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Monday, January 25, 2016

If Winston Churchill Was Not Even a Citizen of the United States, How Can Ted Cruz Be Its Natural Born Citizen?

If Winston Churchill Was Not Even a Citizen of the United States, How Can Ted Cruz Be Its Natural Born Citizen?
                                                      By Mario Apuzzo, Esq. 
                                                          January 25, 2016
Image result for image winston churchill
Under the common law the nomenclature with which the Framers were familiar when they drafted and adopted the Constitution, all children born in a country to parents who were its citizens were “natives, or natural-born citizens,” and all the rest of the people were “aliens or foreigners,” who could be naturalized by some law.  See Emer de Vattel, The Law of Nations, or Principles of the Laws of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, bk. 1, c. 19, sec. 212 Citizens and natives (London 1797) (1st ed. Neuchatel 1758) ("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, 88 U.S. 162, 167 (1875) (“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.”); as to a natural born citizen, accord U.S. v. Wong Kim Ark, 169 U.S. 649, 665 (1898), citing Minor and quoting without criticism its common law definition of a natural born citizen and citing an quoting Horace Binney, Alienigenae of the United States, p. 22, note (2nd ed., Philadelphia, Dec. 1, 1853) ("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 and presidential contender Ted Cruz was born in 1970 in Canada to parents who, unlike Senator John McCain’s parents, were not serving the U.S. national defense. He therefore was not born or reputed born in the United States. He was also born to presumably a U.S. citizen mother, and to a non-U.S. citizen father (his father was Cuban). Hence he was also not born to two U.S. citizen parents. Cruz is at best a “citizen" of the United States “at birth,” but only by virtue of the 1952 Immigration and Naturalization Act, a naturalization Act of Congress (assuming that he was born to a U.S. citizen mother).  But failing both constitutional common law requirements for being a natural born citizen, i.e., born in the United States to U.S. citizen parents, he is not nor can he be a natural born citizen.  
On the contrary, Cruz does not agree that this common law definition of a natural born citizen under which he is not a natural born citizen is the only definition of a natural born citizen that has ever existed in the United States since July 4, 1776.  Rather, he tells us that it has been settled law since the adoption and 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 also a natural born citizen. 
I have written several articles demonstrating why Cruz is not a natural born citizen and that he is wrong to maintain that he is.  These articles can be read at http://www.puzo1.blogspot.com
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 citizen.  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, Section 1, Stat. 604, 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: 
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.]
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 because he only had a U.S. citizen mother. 

Even if Churchill's mother had retained her U.S. citizenship as constitutionally ineligible de facto President Barack Obama’s mother did under Congress’s modern statutes, he still would not have been a natural born citizen, for he would have been born to an alien father.  For sure, he would have been subject to a foreign power from the moment of birth as much as if born to two alien parents. Consider that the constitutionally ineligible Senator Marco Rubio, Governor Bobby Jindal, and Governor Nikki Haley, while born in the United States, were born to no U.S. citizen parents. Furthermore, being born in a foreign country, under jus soli (right from the soil), Cruz also from the moment of birth acquired citizenship and allegiance to the country in which he was born.  Being born subject to a foreign power under U.S. law, i.e., being born in allegiance to a foreign power under U.S. law, disqualifies one from being a natural born citizen and therefore eligible to be President. 
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 of the United States 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 born like him a 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 until 2013 that you were a Canadian citizen.  

I will leave you with these quotes from Churchill himself.  “I am, as you know, half American by blood, and the story of my association with that mighty and benevolent nation goes back nearly ninety years to the day of my father's marriage.” (1963). http://www.winstonchurchill.org/publications/finest-hour/62-finest-hour-151/1838--wit-and-wisdom-reflections-on-america . Some in the press wondered if Churchill, who was born to a U.S. citizen mother, would ever consider running for U.S. president.  When asked by a reporter in 1932 on running for President of the United States, he correctly and honestly responded: "There are various little difficulties in the way.  However, I have been treated so splendidly in the United States that I should be disposed, if you can amend the Constitution, seriously to consider the matter."  The Definitive Wit of Winston Churchill 18 (ed. Richard M. Langworth 2009). But then that's Winston Churchill, not Ted Cruz.  
Mario Apuzzo, Esq.
January 25, 2016
http://puzo1.blogspot.com
####
Copyright © 2016
Mario Apuzzo, Esq.
All Rights Reserved 


  

65 comments:

leo derosia said...

Things change mario, citizen at birth by statute is a nbc now according to harvard law review. Great article comparing Churchill to the pretender, regards from a real birther crank, leo

Mario Apuzzo, Esq. said...

Check this out. Ted Cruz shows off his Winston Churchill tattoo.

https://www.washingtonpost.com/news/post-politics/wp/2014/04/01/ted-cruz-shows-off-winston-churchill-tattoo/

You just can't make this stuff up.

Robert Pilchman said...


In my discussion with an intended voter(s) for Ted Cruz (http://queenofliberty.com/2016/01/06/cruz-is-a-natural-born-citizen-brush-off-the-birthers/#comment-50944 ), it’s noteworthy to observe the weakness in argument / dislike for those who simply want to determine the truth and uphold the Constitutional requirement for “natural born Citizen” (By the way, my comments were censored (on or around 1/24/2016) from https://cdrkerchner.wordpress.com/ ). Question: Am I being reasonable in asserting that a vote for Ted Cruz would seem to be like being an accessory to violation of the U.S. Constitution? (Note: My revised 3 postings of January 25, 2016 at https://www.blogger.com/comment.g?blogID=7466841558189356289&postID=1610750494126026725 )

Unknown said...

I suppose that if the Harvard Law Review declared that a leopard was really a natural born tiger in disguise, we would all be forced to marvel at their intellectual capacities of discernment...

ajtelles said...

The Living Constitution of Laurence Tribe
vs.
The Original Intent Constitution of Ted Cruz
vs.
The Living Constitution of Ted Cruz

1/

Mario,

Your Winston Churchill vs. Ted Cruz comparison is very appropriate and relevant to Harvard Law professor Laurence Tribe's recent comments about the "original meaning" that Sen. Cruz has been defending, uh, well, sort of. According to Prof. Tribe, Sen. Cruz is not defending "original meaning" as he did when he was a Harvard Law student of Prof. Tribe's and is actually using Prof. Tribe's "elastic living constitution" method to promote his, Cruz's, POTUS eligibility..

After the quotes below from Tribe about his "elastic living constitution" views vs. Sen. Ted Cruz's "constitutional originalist" views, his "original meaning" views, I am posting an emended version of my May 13, 2014 comment here on your Natural Born Citizen blog and tying it in with your post about Winston Churchill and his honest comment about the "original intent" of the eligibility clause of the Constitution.

By adducing my 2014 comment that I posted here and putting it together with Tribe's clarification that Sen Cruz is not being consistent with his "original meaning" views that he espoused during his student days at Harvard, I am asking Sen. Cruz to return to the "original intent" of his Harvard Law student days when he defended his "original meaning" view, a view which I think was original birther John Jay's original genesis original intent reason for underlining the word "born" in "natural born Citizen" in his July 25, 1787 note to his good friend George Washington, a suggestion which was passed on to and was accepted by the framers without debate or disagreement, and was also accepted without disagreement by the states that ratified the September 17, 1787 Constitution, specifically Article II Section 1 clause 5: "No Person except a natural born Citizen...shall be eligible to the Office of President."

The "original meaning" of Harvard student Cruz was the original genesis original intent of John Jay, and it is simple to state and understand:

ONLY singular U.S. citizenship
ONLY birth on U.S. soil/jurisdiction
ONLY birth to two U.S. citizen married parents

Maybe honest man Winston Churchill can get the attention of honest man Rafael Edward "Ted" Cruz and inspire Cruz to admit that he has not been protecting the original intent of the Constitution as he defended it in Prof. Laurence Tribe's classroom at Harvard, a defense of original intent that Tribe said earned student Cruz an A in a class of 150, even though Cruz did not persuade and convince professor Tribe to agree with Cruz.

<<>>

WBUR - Boston's NPR news station – January 15, 2016:
>> http://www.wbur.org/2016/01/15/donald-trump-ted-cruz-laurence-tribe-citizenship

Questions About Citizenship Become A Major Irritant For Ted Cruz

[...snip...]

"Cruz says this is all settled law, but Harvard’s Laurence Tribe disagrees.

“It clearly is not settled law,” Tribe said in recent an interview.

"Tribe brings an interesting perspective to this story. He obviously knows a lot about the law, but he also knows a lot about Cruz — because back in the mid-1980s, Tribe taught constitutional law to Cruz.
“He was very colorful,” Tribe recalled. “He took me on all the time, always had his hand up, he always wanted to disagree. And he got an A, and there weren’t that many As in a class of 150 or so.”

ajtelles said...

2/

"The source of their disagreement was their differing views of the Constitution. Tribe is a liberal who regards the Constitution as a living document that should be interpreted according to changing times. “If I were a justice on the Supreme Court applying my approach, I would actually vote for Ted Cruz’s citizenship,” Tribe said. “[But] Ted Cruz has always made fun of that way of looking at the Constitution.”

"That’s because Tribe says Cruz is a constitutional “originalist,” who believes the document should be followed to the letter. Tribe says jurists who share such a view might well conclude that Cruz is not eligible to be president — because he was not born in America."

[...snip...]

“It was [Cruz’s] view that the Constitution was frozen in time,” Tribe said. “Well now he’s become a fair-weather originalist. [The Constitution] means what it always meant unless it hurts his ambitions — and that, I think, is the most important point in all this. It shows that he’s a constitutional hypocrite, that he’s self-serving, that he’s cynical, that he’s really unreliable. And it’s dangerous!”

Prof. Tribe's article that he wrote for the BostonGlobe.com on January 11 fills in the blanks to the above quotes from the January 15 WBUR interview.

The BostonGlobe.com – January 11, 2016:
>> https://www.bostonglobe.com/opinion/2016/01/11/through-ted-cruz-constitutional-looking-glass/zvKE6qpF31q2RsvPO9nGoK/story.html

Under Ted Cruz’s own logic, he’s ineligible for the White House

Opinion | By Laurence H. Tribe

"People are entitled to their own opinions about what the definition ought to be. But the kind of judge Cruz says he admires and would appoint to the Supreme Court is an “originalist,” one who claims to be bound by the narrowly historical meaning of the Constitution’s terms at the time of their adoption.

To his kind of judge, Cruz ironically wouldn’t be eligible, because the legal principles that prevailed in the 1780s and ’90s required that someone actually be born on US soil to be a “natural born” citizen.

Even having two US parents wouldn’t suffice. And having just an American mother, as Cruz did, would have been insufficient at a time that made patrilineal descent decisive."

[...snip...]

"On the other hand, the kind of judge I admire and Cruz abhors is a “living constitutionalist,” one who believes that the Constitution’s meaning evolves with the perceived needs of the time and longstanding practice. To that kind of judge, Cruz would be eligible to serve because it no longer makes sense to be bound by the narrow historical definition that would disqualify him.

"When Cruz was my constitutional law student at Harvard, he aced the course after making a big point of opposing my views in class — arguing stridently for sticking with the “original meaning” against the idea of a more elastic “living Constitution” whenever such ideas came up. I enjoyed jousting with him, but Ted never convinced me — nor did I convince him.

"At least he was consistent in those days. Now, he seems to be a fair weather originalist, abandoning that method’s narrow constraints when it suits his ambition."

<<>>

This is the comment that I posted here on May 13, 2014 at 10:56 AM, with some emendations here for clarity and topicality.

Dittos Leo and Robert...

As you wrote Robert -

>>If Rubio, Cruz and any other non eligible contenders had any true patriotism,
>> they would simply explain that,
>> while they are honored to be considered for the office of POTUS,
>> they can't because they are not eligible."

ajtelles said...

3/

As you wrote Leo -

>> Rubio and cruz should come out and say they are not eligible,
>> explain why they are not
>> and then say if a2 is amended
>> and allows a citizen of the us to be President
>> then they will run
>> but we know that will never happen."

~ ~ ~

This is what I wrote last year (2013) on my blog on the page titled "BIG Talkers and BIG Bloggers"
>> http://originalbirtherdocument7.blogspot.com/


>> “I decline the Office of POTUS
>> “to DEFEND the Office of POTUS”

>> “I am giving up pursuit of the Office of the President because I am a ‘Citizen’
>> “I have chosen to SAVE the Office of the President for a ‘natural born Citizen’”

~ ~ ~

[...]

>> “We the People” of America would definitely continue to listen to and act on the words of a “truth speaker” like Sen. Ted Cruz if he were to publicly acknowledge that the original genesis original intent of the original birthers, John Jay and George Washington and the original birther framers who wrote the words “natural born Citizen” in Article II Section 1 clause 5, are STILL relevant and important for OUR posterity also.

>> “We the People” of America would continue to listen to a “truth speaker” who would give up an office with such great honor and respect like the Office of the President for the purpose of protecting the Office of the President.

>> The whole WORLD would listen to a truth speaker whenever she or he would speak about anything because he or she would be known to speak ‘bold colors — not pale pastels’ — truth to ‘We the People’ in a way similar to President George Washington, President Abraham Lincoln, President Ronald Reagan, and the proof would be in the historical fact that they had given up something of great honor and respect in order to adhere to the original intent of the original birthers who knew who AND why ONLY a “natural born Citizen” is “... eligible to the Office of the President.”

- - - - - - - - - -

Who knows, Robert and Leo, maybe some GREAT day Sen. Cruz or Sen. Rubio or maybe even BOTH, will STAND Up and SPEAK Up and make an original intent speech and say something like this –

ORIGIANL GENESIS ORIGINAL INTENT COMMON SENSE

>> Yes, after studying the Original Words of the U.S. Constitution,
>> the Original Document of American President Soil and Birth eligibility;
>> after analyzing
>> the original intent
>> of the original words
>> of the original birthers
>> aka the original authors of
>> Article 2 Section 1 Clause 5;
>> after considering original intent
>> relevance to the authors of the words
>> natural born Citizen and "…or a Citizen"
>> I now understand that original intent means
>> I am definitely not a Clause 5 "…or a Citizen."
>> I am not a Clause 5 natural born Citizen by birth.
>> I am not Clause 5 eligible to be President of America.
>> I am not U.S. Soil Born to two U.S. citizen married parents.

>> ONLY U.S. Soil Born
>> ONLY two U.S. Citizen Parents

COMMON SENSE ORIGINAL GENESIS ORIGINAL INTENT

When will possible POTUS aspirants Sen. Cruz and Sen. Rubio and et alii stand for truth and the original genesis original intent of Article II Section 1 Clause 5?

It makes one wonder how the prophecy (see the "BIG Talkers and BIG Bloggers" url above) of the father Rafael Cruz will be fulfilled if his son Sen. Ted Cruz accepts and adheres to the original genesis original intent meaning of Article II Section1 Clause 5 and “natural born Citizen” as being a reference to ONLY singular U.S. citizenship, ONLY by being born on U.S. soil, ONLY birth to two U.S. citizen married parents?

Sometimes, it’s good to wonder.

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

Cox'n Don said...

Mario, please further explain the possibly contradicting ending of the first paragraph in your Jan 25th article, i.e. "Alienigenae of the United States, p. 22, note (2nd ed., Philadelphia, Dec. 1, 1853) ("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")."

Mario Apuzzo, Esq. said...

Cox'n Don,

Under the law of nations and American national common law which incorporated it in matters of national citizenship, birth in the country is sufficient to make a child born in the country to a citizen parent (meaning a citizen father which meant citizen parents under the doctrine of coverture) a citizen. This child is a “native,” or what the Framers called in Article II a “natural born citizen” of the United States.

Generally, under the colonial English common law, birth in the country is sufficient to make a child born in the country to an alien parent (meaning an alien father which meant alien parents under the doctrine of coverture) a citizen. This child is native-born, or what the Fourteenth Amendment calls a “citizen” of the United States. Wong Kim Ark held that this child, if 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, was born subject to the laws of the United States, and thus born subject to the jurisdiction of the United States, and therefore a “citizen” of the United States at the moment of birth, but only by virtue of the Fourteenth Amendment.

So, under Wong Kim Ark, both the child born in the country to citizen parents and the child born in the country to qualifying alien parents are “citizens” of the United States at birth. But only the former is a “natural born citizen” of the United States.

As we can see, there is no contradiction in the end of my first paragraph.

Robert Pilchman said...

Just to add to Cox'n Don, in your opinion does "alien" include from illegal immigrant(s)?

The majority opinion in U.S. Supreme Court (United States v. Wong Kim Ark, 169 U.S. 649 (1898)) stated “The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.” From https://supreme.justia.com/cases/federal/us/169/649/case.html However, in Wong Kim Ark the Court was dealing with legal residents – correct? And even in that case there was "MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE HARLAN dissenting." By the way, according to http://www.supremecourt.gov/about/members.aspx it seems to only list 8 justices at that Wong Kim Ark If that would be correct then the majority could only be a maximum of 6 justices – right?

Mario Apuzzo, Esq. said...

Under our current laws, an illegal alien or visitor to the United States does not have a "permanent domicil and residence in the United States."

William Lolli said...

I have a question, Mr. Apuzzo:

Say if a court of law determined that members of a sleeper-cell-terrorists of Islamic refugees or persons who migrated to the US under false information provided to the US government gave birth to children in the US. Would they be considered "military invaders"?

Say for example the San Bernadino couple that falsified information. Say it was proven that they entered under orders from a foreign power (ISIS) with the intent to execute political-Jihad. If they had had children, what would the chikdren's status be? -- More to the point -- in the modern age, what constitutes a military invader?

Just curious....

Mario Apuzzo, Esq. said...

William Lolli,

You ask an excellent question. As we know, today's wars are not fought as they used to be. Today's wars are also fought against us by groups who do not represent any internationally recognized nation with traditional national institutions. Hence, the definition of a "military invader" should reflect the type of "hidden" enemies we are facing today. It should be given a definition that is broad enough to capture the intent of someone entering our nation for the purpose of being a "military invader."

Robert Pilchman said...


Mr. Apuzzo:

Is it possible to simultaneously be a legal resident and military invader? Also in the case of San Bernadino wasn't one of the two born in Chicago?

RP
PS For NEWBIES looking for an introduction to “natural born Citizen”, I suggest http://www.teapartynation.com/profiles/blogs/natural-born-citizen-it-s-not-that-hard-to-figure-out , and my string of comments posted beginning at http://queenofliberty.com/2016/01/06/cruz-is-a-natural-born-citizen-brush-off-the-birthers/#comment-50944 (in which I started to address my cognitive dissonance (Note: I still marvel at how I could have simultaneously believed (and still believe) that Barack Hussein Obama II is ineligible for the presidency and yet supported CANADIAN born Ted Cruz for President. It was as if I had ignored any knowledge of that inconvenient fact until the other candidate I support, Donald Trump, caused me to focus on the subject.)) Although my comments often linked to comments posted on https://cdrkerchner.wordpress.com/ which were initially approved for display (and subsequently (on or around January 24, 2016) were censored by Commander Kerchner), I posted the main points in my 3 revised postings of January 25, 2016 commenting on Mario Apuzzo’s posting of "A Citizen is One Thing, But a Natural Born Citizen is Another" https://www.blogger.com/comment.g?blogID=7466841558189356289&postID=1610750494126026725 Finally, the comments of ajtelles that he posted here take it one step further - referring to the two legal philosophies of original intent and elastic living constitution and the inconsistency [cognitive dissonance (?)] of CANADIAN born Ted Cruz. Actually, I was thinking but I didn’t want to previously say it, perhaps CANADIAN born Ted Cruz believes – let’s put it this way – that he is more than the typical human being and thus equality before the law would not necessarily be applicable to him. However, apparently on or around January 26, 2016, it’s being reported that CANADIAN born Ted Cruz is suggesting that Donald Trump suffers from “Messiah Complex”; perhaps CANADIAN born Ted Cruz is projecting his own view about himself. It’s interesting that Donald Trump has recently been repeatedly suggesting that CANADIAN born Ted Cruz is nervous … It makes me suspect that besides “natural born Citizen” we need to consider the 25th Amendment. Wake up folks – this punctuates the need to follow the U.S. Constitution and the danger of electing a person with relatively little experience. Unfortunately, part of the reason that we are in this situation is because the system is apparently so systemically dysfunctional/corrupt that there is desperation/frustration to elect someone who will actually follow through on his/her campaign promises.

Robert Pilchman said...


"The aspirations of [Canadian born] 18-year old Ted Cruz" - https://youtu.be/vt-vG_TdOT4

Kanbun said...

Mario, Another great essay. Well done as always. I cannot believe what's going on with Cruz and Rubio. There's not been a single segment on any media to date, discussing the facts. These two are thought eligible because they both say they are. Not a peep from the media.

That being said, have you seen this?
http://www.usnews.com/opinion/articles/2016-01-27/ted-cruz-is-not-a-natural-born-citizen-according-to-the-constitution

I've seen some convoluted "analysis", but this is a first. Here are the highlights.

he 14th Amendment explicitly states precisely what was only implied in the original document – there are only two classes of citizenship, birthright citizens and naturalized citizens. The framers apparently didn't mean it when they said "natural" - they really meant "birthright".

naturalization as a term seems to have two very different meanings: (1) legislatively conferred citizenship either automatically or pursuant to some process, and (2) the more recent understanding, the process for acquiring citizenship where Congress has prescribed such a process. The Constitution appears to adopt the former reading on the issue of presidential eligibility, however much modern language usage employs the latter. So the framers didn't really mean "natural", the actually meant "legislatively".

Have you ever seen this logic before?

William St. George said...

I wondered about Churchill some years back but not knowing the various legislative acts thought he might have been an American citizen. This sort of does Cruz in, does it not? Churchill at least knew the US Constitution; can Cruz really be so ignorant?
It would be extremely interesting to see how he would respond. Would he claim Churchill was ignorant? But you have laid out the various laws. Thus if Cruz had been born in 1951 he would not have been naturalized at birth.

William St. George said...

“If I were a justice on the Supreme Court applying my approach, I would actually vote for Ted Cruz’s citizenship,” Tribe said. Now when Tribe goes to retire he will surely expect whatever contracts he has regarding that pension(s) to reflect his original intention. He would get quite angry if he were told that the contract were a flexible, living contract, and as a result he will receive only one half the amount he expects based on original intent. Let us hope he never becomes a Supreme Court Justice as he believes the Supreme Court has the power of amending the Constitution.
In the meantime he seems to be undermining contracts by allowing them to grow in unexpected ways. I believe the process of amending the Constitution was viewed as the proper and best way to allow for growth and not clever judges! I also take issue with his idea of meanings evolving. Very fishy and dangerous.

Mario Apuzzo, Esq. said...

William St. George,

You said: "Thus if Cruz had been born in 1951 he would not have been naturalized at birth." This statement is partly incorrect. First, it is correct that Cruz was naturalized at birth. Second, it is incorrect as to when he had to be born for him to be a citizen of the United States.

The law that applies in determining whether someone born outside of the U.S. is a citizen of the U.S. is very complex. It has continuously changed since the First Congress passed our nation's first naturalization Act, that of 1790. The law that was in effect when the child was born is the law that controls. Generally, the changes have focused on whether the child was born to one or two U.S. citizen parents, whether the citizen parent was the father or mother (the 1790, 1795, 1802, 1804 Acts required U.S. citizen parents and the 1855 Act referred to U.S. citizen fathers only), whether the citizen father resided in the United States (started as early as 1790), whether the child was born in wedlock or out of it (started in 1940), and whether the child came back to the U.S. and started to reside (started May 24, 1934) or later at least be physically present (started in 1952). Congress’s conditions for being accepted as a citizen of the U.S. at birth are called condition precedent or condition subsequent.

As stated, Congress's naturalization Acts did not permit a child born out of the U.S. prior to May 24, 1934 to a U.S. citizen mother and an alien father to acquire U.S. citizenship at birth. Starting on that date, children born out of the U.S. to U.S. citizen mothers and alien fathers, satisfying all conditions precedent and subsequent, were adopted under the naturalization Acts of Congress as citizens of the U.S. at birth and remained so. Hence, if Cruz was born on May 24, 1934 to a U.S. citizen mother and an alien father, satisfying all conditions precedent and subsequent, he would have been a citizen of the U.S. at birth and remained one. This is not to say that he was a natural born citizen, who needs no such naturalization Act of Congress to be recognized as a citizen of the U.S. at birth.

The 1934 Act imposed for the first time retention requirements (condition subsequent) if the parents were not both U.S. citizens. In such case, the child had to continuously reside in the U.S. for at least five years immediately before turning 18 years of age and take the oath of allegiance within six months after turning 21. The 1952 Act continued this retention requirement, although it changed it from residency to continuous physical presence. That Act required the child to be continuously physically present in the U.S. for at least five years between the ages of 14 and 28. Later statutes liberalized the retention requirement until it was totally removed by the more modern naturalization statutes. This meant that a child could be born a citizen of the U.S. but then lose that citizenship if he or she did not satisfy that subsequent residency or physical presence requirement.

Cruz says that he is a natural born citizen because he was born a citizen under the 1952 Act. Imagine if he did not move to the U.S. at age 4 as he did, thereby satisfying the retention residency requirement. In default thereof, he would have lost U.S. citizenship with which he was born in 1970. See Bellei v. Rogers, 401 U.S. 815 (1971). Now ask yourself how could a natural born citizen lose his or her citizenship by not residing in the U.S. for a certain period of his or her life? The question is pregnant with the answer. Congress simply does not have the power to take away a natural born citizen's citizenship in such a fashion. This alone proves that the U.S. through a naturalization Act of Congress adopted Cruz as a naturalized citizen of the U.S. at birth and that he is not a natural born citizen.


William St. George said...

Mario Apuzzo, Esq.
" It was only in 1934 that Congress allowed U.S. citizen mothers to be able to make such children citizens of the United States." You are right; I overlooked this. So I ought to have said 1933 instead of 1951. It looks like he might have had to "take the oath of allegiance within six months after turning 21", unless by 1970? or 1991? "[l]ater statutes liberalized the retention requirement until it was totally removed by the more modern naturalization statutes." It seems like citizenship has been diluted or weakened in modern times considerably. The days when the Stuart Gilbert portrait of George Washington was hung in public school rooms is gone.
Now if I have this right, three sorts of citizens are currently running for president: natural born,e.g. Donald Trump; native born,e.g.Marco Rubio and naturalized,e.g.Ted Cruz. Trump so far thinks native born is the same as natural born. Cruz can not deny that it was due to a naturalization Act of Congress that he is a US citizen. Surely that means he is a naturalized citizen which most? do seem to recognize as differing from a natural born citizen.

Mario Apuzzo, Esq. said...

William St. George,

A natural born citizen has one and only one definition. That definition was confirmed by the common law the nomenclature with which the Founders were familiar when they drafted and adopted the Constitution. That common law defined a natural born citizen as a child born in a country to parents who were its citizens at the time of the child's birth. That common law also provided that all the rest of the people who were not natural born citizens were "aliens or foreigners," who could be naturalized under some law. Minor v. Happersett (1875). This common law definition of a natural born citizen was incorporated into the Constitution by the Framers relying upon it to define an Article II natural born citizen.
Congress has as early as 1790 passed naturalization Acts naturalizing people who were not natural born citizens under the common law (either not born to U.S. citizen parents or not born in the United States or both). Congress adopted these persons as citizens of the United States, either at birth or after birth. If they were born out of the United States to U.S. citizen parents, they were adopted as citizens of the United States at birth. If they were born in or out of the United States to alien parents, they could naturalize after birth.

In 1868 Congress passed the Civil Rights Act of 1866 which provided in pertinent part that all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, were “citizens” of the United States. This statute increased the citizens of the United States only for free blacks whose ancestors had been slaves. These free blacks were born in the United States. Their ancestors had long lost allegiance to any foreign power. Hence, their children were born not subject to any foreign power. Their parents were not viewed as aliens. Their children born to them in the United States qualified to be citizens of the United States under the statute.

The Fourteenth Amendment was ratified in 1868. It provided that all persons born in the United States and “subject to the jurisdiction thereof” are “citizens” of the United States. U.S. v. Wong Kim Ark (1898) held that such persons are “citizens” of the United States from the moment of birth and included 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. As we can see, the Amendment caused expansion of U.S. citizenship to children born in the United States to alien parents. But these new citizens were not natural born citizens under the common law.

Donald Trump was born in the United States to U.S. citizen parents. He is therefore a natural born citizen under the common law. He is also a citizen of the United States under the Fourteenth Amendment, but he does not need that Amendment to establish that he is not only a citizen of the United States, but also a natural born citizen.

Marco Rubio, Bobby Jindal, and Nikki Haley are "native-born" citizens or what the Fourteenth Amendment per Wong Kim Ark calls "citizens" of the United States at birth. While these persons gain their citizenship by virtue of the Fourteenth Amendment, not being natural born citizens, they are naturalized at birth by force of the Amendment. Rubio, Jindal, and Haley need the Fourteenth Amendment to make them citizens of the United States, for under the common law and the earlier naturalization Acts of Congress, they would be aliens.

Ted Cruz is a "citizen" of the United States at birth, but only by virtue of a naturalization Act of Congress. He needs that naturalization Act of Congress to make him a citizen of the United States at birth because he is not a natural born citizen under the common law. If it were not for that Act, he would be an alien under the common law that defines a natural born citizen.

Robert Pilchman said...


I’m waiting for a response … (Email addresses redacted):

From: ROBERT PILCHMAN (…)
Sent: Thu 1/28/16 2:36 AM
To: …
Cc: …
Dear Professor Clinton:

Why does the Constitution say “natural born Citizen” instead of just “born Citizen”? Your article “Ted Cruz Isn't a 'Natural Born' Citizen” (http://www.usnews.com/opinion/articles/2016-01-27/ted-cruz-is-not-a-natural-born-citizen-according-to-the-constitution) seems to subtly answer – according to the “original understanding”- that there are two types of birth citizenship – birth citizenship via the U.S. Constitution and birth Citizenship via statute (other than the Constitution). However, your reasoning seems to critically deficient. Where does the Constitution (prior to the 14th Amendment) actually ‘prescribe’ citizenship (independent of statute)? It merely acknowledges the conceivable existence of a “natural born Citizen” without specifying the criteria to be a “natural born Citizen”. Moreover, even if according to the “original understanding” it would be necessary to be born in the United States to be a “natural born Citizen” that doesn’t mean everyone born in the United States (prior to the 14th Amendment) would be a “natural born Citizen” or else why would there be any need for the 14th Amendment? Furthermore, why would the word natural mean Constitutional? If anything wouldn’t the word natural allude to natural law as in not requiring human law – constitutional or otherwise – because it is so self-evident/obvious. To me the only scenario so obvious would be a person born in the U.S. when both parents are U.S. citizens.

Indeed, in Minor v. Happersett, 88 U.S. 21 Wall. 162 162 (1874), it states “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 ) Furthermore, 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).

Robert Pilchman said...

[EMAIL CON’T]
I also object to your message that someone born to “illegal immigrants” would necessarily be included in the 14th Amendment – let alone in the phrase “natural born Citizen”. The majority opinion in U.S. Supreme Court (United States v. Wong Kim Ark, 169 U.S. 649 (1898)) stated “The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.” From https://supreme.justia.com/cases/federal/us/169/649/case.html However, in Wong Kim Ark the COURT WAS DEALING WITH LEGAL RESIDENTS – correct? And even in that case there was "MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE HARLAN dissenting."

Finally, what was the rationale for the president (who also has the role of Commander and Chief) to be a “natural born Citizen”? Was it not as a safeguard to maximize our chances for a president to have sole allegiance to the United States and thus is a matter of security/safety? Isn’t it reasonable – especially once humanity became aware of the ability to split the atom – to insist on a person born in the United States to parents both of whom are U.S. citizens?

Sincerely,
Robert Pilchman

Robert Pilchman said...


With a reasonable amount of research and a sincere desire for the truth it should not be so difficult to determine the original meaning of “natural born Citizen”. However, WHY DO WE SEEM TO ASSUME THAT THE STANDARD FOR NATURAL BORN CITIZEN WOULD BE LOWER ACCORDING TO THE LIVING CONSTITUTION? Wikipedia states “In United States constitutional interpretation, the Living Constitution (or loose constructionism) is the claim that the Constitution has a dynamic meaning or that it has the properties of an animate being in the sense that it changes. The idea is associated with views that contemporaneous society should be taken into account when interpreting key constitutional phrases.” ( https://en.wikipedia.org/wiki/Living_Constitution ) First of all, given the grandfather clause and the natural born Citizen clause, an argument could be made that the trajectory of the Constitution was for a higher standard to be eligible for the unique position of the presidency (which includes the military role of Commander in Chief)! Moreover, as the SUPPLY of American Citizens INCREASE and as the dangers of modern warfare become GREATER in terms of (the NEED/DEMAND for) security/safety we should at least maintain the standard of the presidency and certainly not reduce it. According to (some of) the Court (who in the recent aftermath of the Civil War started to play around with what “natural born Citizen” may mean), I would argue that if the standard can be transformed (i.e. lowered) then why can’t it be restored (i.e. increased)!!! Furthermore, to be put bluntly, is there anyone alive today who can claim that following the original meaning of natural born Citizen (born in the United States when both parents are U.S. citizens) would create any significant danger of pretext for discrimination of the kind that still apparently existed in the immediate years following the Civil War? It’s also important to remember that judiciary tends to show extreme deference for the military and the Commander in Chief is by definition military - the military sphere is different than civilian sphere.

Mario Apuzzo, Esq. said...

Why should Winston Churchill not be a natural born citizen and Ted Cruz be a natural born citizen when they were both born in a foreign country to U.S. citizen mothers and non-U.S. citizen fathers? Are we to believe that the Framers expected the definition of a natural born citizen to change over time?

8 U.S. Code § 1401 was not around when the Framers wrote the Constitution in 1787. It therefore cannot possibly determine the definition of a natural born citizen. Furthermore, the statute is a naturalization Act of Congress passed by it under its naturalization powers. It therefore cannot possibly make anyone a natural born citizen. Finally, the plain and clear text of the Act demonstrates that it adopts persons to be "citizens" of the United States, not "natural born citizens" of the United States.

Children born out of the United States to U.S. citizen parents who are serving the U.S. national defense, like John McCain, are natural born citizens. Cruz’s parents were not both U.S. citizens and neither of them were in the military.

Saying that someone is a citizen from birth does not define a natural born citizen, for the expression is devoid of the birth circumstances which make one a citizen at birth. The definition of a natural born citizen needs birth circumstances. Those circumstances are birth in the United States to U.S. citizen parents.

Mario Apuzzo, Esq. said...

This is rich from WND: "However, Rafael [Ted Cruz's father] dodged the question of why Ted gave up his Canadian citizenship only in 2014. The elder Cruz renounced his own Canadian citizenship in 2005."
Read more at http://www.wnd.com/2016/01/father-ted-cruzs-success-depends-on-people-of-faith/#M8R5HF2Rclt51PEs.99

Ted Cruz told the world that he did not know he was a Canadian citizen until 2013 and that after learning of that he proceeded to renounce that Canadian citizenship. I wonder why Cruz’s father did not say that his son did not know that he was a Canadian citizen. Also, Rafael would have renounced his Canadian citizenship when he naturalized to become a citizen of the United States in 2005. Now just imagine, Cruz's father renounced his Canadian citizenship in 2005 when he became a U.S. citizen. Are we to believe that the father and son and the rest of the Cruz family did not discuss the father becoming a U.S. citizen, that in that process he renounced his Canadian citizenship, and that Ted was also a Canadian citizen? Can we just imagine the two of them never discussing that Ted was a Canadian citizen and whether there was any reason for Ted also to renounce his Canadian citizenship? With Ted surely knowing that his father renounced his Canadian citizenship when he became a U.S. citizen in 2005, why did Ted wait until 2014 to do so?

ajtelles said...

It's about time...

Mario,

It appears that Donald Trump is making it acceptable to discuss Sen. Cruz's POTUS eligibility with coherent discussion.

This is from BirtherReport.com and the BirtherReport YouTube channel:

Full Audio: Sheriff Joe Arpaio's Lead Obama ID Fraud Investigator Mike Zullo On Freedom Friday With Carl Gallups

>> http://www.birtherreport.com/2016/01/listen-live-sheriff-arpaios-lead-obama.html


Sheriff Arpaio Lead Obama Investigator Talks Article II Presidential Eligibility

Part 1:
>> https://www.youtube.com/watch?v=Q5vhbDluWiQ

Part 2:
>> https://www.youtube.com/watch?v=I5aXUipQzrM

It's about time for Zullo, and by implication Sheriff Joe Arpaio, to analyze "natural born Citizen" and not just a spurious birth certificate.

Zullo is coherent about John Jay, natural born citizen, Amendment Fourteen, and etc.

It's about time.

Art
StopIslamizationOfAmerica.blogspot.com

4zoltan said...

In Shank v. Dupont (1930), Justice Story wrote that Anne Shanks did not lose her citizenship by marriage to an alien.

"Neither did the marriage with Shanks produce that effect [lose of citizenship], because marriage with an alien, whether a friend or an enemy, produces no dissolution of the native allegiance of the wife. It may change her civil rights, but it does not effect her political rights or privileges. The general doctrine is that no persons can by any act of their own, without the consent of the government, put off their allegiance and become aliens. If it were otherwise, then a femme alien would by her marriage become, ipso facto, a citizen, and would be dowable of the estate of her husband, which are clearly contrary to law."

FYI - in a December 26th, 1941 address to a joint session of Congress, Sir Winston Churchill thanked the members for inviting him and added "By the way, I cannot help reflecting that if my father had been American and my mother British instead of the other way around, I might have got here on my own. In that case this would not have been the first time you would have heard my voice. In that case I should not have needed any invitation."

William St. George said...

Is there a Federal statute prohibiting a US Senator from being a dual citizen? It is surprising how little Ted seems to know.

Mario Apuzzo, Esq. said...

What Justice Story said is noted. But what he said is not confirmed by the historical and legal record which clearly shows that under the common law doctrine of coverture, which prevailed in the colonies and in the states thereafter, U.S. citizen wives upon marrying alien husbands become aliens themselves and they both produced children who could not be citizens of the United States unless the parents naturalized during their children's years of minority or unless the children turned adult naturalized on their own. There is a question whether the wives also had to leave the United States and reside in a foreign country in order for them to lose their U.S. citizenship. In any event, that is exactly what Churchill's U.S. citizen mother did. She married an alien husband (British) and moved to his foreign country, Great Britain, where she and her husband gave birth to Winston. Even if she had not lost her U.S. citizenship, the statutes then did not permit U.S citizen mothers to transmit their citizenship to their children born to them out of the United States.

With Ted Cruz, the naturalization Acts of Congress were different. First, his mother did not lose her U.S. citizenship when she married her Cuban husband. Second, the new laws allowed wives to transmit like their husband their U.S. citizenship to their children born to them out of the United States. Cruz's U.S. citizen mother also married an alien (Cuban who became a citizen of Canada) and moved to a foreign country (Canada) where they, a Cuban/Canadian father and a presumed U.S. citizen mother, gave birth to Ted. Winston Churchill, under the then-existing naturalization Act of Congress, was not a citizen of the United States. Needless to say, he was also not a natural born citizen under the common law. Ted Cruz is a naturalized citizen of the United States at birth through his U.S. citizen mother, but only by virtue of a naturalization Act of Congress. If it were not for that Act, he would have been an alien like Churchill. It does not matter that Cruz is a citizen of the United States at birth. He is still naturalized albeit at birth. (Jack Maskell did not get the memo.) He is not a natural born citizen under the common law.

Regarding what Winston Churchill said to Congress in 1941, the statement is not clear. Do you have any other information as to what he might have meant?

Mario Apuzzo, Esq. said...

William St. George,

The eligibility requirements to be a U.S. Senator are found in Article I, Section 3, Clause 3. Apart from the age and residency requirements, one must be a citizen of the United States for at least 9 years. Only requiring a "citizen" of the United States and with our nation unofficially tolerating dual citizenship, it probably is not a prohibition for a dual citizen to be elected Senator.

In any event, the voters of the State of Texas should have known that Cruz was a citizen of Canada at birth and remained one when he ran for the U.S. Senate.

Additionally, not until 2014 did Ted Cruz take any breaths while he was not a Canadian citizen as well as a citizen of the United States. A dual citizen is not eligible for many levels of security clearances. Someone should look into that aspect. Just what national security information was Ted Cruz privy to prior to renouncing his Canadian citizenship in 2014? Given his life-long Canadian citizenship, what national security information is he privy to today? Just think if someone in high places would have cared to ask these national security and security clearance questions about our de facto President Barack Obama?

Mario Apuzzo, Esq. said...

4zoltan,

Knowing that I maintain that the Framers obtained their definition of a natural born citizen from the law of nations and specifically from Emer de Vattel, you preferred this quote from Justice Story over his later quote which is more complete:

Neither did the marriage with Shanks produce that effect, because marriage with an alien, whether a friend or an enemy, produces no dissolution of the native allegiance of the wife. It may change her civil rights, but it does not effect her political rights or privileges. The general doctrine is that no persons can by any act of their own, without the consent of the government, put off their allegiance and become aliens. If it were otherwise, then a femme alien would by her marriage become, ipso facto, a citizen, and would be dowable of the estate of her husband, which are clearly contrary to law.

Shanks, at 246.

Later in the opinion, Justice Story explained how during the Revolution, wives followed the citizenship and allegiance election of their husbands. He also gave the legal basis for his statement, referring to the law of nations.

British femes covert residing here with their husbands at the time of our independence and adhering to our side until the close of the war have been always supposed to have become thereby American citizens and to have been absolved from their antecedent British allegiance. The incapacities of femes covert provided by the common law apply to their civil rights and are for their protection and interest. But they do not reach their political rights nor prevent their acquiring or losing a national character. Those political rights do not stand upon the mere doctrines of municipal law applicable to ordinary transactions, but stand upon the more general principles of the law of nations.

Shanks, at 248.

So, Justice Story referred to the law of nations for determining national character. Yes, indeed, as is proven by the historical and legal record and the very text of the Declaration of Independence and the Constitution, the law of nations and specifically Emer de Vattel had incalculable influence over the Founders and Framers in conceiving of the American Revolution and writing the Declaration of Independence and the U.S. Constitution. And it is also from Vattel that the Framers obtained their definition of a natural born citizen. See Emer de Vattel, The Law of Nations, Sec. 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.").

Mario Apuzzo, Esq. said...

Some argue that the term “natural born citizen” comes from the English concept of “natural-born subject,” which came from Calvin’s Case (1608). This statement is misleading. It can be interpreted to mean that the Founders and Framers got their definition of an Article II natural born citizen from an English natural-born subject as defined under the English common and statutory law. This is false.

The meaning of the clause “natural born citizen” does not come from the meaning of the English clause “natural-born subject.” Rather, the Framers got their meaning of a natural born citizen from Emer de Vattel, The Law of Nations, sec. 212 (1758) (1797).

On the other hand, the term “natural-born subject” probably helped the Framers with their nomenclature when providing the eligibility requirements for the President. Vattel’s English translations as of 1787 translated Vattel’s French words, "naturels, ou indigenes," into “natives, or indigenes.” Vattel also spoke of a “citizen” as being a member of a republic as opposed to a “subject” being a member of a monarchy. The Framers needed to define a native, who they provided was the only person who could be President if born after the adoption of the Constitution. Native could be interpreted as meaning just born in the country. Given their final decision to use “natural born citizen,” we can see that the Framers looked for a more technical word for the Constitution, a clause that would bring with it all the necessary and sufficient conditions to be met in order to have that status from birth. Given their English experience and the centuries of the English using “natural-born subject” in their common and statutory laws, it made perfect sense for the Framers in the Constitution to call their native a “natural born citizen.” But again, the Framers “natural born citizen” did not have the same meaning of an English natural-born subject, a meaning and use which conflated, confounded, confused, and blurred the lines between a true natural-born subject and a naturalized subject and which produced dual and conflicting allegiances at birth. Rather, it had a technical and precise meaning provided by the law of nations and as explained by Vattel in Section 212 of his The Law of Nations:

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

Vattel, The Law of Nations, sec. 212 (1758) (1797). This definition assured the Framers that their natural born citizen would be born with no conflicting allegiances at birth and with sole allegiance to the United States.

Barack Obama, Ted Cruz, Marco Rubio, Bobby Jindal, and Nikki Haley do not satisfy this one and only definition of a natural born citizen which the Framers adopted into the Constitution. None of them were born in the U.S. to a father and mother who were citizens of the U.S. at the time of their birth. Therefore, none of them are natural born citizens.

Robert Pilchman said...


According to the last time I checked http://www.cnn.com/election/primaries/states/ia , Cruz (who finished first) received 28% of the (Republican) Iowa caucus (51,047 votes) and Rubio (who finished third) received 23% of the (Republican) Iowa caucus (42,577) … In other words 51% voted for a candidate despite their clearly being apparently ineligible; it’s not like the essential biographical facts are being disputed … Furthermore, given the attention that Trump gave to natural born Citizen, it’s hard not to conclude that a majority of the citizenry of Iowa don’t really care about upholding the U.S. Constitution. I am disappointed that Trump only focused on Cruz and backed off Rubio (in terms of natural born Citizen); makes me wonder if Cruz’s argument in a debate regarding Trump’s mother’s place of birth, may have rattled Trump. It’s horrific. Attorney Apuzzo - how do you not get frustrated etc.?

leo derosia said...

I do not think it says much for the people who voted for cruz and rubio in iowa. It is galling to hear these 2 phonys lie about being nbcs and then talk about the Bible and Constitution. Rest assured there is a 1000% chance nikki Haley will say she is a nbc if she ever runs for cic

Robert Pilchman said...


DONALD TRUMP: PERHAPS YOU SHOULD RETAIN A DREAM TEAM OF ATTORNEYS (INCLUDING BUT NOT LIMITED TO MARIO APUZZO, LARRY KLAYMAN, AND ORLY TAITZ) TO LITIGATE THE ISSUE OF NATURAL BORN CITIZEN?

Mario Apuzzo, Esq. said...

Robert Pilchman,

Regardless of why Iowa voters voted for the other Republican candidates, we have to ask ourselves what do the Iowa voters who voted for Cruz and Rubio know about the definition of a natural born citizen?

Mario Apuzzo, Esq. said...

Leo,

Did you see Marco Rubio try to legitimize his constitutional eligibility by telling the whole world about how he was born in the United States to recent immigrants from Cuba and how the whole family overcame so many Herculean obstacles in such a difficult country as the United States of America?

William St. George said...

Since Cruz realizes that Congress can not modify the Constitution, he is compelled by logic to take a strange stand with respect to the 1934 Naturalization Act. If he accepts it at face value which would be the normal thing, then Congress is in fact according to his logic modifying the meaning of "natural born citizen". The alternative is to consider someone born under the same circumstances as himself but in 1930 as not a "natural born citizen" which would logically strengthen the idea that Congress could modify the Constitution! So Cruz is stuck with the idea that Congress can and has modified the Constitution which he & we know it can not do. I suppose he could view the 1934 legislation as an act of clarification, but then why call it a Naturalization Act? Cruz can not claim he is "natural born citizen" logically.


Marco Rubio has a different problem. He can refer to the 14th Amendment which makes no mention of natural born citizen; and documents from that time clearly indicate that "natural born citizen" was not a factor in the amendment. He may hope to ride in on Obama's credentials. But the uninformed may view Obama's mother as a positive factor, one which Rubio lacks.


Unfortunately if Trump pushes for a legal decision with Cruz, then that may not go into parentage sufficient and let Rubio off the hook. Someone needs to communicate to Trump exactly what the phrase means. Perhaps he knows and thinks the last step may be too much for the system to handle as that would invalidate Obama's presidency. What a mess when history is tossed in the dust bin.

In summary, for Cruz whether some are or aren't "natural born citizens" depends on the whim of Congress for at some future date Congress could repeal the 1934 legislation that made him a citizen at birth. For Rubio the lack of even one citizen parent puts him superficially in a position perhaps as weak or weaker than Cruz. In which case a court might use that to rule him ineligible without tampering with Obama's legitimacy. Oh, what a web . . .

Robert Pilchman said...


William St. George you wrote "Perhaps he knows and thinks the last step may be too much for the system to handle as that would invalidate Obama's presidency. What a mess when history is tossed in the dust bin." One additional consideration: If Barack Hussein Obama II would ultimately be found, by the judiciary, to be legally ineligible for the presidency prior to January 20, 2017, then who would assume the presidency? Joe Biden. And what would Joe Biden do? He would probably try to authorize (perhaps even retroactively) all (or as much as possible) of the legislation, judicial appointments, etc. and given the ‘crisis’, a lame duck Congress may yield. Thus, Donald Trump may want to wait (as long as possible) … By the way, could you imagine if a President Trump would hold such a trump card?

Mr. Apuzzo: Regarding T.J. McCann’s comment regarding justiciability ( https://libertyborn.wordpress.com/2016/01/24/cruz-lies-to-america/comment-page-1/#comment-89 ), any thoughts?

William St. George said...

Robert Pilchman--
I am not so sure the presidency would go to Biden. After all Obama's ineligible status was first in the race for presidency in 2008. I think the presidency would have to go to the Speaker of the House. However, here is what I think: I believe at the beginning Obama had a real birth certificate which declared Frank Davis as the father and a home birth in Honolulu. Nancy Pelosi and others knew that and decided to overlook his fantasy past. This way they took no real risk. Consider Rubio and Cruz. If either won and it turned out he was ineligible, then it would be a matter for the Electoral College. Or perhaps for a new race. Hard to say as we have no precedent.

Ray said...

I am interested in your thoughts regarding a note in the NYU School of Law Annual Survey of American Law, "Derivative Citizenship: Its History, Constitutional Foundation, and Constitutional Limitations", 63 N.Y.U. Ann. Surv. Am. L. 467 (2008), accessed at http://www.law.nyu.edu/sites/default/files/ecm_pro_064998.pdf

An idea expressed in the note is that derivative citizenship is within Congress's implied foreign affairs powers rather than within their plenary power of naturalization. McFarland calls the plenary power doctrine "a relic" preventing "the full expression of individual rights"

McFarland also states: "The argument that the Naturalization Clause includes foreign-born children who become citizens at birth requires an unreasonably broad interpretation of the term 'naturalization'"

I suspect Cruz may premise his case on some of the ideas in this note.

Ray said...

Cruz claims that since he did not go through a "proceeding" he is not a naturalized citizen, and therefor is a "natural born citizen". The Illinois Board of Elections agreed.

http://www.elections.state.il.us/Downloads/AboutTheBoard/PDF/02_01_16SOEBAgenda.pdf

Mario Apuzzo, Esq. said...

Ray,

Thank you. I will take a look and let you know what I think.

Mario Apuzzo, Esq. said...

Ray,

Cruz claims that since he did not go through a "proceeding" he is not a naturalized citizen, and therefor is a "natural born citizen". The Illinois Board of Elections agreed.
~~~~~

Real quick. That is the Jack Maskell baseless argument. The argument is nonsensical. The argument, among many defects, does not take into account that it is a naturalization statue which still determines what process someone has to go through, regardless of when the process has to take place. If not for that naturalization statute, the person being made a citizen would be an alien. So, regardless of whether that person is naturalized at birth or after birth, the person is still naturalized without which the person would be an alien. Decision makers will make up anything just to justify their political ends.

Robert Pilchman said...


"VIDEO: @DiamondAndSilk Discuss @SenTedCruz’s (Alleged) Campaign Misconduct" - http://conservatives4palin.com/2016/02/video-diamondandsilk-discuss-sentedcruzs-alleged-campaign-misconduct.html / https://www.youtube.com/watch?v=5-7Qj1vcljw

Chief said...

Again Mario, excellent dissertation.

Mick said...

"At birth" means "After birth". Nobody is naturalized in the birth canal or in the womb. They are naturalized when the baby exits the body of the mother (definition of birth). This mincing of words proves how criminal they are--- just as they always do-- try to change the meaning of words-- thus "natural born Citizen" is said to mean the same as "citizen at birth".

Definition of "naturalization" from INS 1952 (23), still in use to this day:

"The conferring of nationality after birth, by any means whatsoever". Thus when a child is born it can be conferred citizenship (at birth/ after birth) by statute (any means whatsoever).

Afroyim v. Rusk @ 266--- Wong Kim Ark was CONFERRED CITIZENSHIP by the 14th Amendment. (he was naturalized by the 14th Amendment-- nbCs do not need to be conferred citizenship, they are citizens by tacit consent):

"The Court first held that, within the terms of the Fourteenth Amendment, Wong Kim Ark was a citizen of the United States, and then pointed out that, though he might "renounce this citizenship, and become a citizen of . . . any other country," he had never done so. Id. at 704-705. The Court then held that Congress could not do anything to abridge or affect his citizenship conferred by the Fourteenth Amendment". Afroyim v. Rusk @266

That case was 15 years after INS 1952, and the court used the same term for naturalization as INS 1952(23).



Mario Apuzzo, Esq. said...

Thank you Chief.

Durus said...

Bryan A. Garner's memorandum...
http://www.theatlantic.com/politics/archive/2016/01/ted-cruz-eligibility-memo/424206/

Mario Apuzzo, Esq. said...

Durus,

Bryan A. Garner wrote this memorandum. Professor Garner tells us in his memorandum: "I’m a law professor, but I’ve also been editor in chief of Black’s Law Dictionary since 1994:

Well, we have this from Black's Law Dictionary, Eighth edition (1999): "Natural Born Citizenship Clause. The clause of the U.S. Constitution barring persons not born in the United States from the presidency."

I wish that Professor Garner would make up his mind.

Robert Pilchman said...


Mr. Apuzzo: You wrote “Cruz claims that since he did not go through a "proceeding" he is not a naturalized citizen, and therefor is a "natural born citizen". The Illinois Board of Elections agreed” and that “The argument is nonsensical”. Just to add support that this argument is wrong is that the decision of Minor v. Happersett, 88 U.S. 21 Wall. 162 162 (1874) and especially the decision of United States v. Wong Kim Ark, 169 U.S. 649 (1898) (to my recollection) did not suggest an argument. The key to this fallacy is understanding what natural means. It doesn’t only mean natural (i.e. obvious/self-evident) in the sense of not needing to go through any legal proceeding. Natural is derived from natural law which by definition implies absence of human law (constitutional law or otherwise) and thus if it is necessary to have a statute to inform us as to someone’s citizenship it is not obvious. I’m just curious – when (if at all) was the first statute stating that a person born in the United States when both parents are U.S. citizens is a U.S. citizen??? Even if there wouldn’t be such a statute, it should self-evident … Not so Rubio and even more so Cruz. Cruz only had one parent as a U.S. citizen and was born in Canada. Unfortunately, perception could be reality and these arguments amount to an attempt to desensitize the tragedy of being an accessory to violation of the U.S. constitution. Indeed, http://www.usnews.com/opinion/articles/2016-01-27/ted-cruz-is-not-a-natural-born-citizen-according-to-the-constitution - in which I still haven’t received a response to my email (previously quoted in redacted form) from the author – seems to be an attempt to at least effectively create doubt in the original meaning of natural born. Moreover, as I previously argued in this posting (January 29, 2016 at 1:35 AM) WHY DO WE SEEM TO ASSUME THAT THE STANDARD FOR NATURAL BORN CITIZEN WOULD BE LOWER ACCORDING TO THE LIVING CONSTITUTION … ? Are we saying that we don’t have contemporary security/safety concerns? Have we forgotten (are experiencing cognitive dissonance) regarding Sept 11th et al. Moreover, are we really concerned that adhering to natural born Citizen would be a concern for the pretext of the kind of discrimination that existed after the Civil War. The reason that this is even an issue is because the truth is subjected to the overwhelming ridicule / suppression / ignorance of the mass media / ‘educators’. To Trump’s credit he raised the issue regarding Barack Hussein Obama II and now avoids it (probably as a tactical move). The truth is that many (most?) really don’t apparently care much about the U.S. Constitution and only try to manipulate the law for instant gratification (btw https://www.facebook.com/sarahpalin/posts/10153929150093588). Also, I remember an education class in which we were shown an experiment in which one line was clearly bigger than another line; however, with sufficient (peer) pressure many of (I think it was a majority of) the respondents would give in and say the smaller line is the bigger line … - RP

Mario Apuzzo, Esq. said...

Robert Pilchman,

The Illinois Board of Elections and Jack Maskell, which is the source of their fabricated and revisionist definition of a natural born citizen, are both wrong.

Robert Pilchman said...


Mario --- God bless you for all your effort to uphold the U.S. Constitution (and maintain our security/safety); this is like a nightmare ... 'Woe unto them that call evil good, and good evil; that put darkness for light, and light for darkness; that put bitter for sweet, and sweet for bitter!' --- Thanks, Robert

Mario Apuzzo, Esq. said...

Under the Constitution, Ted Cruz is a naturalized "citizen" of the United States "at birth," but only by virtue of a naturalization Act of Congress (The Immigration and Naturalization Act of 1952). He is not under the Constitution an Article II "natural born citizen" "by birth" only by virtue of his birth circumstances. Being neither “a natural born Citizen, [n]or a Citizen of the United States, at the Time of the Adoption of this Constitution,” he is not eligible to the Office of President. Article II, Section 1, Clause 5.

Bill G said...

Mr. Apuzzo,

Your blog was very helpful to my recent objections to the statements of candidacy by Cruz and Rubio for the Illinois Primary. While the Board overruled the objections, they considered no evidence and appear to be wrong on the law. The matter received broad media coverage, raising voter awareness of the issue in all States. Mr. Trump at one point made note of it and he continues to beat the Canadian drum.

The faulty opinions ignore the founders' intent regarding allegiance, because it is at the root of why natural born is required. Those arguing about 'born citizens' and 'citizens at birth' are intentionally obfuscating the matter for political purposes. I agree with you that such acts are treasonous against the Constitution.

If either of these candidates get the nomination, we will be ready to file again in IL. Next time we'll do some fundraising and hire experienced election law counsel.

Thanks, Bill Graham

leo derosia said...

So someone like ted cruz became a citizen of the US only at birth because of the Immigration and Naturalization Act of 1952 and Illinois says he did not have to naturalize so he is a natural born citizen haha. I think trump would win a honest national election but I doubt the elite sobs will let that happen because the courts, msm and vote counting is controlled. Trump talks about cruz being born in canada but being the son of a ALIEN FATHER is even more important no matter where born. Cruz, barry and rubio should explain how they naturally inherited us citizenship from their alien fathers...I would like to know when bernie sanders father naturalized.

Mario Apuzzo, Esq. said...

Leo,

There are various types of scams. This one is a bold political one. Congress makes one a citizen “at birth” through a statute which undoubtedly is a naturalization Act and without which others in the past were aliens (ask Winston Churchill) and the Illinois Board of Elections makes the specious conclusion that since that person did not have to do anything after birth to be a citizen the person is not naturalized. Sophistry in its true sense can be good or bad. This one is bad.

Mario Apuzzo, Esq. said...

Mr. Graham,

I am happy to know that I was helpful to you in your effort to defend the Constitution. Your arguments are constitutionally sound and they should carry the day. Unfortunately, the question of what is an Article II natural born citizen is politicized because the subject candidates represent the major political parties and political operatives in all their forms refuse to take a stand which they see as a risk to their political, legal, and economic careers.

Robert Pilchman said...


Mr. Apuzzo: Is the agency decision of the Illinois Board of Elections reviewable in at least some judiciary? By the way, would I need to be registered as a Republican to file a complaint with my Board of Elections? Also although I believe both Ted Cruz and Marco Rubio are not natural born Citizens, based on the Supreme Court decisions of Minor and Wong, there is at least some case law possibly for Rubio. To be blunt: If the Democrats would nominate a communist and the Republicans would nominate Rubio, what would you recommend? Moreover, even if Hillary would be nominated, it seems that she may have endangered U.S. lives by violating laws relating to national security. --- RP

Mario Apuzzo, Esq. said...

Robert,

Decisions of administrative state agencies are normally reviewable by law courts. The rules of practice, statutes, case law, and the state constitution in Illinois would have to be reviewed as to the proper procedure to follow. Pay strict attention to all time deadlines which are usually short.

As to filing a complaint with your Board of Elections, I do not know what state you live in. In any event, you would have to check the laws of your state as to who is authorized to file such complaints.

I do not have any recommendation based on any candidate's politics.

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/

leo derosia said...

Bernies father came to us in 1921 so I would assume he naturalized years before bs was born in 1941. As we well know Bernie the man of the people has never said obama, cruz and rubio are ineligible. It is nice to know we have 535 silent cowards currently self serving in us congress....if you became a citizen because of a naturalization act how can you not be naturalized? Is water not wet now?

Robert Pilchman said...


Leo raises an interesting point – how do we know - when Bernie Sanders was born – whether or not his parents were citizens (https://en.wikipedia.org/wiki/Bernie_Sanders)? According to Wikipedia “Sanders was born in Brooklyn, to Dorothy (née Glassberg) and Eli Sanders. His father was born on September 19, 1904, in Słopnice, Poland,[20][21] to a Jewish family, and emigrated to the United States in 1921,[22] at the age of seventeen.[20][23] His mother was born in New York City, to Jewish immigrant parents from Poland and Russia,[24][25] on October 2, 1912.[26][27]” . Also at http://puzo1.blogspot.com/ it states “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.”

In terms of the (LACK OF THE) integrity of the election process, https://libertyborn.wordpress.com/2016/01/24/cruz-lies-to-america/comment-page-1/#comment-99 .

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)