY FORTUNE & MY SACRD HONOR, that another USURPER WILL NOT SQUAT IN THE WHITE HOSE IN 2017.

Patriarch said...

Kindly forward this link to ALL presidential candidates & their campaign directors with the admonition: "You have been warned that your disregard of article 2 section 1 of the US CONSTITUTION WILL NOT BE OVERLOOKED BY THE CULTURALLY LITERATE PATRIOTS WHO VOTE.

I T IS APPARENT YOU EXPECT TO GARNER THE CULTURALLY ILLITERATE's votes.

NOT ON MY WATCH!"


Give me LIBERTY OR GIVE ME DEATH.

I HAVE JUST BEGUN TO FIGHT

I HAVE JUST ONE LIFE TO GIVE TO MY COUNTRY & I PLEDGE MY LIFE, MY FORTUNE & MY SACRD HONOR, that another USURPER WILL NOT SQUAT IN THE WHITE HOSE IN 2017.

Mario Apuzzo, Esq. said...

I of II

Kanbun,

You asked:

My question is this. At the time of ratification, would any of these three [Cruz, Rubio, and Jindal] even be citizens, and, if not, how can someone who would not be a citizen at the adoption of the constitution ever be a natural born citizen?

~~~~~

Adults in being become citizens of one of the new free and independent states by adhering to the American Revolution. Their minor children took on the same character as their parents under the ancient maxim partus sequitur patrem (children follow the condition of their parents). So if any of these candidates were minors, the only way they could have been citizens was if their parents would have been citizens by adhering to the American Revolution. If they were adults, whether born in the colonies or foreigners who were then inhabiting them, they would have had to adhere to the American Revolution to become a citizen of one of the states.

Those state citizens become citizens of the new nation created by the Constitution, the United States of America. The Constitution at Article I and II calls them “Citizen[] of the United States.”

The Constitution at Article II, Section 1, Clause 5 also speaks about “natural born Citizens” of the United States. As to the natural born citizens, as I have explained in my article and elsewhere, the original natural born citizens were children born in the United States to these original citizens. More natural born citizens were made by birth in the United States to all natural born citizens that came before.

But the United States was a vast land with great riches. The Founders and Framers saw the need for population to make America even richer. They therefore provided for the naturalization of foreigners who they envisioned, as had occurred during the colonial experience, coming to America to become part of it and thereby enrich it economically and culturally. Therefore, the Framers provided for naturalization of aliens and foreigners. To put an end to naturalization competition that had existed between the states and to create uniform, consistent, predictable, and fair naturalization laws for the whole nation of the United States, they gave to gave Congress power to make uniform the rules of naturalization.

Indeed, more citizens could be made by naturalization. These persons were not part of the original Founding citizens or their descendants. They had no descendant connection to anyone who was an original citizen. They became citizens of a state under naturalization acts of a state and then citizens of the United States under a naturalization Act of Congress, starting in 1790. These naturalized citizens of the United States, in effect, became like the "original" citizens. Once citizens of the United States, they in turn could go on to procreate natural born citizens as did the original citizens. Their children, too, born to them in the United States, became natural born citizens, for they were born in the United States to parents who were its citizens at the time of their birth.
Applying these principles to Obama, Cruz, Rubio, and Jindal, we can see that if minors during the American Revolution, in order to be original citizens, their parents would have had to adhere to the American Revolution. If adults, they themselves would have had to do that. If neither of those two scenarios occurred, they would have had to naturalize under a naturalization act of one of the states. Under any one of those scenarios, they would have become a state citizen and then a citizen of the United States under the Constitution. If they acquired that status as of the time that the Constitution was adopted, they would have been eligible to be President under Article II's grandfather clause. But if they did not have any such citizenship status by the time of the adoption, then under Article II, Section 1, Clause 5, they would have had to be natural born citizens in order to be eligible to be President.

Continued . . .

Mario Apuzzo, Esq. said...

II of II

But our de facto President and candidates would not have qualified as natural born citizens, at any time of U.S. history. Before the ratification of the Fourteenth Amendment, under the common law definition of a natural born citizen, being born in the country was not sufficient to make one a citizen of the United States, let alone a natural born citizen. All of Congress’s naturalization acts before its ratification treated children born in the United States to alien parents as aliens. One had to be born not only in the United States, but also to U.S. citizen parents to escape having to rely upon a naturalization Act of Congress for U.S. citizenship status. But none of them were born to two U.S. citizen parents. Persons such as our candidates who were born in the United States only became citizens of the United States (not natural born citizens) under the later ratified Fourteenth Amendment.

Cruz, who was born out of the United States, cannot benefit from the Fourteenth Amendment and needed a naturalization Act of Congress to make him a citizen of the United States. The early naturalization Acts required that the father be a citizen of the United States. (Later Congress allowed also for U.S. citizen mothers.) Cruz was born to a non-U.S. citizen father. He therefore, being born to a U.S. citizen mother and non-U.S. citizen father, would not have been under any naturalization Act of Congress a citizen of the United States, let alone a natural born citizen. Cruz became a naturalized citizen of the United States at birth under later more liberal naturalization Acts of Congress, which allowed for either a citizen father or citizen mother. But none of that makes Cruz a natural born citizen.

So, if our de facto President and candidates had been born during the Founding and assuming their parents did not adhere to the American Revolution, the best that our candidates could have done was to wait for their parents to naturalize and so make then naturalized citizens of the United States, but only if their parents did so during their children's minority. If their parents did not naturalize, they would have had to do it on their own upon reaching the age of majority. If that would have occurred by the time of the adoption of the Constitution which would have made them citizens of the United States, they would have been eligible to be President under Article II’s grandfather clause. If default thereof, they would have had to be natural born citizens in order to be so eligible. Under all scenarios, none of our candidates would have been natural born citizens. None of them were born or reputed born (like John McCain) in the United States to parents who were both U.S. citizens at the time of their child's birth.

The definition of a natural born citizen, i.e., a child born or reputed born in the United States to parents who were both U.S. citizens at the time of their child's birth, has never changed. Hence, today they are also not natural born citizens. The inescapable conclusion is that being neither “a natural born Citizen, [n]or a Citizen of the United States, at the Time of the Adoption of this Constitution,” none of them are eligible to the Office of President. Article II, Section 1, Clause 5.

N.B. In the above analysis, I have discounted the factor of race, color, and condition of servitude as bearing any relevancy in the question of who may be a citizen or a natural born citizen, both historically and at present.

Jim Delaney said...

Since the Nationality Act of 1795 and the words of 14th framers Sen. Bingham and Howard clearly define what an NBC is, then why would Minor v Happersett seem to be less than forthright about its definition? Why didn't the court merely confidently refer to the 1795 Act (unless it was subsequently altered, of course) and the 14th's framers words (original intent/meaning) to uphold the definition, that being "born of two US Citizens within (subject to) the jurisdiction of the US"?

To clarify and reassert the definition, wouldn't it be prudent and helpful if Congress were take on that task? Or would such an effort be too politicized to beget an objective treatment?

Cannot the individual Secretaries of State unilaterally decide which presidential candidate is or is not eligible to be place on the ballot in those respective States?

In all the suits against Obama, the courts dodged the issue, for the most part because the plaintiff lacked standing or the court lacked jurisdiction. Just what govenmental entity has jurisdiction in such suits? Should the People decide by referendum? How can this be constitutionally and rationally decided?

If I had to succinctly defend this NBC definition as THE correct definition to the naysayers,would citing the 1795 Act and the words of the 14th's framers be the best way to go?

United Natural Born Citizens said...

Very interesting narrative of the various historical facts, considerations, opinions and incidental dicta from the SCOTUS arising in under unrelated Petition questions.

Here is a much more concise and less rambling explanation of the LEGAL STATUS of a United States natural born Citizen as construed under EXISTING U.S. Law.

I call it an Apologetic, but it may just as well be entitled " U.S. natural born Citizens for the Intellectually honest"

https://goo.gl/y6IFye

An Apologetic * on the subject of U.S. natural born Citizen as construed under the Federal Laws of the Constitution of the United States of America

The one essential Constitutional element of Article II Section I Clause V is the “exclusionary prerequisite imperative requirement provision”, i.e.,

” … 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 ; … ”

The “definition”, or the means to identify a (U.S. {implicit}), “natural born Citizen”, is currently ASSUMED to be “ambiguous”, and that ambiguity creates a “legal-loop-hole” that at once makes the provision unenforceable and indistinguishable from any and ALL other conditions of U.S. Citizenship.

The intellectual dishonesty and incompetence of the assumption is astounding given that immediately following the Ratification of the COTUS the 1st Congress, in March of 1790, expressed the “attendant circumstances” required to be considered as a U.S. natural born Citizen at birth within the Constitutionally mandated plenary power over the subject of U.S. Citizenship naturalization at A1S8C4.

Unfortunately any discussion on the subject of “citizenship” requires a primer in order to establish certain FACTS in order to comprehend how the various distinguishing circumstances of acquisition of citizenship can be identified.

ALL “citizens” are “made” in the 1st instant, without which there can be no “natural” perpetuation of citizenship giving rise to “natural born citizens”. (See Aristotle, Politics, Bk III, Pt II).

In order for “natural perpetuation” to occur its acknowledgement must be provided for within the particular society, whether by “doctrine” or “private law decrees”, i.e., a provision of law codified as a statute.

The “attendant circumstances” of the acquisition of citizenship must be identifiable for notable legal purposes such as Executive Office and other elected office’s eligibility, right to vote in national elections and other Constitutional rights and privileges reserved to “citizens”.

Continued at ... https://goo.gl/y6IFye

cfkerchner said...

A news article at ThePostEmai.com online newspaper re AZ Sheriff investigation and litigation: http://www.thepostemail.com/2015/12/01/zullo-silence-on-birth-certificate-investigation-like-torture/

Jim Delaney said...

Tahak you, cfkerchner. I've also emailed Sheriff Arpaio for an update.

Carlyle said...

From bits and dribbles (most especially from the Arpaio/Zullo direction), it is looking more and more like the CIA are the ones who created BHO's false credentials (i.e. provided the documents that are now known to have been doctored).

But before an OBOT chimes in from a place of hate - I will ask from a place of love - why would they do that? Motivation? Any theories?

Mario Apuzzo, Esq. said...

The Obots argue that the Framers could not possibly have used Emer de Vattel, The Law of Nations, Section 212, the 1758 initial French edition or any other French or English edition published before the drafting and adoption of the Constitution in 1787 because Vattel was not translated by the English anonymous translator from "natives or indigenes" to "natives, or natural-born citizens" until 1797, which was 10 years after the drafting and adoption of the Constitution. Their argument is baseless.

In response to this argument, I just posted this comment over at Western Free Press, for “Ted Cruz and Natural Born Citizen: A Belated Reply to Mario Apuzzo, at http://www.westernfreepress.com/2015/03/05/ted-cruz-and-natural-born-citizenship-a-belated-reply-to-mario-apuzzo/ , in response to commenter 4zoltan:

You completely miss the point. I have explained how the 1797 English translation, which used "natives, or natural-born citizens," given the textual content of the previous English translations, which used "natives or indigenes," proves that the Framers used Vattel's The Law of Nations, Section 212 for their definition of a natural born citizen. Here is the list, as provided by you, of the English translations which followed Vattel's original publication in French of The Law of Nations in 1758:

1759 – London, J. Coote;
1760 – London, J. Newberry, J. Richardson, S. Crowder, and six others;
1787 – New York, Berry and Rogers;
1787 – Dublin, Luke White;
1792 – Dublin, Luke White;
1793 – London, G.G. and J. Robinson;
1796 – New York, Samuel Campbell

What you fail to focus on is what occurred between the four English translations of The Law of Nations and the 1797 English translation. That historical event was the ratification of the U.S. Constitution in 1788. The anonymous translator published his English translation in 1797 in London, which was nine years after the ratification of the Constitution. Nothing happened in England during that time period which would have motivated someone to want to translate "natives or indigenes" into "natives, or natural-born citizens." During that time period, the meaning of "naturels, ou indigenes" (French) did not change when translated into English. But what did change was the American public's understanding of those words as written into their Constitution and how they related to the American experience. Much would have been publicly said in England and America during those early years about (1) the great influence that Vattel had over the Founders and Framers, (2) the U.S. Constitution in general, and (3) the Framers' meaning of a natural born citizen specifically. Living during those early years and being in a position to learn how the Framers and public defined a natural born citizen and from where that definition came, the only thing that the anonymous 1797 English translator did in making that surgical change was channel the Framers' and the American public's understanding of the meaning of a natural born citizen and from where it came.

Indeed, the 1797 English edition's change of "natives or indigenes" to "natives, or natural-born citizens" is convincing evidence that the Framers got their definition of a natural born citizen from Vattel's Section 212 of The Law of Nations.

ajtelles said...

Trey Gowdy endorses Sen. Rubio...

Mario,

After seven years there is still confusion in America.

Tim Brown has an informative article at FreedomOutpost.com (with 74 comments that also reveal confusion). He has a YouTube link to Rep. Gowdy's confusion while answering a constituent in which Gowdy says that the "nbC" issue has already been litigated.

Trey Gowdy Twists Natural Born Citizen Qualification to Support Marco Rubio

>> http://freedomoutpost.com/2015/12/trey-gowdy-twists-natural-born-citizen-qualification-to-support-marco-rubio/

After the video link is this transcript of the question to Rep. Gowdy:

[...snip...]

>> "However, it was the follow-up question that generated the ignorance and heat.

>> "Mulch asked Gowdy,

>> "'When Marco Rubio said that his parents were born in another country, that doesn't make him a natural born citizen, according to the Constitution.

>> What would you say to that?'"

>> "'That issue has already been litigated,'" said Gowdy."

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Well, he outta know better than that since Rep. Gowdy is a very experienced state solicitor and federal prosecutor for South Carolina, and was elected by his very conservative constituents to be their conservative GOPe Representative to the Federal government.

Art
StopIslamizationOfAmerica.blogspot.com

Mario Apuzzo, Esq. said...

Art,

The ignorance, honest or feigned, on the natural born citizen issue just does not stop. An Article II "natural born citizen" of the United States is a child born or reputed born in the United States to parents who were both U.S. citizens at the time of the child's birth. It does not matter where the child's parents were born, provided they were both U.S. citizens ("natural born citizens" of the United States or "citizens" of the United States) at the time of the child's birth. I have seen many who want to ridicule the natural born citizen issue either talk just about Obama's place of birth or say that the "birthers" maintain that one's parents have to be born in the United States. This is plain dishonesty.

Chief said...

Mario, I take exception to the 14th Amendment, and the "anchor baby" interpretation derived from that amendment by the Progressives in our nation, our judicial system and our government.

In my opinion the key to this issue is in the first sentence of Amendment XIV: "and subject to the jurisdiction thereof"; jurisdiction can only apply if one has legal standing to be in our nation. Illegal aliens have no standing since they are here illegally and therefore not subject to US jurisdiction.

The Fourteenth Amendment was ratified July 9, 1868.

Senator Jacob M Howard (MI) 1866 author of the 14th Amendment wrote to clarify that amendment for he feared others would interpret it for other purposes and therefore wrote:

“I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by the virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

And as we all know the Law of Nations said in Volume One:

§212. Citizens and natives.

"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 [218] 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."

Your comments please!

Mario Apuzzo, Esq. said...

Chief,

First, at common law the nomenclature with which the Framers were familiar when they drafted and adopted the Constitution, a natural born citizen was a child born in a country to parents who were its citizens at the time of the child's birth. See Emer de Vattel, The Law of Nations, Section 212 (1758) (1797) ("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"); Minor v. Happersett (1875) ("all children born in a country of parents who were its citizens became. . . natives, or natural-born citizens"). Accord U.S. v. Wong Kim Ark (1898) ("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"). The Fourteenth Amendment was needed to make citizens of persons who were born in the United States who were not natural born citizens because they were not born to U.S. citizen parents. For sure, if those persons were natural born citizens, they would not have needed the Amendment to make them citizens. That, in addition to the text of the Amendment not using the clause "natural born citizen" and the debates on the Amendment not revealing that the framers of the Amendment had any intention to amend or repeal Article II's natural born citizen, tells us that the Amendment does not define a natural born citizen.

Second, what persons qualify to be citizens of the United States under the Amendment? The Amendment says that all persons born in the United States and "subject to the jurisdiction thereof" are citizens of the United States and of the state wherein they reside. U.S. v. Wong Kim Ark (1898) held that subject to the jurisdiction meant subject to the laws of the United States. It added that persons who are born in the United States to alien parents who were domiciled and permanently residing in the United States and neither foreign diplomats nor military invaders are born subject to the laws of the United States and therefore subject to the jurisdiction of the United States. Hence, such persons are included as citizens of the United States from the moment of birth under the Amendment.

Under Section 5 of the Amendment, Congress needs to establish through appropriate legislation whether persons who are in the country illegally, either by having entered illegally or having entered legally overstayed the time that was given to them to be in the United States, can be accepted as being domiciled and permanently residing in the United States. If they cannot, then children born to them in the United States are not born subject to the jurisdiction of the United States and cannot be citizens of the United States under the Amendment.

So, the Fourteenth Amendment has no application on the question of whether a person is a natural born citizen, for the common law provides the rules of decision on that question. Congress can through appropriate Section 5 legislation, which cannot be violative of any principles laid down by Wong Kim Ark, decide who should be accepted as a citizen of the United States from the moment of birth under the Amendment.

Carlyle said...

Even worse, it beggars the imagination that the authors of the 14th Amendment had anything like Anchor Babies in-mind. The 14th was clearly crafted for one narrow reason and one reason only. The most they can be accused of is perhaps some haste and sloppy wording that allowed an activist word twister to crawl through a small crack. Sheesh.

What ever happened to solid legal reasoning, instead of "gee, let's see what we can get away with?"? I have said many times before: Just because you can pound a square peg into a round hole, does not mean it belongs there!

Mario Apuzzo, Esq. said...

Carlyle,

I of II

There was no Civil Rights Act of 1866 or the Fourteenth Amendment when the Framers adopted and the states ratified the Constitution. The Framers defined a natural born citizen under the common law the nomenclature with which they were familiar when they drafted and adopted the Constitution as a child born in a country (in United States) to parents who were U.S. citizens at the time of the child's birth. Under that common law, they also provided that all others not meeting that definition and wanting to be citizens of the United States would have to satisfy the requirements of the naturalization Acts of Congress. See Minor v. Happersett (1875) (so held). Hence, to allow more persons to be citizens of the United States, the Framers gave to Congress the constitutional power to make uniform the rules of naturalization.

When Minor was decided in 1875, the Fourteenth Amendment was already in place. Minor explained that the Constitution did not define a natural born citizen. Hence, neither did the Fourteenth Amendment. Virginia Minor was born in the United States to U.S. citizen parents. Under the Court’s definition of a natural born citizen, she was a natural born citizen. Being a natural born citizen, there was no doubt that she was a citizen of the United States. Hence, the Minor Court did not have to decide the question of whether a child born "within the jurisdiction" of the United States to alien parents was, like a natural born citizen under the common law, also a citizen of the United States under the Fourteenth Amendment. The Slaughterhouse Cases in 1873 had stated that such a child was not a citizen of the United States under the Fourteenth Amendment, let alone a common law natural born citizen.

Because Wong was not a natural born citizen of the United States (he was born in the United States, but to alien parents), U.S. v. Wong Kim Ark (1898) was compelled to answer the Fourteenth Amendment citizenship question left open by Minor in 1875. Under the holding of Wong Kim Ark, the Fourteenth Amendment extended U.S. citizenship to children born in the United States to alien parents who were domiciled and permanently residing in the United States and neither foreign diplomats nor military invaders, finding that such children were born in the United States and subject to the jurisdiction thereof and therefore citizens of the United States from the moment of birth by virtue of the Fourteenth Amendment. Wong Kim Ark did not need to nor did it hold that Wong was an Article II natural born citizen in order to find that he was a citizen of the United States, for it had use of the Fourteenth Amendment to accomplish that purpose. Wong Kim Ark did not involve birth in the United States to parents who were either illegally in the country or just temporary visitors. The U.S. government has through practice extended the Wong Kim Ark holding to embrace as citizens of the United States children born in the United States to illegal aliens and to aliens who are just visitors to the United States. But the U.S. Supreme Court has never been asked to rule whether that practice is constitutionally warranted.

Continued . . .

Mario Apuzzo, Esq. said...

II of II

The notion that persons who violate the sovereignty of a nation and who are on its territory without the consent of the nation should be rewarded by having their children born to them in that nation declared to be citizens of that nation is something which I do not believe that either the Founders and Framers or the framers of the Fourteenth Amendment would have accepted. They probably would have considered such persons the equivalent of military invaders and therefore their children born to them in the United States not born subject to its jurisdiction. I also doubt that they would have allowed a child born to an alien to whom the nation consented to give just the status of a visitor in the United States and therefore someone with no commitment of allegiance to the nation, to be considered born subject to the jurisdiction of the United States and therefore a citizen of the United States.

The Supreme Court has never had to address these issues which, in any event, do not pertain to defining an Article II natural born citizen, but rather to only defining a citizen of the United States by birth in the United States under the Fourteenth Amendment. Maybe someday it will and in so doing, the Court will also reaffirm like Minor did the Framers' common law definition of a natural born citizen, i.e., a child born in a country to parents who were its citizens at the time of the child's birth.

Mick said...

Declaratory Judgment and Injunction against Cruz, Rubio, SOS Ken Detzner and the Executive Committee of the Republican Party of Florida filed in Ft. Lauderdale Circuit Civil.

# CACE15022044

https://www.scribd.com/doc/293623437/Complaint-for-Declaratory-Judgment-and-Injunction-50

Mario Apuzzo, Esq. said...

Congratulations to Michael Voeltz for standing up for the Constitution and showing that there are Americans who will not so easily get pushed around by deceitful politicians.

Other concerned Americans should do the same as what Mr. Voeltz has done and file state election actions in each of the 50 states.

ajtelles said...

Clarification...

Mario,

Can you clarify the implications of Michael Voeltz's "Complaint for Declaratory Judgment and Injunction" in Broward County Florida?

Is this something that you can do in New Jersey at this date?

Is this something that others can do at this time in other states?

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

"Statement of the Case

1) T!his is an action in equity, pursuant to the Chapter 86 Declaratory Judgment statutes of Florida, 86.011-86.111, seeking a judgment regarding the eligibility for the federal office of President of the United States of Senator Ted Cruz, and Senator Marco Rubio, who have been placed on the March 15, 2016 Republican Presidential Preference Primary ballot by Secretary of State of Florida ...."


~ ~ ~ ~ ~ ~ ~ ~ ~ ~

>> "Other concerned Americans should do the same as what Mr. Voeltz has done and file state election actions in each of the 50 states."

Your commendation of Michael Voeltz's action in Florida seems to suggest that this is a viable action that you could pursue in New Jersey and which others could could pursue in other states to produce a result that would compel the Secretary of State of every state to protect the original intent of A2S1c5.

Is this doable in other states or not?

Art
StopIslamizationOfAmerica.blogspot.com

Mick said...

Thank you Mr. Apuzzo.

Mario Apuzzo, Esq. said...

Art,

The election laws of each state specify who can file a challenge in any given election and under what circumstances. These actions are generally called ballot challenges or election contests. Presidential eligibility to be on a ballot and to be eventually elected to that office is open game for state challenge. Consult the laws of your state to examine how this can be done and do it if you are interested.

Should anyone be so inclined, filing any such suit as soon as possible is most necessary. The election process goes quickly and you do not want to be shut out due to the dilatory tactics of a candidate and/or court which can produce a court simply in the end saying that your case is moot.

Mario Apuzzo, Esq. said...

We have seen over the years, the U.S. media either ignore the need that Barack Obama needs not only to be born in the United States, but also to be born to two U.S. citizen parents in order for him to be a natural born citizen (they had so much fun with the born in Kenya thing), or simply misstate the citizen parents element as does Eric Blaisdell in his article: "Vermonter tries to keep names off presidential ballot," accessed at http://www.rutlandherald.com/article/20160101/NEWS03/160109989

I sent Mr. Blaisdell an email bringing his error to his attention. Here is the email:

Mr. Blaisdell,

In your article, you said: "This definition would discount Cruz because he was born in Canada and it would also discount Rubio and Jindal because their parents weren’t born in the U.S." This is incorrect. It should read: "This definition would discount Cruz because he was not only not born in the United States (he was born in Canada), but also born to a non-U.S. citizen father, and it would also discount Rubio and Jindal because, while they were both born in the United States, their parents were not both citizens of the United States (natural born citizens or just citizens of the United States) when their children were born."

Thank you.

Mario Apuzzo, Esq.

(732) 521-1900

G Scott said...

Excellent dissertation on our Constitution and its interpretation!!!!!

The people are the masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow the men who pervert it. - Abraham Lincoln
and
Abraham Lincoln said," The philosophy of the school room in one generation will be the philosophy of government in the next."

“We love the truth when it enlightens us, but we hate it when it convicts us”
St. Augustine

Mario Apuzzo, Esq. said...

When the Framers adopted in 1787 and the states ratified in 1788 the Constitution, there was no Fourteenth Amendment or naturalization Act of Congress making anyone a born citizen. Yet there were not only citizens, but also natural born citizens. Citizens were made by adhering to the American Revolution and citizens could also have children who were natural born citizens. Hence, the natural born citizens were persons who became citizens at the moment of birth without needing the Fourteenth Amendment or naturalization Act of Congress to bestow citizenship upon them at the time of their birth. Not needing any of these laws to be a citizen from the moment of birth, a child born in a country to parents who were its citizens at the time of the child’s birth was a natural born citizen. See Emer de Vattel, The Law of Nations, Section 212 (1758) (1797) (“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”); Minor v. Happersett (1875) (“all children born in a country of parents who were its citizens became. . . natives, or natural-born citizens”); accord U.S. v. Wong Kim Ark (1898) (“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”).

Senator Ted Cruz “needs” a naturalization Act of Congress and de facto President Barack Obama, Senator Marco Rubio, and Governor Bobby Jindal “need” the Fourteenth Amendment to make them born citizens of the United States. They are therefore all “unnatural” born citizens of the United States, not “natural” born citizens of the United States.

leo derosia said...

Are you going to contact trumps campaign mario? He has hinted around that cruz might not be eligible

Mario Apuzzo, Esq. said...

I of II

I wrote:

"When the Framers adopted in 1787 and the states ratified in 1788 the Constitution, there was no Fourteenth Amendment or naturalization Act of Congress making anyone a born citizen. Yet there were not only citizens, but also natural born citizens."

Bryan Gene Olson, whose posts anonymously as brygenon, NotLinda, and Unknown, responded at Western Free Press:

The 1788 Constitution gives Congress power over naturalization, and that is the *only* power over citizenship that it made federal. It nowhere suggests that the Union takes power over births within the states. The latter took decades, a war, and an Amendment.

~~~~~

Mr. Olson has poor reading comprehension and is all confused between national U.S. citizenship and local state citizenship. Article II, Section 1, Clause 5 provides in pertinent part: "No person, except a natural born Citizen, or Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President. . . ." The clause makes no mention of a state citizen. So, to be eligible to be President, one had to be either a "citizen" of the United States, if one had that status as of the time of the adoption of the Constitution, and if not, then a "natural born citizen" of the United States. But regardless of whether one was a citizen or a natural born citizen, in both cases one had to be a citizen of the United States. So, being just a citizen of some state did not make anyone eligible to be President under either scenarios.

The requirement that future Presidents and Commanders in Chief of the Military had to be natural born citizens of the United States and not just some citizen of some state made perfect sense given that the Framers constituted not only a confederation of free and independent states, which had been the model under the Articles of Confederation and Union, but a new nation made up of states which ceded a certain and defined part of their sovereignty to that central nation. The new nation needed its membership, or what the Framers called "citizen," to be uniform and thereby certain both as to who were the natural born citizens and the naturalized citizens. Only a uniform national rule would provide this uniformity and certainty. Hence, the Framers included the natural born citizen of the United States and the citizen of the United States as the only two class of memberships that existed on the national level. And it was only these classes of national citizens who were to be eligible to be President, not any citizen of any particular state.

So historically how did one become a citizen of the United States? We know that being a citizen of one of the new states automatically made one a citizen of the United States upon the adoption of the Constitution. But for those born after its adoption, one had to satisfy either the American national common law that defined a natural born citizen of the United States, which provided that a natural born citizen was a child born in a country to parents who were its citizens, or a naturalization Act of Congress or treaty in order to be a citizen of the United States. In 1866, Congress passed the Civil Rights Act which provided for more “citizens” of the United States. Finally, the Fourteenth Amendment was ratified in 1868 which provided for even more “citizens” of the United States.

Continued . . .

Mario Apuzzo, Esq. said...

II of II

So, Mr. Olson, our nation, from July 4, 1776, as Founder and historian David Ramsay first explained in his 1789 essay, A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789), defined an Article II natural born citizen under new national law that followed the law of nations jus sanguinis rule of citizenship, not state law that had followed the English common law jus soli rule. As the unanimous U.S. Supreme Court in Minor v. Happersett (1875) later confirmed when defining a natural born citizen, that national law, which it called "common-law" and added that the Framers were familiar with its nomenclature when they drafted and adopted the Constitution, provided that all children born in a country to parents who were its citizens at the time of the child's birth were the "natives, or natural-born citizens," and that under that same national common law, all the rest of the people were "aliens or foreigners," who could be made citizens of the United States under a naturalization Act of Congress and as U.S. v. Wong Kim Ark (1898) later held, also under the Fourteenth Amendment. Additionally, Congress and the President made more citizens of the United States through treaties. Thus, your attempt to make sufficient to satisfy the natural born citizen clause and thereby be eligible to be President, being like Barack Obama, Marco Rubio, and Bobby Jindal (all presumably born in the United States, but not born to two U.S. citizen parents), a citizen of any particular state before the ratification of the Fourteenth Amendment or being a citizen of the United States only under the Fourteenth Amendment, by satisfying only the jus soli rule of the English common law and not also the jus sanguinis requirement of American national common law, is a fail.

Fail also applies to your position that one, like Ted Cruz (born in Canada, presumably to a U.S. citizen mother and a non-U.S. citizen father), satisfying only a naturalization Act of Congress, is a natural born citizen. Whether that person becomes a citizen of the United States at birth or after birth, in both cases the person would have been naturalized by Congress under its Article I, Section 8, Section 4 naturalization powers to be a citizen of the United States. That the person did not have to go through some naturalization process after birth does not negate the simple fact that it was only through a naturalization Act of Congress that the person became a citizen of the United States and that without such Act, under both English common law that defined a natural-born subject of Great Britain and American national common law that defines a natural born citizen of the United States, the person would be an alien at birth and need to naturalize thereafter. Being naturalized at birth and being called only a "citizen of the United States" by the very Act, that person is not and cannot be a natural born citizen. The natural born citizen clause is a constitutional national security requirement. Hence, that person, like Barack Obama, Marco Rubio, and Bobby Jindal, being neither “a natural born Citizen, [n]or a Citizen of the United States, at the time of the adoption of this Constitution, is disqualified by Article II, Section 1, Clause 5 from being President and Commander in Chief of the Military.

Carlyle said...

Well well. The Powers That Be about to be hoist on their own petard?

We have lived through a number of years of silly claims that NBC is the same as being born in the country. Now we have Ted Cruz who was clearly and admittedly born OUT of the country. What made-up self-serving definition are we likely to see next for NBC?

ajtelles said...

Mark Levin debate challenge...

Mario,

Mark Levin said on his radio program today, January 6, 2016 that he is "...prepared to debate any so called legal scholar [whatever "so called" means], professor, serious commentator or candidate on this particular issue. On the air, more than happy to do it."

See video clip #2 here on TheRightScoop.com -
>> http://therightscoop.com/mark-levin-stop-chasing-dumbass-issues/

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

Mario, I know that you would clean Mark Levin's clock in a debate re: Blackstone, Vattel, John Jay, U.S. Constitution Article II vs. U.S. Congress statutes, common law, the unity of citizenship and allegiance, the 1790 and 1795 Naturalization Acts, and ALL subsequent Acts, etc.

Mario, I could send Mark Levin your public phone number and public email that you publish here on you blog, but maybe Mark should hear directly from you.

If anybody should respond to Mark's public challenge to debate, you should be you Mario.

Art
StopIslamizationOfAmerica.blogspot.com

Mario Apuzzo, Esq. said...

Art,

Thank you for your comment on Mark Levine. I am willing to meet his challenge and debate Mr. Levine on the air on the meaning of an Article II natural born citizen and whether Ted Cruz or any other candidate, past or present, meets that definition.

Ray said...

Mr. Cruz, in his response to the Petitions of Elliot, Booth, and Laity, before the New Hampshire Ballot Law Commission asserts:

"a 'natural born Citizen' is a person who was a citizen at birth [] who does not need to go through naturalization proceedings to become a citizen."

Mr. Cruz was granted citizenship by statute, both he and his citizen parent having met the requirements of naturalization statute.

Naturalization statutes can require any process or none, any retention requirements or none. Citizenship granted by statute is naturalization whether "proceedings" are required or not.

Statutes "conferring citizenship upon foreign-born children of citizens" is naturalization (U.S. v. Wong Kim Ark, 169 U.S. 649, 702-703).

Cruz, a naturalized citizen of the United States, is not eligible to be President.

Mr. Cruz's assertion has no basis in law or reason, it is a product of his yearning for office.

Mario Apuzzo, Esq. said...

I of II

Ray,

How do we know that Cruz's definition of a natural born citizen is the product of subsequent political invention and revisionism, designed to make certain persons eligible to be President who are not? Among the great amount of historical and legal evidence showing that Cruz is wrong, we have the fact that Congress throughout history has under its Article I, Section 8, Clause 4 naturalization powers changed the requirements of being a citizen of the United States from the moment birth. Depending on the time period, persons born under the same birth circumstances were or were not citizens of the United States at birth and not required to go through some naturalization process after birth. For example, under the Naturalization Acts of 1790, 1795, and 1802, parents of a child born to them out of the United States had to be both U.S. citizens. One glaring example and which is devastating to Cruz is that from 1802 to 1855, under the Naturalization Act of 1802 (2 Stat. 153), a child born out of the United States to U.S. citizen parents, who were not citizens before April 14, 1802, was an alien and needed to naturalize after birth. It was only through the Naturalization Act of 1855 (10 Stat. 604) that children born out of the United States, although only to U.S. citizen fathers, were once again given the status of being a citizen of the United States at birth. In its later naturalization Acts, which includes the Immigration and Nationality Act of 1952 (Pub.L. 82–414, 66 Stat. 163, enacted June 27, 1952, codified today at 8 U.S.C. Chapter 12) that applies to Cruz, Congress also made U.S. citizen mothers capable of passing on their citizenship to their foreign-born children.

That naturalization statute that made Cruz a citizen of the United States at birth is section 301(a)(7) of the Immigration and Nationality Act of 1952. Section 301, effective on December 24, 1952, required a U.S. citizen mother when the father is an alien to have been physically present in the United States for ten years, including five after reaching the age of fourteen, to transmit citizenship to foreign-born children. The ten-year requirement remained in effect from 12:01 a.m. EDT December 24, 1952, through midnight November 13, 1986, and still applies to persons born during that period. Section 301(a)(7) was amended by Public Law 103-416 on October 25, 1994, creating section INA 301(g), which uses this language with respect to the amount of time that a person’s U.S. citizen mother has to be physically present in the United States prior to giving birth to her child out of the United States: “not less than five years, at least two of which were after attaining the age of fourteen years.” See 8 U.S.C. Section 1401(g). It is settled law that the naturalization statute of Congress that was in effect at the time of one's birth is the statute that controls whether one is a U.S. citizen or not. Please note that given that Barack Obama was born on August 4, 1961 to a U.S. citizen mother and a non-U.S. citizen father, if he was not born in the United States he would be an alien, for his mother was only 18 years old at the time of his birth.

Continued . . .

Mario Apuzzo, Esq. said...

II of II

It is unreasonable to accept that the Framers expected the definition of a natural born citizen to continuously change over time at the political whim of Congress, which in the first place they did not trust with the selection of the President and which distrust gave us the Electoral College. On the contrary, we can only expect from the Framers that they relied upon one and only one definition of a natural born citizen which would not change over time unless altered by duly ratified constitutional amendment. As I have demonstrated, that definition was a child born in a country to parents who were its citizens at the time of the child's birth. See Emer de Vattel, The Law of Nations, Section 212 (1758) (1797) ("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"); Minor v. Happersett (1875) ("all children born in a country of parents who were its citizens became. . . natives, or natural-born citizens"). Accord U.S. v. Wong Kim Ark (1898) ("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").

Among the other evidence that I have provided, this historical and legal evidence demonstrates that the Jack Maskell thesis, that any born citizen of the United States, regardless of where born, to whom born, and by what means the status is acquired, is a natural born citizen, is an invented and revisionist formula and not a constitutionally valid definition of a natural born citizen.

ajtelles said...

Emer de Vattel and John Jay
vs.
Mark Levin (and et al., Andrew McCarthy, Robert Natelson, William Jacobson, Jack Maskell, etc.)


Mario,

Your post today, January 7, 2016 at 11:02 AM is very coherent and easy to understand so it should be very easy for Mark Levin to refute your exposition on his radio program if he ever debates you or others on his radio program in fulfillment of his radio challenge yesterday to debate as I mentioned in my post here yesterday. All he needs to do is assert that "natural born citizen" in the 1790 Naturalization Act passed by the first Congress is still relevant and that the 1795 Naturalization Act of the third Congress is not relevant, even though it repealed and replaced the 1790 NA, and also that even the 1952 Immigration and Naturalization Act is not relevant.

Simple, huh?

To solidify his assertion about past and present statutes, all that Levin needs to do is adduce John Jay's July 25, 1787 note to George Washington in which Jay underlined the word "born" in "natural born Citizen."

On his radio program yesterday, January 6, 2016, Mark said that "natural born Citizen" in Article II Section 1 clause 5 was not defined*, but he missed the obvious that "citizen" in the same clause could not mean the same thing as "natural born Citizen." The obvious implication of Jay underlining the word "born" in "natural born Citizen" is that by underlining "born" Jay meant ONLY singular U.S. citizenship which is only possible by birth to U.S. citizen married parents.

After adducing Jay, all Levin needs to do is assert that Jay did NOT mean the same thing that Vattel meant when Vattel wrote in The Law of Nations, Section 212 in 1758 in the French language (and which was clarified in 1797 in English as "natural born citizen") that "The citizens are the members of the civil society...subject to its authority.... The natives, or natural-born citizens, are those born in the country, of parents who are citizens."

After clarifying that Vattel and Jay are NOT in agreement, Levin can adduce Jay again to assert that Jay did NOT mean the same thing as the 1875 Minor v. Happersett unanimous court decision that "...all children born in a country of parents [plural] who were its citizens became...natives, or natural-born citizens."

Simple, huh?

Since Levin is mostly correct about the Fourteenth Amendment, Marks brief exposition about birthright citizenship as related to the 1798 United States v. Wong Kim Ark decision can wait for another day.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

*Listen to Mark Levin: Stop Chacing Dumbass Issues in the video on TheRightScoop.com at 5min.45sec. -
>> http://therightscoop.com/mark-levin-stop-chasing-dumbass-issues/

>> "Well, some people will say, well now, there has to be a child of two American citizen parents. But, that's not in the Constitution either. Where does it say that? It doesn't say it anywhere."

[A common sense question for Mark Levin.

So Mark, if two U.S. citizen parents is not in the Constitution, do you know how many U.S. citizen parents are in the Constitution? One? Zero?

Mark, do you how many are implied in the Constitution? Two? One? Zero?

Mark, are you implying that since a definite number of U.S. citizen parents is NOT mentioned, that means that that EVERYBODY is eligible and the number of parents is not relevant to fulfill the Article II Section 1 clause 5 language of a "natural born Citizen" who has attained to 35 years of age and 14 years residency up to and including age 35 years?]


Art
StopIslamizationOfAmerica.blogspot.com

William St. George said...

Apart from instances of invincible ignorance, most of the rest of those who can not quite grasp "natural born citizen" are due to an allergy to acquiring new information after high school or perhaps college unless it pertains to sex or money! Public figures and "legal scholars" are simply lying when they make their claims for just about anything qualifying for natural born. I personally thought at least that they would hold the line at born in the USA. But no, they have moved to the slenderest possibility. Ted Cruz would not even be considered an American citizen were it not for an act of Congress. But then that would mean that Congress could define and redefine the meaning of natural born citizen. For example, they could decide that if one of the parents became an American citizen before the child was five he was an American citizen. Would that then in a few years become "settled law" and allow the child to become president regardless of where he was born? Perhaps, as the "legal scholars" are a crafty bunch. Well, people call Obama a Constitutional scholar since he went to Harvard Law School. Is that all it takes these days? Ironically if Frank Davis were Obama's real father? then if he were born in Hawaii? he would be a "natural born citizen". But we will never know as it may be the case that no one knows where he was born. DNA from Davis and Obama would at least demonstrate whether Frank was his progenitor.

ajtelles said...

Mark Levin Redux...

Mario,

Today, Friday, January 8, 2016, is the third day that Mark Levin is ridiculing what he calls chasing shiny objects, so I transcribed his comments from his first day in which he chastises Donald Trump form bringing up Sen. Cruz's eligibility.

For those who want to copy and paste Levin's comments, this is the url:
>> http://original-genesis-original-intent.blogspot.com/2016/01/twotranscripts-of-sen.html

Also, here are two short transcripts from Sen. Cruz's comments on two video clips on TheRightScoop:

Sen. Cruz Answers Questions from Reporters About his Eligibility to be President:
>> http://therightscoop.com/ted-cruz-responds-to-trumps-birther-claims-video/

Partial transcript from video #1:

"The legal issue is straightforward. The son of a U.S. citizen born abroad [i.e. the child born abroad] is a natural born citizen. ... The constitution and laws of the United States are straightforward. The very first Congress [in the 1790 Naturalization Act] defined the child of a U.S. citizen born abroad is [the implication by lawyer and constitutional scholar Cruz of "is" is the continuous present tense "still is"] a natural born citizen."

Partial transcript from video #2:

"As a legal matter, the question is quite straightforward and settled law that the child of U.S. citizens born abroad [i.e. the child born abroad] is a natural born citizen. ...

"John McCain was born in Panama but he was a natural born citizen because his parents were U.S. citizens [plural-both were citizens]. George Romney, Mitt's dad, was born in Mexico when his parents were Mormon missionaries, but he's a U.S. citizen because his parents were citizens [plural]. And actually, Barry Goldwater was born in Arizona before Arizona was a state, and yet he was a natural born citizen because his parents [plural] were citizens.."

Art
Original-Genesis-Original-Intent.blogspot.com

Mario Apuzzo, Esq. said...

Art,

Does Mark Levine know that I have accepted his challenge? I am ready to debate him. Is he willing to do it?

William St. George said...

Now we know that Ted Cruz's mother is probably qualified to run for President. He might want to consider stepping aside for her! Not sure why he renounced his Canadian citizenship as in liberal America that would hardly be a problem.

ajtelles said...

Contact...

Hi Mario,

I couldn't find an email address on Mark Levin's MarkLevinShow.com page so a few minutes after reading your question if Mark was aware of your accepting his challenge to debate I posted a comment on ConservativeReview.com where Levin is the Editor:

>> https://www.conservativereview.com/contact/thank-you

Hopefully Mark will be made aware of the contact page comment. He or his staff may not respond to my gmail address since I'm not a lawyer, so maybe you should also make a personal comment on the ConservativeReview contact page. He or his staff probably will respond to an attorney.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

This is a little bit of my comment to Mark:

"I put a comment on Mario Apuzzo, Esq.'s Natural Born Citizen blog about your challenge on your radio program on Wednesday, January 6, 2016 to debate a qualified person: "I'm prepared to debate any so-called legal scholar, professor, serious commentator or candidate on this particular issue on the air."

"This is his blog url:
>> http://puzo1.blogspot.com/2015/11/a-citizen-is-one-thing-but-natural-born.html

Art
StopIslamizationOfAmerica.blogspot.com

MichaelN said...

Mario,

https://www.facebook.com/MarkLevineTalk

Ray said...

Mark Levin and Mark Levine are different people.

https://www.facebook.com/marklevinshow/

ajtelles said...

Correction...

Mario,

The correct spelling is Mark Levin as I wrote, not Mark Levine as our friend MichaelN wrote.

"Levin" is the constitutional scholar who founded the Landmark Legal Foundation and hosts the MarkLevinShow.com and is Editor of ConservativeReview.com.

"Levine" is a Virginia State Delegate who hosts a radio show called Inside Scoop.

Art
StopIslamizationOfAmerica.blogspot.com

leo derosia said...

The union leader newspaper out of nh ,which is the largest paper in the state, had a editorial at top of page saying that trump is a liar, birthers are loony (original) and that cruz and obama are natural born citizens. I buy the ul quite often and I am disgusted with them calling trump a liar and then being hypocritical liars themselves about what a nbc really is. Geraldo brought up na 1795 to his credit on fox news and Hannity said it made cruz eligible for some reason known only to him. Geraldo said the language was changed from nbc in 1790 to citizen in na 1795. Hannity could not get it thru his head that both parents had to be us citizens just to qualify under na 1795. Hannity also brought up usc 1401 as if that is relevant. Laura Ingraham said something totally inane about cruz being eligible and naturalized under usc 1401. ....the dishonesty, nonsense and outright bs in controlled msm is nauseating and infuriating. They always roll out some constitutional " expert" to confidently proclaim cruz and Barry are eligible and none of them give any good reasons why. The ul only said that cruz is eligible, end of discussion of course. What a embarrassment the nh ballot commission and this editorial is to my home state. Our politicians are just as bad

Mario Apuzzo, Esq. said...

Leo,

I watched the Fox video with Sean Hannity. Hannity was a great disappointment. How he could think that the Naturalization Act of 1795 “made it easier” for Cruz to be a natural born citizen and that it further proves that Ted Cruz is a natural born citizen is totally irrational. And Hannity's reliance upon 8 U.S.C. sec. 1401(g), a naturalization Act of Congress which does not even use the phrase, “natural born citizen,” is also totally misplaced.

A great disappointment was also Tom Dupree, “a former deputy assistant attorney general under President George W. Bush, constitutional law attorney,” who does nothing more than contradict himself and beg the question of what is a natural born citizen. First, in responding to Rivera’s point about the change made by the 1795 Naturalization Act, he says that Congress does not have the power to change the meaning of the clause through its statutes. He is right that Congress does not have that power. But then he says that a natural born citizen is simply any children born a citizen of the United States, giving Congress the power to make that decision. He even agrees with Hannity that 8 U.S.C. sec. 1401 (g) makes Cruz a natural born citizen. Hence, Dupree gives Congress the power to change the meaning of a natural born citizen as it pleases, a power which he said it did not have when Rivera said that the Naturalization Act of 1795 removed “natural born citizen” of the United States and replaced it with “citizen” of the United States. He also begs the question of what is a natural born citizen by simply proclaiming that under the Constitution it means any person born a citizen without providing any evidence for his position. Finally, he appeals to “our nation’s history and traditions” to help him, without telling us what they are in any specific way and how they may apply to defining a natural born citizen.

I give great credit to Geraldo Rivera for how he has taken the time to learn that there is a critical distinction between a “natural born citizen” and just a “citizen.” He correctly read the Naturalization Act of 1790 and that of 1795 in tandem (the latter removed from the former “shall be considered as natural born citizens” and replaced it with “shall be considered as citizens of the United States”), which demonstrate that Ted Cruz could not be a natural born citizen in the eyes of President George Washington and the First and Third Congresses, which included many Founders and Framers, and James Madison. Rivera also did a great job in exposing what I call the 1790 Act crowd (which includes the smug Cruz himself) for their fraud of citing only that statute and ignoring that of 1795 which repealed that statute and thereby showed the true intent of early Congress, Madison, and Washington. Rivera also correctly understands that 8 U.S.C. sec. 1401(g) is no more than a naturalization Act of Congress which defines a naturalized “citizen” of the United States at birth and not a “natural born citizen” of the United States.

The whole exchange can be viewed at http://www.foxnews.com/transcript/2016/01/07/trump-vs-cruz-eligibility-questions-justified-rnc-ad-highlights-gop-diversity/

ajtelles said...

Debate...

Mario, to answer your question about Levin's challenge to debate all comers, I have not received a response. I did not find the email address on his MarkLevinShow.com site so I put a comment on the contact page at ConservativeReview.com of which he is the head Editor.

Maybe you will get a response if you contact him first, because I don't think he will be contacting anybody himself. He will probably accept calls from qualified people like yourself.

>> https://www.conservativereview.com/contact

Art
StopIslamizationOfAmerica.blogspot.com

leo derosia said...

Breitbart had a story that actually mentioned vattels definition in law of nations but not minor v happersett. The article was about Laurence Tribe saying a nbc is not settled (it actually is settled) which is a win for us. I hope trump will mention law of nations and minor. BB has run quite a few story's about cruzs eligibility recently and I have noticed many of the commenters are saying he is not a nbc and some of them have figured out barry and rubio are not ones either. Since cruzs mothers bc was released I am another person who is pleased that she is a nbc and eligible to run. Mark Levin calls birthers aholes and says her bc is proof smarmy lawyer ted is a nbc. Levin and Cruz are smarter than that which is proof to me that they are liars. Mr Constitution trying to usurp the office of President (like barry) has actually been a great thing in waking up the comatose public. I would love to see mario debate Levin or any other paid liar on national tv

ajtelles said...

"Trump Talk" About "Cruz Talk" About Natural Born Citizen

1/

Mario,

Here is a short 7 minute transcript (23min. 50sec. to 30min. 50sec) of Donald Trump's speech (an excellent example of energetic "Trump Talk") at his campaign rally in Clear Lake, Iowa on January 9, 2016, in which Trump challenges Sen. Cruz to get a declaratory judgment in court to clarify his eligibility to be POTUS because he was not born "in the land" as he, Trump, had always understood natural born citizen to mean and to require for eligibility to be president.

>> https://www.youtube.com/watch?v=b8Qkvck7u90

[...snip...]

@23min 50sec to 28min – 4m 10s

"Here's one [a poll] in South Carolina, CBS, Trump 38, Cruz is second at 23. You know what that is. I mean that's a massive difference. So, we're doing good and we're going to do good here too. We're going to win and we're going to come in first place.

"But, let me tell you, Ted. So Ted's a nice guy, and I like him, and he likes me. A lot of other people don't like him, by the way, I must tell you that. But I like him. Why do I like him? Because he's been very nice to me. Alright?

"But, here's a problem. He's talking about natural born citizen. Right? Now, if he ever got the nomination, you know the Democrats are going to bring a major suit. He was born in Canada. Whether we like it, don't like it. He lived there. He was there. He was born in Canada. I guess his parents voted in Canada. A lot of things. I mean a lot of things happen here.

"So, you're born in Canada. It's immediately a little bit of a problem. Now, gave up, gave up his citizenship, like, what, sixteen, eighteen months ago. Joint citizenship. Did, he had a joint citizenship, right?

"But, here's the problem. Lawrence Tribe is from Harvard University Law School; very great lawyer and a constitutional expert. So, he's on television last night and he said about natural born citizen that this matter is not a settled matter. It is wrong to say, this is an exact quote, '[It is wrong to say] it is a settled matter because it is not.'

"Now, just so you understand, that means there's a question. It's not a settled matter. He was born in Canada. And, I say to Ted. And as a Republican I say it 'cause I think it's very important. You gotta get it straightened out.

"Now, you can go for what's called a declaratory judgment, where you go to the courts and you say there is a problem where there is a problem of interpretation. And, you put a lot of papers in and you get a ruling from a judge because you can not put somebody there, folks, that's going to go in and he's going to be immediately sued by by the Democrats because they're saying he was born in Canada, he's not allowed to run for president. And if there's that doubt, don't forget, these law suits.

"Who knows more about law suits than I do? [applause] I'm the king. I'm the king. These law suits take two, three, four years.

ajtelles said...

"Trump Talk" About "Cruz Talk" About Natural Born Citizen

2/

"So, you can't have somebody running; you cannot have somebody running and have a law suit. And people have already said they're going to bring the law suit. They say, 'if he get's the nomination we're bringing a law suit' as to natural born citizenship.

"And, honestly, I don't know, because some people say you have to be born in the land. Ok? You have to be born in the land. That's what I always thought before. You have to be born on the land. So, he was born in Canada.

"Now, John McCain, he had the same problem. The difference is his two parents were both in the military. They were both in the military, and he was born in a military base. Ok. I understand that. I mean, it's a military base. What are you going to do, say, you know, mom and dad, you should have taken me back home to be born. I can't run for president. He was born in a military base, and I understand that. And, by the way, Lawrence Tribe represented John McCain on that, and he said he [Tribe] was troubled by it. They won, but he was always troubled by it. It bothered him, but he also understood it. But, with Cruz, he said, it's a problem.

"Now, if it's a problem, they gotta work it out because you can't give somebody a nomination—I think we're going to win, just so you understand. I don't want to be like a negative person, and I don't want to win this way. I don't want to win this way. I want to win fair and square. And, based on all the polls, it looks like I'm doing awfully well.

"But, you can't have a person running for office—even though Ted is very glib and he goes out and he says, well, I'm a natural born citizen. The prob..., the point is, you're not. You gotta get a declaratory judgment. You have to have the courts come up with a ruling or you have a candidate who just cannot run. Because, the other side will immediately bring suit and you've got that cloud on your head. And, you can't have that cloud on your head.

[At this point the energetic "Trump Talk" about Sen. Cruz's eligibility transitions to energetic "Trump Talk" about winning where and how the other candidates don't have a chance, like New York because of upstate New York, and with 20% of Democrats in addition to the remnant Reagan Democrats.]


"You know, the Republicans have a structural disadvantage to start off with.

"Speaking of that, I think I'm going to do great in New York, a state that they don't ever even talk about. Did you ever notice where they say, you have to win Florida. I think I will. You have to win Ohio. Now, Ohio is interesting because I do great in Ohio. I'm killing Kasich in Ohio. Everyone said, maybe you should make him your running mate and you'll win Ohio. I said, yeah, there's only one problem, I'm killing him in the polls. Right? You know, it's the same thing like in Florida where you're beating them and they say, why don't you pick one of them. So, it's interesting. Pennsylvania, we're going to do great. What they've done to the industries in Pennsylvania like the coal industry, I guarantee you, I'm going to do great in Pennsylvania.

ajtelles said...

"Trump Talk" About "Cruz Talk" About Natural Born Citizen

3/

"But I think I'm going to do great in states that are not considered in play. I think New York, you know, they came out with a poll the other day, you probably saw it, upstate New York loves Trump. And, I think I'll do well in Manhattan too. I live there. But, it's a little on the liberal side, that's ok. You know what the truth is, whether it's liberal or not liberal, whether it's Democrat or whatever, people want safety. They want our country to be great again [applause]. They want lower taxes [applause].

"So, I think that I'm going to win states that these people up there, back there with all of the cameras, they don't even talk about. I think we're going to win states that aren't even talked about. Because, the other people are not going to win any of those states. I mean, there's not a chance. You know, Ted and Marco and all these people are not going to win New York, and they're not going to have a chance of winning New York. I have a good chance of winning. They like me. I mean, sometimes they think I'm a little wild, but that's ok. But, they like me in New York. ... So, a place like New York, which isn't even thought of, hasn't been won in decades, all of a sudden they're starting to say, you know, Trump would have a chance because upstate New York ... because it is in such trouble, they think I have a good chance of winning New York. By the way, nobody else does.

"The other thing is, it just came out in one of the magazines and newspapers, that if Trump gets the nomination, they think he's going to take twenty percent of the Democrat vote. And, I think so too [applause]. Do you remember the old little group of people, they're so great, I love those people, some of them are still around, and it was called Democrats for, who, Reagan. Remember how many people voted for Ronald Reagan? We're going to have the same thing. And, they're not polling that stuff. We're going to have the same thing.

"Then, I'm going to do great with the Hispanics."

[...snip...]

Art
StopIslamizationOfAmerica.blogspot.com

ajtelles said...

Sen. Cruz is Eligible According to Professor Laurence Tribe
1/

Mario,

I couldn't let this pass without commenting on some of Harvard Law Professor Laurence Tribe's comments from Breitbart.com.

>> http://www.breitbart.com/big-government/2016/01/09/trump-trolls-cruz-again-cites-harvards-laurence-tribe-natural-born-citizen-matter-not-yet-settled/

"Trump was citing comments that Laurence Tribe—a high-profile liberal constitutional law professor at Harvard who taught both Cruz and President Barack Obama among other high profile figures—recently told ABC News that he does not believe the natural born citizen question is “settled law.”

“ 'I don’t agree that it’s ‘settled law,’ ' Tribe said. 'The Supreme Court has never addressed the issue one way or the other, as I believe Ted ought to know.' ”

"Tribe added that he personally believes Cruz is eligible, but that doesn’t mean it’s “settled law.”

“ 'My own view as a constitutional scholar is that the better view — the one most consistent with the entire Constitution — is the broader definition, according to which Cruz would be eligible,” Tribe said, noting that he believes that a natural born citizen should include, as ABC News wrote, “anyone who is a U.S. citizen at birth and doesn’t need to be naturalized.' ”
<<>>

If Prof. Tribe really thinks that the "better view" is the "broader definition" because it is "consistent" with the "entire" Constitution and so that helps Cruz's eligibility, I have some question for the law professor and others.

Professor Tribe, does the "broader definition" of the "entire" Constitution include ONLY Article II Section 1 clause 5?

Professor Tribe, does the "broader definition" of the "entire" Constitution include A2S1c5 and ALSO the Fourteenth Amendment?

Professor Tribe, does the "broader definition " of the "entire" Constitution include A2S1c5 (Trump), the 14th Amendment (Rubio) and ALSO statutes of Congress (Cruz)?

Professor Tribe, if the "broader definition" of the "entire" Constitution helps Sen. Cruz's eligibility, what is the "narrow definition" of the "entire" Constitution that hurts Sen. Cruz's eligibility and whom does the "narrow definition" help?

Professor Tribe, does the "broader definition" of the "entire" Constitution, which includes both A2S1c5 and the 14th Amendment, help not ONLY the person with two U.S. citizen parents like Donald Trump but ALSO the person with one U.S. citizen parent like Sen. Ted Cruz and ALSO the person with zero U.S. citizen parents like Sen. Marco Rubio?

Professor Tribe, does the "narrow definition" of the "entire" Constitution, which includes ONLY A2S1c5 and the 14th Amendment, include and help the person with only two U.S. citizen parents like Donald Trump and exclude and hurt the persons with only one U.S. citizen parent like Sen. Cruz and also exclude and hurt persons with zero U.S. citizen parents like Sen. Rubio?

ajtelles said...

Sen. Cruz is Eligible According to Professor Laurence Tribe
2/

Finally, why do the Professor and others NOT say that the "broader definition " of the "entire" Constitution helps Donald Trump?

Could it be that the "narrow definition" of the "entire" Constitution is sufficient because the "narrow definition" includes ONLY Article II Section 1 clause 5 because Donald Trump's father was born on U.S. soil and his mother, born on foreign soil, naturalized BEFORE Trump was born on U.S. soil?

These should be very easy questions for Professor Laurence Tribe and Professor Robert Natelson and Professor William Jacobson and Jack Maskell and Andrew McCarthy and Sean Hannity and Glenn Beck and Rush Limbaugh and Mark Levin to answer.

Right?

The "narrow definition" means that Donald Trump needs ONLY Article II Section 1 clause 5 for POTUS eligibility and he does NOT need the "broader definition" of the "entire" Constitution, A2S1c5 AND the 14th Amendment, and he ALSO does NOT need statutes of Congress (1952 Immigration and Nationality Act), because the A2S1c5 "narrow definition" of ONLY singular U.S. citizenship ONLY by birth on U.S. soil ONLY to two U.S. citizen married parents is sufficient.

Does Prof. Tribe understand that ONLY singular U.S. citizenship is what John Jay meant when he underlined the word "born" in "natural born Citizen" in his note to George Washington, and which Washington passed on to the framers in 1787? Born means "born" with ONLY singular U.S. citizenship.

THAT is why a "natural born Citizen" does NOT need to renounce foreign citizenship before running for president.

Not needing to renounce foreign citizenship is why Donald Trump and most of the other Republican candidates are eligible to the office of President and why Sen. Cruz is not.

PS. Dr. Carson's father was married to another woman when he married his mother before Dr. Carson's birth, so Dr. Carson may not be eligible. As a Christian woman, a Seventh-day Adventist, she could not stay "married" to his father. Both Sen. Cruz's eligibility and Dr. Carson's eligibility are "not settled" as Prof. Tribe might say.

Art
http://original-genesis-original-intent.blogspot.com/2016/01/trump-talk-about-cruz-talk-about.html

Mick said...

Mr. Puzo,

I have been studying the Katyal/Clement Harvard Law Review paper on nbC that Cruz and Rubio will rely on (and so will the presstitutes in the media).

First, NA 1790 said that those born abroad of US Citizen parents "shall be considered as" nbCs. It does not say they "Shall be" nbCs. "SHALL BE CONSIDERED AS" means "Shall be considered as for Constitutional purposes", meaning eligible to be POTUS, otherwise there is no purpose constitutionally for the distinction. A hint to this is found in 7 FAM, where this stipulation is made with regard to NA 1790 (where even the State dept. doubts that Cruz is eligible):

7 FAM 1131.6-2

"d. This statute is no longer operative, however, and its formula is not included in modern nationality statutes. In any event, the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes".

And here is where the doubt is explicitly addressed

7 FAM 1131.6-2
"a. It has never been determined definitively by a court whether a person who acquired U.S. citizenship by birth abroad to U.S. citizens is a natural-born citizen within the meaning of Article II of the Constitution and, therefore, eligible for the Presidency".

The stipulation of NA 1790 re nbC was most probably made as a benefit to early American diplomats, who spent years abroad and took harrowing sea journeys. Katyal hints at this but spins it a different way, claiming to know the mind of John Jay, probably the most important early diplomat (besides Franklin), he states that;
"Indeed, John Jay’s own children were born abroad while he served on diplomatic assignments, and it would be absurd to conclude that Jay proposed to exclude his own children, as foreigners of dubious loyalty, from presidential eligibility."

First, it is pure conjecture, and second it's a big fat lie, since John Jay's children born abroad were daughters born in the 1780s, who would not have been subject to the NA 1790 with regard to that provision, and besides, there was no thought that a female could be POTUS in 1790. The only child he had between 1790 and 1795 was a daughter, born in NY.

Then he tells this whopper:

"The Naturalization Act of 1790 expanded the class of citizens at birth to include children born abroad of citizen mothers as long as the father had at least been resident in the United States at some point".

Of course there was no such thing as a married woman having separate citizenship from the father in 1790.

It seems that Katyal focuses totally on NA 1790 and its relation to 7 FAM.

Where 7 FAM says:
"7 FAM 1131.6-3 Not Citizens by “Naturalization”
(CT:CON-474; 08-19-2013)
Section 101(a)(23) INA (8 U.S.C. 1101(a)(23)) provides that the term "naturalization" means "the conferring of nationality of a state upon a person after birth, by any means whatsoever." Persons who acquire U.S. citizenship at birth by birth abroad to a U.S. citizen parent or parents who meet the applicable statutory transmission requirements are not considered citizens by naturalization".

Katyal says:

" here, the relevant materials clearly indicate that a “natural born Citizen” means a citizen from birth with no need to go through naturalization proceedings".

And

"The proviso in the Naturalization Act of 1790 underscores that while the concept of “natural born Citizen” has remained constant and plainly includes someone who is a citizen from birth by descent without the need to undergo naturalization proceedings, the details of which individuals born abroad to a citizen parent qualify as citizens from birth have changed".

Mick said...

But 7 FAM itself blows up that whole argument:

"7 FAM 1131.1-1 Federal Statutes
(CT:CON-349; 12-13-2010)
a. Acquisition of U.S. citizenship by birth abroad to a U.S. citizen parent is governed by Federal statutes."

If US citizenship by birth abroad is governed by "federal statutes", then those "federal statutes" must be made pursuant to the enactment of uniform immigration and naturalization law--- thus "governed by federal statutes" means NATURALIZED.

Continued>>>>>>>>>>>>>>>

Mick said...

7 FAM blows up Katyal's whole argument in reality, since it defines naturalization as:
"7 FAM 1131.6-3 Not Citizens by “Naturalization”
(CT:CON-474; 08-19-2013)
Section 101(a)(23) INA (8 U.S.C. 1101(a)(23)) provides that the term "naturalization" means "the conferring of nationality of a state upon a person after birth, by any means whatsoever."

"Any means whatsoever" includes statutes intended to confer citizenship does it not. It also means that the 14th Amendment "confers citizenship by any means whatsoever" as part of the Constitution. After all, A2S1C5, also part of the Constitution, "confered citizenship" as the first naturalization act. It "conferred citizenship" (by the constitution itself) upon the residents of the states at the time of the ratification of the constitution.

Of course Katyal plays the usual relative thought game favored by the left wing, saying that G. Romney and B. Goldwater were "considered eligible" when they ran for POTUS. Of course neither was elected, so the point is meaningless, no "precedent" was set. Romney was certainly NOT eligible as he was born in Mexico. Goldwater was eligible, not as a nbC, but because he was a resident of a state at the time it ratified the Constitution (born in 1909 in AZ. and AZ became a state in 1912) (See Boyd v. Nebraska).

Jim Delaney said...

A friend of mine posed this question: if he and his wife, both US Citizens, were enroute to Jamaica for a vacation and his wife gives birth to their child either on the plane or in Jamaica, is that child a NBC? I ventured that it was probably a question as to whether or not you were domiciled in Jamaica; that giving birth a child on a plan would not be an issue. What's right?

Mario Apuzzo, Esq. said...

Why would an expecting mother who is so close to giving birth get on a plane to go to Jamaica for a vacation?

leo derosia said...

It is sickening listening to greasy,smarmy cruz lie with a straight face about being a natural born citizen. It is even more galling when he talks about the Constitution as if he cares. If trump is as smart as he thinks he is then he should've repeated the nbc definition in minor on national tv...rubio and of course obama are also full of it

Mario Apuzzo, Esq. said...

Leo,

Did you notice how Cruz attempted to dismiss the "birthers" as at least one state judge has done by arguing the "extreme" example, wherein he said that some birthers contend that the child's parents have to be born in the United States in order for their child born to them in the United States to be a natural born citizen. He then followed that since Trump's mother was not born in the United States, Trump would not be a natural born citizen. Cruz is a liar again like before, like he did not know that he was a citizen of Canada. We know that parents do not have to be born in the United States. They only have to be U.S. citizens, either natural born citizens of the United States or citizens of the United States.

When Trump was born in the United States, both of his parents were U.S. citizens (his mother naturalized before Trump was born). His father was a natural born citizen and his mother was a citizen of the United States. That makes Trump a natural born citizen. Trump should have set Cruz straight on his lies and distortions.

phil stone said...

Trump needs some tutoring from atty Apuzzo. I have followed him for years and have learned much from this blog. So many people who claim to be constitutional lawyers have opinions based on wishful thinking that are for sale. I trust Mario and have always found his work to be based on facts. Old Marine Phil Stone

Mick said...

It has now reached England.

http://www.dailymail.co.uk/news/article-3400008/Is-Trump-natural-born-citizen-GOP-race-Marco-Rubio-birther-problem.html

ajtelles said...

Banned and Reinstated...

Mario,

Here's something light for a Friday night.

The coherent and friendly comment below (with a couple of emendations for posting here) was banned today from the RightScoop.com.

>> http://therightscoop.com/trump-goes-all-in-i-dont-know-how-cruz-can-be-a-senator-and-a-canadian-citizen/

However, after sending an email to Brian, the founder of TheRightScoop asking why my "coherent" comment was removed and the still friendly responses to the abusive and negative pro-Cruz comments were removed, my posting "license" was reinstated by Brian. It seems that one of the Moderators removed and banned me.

I've been posting on the RightScoop.com since before BHObama said "...we are five days away from fundamentally transforming the United States of America" and the audience applauded their demise as free citizens of America and becoming dependent citizens.

After Obama was inaugurated I wrote on TheRightScoop: "They did it, they finally did it. The communists finally got one of their own elected."

My Obama comments related to "nbC" were mostly applauded by other commentators on TheRightScoop, but my Cruz "nbC" comment are receiving very unfriendly responses by the commentators.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~

"35 years vs 9 years or 7 years...

"Representatives: "seven Years a Citizen of the United States..."
Senators: "... nine Years a Citizen of the United States..." means only one thing.

" '...nine Years a Citizen" AFTER naturalization, or what is the "nine Years" for?

"Not "nine Years" from birth, right?

"A naturalized "citizen" with singular U.S. citizenship can be a Representative or a Senator AFTER they naturalize.

"If a person is from birth a U.S. citizen the "nine Years" for Senator or "seven Years" for Representative is not necessary, right?

"A U.S. citizen from birth to 35 years of age with 14 years residency up to and including age 35 identifies a person as a "natural born Citizen" and eligible to be POTUS.

"Since Sen. Cruz has already identified himself with dual U.S./foreign citizenship when he renounced his Canadian citizenship in 2014, he can only be a U.S. Senator by naturalization by oath or by naturalization at birth. According to the 1952 Immigration and Naturalization Act, a statute that includes info about citizenship status at birth (301 INA: 1401 clause "g"), Senator Cruz is a "citizen" because his mother was already a U.S. citizen.

"However, because Sen. Cruz had ONLY one U.S. citizen parent AND he was born on foreign soil, Sen. Cruz is not a "natural born Citizen" from birth.

"Why?

"Because a "citizen" from and "by" birth is a "natural born Citizen" who does not need to renounce foreign citizenship."

Art
StopIslamizationOfAmerica.blogspot.com

Mario Apuzzo, Esq. said...

Art,

Cruz is really defrauding the American people. Acting under its Article I, Section 8, Clause 4 power to establish a uniform rule of naturalization throughout the United States, Congress, as it had done since 1790 and many times thereafter, passed the 1952 Immigration and Naturalization Act. Without that Act or any of its predecessors (assuming he qualified under them), Cruz, born in Canada to presumably a U.S. citizen mother and a non-U.S. citizen father, would have been born an alien. Yes, indeed, without a naturalization Act to make him a citizen, he would have been an alien. So, how can Cruz pretend to be a natural born citizen, who as Minor v. Happersett (1875) informed, needs no law to be so made? If a child adopted at birth by a couple as that couple’s child at birth but only by virtue of a statute can never be a natural born child of that couple, so too, Cruz, adopted at birth by the United States as a citizen of the United States at birth but only by virtue of a naturalization statute can never be a natural born citizen of the United States.

leo derosia said...

Mario, I read that cruz said that some birthers think only children of parents born in us can be nbcs. It just shows that this guy is a flat out liar and snake oil salesman who is trying to deflect. These jackasses use the word birther to make it look that we do not know what we are talking about. I would greatly respect cruz if he came out said he and rubio are not nbcs and either is the fraud in white house but we know that will never happen. Not one member of congress any judge has said obama is not eligible, incredible. Btw, I have noticed planes crisscrossing the sky spraying aluminum and barium (this has been going on since 60s at least when the govt talked about weather modification ) and it is called geoengineering to control the weather. A guy named dane wigington has a excellent site about this. Bees are dying off because of aluminum, the ozone is weakened and we are breathing this toxic crap.

Jim Delaney said...

Mario,
It was, I thought, a valid hypothetical. Let's say it was a totally unexpected premature birth. Is the child a NBC under the plane and Jamaica scenarios?

Mario Apuzzo, Esq. said...

Jim Delaney,

Ted Cruz was born on terraferma in Canada and Marco Rubio was born on terraferma in the United States. These flying airplane hypotheticals are not useful for our purposes.

Regarding being born in Jamaica, Jamaica is like Canada, North Korea, Iran, and China, a foreign country.

Jim Delaney said...

I'm surprised you see this hypothetical as irrelevant. If it was worth asking, it was worth honestly answering. So, I guess I will rely on what I hope is the validity of my response to my friend, that being that if a US Citizen sojourner/casual visitor overseas (not permanently domiciled there) gives birth, that child is a NBC. Of course, I have no idea if that's true or not, but in the absence of a scholarly analysis, that will have to do.

4zoltan said...

During the debates over the 1795 Naturalization Act, Congressman Giles proposed an amendment that would require immigrants with titles of nobility to renounce the title before becoming naturalized as an U.S. citizen. Mr Hillhouse of Connecticut believing the amendment did not go far enough and propsed the following hypothetical case;

"If we pass the present amendment, the construction must be, that an alien, after residing in this country, abjuring his allegiance to his own, offering to become a citizen of, and taking the oath of fidelity to, the United States, is in the possession of the rights of a privileged order to which he may have belonged; and further that their rights are hereditary, unless he shall, agreeably to the amendment, come forward and renounce them. But what will be the consequences of him not renouncing? Most clearly that he retains and possesses them. A nobleman, then, may come to the United States, marry, purchase lands, and enjoy every other right of a citizen, except of electing and being elected to office. His children, being natural born citizens, will enjoy, by inheritance, his title, and all the rights of his nobility and a privileged order he possessed, an idea which ought not, either explicitly or impliedly, to be admitted." Annals of Congress, House of Representatives, 3rd Congress 2nd Session, January 2nd, 1795 page 1046

How can a nobleman come to the United States, not become a citizen but have children who are natural born citizens?

Mario Apuzzo, Esq. said...

4zoltan,

I have not seen any evidence that the Framers or our early Congress ever accepted Hillhouse's dictum that there could be a natural born citizen child with alien parents. If you have any, I would like to see it. If you do not, it is reasonable to accept that Gillhouse's hypothetical is grounded on a faulty premise, i.e., that there could be minor natural born citizens of the United States who had parents who were aliens. Understandingly, Congress did not accept Gillhouse's objection, but rather accepted Giles' amendment. As solid evidence that Gillhouse was wrong, the Naturalization Acts of 1790, 1795, 1802, 1804, and 1855 demonstrate that there could not be any minor children who were citizens of the United States if their parents were not also citizens of the United States, let alone that such children could be natural born citizens.

4zoltan said...

Mario, the problem is you do not see the Connecticut connection.

James Hillhouse was a Connecticut lawyer who was elected to the US Congress at the same time as Zephaniah Swift also a Connecticut lawyer. Hillhouse was elected to the US Senate from Connecticut to replace Oliver Ellsworth another Connecticut lawyer, when Ellsworth became Chief Justice of the United States Supreme Court.

Oliver Ellsworth - "The common law of this country remains the same as it was before the revolution. ...”

Zephaniah Swift - "The children of aliens, born in this state, are considered as natural born subjects, and have the same rights with the rest of the citizens.”

Mario Apuzzo, Esq. said...

4zoltan,

Unless you can produce relevant historical and legal evidence that the Framers adopted the common law of Connecticut, which made "citizens" of the State of Connecticut, but not "citizens" of the United States, as their definition of an Article II natural born citizen, neither Oliver Ellsworth nor James Hillhouse nor Zephaniah Swift help you. Clearly, the unanimous U.S. Supreme Court in Minor v. Happersett (1875) did not believe that the Framers did any such thing when they held:

The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.

Did you see that? At common law the nomenclature with which the Framers were familiar when they drafted and adopted the Constitution, if a child was not born in the country to parents who were its citizens, the child was an alien or foreigner. As I have demonstrated, the Naturalization Acts of 1790, 1795, 1802, 1804, and 1855 took those children up, whether born in or out of the United States, and adopted them as "citizens" of the United States (the 1790 Act said they "shall be considered as natural born citizens" until the 1795 Act repealed the 1790 statute and deleted that language and replaced it with "shall be considered as citizens of the United States"), either at birth or after birth, depending on if they were born to any qualifying U.S. citizen parents.

So, either produce your evidence that the Framers adopted the common law of Connecticut as the source of their definition of a natural born citizen or in default thereof, accept that your position, like that of Jack Maskell, Neil Katyal, Paul Clement, and those who have blindly accepted their fabricated and revisionist definition of a natural born citizen, is not supported by historical and legal evidence.

Carlyle said...

Yes I did notice Cruz's exaggerated Straw Man argument. I was very disappointed in him. This is a smarmy vulgar tactic I would expect of Obama or Clinton (either), not an upright conservative. Of all the candidates I have liked Cruz the best. I wish he were an NBC but he is clearly not. For him to resort to chicanery and obfuscation is extremely troubling. I was hoping that he might end up being Attorney General or some such. But this latest nonsense on his part has really soured me on him. SIGH.

Carlyle said...

FWIW - very muddled thinking - - -

http://www.americanthinker.com/articles/2016/01/ted_cruz_is_natural_born_under_originalism_.html

4zoltan said...

Hillhouse, Swift and Ellisworth tells us what the understand of the legal community of Connecticut was concerning how citizenship was acquired after the Constitution was ratified.

Of course their position makes sense as no one ever said that the Constitution changed the way citizenship was acquired.

Mario Apuzzo, Esq. said...

Isn't it just grand to pick and choose as we please.

Mick said...

Nonsense on that Connecticut thing Mario (the criminals always try to latch on to the exceptions as the rule).

The NA 1802 S. 4 had a provision that even if a state gave birthright citizenship to the children of aliens, that child would not be a US citizen until the parents naturalized as US citizens.

" or who, previous to the passing of any law on that subject by the Government of the United States, may have become citizens of any one of the said States under the laws thereof." (NA 1802 S. 4)

The criminals always try to say that the "if dwelling in the US" proviso meant NA 1790, 1795, 1802 derivative naturalization applied to foreign born children (but of course it doesn't say that, although it could be applied to foreign born children--- it applies to both). The NA 1802 S. 4 blows that theory up. Children born of aliens within the US did not become US citizens until their parents naturalized by the NA 1790, 1795, 1802. (Congress could not abide by patchwork birthright citizenship because it frustrated the power they had to make UNIFORM immigration and naturalization law). Which of course means that an nbC could not possibly be the children of alien parents. It also means that it proves that Marco Rubio is not nbC, as nbC has always been a citizen at the time of birth.

Mario Apuzzo, Esq. said...

Mick, I have been arguing for years that the Naturalization Acts of 1790, 1795, and 1802 were naturalization statutes that Congress passed under its Article I, Section 8, Clause 4 power “[t]o an uniform Rule of Naturalization . . . throughout the United States,” and that they applied to children born in and out of the U.S. In those statutes, Congress treated children born in the U.S. to alien parents as alien born and in need of naturalization after birth. As to children born out of the U.S. to U.S citizen parents (U.S. citizen father and U.S. citizen mother under the doctrine of coverture), the First Congress through the 1790 Act adopted, i.e., naturalized those children as citizens from the moment of birth, saying that they “shall be considered as natural born citizens.” A study of all the old English naturalization statutes shows that the language “shall be considered as” is nothing more than language that Parliament used to signify it was naturalizing persons who were otherwise not natural born subjects. Likewise, with this “shall be considered as” language, Congress did nothing more than give those children the same privileges, immunities, and rights as those enjoyed by and treated them for all intents and purposes as natural born citizens.

In the years following 1790, immigration in the U.S. created problems in the eyes of Congress. The Third Congress decided to make it more difficult for aliens to become naturalized citizens of the U.S. as can be seen by it repealing the 1790 Act and replacing it with that of 1795. We also know that the Constitution, for those born after its adoption, does not allow someone who is not a natural born citizen to be President and surely Congress could not change that rule by way of naturalization Act. So, as to avoid any possible presidential eligibility confusion created by the 1790 Act which stated that children born out of the United States to U.S. citizen parents "shall be considered as natural born citizens" and consistent with Congress getting tougher on naturalization, the Third Congress, which had many Founders and Framers, with the lead of then-Rep. James Madison, and with the approval of President Washington, repealed the 1790 Act and replaced it with the 1795 Act which said that those same children "shall be considered as citizens of the United States," the same status that it gave to aliens who naturalized after birth and to their minor children who also at best could only become citizens of the United States after birth. With Congress in the 1795 and 1802 Acts expressly stating that these children born out of the U.S. were to be considered as citizens of the U.S., which was the same status that it gave to naturalized aliens and their naturalized minor children, who acquired that status after their birth, it is utterly absurd for some current professors and constitutional scholars to maintain that Cruz is a natural born citizen because Congress so ordained in the 1790 Act.

Given that the early Congress treated children born in the U.S. to alien parents (under the doctrine of coverture could only be father and mother) as aliens and at best “considered as citizens of the United States” those born out of the U.S. to U.S. citizen parents (again, under coverture could only be U.S. citizen father and U.S. citizen mother), the inescapable conclusion is that in the eyes of the Founders, Framers, including James Madison and President George Washington, only children who were born in the U.S. to U.S. citizen parents (U.S. citizen father and mother under the doctrine of coverture) were the natural born citizens. In fact, I have produced historical and legal evidence which demonstrates that under the common law the nomenclature with which the Framers were familiar when they drafted and adopted the Constitution, a natural born citizen was defined as a child born in a country to parents who were its citizens at the time of the child’s birth. All of our early Congress’s naturalization Acts are completely consistent with this definition and confirm it.

William St. George said...

"Laurence H. Tribe, the Harvard law professor and constitutional scholar, believes the “natural born” provision has outlived its original intent considering that the redcoats are no longer coming.

“The worry that George III might come over and exert undue Germanic or British influence is no longer a threat,” said Mr. Tribe, referring to a motivating fear of the founding fathers. “There is no defense now for retaining the clause in the Constitution. It really needs to be removed.” --NYT CARL HULSE

Is Professor Tribe simply naive? The world is so much safer now? Note how he almost ridicules the Founding Fathers for their fears echoing a remark about paranoia of the same by Obama recently. That must be the new perspective that the Founders suffered from mental conditions listed in the DSM V. They just needed a supply of Seroquel and lithium?

To his credit Tribe does apparently know what "NATURAL BORN CITIZEN" means. Born invested with a single national loyalty might be a way of putting it. But Tribe himself born in Shanghai would rather get rid of that qualification because King George is deceased. Actually that may be an unconfirmed rumor!

Carlyle said...

@will st geo:

That is exactly the point. If the OBOTS and others wish for NBC to be something different, then let's debate it. It would be a useful debate and we could get the sense of the country and then take appropriate action one way or another.

But the current and usual political trend is to twist and turn and squirm and shimmy and just make stuff up. That seems like the sleazy way to solve a 'problem'. We are better than that.

I have also said a number of times that it is pretty clear what a ruling would have been had the question been asked prior to Obama. But once Obama got up a head of steam, then the pressure was on to ensure that the definition was so that he would qualify.

Mario Apuzzo, Esq. said...

Carlyle,

If a part of nation made Obama competent and trustworthy enough to be President and Commander in Chief of the Military, when he was not, surely it was a small task for that same part to make him a natural born citizen also, when he is not.

William St. George said...

"Proof that Ted Cruz did not become a US citizen at birth." http://www.examiner.com/article/proof-that-ted-cruz-did-not-become-a-us-citizen-at-birth

"Up to January 1, 1947, there was no legal status of Canadian citizens, only British subjects. This Act gave legal recognition to the terms “Canadian citizen” and “Canadian citizenship”. The Act established who was and who could become a Canadian citizen. There were many provisions for loss of citizenship, including retention provisions for the first and subsequent generations born outside Canada. The Act also contained provisions which provided special treatment for British subjects. In general, Canadian citizens who acquired citizenship of another country automatically lost Canadian citizenship (dual citizenship was not recognized)."

This is an intelligent and carefully written article by someone who understands the true meaning of "natural born citizen". Contains useful information and casts doubt on Cruz's mother's citizenship at time of of Ted's birth. He likely became a Senator illegally and perhaps by fraud.

ajtelles said...

Disappointing...

Mario,

Jerome Corsi's WND.com article on January 17, 2016 is disappointing in his conclusion about the 1790 Naturalization Act without adducing the 1795 NA.

>> http://www.wnd.com/2016/01/eligibility-challenges-for-cruz-rubio-heating-up/

As a commentator wrote in the comments regarding Cruz, Rubio and Jindal:

patriot carpenter

"1790 was repealed in 1795.
"So unless these fraudulent clowns were born between 1790 and 1795
"they are NOT eligible.

Art
StopIslamizationOfAmerica.blogspot.com

leo derosia said...

Tribe is a clown and propagandist. One of the main reasons nbc was put in was to give us a better chance that a future CiC would be loyal to We the People....I have never read or heard a pretentious ass like tribe talk about what " citizen of the US, at time of adoption" means but of course we know what it means. You cannot just be a citizen but must be a natural born citizen. Tribe also believes in a living constitution which sounds like anything in there can be ignored, esp by Congress as we see in a2. Next time I get a speeding ticket I will tell the judge I believe in a flexible speed limit because current one is outdated. Cruz and rubio have certainly shown their true colors but they are no different than the judges and every other member of congress

Mario Apuzzo, Esq. said...

Leo,

The necessary and sufficient conditions to be satisfied for one to be a natural born citizen are: (1) born or reputed born in a country (the United States) and (2) to parents (father and mother) who were its citizens at the time of the child's birth.

Professor Laurence Tribe and Professor Mary Brigid McManamon are correct only as to the first prong, i.e, birth in the country, correctly concluding that Ted Cruz is not a natural born citizen as the Founders, Framers, and Ratifiers defined the clause. They need to study the issue further and having done so, they should eventually realize that they are wrong for not also requiring birth to U.S. citizen parents. It is my hope that they will revisit the issue of the second prong of the definition of a natural born citizen and publish their final conclusion which would reflect the correct definition of a natural born citizen which is a child born in a country to parents who were its citizens at the time of the child's birth.

RodCrosby said...

Einer Elhauge is the Petrie Professor of Law at Harvard Law School...
http://www.salon.com/2016/01/20/ted_cruz_is_not_eligible_to_run_for_president_a_harvard_law_professor_close_reads_the_constitution/?utm_source=twitter&utm_medium=socialflow

Mario Apuzzo, Esq. said...

RodCrosby,

Thank you for sharing this article with us. Harvard Law Professor Einer Elhauge has concluded as I have that Ted Cruz is not a natural born citizen. He shows how the constitutional text, common law, and the early naturalization Acts of Congress demonstrate that Cruz is at best a naturalized citizen of the United States. He argues as I have that one cannot be made a natural born citizen through a naturalization Act of Congress. He argues as I have that the 1790 Naturalization Act language, "shall be considered as natural born citizens" is nothing more than naturalization language and that in any event, the Naturalization Act of 1795 repealed that Act and replaced that language with "shall be considered as citizens of the United States."

What is also critical in his writing is that he argues as I have for years that not all born citizens are natural born citizens, for to accept that position would give no meaning to the word "natural" and thereby write the natural born citizen clause out of the Constitution. Hence, Professor Elhauge confirms that I have been right all along that Jack Maskell's thesis that any person who is a born citizen, regardless where born, to whom born, and how the status was acquired, is nothing more than his own fabricated and revisionist definition of a natural born citizen.

Finally, Professor Elhauge does not analyze who are natural born citizens by birth in the country other than to state: "At common law, 'natural born' meant someone born within the sovereign territory with one narrow exception," and then he goes on to give the exceptions that applies for children born out of the country to U.S. citizen diplomats or military personnel. Maybe Professor Elhauge will write another article in which he fully analyzes the born in the country rule that applies to defining a natural born citizen. As we know, my position is that only children born or reputed born in the country to parents who were its citizens at the time of the child's birth are natural born citizens.

It is a great pleasure to see these law professors final come out and protect our Constitution rather than some ambitious political candidate.

phil stone said...

Surprised that there may be an honest professor at Harvard.Have seen some blogs which claim Cruz may be stateless.The claim is that his parents became Canadian citizens and voted in Canadian elections in 1972 and 1974. Further claim was that Canada did not recognize dual citizenship at that time so Cruz was born to Canadian citizens on Canadian soil and was not a US citizen. Then he recently renounced his Canadian citizenship.Was he ever naturalized? Is he stateless? Is there a commentor able to clarify this? thanks old Marine Phil Stone

William St. George said...

1. The Cruz mystery deepens. If the mother did become a Canadian citizen did that automatically nullify her US citizenship? True, to be a Canadian citizen one could not be the citizen of another nation--but if she acquired her Canadian citizenship by marriage she may not have done anything by way of renouncing her US citizenship. And it would be US law that determined the status of her US citizenship at that time, not Canadian. Anyway Cruz fails the natural born citizen test.

2. Since the question concerns loyalty and allegiance, it seems that born to a diplomat overseas would not give the person allegiance to a foreign nation. The same surely would be true of military families. Is there a suggestion that born outside US territory will not work even in these cases? If born in an Embassy? If born on a military base?











Mario Apuzzo, Esq. said...

William St. George,

1. Becoming a citizen of a foreign country does not necessarily cause a U.S. citizen to lose his or her U.S. citizenship. The requirements for renouncing U.S. citienship may be found here: https://travel.state.gov/content/travel/en/legal-considerations/us-citizenship-laws-policies/renunciation-of-citizenship.html . Section 349(a)(5) of the Immigration and Nationality Act (INA) (8 U.S.C. 1481(a)(5)) is the section of law governing the right of a United States citizen to renounce his or her U.S. citizenship. That section of law provides for the loss of nationality by voluntarily

"(5) making a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state , in such form as may be prescribed by the Secretary of State" (emphasis added).

You can go to the site to read the full details. The question is even if Cruz's mother became a Canadian citizen, did she legally renounce her U.S. citizenship prior to Ted Cruz's birth?

2. U.S. citizen parents on diplomatic or military service out of the United States are still dependent on the United States and subject to its jurisdiction. Hence, they are found not to have quitted the U.S. territory. Therefore, children born to such parents out of the United States are reputed born in the United States. Being reputed born in the United States to U.S. citizen parents, those children are natural born citizens. See Vattel, Section 212 and 217 of the Law of Nations.

Carlyle said...

THIS IS EXACTLY THE POINT

I like Ted Cruz, but he definitely is NOT a natural born citizen. While there may be some debate as to precisely what NBC means, the one thing that is undeniable is that a NBC must be a citizen in a "natural" manner - i.e. NOT the result of a positive law. e.g. you can make a law that says, under certain circumstances, a person becomes a citizen at birth. That makes you "naturalized at birth", but cannot make you "natural at birth".

If TC is elected as the candidate, contrary to the spineless Repubs who refused to go after BHO, the Dems will absolutely crucify TC. Not only that, they will have the full force of the MSM in shrill voice, as well.

http://www.wnd.com/2016/01/motion-demands-cruz-be-removed-from-illinois-ballot/

Mario Apuzzo, Esq. said...

Carlyle,

The Framers defined a natural born citizen as a child born in the country to parents who were its citizens at the time of the child's birth. Such a child became a natural born citizen by the mere circumstances of his or her birth, i.e., born in the country to citizen parents, and without the aid of any positive law. Tying this citizenship status to future presidential eligibility, it is the ceiling standard of U.S. citizenship. It is preposterous to maintain that the Framers would have subsequently allowed different and diluted versions of a natural born citizen to be created at different times by some positive law. Rather, what the Framers did allow was for Congress in matters of citizenship to be given only the power to establish a uniform rule of naturalization throughout the United States. That power did not include the power to make natural born citizens, but did include the power to make more citizens of the United States by adopting whom the common law viewed as aliens or foreigners as citizens of the United States, either at birth or after birth.

For children born either in or out of the United States, Congress since 1790 exercised its naturalization power by statute over those who were not natural born citizens and therefore in need of naturalization, without the constraints of the Constitution and therefore as and when it pleased.

Congress constitutionalized its naturalization of certain persons born in the United States who were not natural born citizens, through the 1868 ratification of the Fourteenth Amendment. In the first sentence of this Amendment, Congress provided that "[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." This Amendment also protects the citizenship status of the natural born citizens, who being born in the United States to U.S. citizen parents, also satisfy the place of birth and jurisdiction requirements of the Amendment. Therefore, for children born in the United States, Congress’s naturalization power is limited by the dictates of the Fourteenth Amendment which sets a floor standard of being a citizen of the United States by birth in the United States while subject to the jurisdiction thereof. At most, what Congress can do under the Amendment, consistent with U.S. v. Wong Kim Ark (1898), is determine who is born subject to the jurisdiction of the United States.

In short, only those children who are born or reputed born in the United States to U.S. citizen parents (father and mother who are both either natural born citizens of the United States or citizens of the United States) are natural born citizens. All the rest of the U.S. citizens are citizens of the United States, either at birth or after birth, under either the Fourteenth Amendment or naturalization Act of Congress or treaty, as the case may be.

Barack Obama (presumably), Marco Rubio, Bobby Jindal, and Nikki Haley are all citizens of the United States at birth, but only by virtue of the floor standard of U.S. citizenship established by the Fourteenth Amendment. Ted Cruz (presumably) is also a citizen of the United States at birth, but only by virtue of a naturalization Act of Congress. While they are all citizens of the United States at birth under these positive laws, since none of them were born in the United States to a U.S. citizen father and mother, none are natural born citizens of the United States, the ceiling standard of U.S. citizenship. Consequently, none are constitutionally eligible to be President or Vice-President.

Robert Pilchman said...


In the Naturalization Act of 1790 ( https://en.wikipedia.org/wiki/Naturalization_Act_of_1790 ) it apparently states that ‘And the children of citizens of the United States, that mayibe born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, …’ ( http://legisworks.org/sal/1/stats/STATUTE-1-Pg103.pdf ). Some attempt to argue that this means that it is not necessary to be born in the United States to be a natural born Citizen. However, even in the Naturalization Act of 1790 it apparently states “children of citizens” – citizens in the plural (i.e. BOTH parents). Moreover, the expression “shall be considered as” implies a leniency (and thus actually supports that “natural born Citizen” as used in the U.S. Constitution is more stringent (i.e. it is also necessary to be born in the United States)). Also in 1795, the Congress apparently REPEALED and replaced the Naturalization Act of 1790 (while George Washington was still the president) with the Naturalization Act of 1795 as elucidated in https://en.wikipedia.org/wiki/Naturalization_Act_of_1795 . Indeed, in the Naturalization Act of 1795 the phrase ‘natural born Citizen’ is apparently NOT used (http://legisworks.org/sal/1/stats/STATUTE-1-Pg414a.pdf ). Thus, it clearly seems to be necessary to be born in the United States to parents both of whom are U.S. citizens to be a “natural born Citizen”. Indeed, as far back as 1898 the (dissent in the) U.S. Supreme Court (United States v. Wong Kim Ark, 169 U.S. 649 (1898)) stated – “Before the Revolution, the view of the publicists had been thus put by Vattel: “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.”” (https://supreme.justia.com/cases/federal/us/169/649/case.html ). (Note: In the 1898 decision of United States v. Wong Kim Ark, the quote from Vattel is apparently undisputed (in terms of the version of the text attributed to Vattel).) As for 8 U.S. Code § 1401 – Nationals and citizens of United States at birth‏ (https://www.law.cornell.edu/uscode/text/8/1401 ), I didn’t see the expression “natural born Citizen” used in 8 U.S. Code § 1401, and thus 8 U.S. Code § 1401 is apparently not relevant. Natural law seems to imply obviousness and thus a “natural born Citizen” seems to mean a born Citizen so obvious as not to require a statute. Apparently, the requirement for the president to be a “natural born Citizen” is a safeguard to maximize allegiance for this unique position (which includes the military role of Commander in Chief). There also seems to be a “widespread and long-standing” tradition (prior to Barack Hussein Obama II) of adherence to the requirement of a president being born in the United States to both parents who are U.S. citizens (unless someone managed to deceive us regarding his background) as apparently documented in http://www.votefortheconstitution.com/natural-born-citizen1.html ; http://www.judeochristianamerica.org/NaturalBornCitizen.htm . Please see https://cdrkerchner.wordpress.com/2016/01/13/ted-cruz-is-missing-two-legs-the-three-legged-stool-test-for-natural-born-citizen/

Robert Pilchman said...


I previously stated “As for those who argue that being born in the United States would be the sole parameter to being a natural born Citizen that doesn’t seem reasonable – as highlighted by the discussion of anchor babies (as even having the right to remain in the United States); moreover, the 14th amendment is regarding citizenship and even if it would mean that an anchor baby is a citizen it doesn’t mean that an anchor baby would be a “natural born Citizen”. Indeed, the need for the citizenship clause of the 14th Amendment indicates that birth does not mean citizenship by natural law (or as if by natural law because of its obviousness) – rather by the most powerful statute – a constitutional amendment – citizenship was granted to those who were not recognized as citizens during slavery.” (https://cdrkerchner.wordpress.com/2016/01/13/ted-cruz-is-missing-two-legs-the-three-legged-stool-test-for-natural-born-citizen/#comments ). Thus, I was surprised to read in Minor v. Happersett, 88 U.S. 21 Wall. 162 162 (1874), “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [88 U.S. 162, 168] parents. As to this class there have been doubts, but never as to the first.” (http://caselaw.findlaw.com/us-supreme-court/88/162.html , https://supreme.justia.com/cases/federal/us/88/162/case.html ) Indeed, subsequent to the 14th Amendment, it seems that the U.S. Supreme Court in Minor went out of its way to question what was apparently previously believed to be Natural Law. In other words, the U.S. Supreme Court in Minor seems to be acknowledging the possibility that Natural Law dictates (i.e. it’s self-evident) citizenship for “children born within the jurisdiction without reference to the citizenship of their parents”. Perhaps the U.S. Supreme Court in Minor was concerned about the possibility for discrimination against those who were not at their time of birth born to U.S. citizens under a pretext of maximizing security (Note: https://cdrkerchner.wordpress.com/2016/01/16/a-new-crs-memo-re-qualifications-for-president-and-natural-born-citizen-clause-2016-version/#comment-4668 ) . Thus, in Minor the U.S. Supreme Court seems to be raising the question - what gives anyone, including Vattel, a monopoly on the representation of Natural Law? Indeed, in United States v. Wong Kim Ark, 169 U.S. 649 (1898) (https://supreme.justia.com/cases/federal/us/169/649/case.html ), Vattel is apparently only cited by the dissent. However, I’m not persuaded; two wrongs don’t necessarily make a right. In any event, it is apparently undisputed that Ted Cruz’s place of birth was NOT in the United States. Indeed, whatever criteria are used to determine a “natural born Citizen” it doesn’t seem reasonable that it would yield a “natural born Citizen” of more than one country.

Mario Apuzzo, Esq. said...

Robert Pilchman,

Please provide your definition of an Article II natural born citizen.

Robert Pilchman said...


I'm somewhat new to in depth researching this matter. In any event, my current opinion is that one must be born in the United States (-perhaps also in a U.S. embassy, military base, naval ship, etc. The question becomes to be natural - so obvious to be self-evident without need for a statute - what requirements if any would be required in the status of the parents. I tend to believe that each parent must have U.S. citizenship. Furthermore, in doubt, I’m inclined to follow what was probably the understanding of the majority of the signers/citizenry at the time the U.S. Constitution was ratified (which apparently was Vattel (as quoted in the dissent of United States v. Wong Kim Ark, 169 U.S. 649 (1898) (https://supreme.justia.com/cases/federal/us/169/649/case.html ))). Moreover, given that the President of the United States is in a unique position that includes the military role of Commander in Chief (and hence the existence of acute security / safety) it’s reasonable to tend to strive to maximize security. By the way, given that the Naturalization Act of 1790 was apparently repealed and replaced with the Naturalization Act of 1795 the following point is apparently for the most part currently moot (unless there would be an attempt to change the eligibility to be president via statute other than amendment (which would be illegitimate)). The U.S. Constitution requires a “natural born Citizen” and human statute is not the same as natural law. Thus, it seems impossible that the Naturalization Act of 1790 had any significance regarding the requirements to be eligible to be “President of the United States of America”. Thus, it is necessary to conclude that the Naturalization Act of 1790 intended to provide protection from discrimination (NOT including regarding eligibility for the “President of the United States of America”) for certain individuals not actually “natural born Citizen[s]” that such individuals “shall be considered as natural born citizens”. There must have been concern that since “natural born Citizen” is an optimal level of citizenship, that there may be undesirable discrimination. For example: If there would ever be a requirement for the Secretary of State to be a natural born citizen then would the child – born outside the jurisdiction of the United States to a U.S. ambassador and his/her U.S. citizen spouse – be prevented from becoming Secretary of State? However, with the Naturalization Act of 1795, apparently the Congress (when George Washington was still president) decided that there could be some scenario (in addition to the presidency) in which insisting on a “natural born Citizen” should not be prohibited. To provide a present day example: Would it be ipso facto wrong for the U.S. government to insist that a nuclear submarine be staffed with only natural born Citizens? If “the 1790 Naturalization Act was repealed” (only) because “the language “considered as” could be confused to implying people born over seas were actually really “natural born Citizens’” then why not simply include some sort of disclaimer?

Mario Apuzzo, Esq. said...

Robert Pilchman,

Do you believe that being born or reputed born in the United States is necessary to be a natural born citizen?

Robert Pilchman said...


To be President of the United States via the U.S. Constitution's "natural born Citizen" clause it is necessary be born in the United States (-perhaps also in a U.S. embassy, military base, naval ship, etc.) etc. (as I already previously indicated) That being said there is nothing in the U.S. Constitution that requires or prohibits a natural born Citizen for certain other conceivable positions (such as an ambassador or an admiral etc.) Thus, the Naturalization Act of 1790 apparently intended to provide protection from discrimination (NOT including regarding eligibility for the “President of the United States of America”) for certain individuals not actually “natural born Citizen[s]” that such individuals “shall be considered as natural born citizens”. Do you believe it would be possible to get a decision from the U.S. Supreme Court regarding natural born Citizen by piggybacking the issue to an applicable case(s) that was already accepted by and is pending with the U.S. Supreme Court?

Mario Apuzzo, Esq. said...

I of II

Ted Cruz tells us that it has been settled law since the ratification of the Constitution that a child born out of the United States to a U.S. citizen mother and a non-U.S. citizen father like him is a natural born citizen.

I read a comment by Ghost posted on January 17, 2016 at http://theconservativemonster.com/constitutional-lawyer-mario-apuzzo-cruz-is-not-a-natural-born-citizen/ , which asked: “was Winston Churchill eligible to become President of the United States?

Churchill’s mother was an American citizen! of High Society Brooklyn and NYC.” This question led me to investigate the matter and this is what I found.
Churchill was born in Woodstock, Oxfordshire, England, on November 30, 1874, to Lady Randolph Churchill (née Jennie Jerome), who was born in the United States, and to Lord Randolph Churchill, a British citizens. Hence, Churchill was like Cruz born out of the United States to what Cruz would consider a U.S. citizen mother and a non-U.S. citizen father.

In 1963, Churchill was named an Honorary Citizen of the United States by An Act to proclaim Sir Winston Churchill an honorary citizen of the United States of America, Public Law 88-6/H.R. 4374; 88th Congress (1963) (9 April 1963). "H.R. 4374 (88th)". Wikipedia also reports: “On 29 November 1995, during a visit to the United Kingdom, President Bill Clinton of the United States announced to both Houses of Parliament that an Arleigh Burke-class destroyer would be named the USS Winston S. Churchill. This was the first United States warship to be named after a non-citizen of the United States since 1975.” https://en.wikipedia.org/wiki/Winston_Churchill .

Being born in 1874, the Naturalization Act of 1855 would have applied to Churchill when he was born. On February 10, 1855, Congress enacted "An Act to Secure the Right of Citizenship to Children of Citizens of the United States Born Out of the Limits Thereof," (10 Stat.604). This Act stated, in part, that: “persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered and are hereby declared to be citizens of the United States: Provided, however, that the rights of citizenship shall not descend to persons whose fathers never resided in the United States.” Under that Act, children born out of the United States to U.S. citizen fathers were considered as “citizens” of the United States. Under this Act, U.S. citizen mothers were not capable to transmit their U.S. citizenship to their children born out of the United States to non-U.S. citizen fathers. It was only in 1934 that Congress allowed U.S. citizen mothers to be able to make such children citizens of the United States.

The 1855 Act also provided that a U.S. citizen woman marrying an alien husband made her an alien like her husband. We have this explanation on that Act:

Continued . . .

Mario Apuzzo, Esq. said...

II of II

Just as alien women gained U.S. citizenship by marriage, U.S.-born women often gained foreign nationality (and thereby lost their U.S. citizenship) by marriage to a foreigner. As the law increasingly linked women's citizenship to that of their husbands, the courts frequently found that U.S. citizen women expatriated themselves by marriage to an alien. For many years there was disagreement over whether a woman lost her U.S. citizenship simply by virtue of the marriage, or whether she had to actually leave the United States and take up residence with her husband abroad. Eventually it was decided that between 1866 and 1907 no woman lost her U.S. citizenship by marriage to an alien unless she left the United States. Yet this decision was probably of little comfort to some women who, resident in the United States since birth, had been unfairly treated as aliens since their marriages to noncitizens.(5) [5. Frederick A. Cleveland, American Citizenship as Distinguished from Alien Status (1927) pp. 65-66.]
http://www.archives.gov/publications/prologue/1998/summer/women-and-naturalization-1.html

Under the 1855 Act, Churchill’s U.S. citizen mother would have lost her U.S. citizenship when she married her non-U.S. citizen husband and moved to England. Even if she did not lose her U.S. citizenship, Churchill could not become a citizen of the United States only through his U.S. citizen mother.

No one contended that Winston Churchill was a citizen of the United States, let alone a natural born citizen of the United States. Can we just imagine the Prime Minister of Great Britain being a natural born citizen and eligible to be President and Commander in Chief of the Military? But yet, Ted Cruz wants us to accept that he, born under the same birth circumstances as Winston Churchill, but under a different naturalization Act, the 1952 Immigration and Naturalization Act which allowed a child born out of the United States to a U.S. citizen mother and non-U.S. citizen father to be a “citizen” of the United States at birth, is a natural born citizen and constitutionally eligible to be President. So, just because a naturalization Act made him a citizen of the United States when a naturalization Act did not make Churchill as citizen of the United States, Cruz wants us to believe that under that naturalization Act he is an Article II natural born citizen and that such a proposition has been settled law since the framing of the Constitution. Sure, Ted, just like you did not know that you were a Canadian citizen.

Robert Pilchman said...

Revised Posting(s) (Note: Apparently, my comments were censored (on or around 1/24/2006) from https://cdrkerchner.wordpress.com/)

I of III

In the Naturalization Act of 1790 ( https://en.wikipedia.org/wiki/Naturalization_Act_of_1790 ) it apparently states that ‘And the children of citizens of the United States, that mayibe born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, …’ ( http://legisworks.org/sal/1/stats/STATUTE-1-Pg103.pdf ). Some attempt to argue that this means that it is not necessary to be born in the United States to be a natural born Citizen. However, even in the Naturalization Act of 1790 it apparently states “children of citizens” – citizens in the plural (i.e. BOTH parents). Moreover, the expression “shall be considered as” implies a leniency (and thus actually supports that “natural born Citizen” as used in the U.S. Constitution is more stringent (i.e. it is also necessary to be born in the United States)). Also in 1795, the Congress apparently REPEALED and replaced the Naturalization Act of 1790 (while George Washington was still the president) with the Naturalization Act of 1795 as elucidated in https://en.wikipedia.org/wiki/Naturalization_Act_of_1795 . Indeed, in the Naturalization Act of 1795 the phrase ‘natural born Citizen’ is apparently NOT used (http://legisworks.org/sal/1/stats/STATUTE-1-Pg414a.pdf ). Thus, it clearly seems to be necessary to be born in the United States to parents both of whom are U.S. citizens to be a “natural born Citizen”. Indeed, as far back as 1898 the (dissent in the) U.S. Supreme Court (United States v. Wong Kim Ark, 169 U.S. 649 (1898)) stated – “Before the Revolution, the view of the publicists had been thus put by Vattel: “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.”” (https://supreme.justia.com/cases/federal/us/169/649/case.html ). (Note: In the 1898 decision of United States v. Wong Kim Ark, the quote from Vattel is apparently undisputed (in terms of the version of the text attributed to Vattel).) As for 8 U.S. Code § 1401 – Nationals and citizens of United States at birth‏ (https://www.law.cornell.edu/uscode/text/8/1401 ), I didn’t see the expression “natural born Citizen” used in 8 U.S. Code § 1401, and thus 8 U.S. Code § 1401 is apparently not relevant. Natural law seems to imply obviousness and thus a “natural born Citizen” seems to mean a born Citizen so obvious as not to require a statute. Apparently, the requirement for the president to be a “natural born Citizen” is a safeguard to maximize allegiance for this unique position (which includes the military role of Commander in Chief). There also seems to be a “widespread and long-standing” tradition (prior to Barack Hussein Obama II) of adherence to the requirement of a president being born in the United States to both parents who are U.S. citizens (unless someone managed to deceive us regarding his background) as apparently documented in http://www.votefortheconstitution.com/natural-born-citizen1.html ; http://www.judeochristianamerica.org/NaturalBornCitizen.htm .

Robert Pilchman said...

II of III

I previously stated “As for those who argue that being born in the United States would be the sole parameter to being a natural born Citizen that doesn’t seem reasonable – as highlighted by the discussion of anchor babies (as even having the right to remain in the United States); moreover, the 14th amendment is regarding citizenship and even if it would mean that an anchor baby is a citizen it doesn’t mean that an anchor baby would be a “natural born Citizen”. Indeed, the need for the citizenship clause of the 14th Amendment indicates that birth does not mean citizenship by natural law (or as if by natural law because of its obviousness) – rather by the most powerful statute – a constitutional amendment – citizenship was granted to those who were not recognized as citizens during slavery.” Thus, I was surprised to read in Minor v. Happersett, 88 U.S. 21 Wall. 162 162 (1874), “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [88 U.S. 162, 168] parents. As to this class there have been doubts, but never as to the first.” (http://caselaw.findlaw.com/us-supreme-court/88/162.html , https://supreme.justia.com/cases/federal/us/88/162/case.html ) Indeed, subsequent to the 14th Amendment, it seems that the U.S. Supreme Court in Minor went out of its way to question what was apparently previously believed to be Natural Law. In other words, the U.S. Supreme Court in Minor seems to be acknowledging the possibility that Natural Law dictates (i.e. it’s self-evident) citizenship for “children born within the jurisdiction without reference to the citizenship of their parents”. Perhaps the U.S. Supreme Court in Minor was concerned about the possibility for discrimination against those who were not at their time of birth born to U.S. citizens under a pretext of maximizing security. Thus, in Minor the U.S. Supreme Court seems to be raising the question - what gives anyone, including Vattel, a monopoly on the representation of Natural Law? Indeed, in United States v. Wong Kim Ark, 169 U.S. 649 (1898) (https://supreme.justia.com/cases/federal/us/169/649/case.html ), Vattel is apparently only cited by the dissent. However, I’m not persuaded; two wrongs don’t necessarily make a right. In any event, it is apparently undisputed that Ted Cruz’s place of birth was NOT in the United States. Indeed, whatever criteria are used to determine a “natural born Citizen” it doesn’t seem reasonable that it would yield a “natural born Citizen” of more than one country.

Robert Pilchman said...

III of III

I'm somewhat new to in depth researching of this matter. In any event, my current opinion is that one must be born in the United States (-perhaps also in a U.S. embassy, military base, naval ship, etc.) to satisfy the U.S. constitutional requirement of “natural born Citizen” The question becomes to be natural - so obvious to be self-evident without need for a statute - what requirements if any would ALSO be required in the status of the parents. I tend to believe that each parent must have U.S. citizenship at the time of birth. Furthermore, in doubt, I’m inclined to follow what was probably the understanding of the majority of the signers/citizenry at the time the U.S. Constitution was ratified (which apparently was Vattel (as quoted in the dissent of United States v. Wong Kim Ark, 169 U.S. 649 (1898) (https://supreme.justia.com/cases/federal/us/169/649/case.html ))). Moreover, given that the President of the United States is in a unique position that includes the military role of Commander in Chief (and hence the existence of acute security / safety) it’s reasonable to tend to strive to maximize security. By the way, given that the Naturalization Act of 1790 was apparently repealed and replaced with the Naturalization Act of 1795 the following point is apparently for the most part currently moot (unless there would be an attempt to change the eligibility to be president via statute other than amendment (which would be illegitimate)). The U.S. Constitution requires a “natural born Citizen” and human statute is not the same as natural law. Thus, it seems impossible that the Naturalization Act of 1790 had any significance regarding the requirements to be eligible to be “President of the United States of America”. Thus, it is necessary to conclude that the Naturalization Act of 1790 intended to provide protection from discrimination (NOT including regarding eligibility for the “President of the United States of America”) for certain individuals not actually “natural born Citizen[s]” that such individuals “shall be considered as natural born citizens”. There must have been concern that since “natural born Citizen” is an optimal level of citizenship, that there may be undesirable discrimination. For example: If there would ever be a requirement for the Secretary of State to be a natural born citizen then would the child – born outside the jurisdiction of the United States to a U.S. ambassador and his/her U.S. citizen spouse – be prevented from becoming Secretary of State? However, with the Naturalization Act of 1795, apparently the Congress (when George Washington was still president) decided that there could be some scenario (in addition to the presidency) in which insisting on a “natural born Citizen” should not be prohibited. To provide a present day example: Would it be ipso facto wrong for the U.S. government to insist that a nuclear submarine be staffed with only natural born Citizens? If “the 1790 Naturalization Act was repealed” (only) because “the language “considered as” could be confused to implying people born over seas were actually really “natural born Citizens’” then why not simply include some sort of disclaimer?


By the way, prior to the censorship of my comments (that were displayed at https://cdrkerchner.wordpress.com/), apparently Commander Kerchner (or the blog editor) indicated that President George Washington signed both the Naturalization Act of 1790 and the Naturalization Act of 1795. Thus, it’s hard to believe that the use of the expression “natural born citizens” in the Naturalization Act of 1790 was an erroneous (printing error). Furthermore, although the Naturalization Act of 1795 apparently repealed the Naturalization Act of 1790 it doesn’t seem to indicate that the appeal was retroactive (ab initio) as apparently asserted by Commander Kerchner (or the blog editor).

cfkerchner said...

Breaking News: WOBC Website Launches Petition Campaign to Stop the Constitutionally Ineligible Canadian Born Ted Cruz | CDR Kerchner (Ret)'s Blog
https://cdrkerchner.wordpress.com/2016/02/04/breaking-news-wobc-website-launches-petition-campaign-to-stop-the-ineligible-canadian-born-ted-cruz/

cfkerchner said...

A Simple Euler Logic Diagram Shows Logical Relationship of Constitutional Article II “natural born Citizens” to Other Type “Citizens” of the United States | CDR Kerchner (Ret)'s Blog: https://cdrkerchner.wordpress.com/2016/02/14/euler-logic-diagram-shows-logical-relationship-of-constitutional-article-ii-natural-born-citizens-to-other-type-citizens-of-the-united-states/ CDR Kerchner, P.E. (Retired)

DLJ said...

Why has no one attacked Marco Rubio for being born to two non-US Citizens. It seems pretty black and white that he does not meet the definition of Natural Born Citizen. I see he is a US Citizen, but not a NBC. Does this have anything to do to his parents being from Cuba? Do they have special rights that made them US Citizens without going through the Naturalization process? Why is this a silent subject?

DLJ said...

Why has no one attacked Marco Rubio for being born to two non-US Citizens. It seems pretty black and white that he does not meet the definition of Natural Born Citizen. I see he is a US Citizen, but not a NBC. Does this have anything to do to his parents being from Cuba? Do they have special rights that made them US Citizens without going through the Naturalization process? Why is this a silent subject?

DLJ said...

Why has no one attacked Marco Rubio for being born to two non-US Citizens. It seems pretty black and white that he does not meet the definition of Natural Born Citizen. I see he is a US Citizen, but not a NBC. Does this have anything to do to his parents being from Cuba? Do they have special rights that made them US Citizens without going through the Naturalization process? Why is this a silent subject?

Mario Apuzzo, Esq. said...

DLJ,

With our culture of political correctness, it takes courage to say that anyone wanting to be President has to be born in the United States. It takes even more courage to say that the person also has to be born to two U.S. citizen parents.

John Murphy said...

It seems to me, Mario, that the Supreme Court case, Rogers v Bellei, is an ideal example to expose cruz. Bellei was born out of country (Italy) to a foreign (Italian) citizen father and an American citizen (?) mother. Both sides of the opinion (holding and dissent) conceded he was a citizen ONLY by statute and therefore a "naturalized" citizen. Cruz maintains the he ISN'T a "naturalized" citizen, yet this case's birth scenario mirrors exactly cruz's birth scenario.

Your opinion?

Mario Apuzzo, Esq. said...

John Murphy,

I wholeheartedly agree that, among other cases, Rogers v. Bellei, in its majority and dissenting opinions, nicely demonstrates that Ted Cruz became a citizen of the United States at birth only by the grace of Congress as express in the Immigration and Naturalization Act of 1952, without which he would have been an alien (unless he so qualified under any previous naturalization Act of Congress) and have so written in my briefs to the courts and in my various articles on this blog. Bellei also shows that a person who is made a citizen at birth through a naturalization Act of Congress can even lose that citizenship not satisfying the Act's conditions subsequent.

There simply is no way that a natural born citizen draws his citizenship at birth status from a naturalization Act of Congress without which he would be an alien. There also is simply no way that Congress could ever take away a natural born citizen's status for failing to satisfy some condition subsequent, for there are no such conditions standing in the way of a natural born citizen maintaining his or her citizenship.

Cruz misrepresents the law and his citizenship status, telling people that he was a citizen at birth and therefore can only be a natural born citizen. He fails to tell that it was only by virtue of a naturalization Act that he is a citizen at birth and not solely by virtue of his birth circumstances, which is the case for a natural born citizen.

DLJ said...

Mario, thanks for your comments.

Regarding Rubio, I would think anyone could change the citizenship example from Cuban citizens to say Iranian or Iraqi in order to make a point. If Rubio's parents were citizens of another country, not one so close by, perhaps folks would understand why it is important to have US citizen parents in order to be a NBC child.

For Cruz, an issue that is in the papers is regarding a form that his parents - or mother - would have needed to complete in order for Cruz to be a US citizen born in Canada. However no one has been able to locate such a form from Cruz. The second part of the issue is in 1970, Canada did not recognize dual citizenship. So Cruz would have to be either Canadian or a US citizen. Without that form, Cruz would not be a US citizen. So in this example, Cruz was solely a Canadian citizen. When he renounced his Canadian citizenship in 2014, Cruz would not be a citizen of any country. Without the correct forms from birth, he wouldn't be US citizen and after renouncing his Canadian citizenship, which reports have been made that, that is what Canada thought he was, he would be without any country. Do you see any reason this story or example might not be true? If it is true, how do we get the message out?

Dennis