What Do President Obama and Senator Cruz Have In Common? They Are Both Not Natural Born
Citizens
By Mario Apuzzo, Esq.
February 20, 2015
Article II, Section 1, Clause 5 provides:
“No person except a natural-born
citizen, or a citizen of the United States, at the time of the adoption of this
Constitution, shall be eligible to the office of President; neither shall any
person be eligible to that office, who shall not have attained to the age of
thirty-five years, and been fourteen years a resident within the United
States.”
This constitutional provision raises two
questions: who are the “citizens” of the
United States?; and who are the “natural born citizens” of the United
States? Let us examine these
questions.
Members of nations that are politically constituted as
republics are called citizens.
Citizens can be either citizens from the moment of
birth or after birth.
Persons who are citizens from the moment of birth are
automatically made so by either their birth circumstances alone or by some law
that grants them that birth status without which they would not be so
recognized. In the United States, the
former are the “natural born citizens” of the United States and the latter are
“citizens” of the United States “at birth.”
Those who are made citizens after birth are also made so by
circumstances or by some law without which they would also not be
citizens. In the United States, these
citizens are commonly called “naturalized” citizens of the United States,
meaning they did not acquire their citizenship automatically at the moment of
their birth, but rather after birth through circumstances (the original
citizens of the United States who acquired that status by adhering to the
American Revolution) or formal naturalization process.
Thomas Jefferson in The Declaration of Independence
wrote about “the Laws of Nature and of Nature’s God” entitling the American
people to “the separate but equal Station” “among the Powers of the Earth.” To understand why he would have used these
words which also leads us to an understanding of what a natural born citizen
is, consider this passage regarding what Aristotle, the Stoics, Christian
teaching, and modern thought said about natural law or natural right:
Aristotle
It is in accordance with the general character of
Aristotle’s philosophy that his teaching regarding natural right is much closer
to the ordinary understanding of justice than is Plato’s [see Aristotle]. In
his Rhetoric he speaks of “the law according to nature” as the
unchangeable law common to all men, but it is not entirely certain that he
takes that law to be more than something generally admitted and hence useful in
forensic rhetoric. At least two of his three examples of natural law do not
agree with what he himself regarded as naturally right (Rhetoric 1373b4-18).
In the Nicomachean Ethics (1134bl8-1135a5) he speaks not, indeed,
of natural law but of natural right. Natural right is that right which has
everywhere the same power and does not owe its validity to human enactment.
Aristotle does not give a single explicit example; but he seems to imply that
such things as helping fellow citizens who are victims of misfortune resulting
from the performance of a civic duty, and worshiping the gods by sacrifices,
belong to natural right. If this interpretation is correct, natural right is
that right which must be recognized by any political society if it is to last
and which for this reason is everywhere in force. Natural right thus understood
delineates the minimum conditions of political life, so much so that sound
positive right occupies a higher rank than natural right. Natural right in this
sense is indifferent to the difference among regimes, whereas positive right is
relative to the type of regime—positive right is democratic, oligarchic, etc.
(cf. Politics 1280a8-22). “Yet,” Aristotle concludes his
laconic statement on natural right, “one regime alone is by nature the best
everywhere.” This regime, “the most divine regime,” is a certain kind of
kingship, the only regime that does not require any positive right (Politics 1284a4-15;
1288al5-29). The flooring and the ceiling, the minimum condition and the
maximum possibility of political society, are natural and do not in any way
depend on (positive) law.
Stoicism
Natural law becomes a philosophic theme for the first
time in Stoicism. It there becomes the theme not primarily of moral or
political philosophy but of physics (the science of the universe). The natural
(or divine or eternal) law is identified with God, the highest god (fire,
ether, or air), or his reason, i.e., with the ordering principle that pervades
and thus governs the whole by molding eternal matter. Rational beings can know
that law and knowingly comply with it insofar as it applies to their conduct.
In this application natural law directs man toward his perfection, the
perfection of a rational and social animal; it is “the guide of life and the
teacher of the duties” (Cicero, On the Nature of the Gods I,
40); it is the dictate of reason regarding human life. Thus the virtuous life
as choice worthy for its own sake comes to be understood as compliance with
natural law—with a law, and hence as a life of obedience.
Inversely, the content of natural law is the whole of
virtue. The virtuous life as the Stoics understood it is, however, not
identical with the life of moral virtue (as distinguished from the life of
contemplation), for one of the four cardinal virtues is wisdom that is above
all theoretical wisdom; the virtuous man is the wise man or the philosopher.
One is tempted to say that the Stoics treat the study of philosophy as if it
were a moral virtue, i.e., as something which could be demanded from most men.
Justice, another of the four virtues, consists primarily in doing what is by
nature right. The foundation of right is man’s natural inclination to love his
fellow men, not merely his fellow citizens: there is a natural society
comprising all men (as well as all gods). The inclination toward the universal
society is perfectly compatible with the equally natural inclination toward
political society, which is of necessity a particular society. The unchangeable
and universally valid natural law—a part of which determines natural right,
i.e., that with which justice, in contradistinction to wisdom, courage, and
temperance, is concerned—is the ground of all positive law; positive laws
contradicting natural law are not valid.
It is sometimes asserted that the Stoics differ from
Plato and Aristotle by being egalitarians. Differing from Aristotle (but not
from Plato), they denied that there are slaves by nature; but this does not
prove that according to them all men are by nature equal in the decisive
respect, i.e., as regards the possibility of becoming wise or virtuous (Cicero, On
the Ends of the Good and Bad Things iv, 56). The peculiarity of the
Stoics, in contradistinction to Plato and Aristotle, that explains why the
Stoics were the first philosophers to assert unambiguously the existence of
natural law would seem to be the fact that they teach in a much less ambiguous
way than Plato, to say nothing of Aristotle, the existence of a divine
providence that supplies divine sanctions for the compliance or noncompliance
with the requirements of virtue. (Cf. Cicero, Laws II, 15-17; Republic III,
33-34.)
The Stoic natural law teaching is the basic stratum of
the natural law tradition. It affected Roman law to some extent. With important
modifications it became an ingredient of the Christian doctrine.
Christian teaching
The Christian natural law teaching reached its
theoretical perfection in the work of Thomas Aquinas [see Aquinas]. It
goes without saying that in the Christian version, Stoic corporealism
(“materialism”) is abandoned. While natural law retains its status as rational,
it is treated within the context of Christian (revealed) theology. The precise
context within which Thomas treats natural law is that of the principles of
human action; these principles are intrinsic (the virtues or vices) or
extrinsic; the extrinsic principle moving men toward the good is God, who
instructs men by law and assists them by his grace. Natural law is clearly
distinguished from the eternal law—God himself or the principle of his
governance of all creatures —on the one hand, and the divine law, i.e., the
positive law contained in the Bible, on the other. The eternal law is the
ground of the natural law, and natural law must be supplemented by the divine
law if man is to reach eternal felicity and if no evil is to remain unpunished.
All creatures participate in the eternal law insofar as they possess, by virtue
of divine providence, inclinations toward their proper acts and ends. Rational
beings participate in divine providence in a more excellent manner because they
can exercise some providence for themselves; they can know the ends toward
which they are by nature inclined as good and direct themselves toward them.
Man is by nature inclined toward a variety of ends which possess a natural
order; they ascend from self-preservation and procreation via life in society
toward knowledge of God. Natural law directs men’s action toward those ends by
commands and prohibitions.
Differently stated, as a rational being man is by
nature inclined toward acting according to reason; acting according to reason
is acting virtuously; natural law prescribes, therefore, the acts of virtue.
Man by nature possesses knowledge of the first principles of natural law, which
are universally valid or unchangeable. Owing to the contingent character of
human actions, however, those conclusions from the principles which are
somewhat remote possess neither the evidence nor the universality of the
principles themselves; this fact alone would require that natural law be
supplemented by human law. A human law that disagrees with natural law does not
have the force of law (Summa theologica I, 2, 90 ff.). All
moral precepts of the Old Testament (as distinguished from its ceremonial and
judicial precepts) can be reduced to the Decalogue; they belong to the natural
law. This is true in the strictest sense of the precepts of the Second Table of
the Decalogue, i.e., the seven commandments which order men’s relations among
themselves (Exodus 20.12-17). The precepts in question are intelligible as
self-evident even to the people and are at the same time valid without
exception; compliance with them does not require the habit of virtue (Summa
theologica I, 2, 100).
A sufficient sanction is supplied by divine punishment
for transgressions of the natural law, but it is not entirely clear whether
human reason can establish the fact of such punishment; Thomas surely rejects
the Gnostic assertion that God does not punish and the assertion of certain
Islamic Aristotelians that the only divine punishment is the loss of eternal
felicity. He does say that sin is considered by the theologians chiefly insofar
as it is an offense against God, whereas the moral philosophers consider sin
chiefly insofar as it is opposed to reason. These thoughts could lead to the
view of some later writers that natural law strictly understood is natural
reason itself, i.e., natural law does not command and forbid but only
“indicates”; natural law thus understood would be possible even if there were
no God (cf. Suárez, Tractatus de legibus ac de Deo legislatore n,
6, sec. 3; Grotius,De jure belli ac pads, Prolegomena, sec. 11;
Hobbes, Leviathan, chapter 15-end; Locke, Treatises of
Civil Government n, sec. 6; Leibniz, Théodicée, sec.
183).
Thomas treats natural right (as distinguished from
natural law) in his discussion of justice as a special virtue (Summa
theologica n, 2, 57). Therein he is confronted with the task of
reconciling with the Aristotelian teaching the Roman law distinction between ius
naturale and ius gentium, according to which natural
right deals only with things common to all animals (like procreation and the
raising of offspring), whereas the ius gentium is particularly
human. The Roman law distinction might seem to reflect early conventionalist
teaching (cf. Democritus, fr. 278). Thomas’ reconciliation apparently paved the
way for the conception of “the state of nature” as a status antedating human
society. (Cf. Suárez, Tractatus II, 18, sec. 4.)
The Thomistic natural law teaching, which is the
classic form of natural law teaching, was already contested in the Middle Ages
on various grounds. According to Duns Scotus, only the commandment to love
God—or, rather, the prohibition against hating God—belongs to natural law in the
strictest sense. According to Marsilius of Padua, natural right as Aristotle
meant it is that part of positive right which is recognized and observed
everywhere (divine worship, honoring of parents, raising of offspring, etc.);
it can only metaphorically be called natural right [See Marsilius of Padua].
The dictates of right reason regarding the things to be done (i.e., natural law
in the Thomistic sense), on the other hand, are not as such universally valid
because they are not universally known and observed.
Modern developments
Natural law acquired its greatest visible power in
modern times: in both the American and the French revolutions, solemn state
papers appealed to natural law. The change in effectiveness was connected with
a substantive change; modern natural law differs essentially from premodern
natural law. Premodern natural law continued to be powerful; but it was adapted
to modern natural law, with varying degrees of awareness of what was involved
in that adaptation. The most striking characteristics of modern natural law are
these: (1) Natural law is treated independently, i.e., no longer in the context
of theology or of positive law. Special chairs for natural law were established
in some Protestant countries; treatises on natural law took on the form of
codes of natural law. The independent treatment of natural law was made
possible by the belief that natural law can be treated “geometrically,” i.e.,
that the conclusions possess the same certainty as the principles. (2) Natural
law became more and more natural public law; Hobbes’s doctrine of sovereignty,
Locke’s doctrine of “no taxation without representation,” and Rousseau’s
doctrine of the general will are not simply political but legal doctrines. They
belong to natural public law; they do not declare what the best political order
is, which by its nature is not realizable except under very favorable
conditions, but they state the conditions of legitimacy which obtain regardless
of place and time. (3) Natural law by itself is supposed to be at home in the
state of nature, i.e., a state antedating civil society. (4) In the modern
development “natural law” is replaced by “the rights of man”; the emphasis
shifts from man’s duties to his rights. (5) Whereas premodern natural law was
on the whole “conservative,” modern natural law is essentially “revolutionary.”
The radical difference between modern and premodern natural law appears most
clearly if one studies the still remembered great modern natural law teachers
rather than the university professors who as a rule rest satisfied with
compromises.
The principles informing modern natural law were
established by two thinkers who were not themselves natural law teachers,
Machiavelli and Descartes. According to Machiavelli, the traditional political
doctrines take their bearings by how men should live and thus culminate in the
description of imaginary commonwealths (“Utopias”), which are useless in
practice; one ought to start from how men do live. Descartes begins his
revolution with the universal doubt, which leads to the discovery of the Ego
and its “ideas” as the absolute basis of knowledge and to a
mathematical-mechanical account of the universe as a mere object of man’s
knowledge and exploitation.
Modern natural law as originated by Hobbes did not
start, as traditional natural law did, from the hierarchic order of man’s
natural ends, but rather from the lowest of those ends (self-preservation) that
could be thought to be more effective than the higher ends [See Hobbes]. (A
civil society ultimately based on nothing but the right of self preservation
would not be Utopian.) Man is still asserted to be the rational animal, but his
natural sociality is denied. Man is not by nature ordered toward society, but
he orders himself toward it prompted by mere calculation. This view in itself
is very old, but now it is animated by the concern for a natural-right basis of
civil society. The desire for self-preservation has the character of a passion
rather than of a natural inclination; the fact that it is the most powerful
passion makes it the sufficient basis of all rights and duties. Natural law,
which dictates men’s duties, is derived from the natural right of
self-preservation. The right is absolute, while all duties are conditional.
Since men are equal with regard to the desire for self-preservation as well as
with regard to the power of killing others, all men are by nature equal. There
is no natural hierarchy of men, so that the sovereign to whom all must submit
for the sake of peace and ultimately of the self-preservation of each is
understood as a “person,” i.e., as the representative or agent, of each; the
primacy of the individual—of any individual—and of his natural right remain
intact (cf. Leviathan, chapter 21).
The doctrine of Locke may be described as the peak of
modern natural law [See Locke]. At first
glance it appears to be a compromise between the traditional and the Hobbesian
doctrines. Agreeing with Hobbes, Locke denies that the natural law is imprinted
in the minds of men, that it can be known from the consent of mankind, and that
it can be known from men’s natural inclination. His deduction of natural law is
generally admitted to be confusing—not to say confused—which does not prove,
however, that Locke himself was confused. It seems to be safest to understand
his doctrine as a profound modification of the Hobbesian doctrine.
It is certain that, unlike Hobbes, Locke sees the
crucially important consequence of the natural right of self-preservation in
the natural right of property, i.e., of acquiring property, a natural right
that within civil society becomes the natural right of unlimited acquisition.
Property is rightfully acquired primarily by labor; in civil society, however,
labor ceases to be the title to property while remaining the source of all
value. Locke’s natural law doctrine is the original form of capitalist theory.
Rousseau too starts from the Hobbesian premise [See
Rousseau].
Hobbes asserted that the natural right to judge the means of self-preservation
is the necessary consequence of the right of self-preservation itself and
belongs, as does the fundamental right, equally to all men, wise or foolish.
But Rousseau demands that the natural right to judge the means of
self-preservation be preserved as an institution within civil society. Every
person subject to the laws must as a natural right have a say in the making of
the laws by being a member of the sovereign, i.e., of the legislative assembly.
The corrective to folly is to be found above all in the character of the laws
in general, both in origin and in content: all subject to the laws determine
what all must or may not do. The justice or rationality of the laws is thereby
guaranteed in the only way compatible with the freedom and equality of all. In
the society established in accordance with natural right, there is no longer a
need or a possibility of appealing from positive law to natural right, because
the members or rulers of that society are not supposed to be just men.
Rousseau further differed from Hobbes by realizing
that if man is by nature asocial, he is by nature arational; questioning the
traditional view that man is the rational animal, he found the peculiarity of
man in his perfectibility or, more generally stated, his malleability. This led
to the conclusions that the human race is what we wish to make it and that
human nature cannot supply us with guidance as to how man and human society
ought to be.
Kant drew the decisive conclusion from Rousseau’s
epoch-making innovations: the Ought cannot be derived from the Is, from human
nature; the moral law is neither a natural law nor a derivative of natural law
[See Kant].
The criterion of the moral law is its form alone, the form of rationality,
i.e., the form of universality.
At about the same time that Kant, sympathizing with
the French Revolution, radicalized the most radical form of modern natural
right and thus transformed natural right and natural law into a law and a right
which are rational but no longer natural, Burke, opposing the French Revolution
and its theoretical basis, which is a certain version of modern natural right,
returned to premodern natural law [See Burke]. In doing
so, he made thematic the conservatism which was implicit to some extent in
premodern natural law. Therewith he profoundly modified the premodern teaching
and prepared decisively the transition from the natural “rights of man” to the
prescriptive “rights of Englishmen,” from natural law to “the historical
school.”
Leo Strauss, "Natural Law." International
Encyclopedia of the Social Sciences. 1968. Encyclopedia.com. 20
Feb. 2015, at http://www.encyclopedia.com/topic/natural_law.aspx
.
In this explanation we can see the power, whether real or imagined, ascribed
to natural law as the common law of all men, as the source for providing the minimum
and maximum human conditions, in contradistinction to positive law which was established
by societies in order to satisfy their own particular needs that may pertain
only to that society. We can see how natural law evolved into that philosophy
to be adopted by man to guarantee his or her “natural right of
self-preservation.”
With these principles of natural law in mind, let us now
examine what birth circumstances make one a natural born citizen. In other words, under natural law what means
or mechanism makes one a natural born citizen?
The long-time settled definition of a natural born citizen, based on
common or universal consent of nations, is a child born in a country to parents
who were its citizens at the time of the child’s birth. Emer de Vattel, The Law of Nations, Section
211 to 217 (1758) (1797). Vattel
explains that the law of nations is the law of nature applied to the affairs of
nations. Under that law of nations, he defines
the “citizens” as “the
members of the civil society; bound to this society by certain duties, and
subject to its authority, they equally participate in its advantages.” Section 212.
He also explains that the virtue of love of
country, which is necessary for the preservation, survival, and perpetuation of
that country, is naturally given to our “native country” by its “natives, or
natural-born citizens, [who] are those born in the country of parents who are
citizens.” Section 211 to 212. (In Section 122, he also explains the duty
that one has to defend one’s adopted country “with his utmost efforts.”)
America had recently fought an independence war with
Great Britain, which divided the loyalties of its own people. So, the Framers knew firsthand how critical
undivided loyalty and allegiance were to the future survival of their cause for
liberty and the preservation of the new republic. The Framers commanded that Presidents and
Commanders of the Military born after the adoption of the Constitution be
natural born citizens to assure that they would be born with those
circumstances which would best assure that they would develop the virtue of
love of country and thereby be free of monarchical and foreign influence in whatever
form it may present itself. The
historical record demonstrates that, with the Office of President being a
singular and all-powerful office both civilly and militarily, the Framers took
extra measures to keep monarchical and foreign influence out of the Office of
President. Rather than relying upon
Congress to elect the President, they gave that power to the Electoral
College. Unlike allowing “citizens” to
serve in Congress, they required future Presidents to be “natural born
citizens.” They looked to the natural
born citizen clause to assure that the President would in the future protect
and preserve the constitutional Republic which they had built. They sought to achieve this end by requiring
that those future Presidents and Commanders be born with unity of citizenship
and allegiance to the United States.
They looked upon the natural born citizen clause as a means to
accomplish their end.
Regardless of whether or not their value judgment is
correct or how the modern world thinks about natural law, the Founding
generation incorporated the universally binding natural law and law of nations
definition of a natural born citizen into American common law and the Framers relied
upon that common law when they drafted and adopted the Constitution. Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (“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”); U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898) (cited and quoted
Minor’s definition of a natural born citizen and its source as coming from the
common law and held that a child born in the United States to alien parents,
who were neither foreign ambassadors nor military invaders, was under
principles laid down by colonial English common law born subject to the
jurisdiction of the United States and therefore a “citizen” of the United
States by virtue of the Fourteenth Amendment [not to be confused with an
Article II natural born citizen]). As we
can see from this definition, a natural born citizen is a citizen from the
moment of birth by virtue of his or her birth (a citizen “by birth”) and
nothing more, by the force of being born in the country of which both of his or
her parents were member citizens at the time of his or her birth. A natural born citizen needs no law in order
to gain that status at birth, for he or she gains that birth status strictly by
the circumstances of his or her birth, just like a natural or biological child of
certain parents gains that status simply by being born to those parents as
opposed to an adopted child of certain parents who gains that status by being
adopted by those parents by the grace of a particular law. As applied to the United States, a 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. Having been incorporated into
the Constitution, this definition of a natural born citizen is the law of the
land until amended by constitutional amendment or re-interpreted by a U.S.
Supreme Court decision.
A simpler way to look at the meaning of an Article II natural born citizen is to consider that under the law of nations, only a child who was born in a country to parents who were citizens of that country were "true" natural born citizens. This law of nations definition was incorporated into American common law.
All other citizens who may be so made "at birth" under the positive laws of a nation may be citizens "at birth," and even considered by some as natural born citizens, but they are not "true" natural born citizens. In this connection, consider the Naturalization Act of 1790 which said that children born out of the United States to U.S. citizen parents "shall be considered as natural born citizens," which the Naturalization Act of 1795 changed to "shall be considered as citizens of the United States." Notice how the First Congress said that those citizens "at birth" shall be considered as natural born citizens, but since they were not true natural born citizens, the Third Congress said that they shall be considered only as citizens of the United States. Consider further that with the Naturalization Act of 1802, as interpreted, Congress treated those same children (born out of the United States to U.S. citizen parents who in 1790 were considered as natural born citizens and in 1795 were considered as citizens of the United States “at birth”) as aliens and in need of naturalization after birth. Surely, if those same children were true natural born citizens, neither Congress nor those who interpreted its naturalization act would have conclude that they were aliens.
In this same connection, today the Fourteenth Amendment and naturalization Acts of Congress make children born in the United States and subject to the jurisdiction thereof “citizens” of the United States “at birth.” Other naturalization Acts of Congress make children born out of the United States to U.S. citizen parents also “citizens” of the United States “at birth.” Of these children, those who do not meet the original common law definition of a true natural born citizen, are “citizens” of the United States “at birth.” Some consider them to be natural born citizens, like the British, under colonial English common law and statutes, considered all children born as or made “subjects,” “natural-born subjects.” But they are not true natural born citizens under the more demanding and strict American common law and hence constitutional requirement.
Since the Framers used the original American common law definition of a natural born citizen which came from the law of nations, which definition became incorporated into the Constitution as part of the supreme law of the land, only a "true" natural born citizen may be President and Commander in Chief of the Military. And that true natural born citizen is only that child who is born or reputed born in the United States to parents who were both U.S. citizens at the time of the child's birth.
A simpler way to look at the meaning of an Article II natural born citizen is to consider that under the law of nations, only a child who was born in a country to parents who were citizens of that country were "true" natural born citizens. This law of nations definition was incorporated into American common law.
All other citizens who may be so made "at birth" under the positive laws of a nation may be citizens "at birth," and even considered by some as natural born citizens, but they are not "true" natural born citizens. In this connection, consider the Naturalization Act of 1790 which said that children born out of the United States to U.S. citizen parents "shall be considered as natural born citizens," which the Naturalization Act of 1795 changed to "shall be considered as citizens of the United States." Notice how the First Congress said that those citizens "at birth" shall be considered as natural born citizens, but since they were not true natural born citizens, the Third Congress said that they shall be considered only as citizens of the United States. Consider further that with the Naturalization Act of 1802, as interpreted, Congress treated those same children (born out of the United States to U.S. citizen parents who in 1790 were considered as natural born citizens and in 1795 were considered as citizens of the United States “at birth”) as aliens and in need of naturalization after birth. Surely, if those same children were true natural born citizens, neither Congress nor those who interpreted its naturalization act would have conclude that they were aliens.
In this same connection, today the Fourteenth Amendment and naturalization Acts of Congress make children born in the United States and subject to the jurisdiction thereof “citizens” of the United States “at birth.” Other naturalization Acts of Congress make children born out of the United States to U.S. citizen parents also “citizens” of the United States “at birth.” Of these children, those who do not meet the original common law definition of a true natural born citizen, are “citizens” of the United States “at birth.” Some consider them to be natural born citizens, like the British, under colonial English common law and statutes, considered all children born as or made “subjects,” “natural-born subjects.” But they are not true natural born citizens under the more demanding and strict American common law and hence constitutional requirement.
Since the Framers used the original American common law definition of a natural born citizen which came from the law of nations, which definition became incorporated into the Constitution as part of the supreme law of the land, only a "true" natural born citizen may be President and Commander in Chief of the Military. And that true natural born citizen is only that child who is born or reputed born in the United States to parents who were both U.S. citizens at the time of the child's birth.
Senator Ted Cruz was not born in the country of which
both his parents were citizens at the time of his birth. He was born in Canada to a U.S. citizen
mother and a non-U.S. citizen (Cuban) father.
He cannot be a natural born citizen of the United States because he was
not born in the United States and also because he was born to a non-U.S. citizen
father. Rather, Senator Cruz’s birth
circumstances qualify him under Canadian law to be a citizen at birth of Canada
and under a naturalization Act of Congress as a “citizen” of the United States
“at birth.” He may also qualify as a
citizen at birth under Cuban law through birth to a Cuban citizen. These laws are positive internal or municipal
laws of these nations and not universally binding upon nations as the natural
law of nations. Under 8 U.S.C. 1401(g), a naturalization Act of Congress, Senator
Ted Cruz is a “citizen” of the United States “at birth.” He is made a citizen at birth not only by his
birth circumstances, but rather because this naturalization Act of Congress
makes him a citizen of the United States at birth. Hence, he is a citizen only because Congress
allows him to be one through one of its naturalization Acts, which
it can change at any time it pleases. (In
the past, and specifically under the Naturalization Act of 1802, as
interpreted, Congress has even denied altogether the status of a citizen of the
United States to children born out of the United States to U.S. citizen
parents.) Additionally, the Constitution
gives to Congress in matters of citizenship only the power to naturalize which
does not include the power to make anyone a natural born citizen. Congress has recognized this limitation on
its power and therefor in its statutes calls persons it is naturalizing from the
moment of birth only “citizens” of the United States “at birth” and not natural
born citizens of the United States. Consider that the First Congress in the
Naturalization Act of 1790 said that children born out of the United States to
U.S. citizen parents “shall be considered as natural born citizens” which the
Third Congress changed in the Naturalization Act of 1795 to “shall be
considered as citizens of the United States.”
Hence, at best under the very text of the statute, Senator Cruz is a “citizen”
of the United States “at birth,” not a natural born citizen of the United
States.
Senator Ted Cruz is a “citizen” of the United States
“at birth” by virtue of his birth circumstances and a naturalization act of
Congress (a positive law), not by virtue of his birth circumstances alone. At best, he is also a “citizen” of the United
States “at birth” by the very text of the statute. He is a “citizen” at birth of the United
States, Canada, and maybe Cuba also. But
he is not an Article II natural born citizen which could not under U.S. law
possibly allow one to be simultaneously a citizen at birth of other
nations. Renouncing his birthright
Canadian citizenship as he has recently done does not nor can it retroactively
change the birth circumstances with which he was born.
Similarly, de facto President Barack Obama, was not
born in the country of which both his parents were citizens at the time of his
birth. He was presumably born in the
United States to a U.S. citizen mother, but to a non-U.S. citizen father (his
father was a Citizen of the United Kingdom and Colonies (CUKC) under the British
Nationality Act 1948 which converted to a citizen of Kenya upon Kenya’s
independence from Great Britain in 1963).
Not being born to a U.S. citizen father, he does not satisfy the common
law definition of a natural born citizen.
He is, however, presumably a “citizen” of the United States “at birth,”
by virtue of his birth circumstances, and the Fourteenth Amendment or 8 U.S.C.
Section 1401(a) (laws which provide that “[a]ll persons born . . . in the
United States and subject to the jurisdiction thereof, are citizens of the
United States. . . ”), not by virtue of his birth circumstances alone or some
law that constitutionally declares textually that he is a natural born citizen. He is therefore also not an Article II
natural born citizen.
So,
what do Mr. Obama and Mr. Cruz have in common?
They are both not born with unity of citizenship and allegiance to the
United States and therefore not Article II natural born citizens. Being neither a “natural born Citizen, [n]or a “Citizen of
the United States, at the time of the Adoption of this Constitution,” neither Obama
nor Cruz are constitutionally eligible under Article II to be President and
Commander in Chief of the Military.
To review my examination of the
numerous historical and legal sources that support my position on the meaning
of a natural born citizen, see the many articles and comments that I have
published at my blog, www.puzo1.blogspot.com
.
Mario Apuzzo, Esq.
February 20, 2015
http://puzo1.blogspot.com
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Mario Apuzzo, Esq.
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