A Response to the Idea of Removing the Natural Born Citizen Clause From Our Constitution

A Response to the Idea of Removing the Natural Born Citizen Clause From Our Constitution

By Mario Apuzzo, Esq.

May 17, 2018

University of Richmond School of Law Professor Kevin C. Walsh proposes ridding our Constitution of its “natural born Citizen” clause.  See his article, “The ‘Irish Born’ One American Citizenship Amendment,” here https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3165238 . Professor Walsh writes that the original Constitution is not perfect and it is time to change its actual text.  In that connection, he advocates that naturalized American citizens should be eligible to be President.  He states: “There are not two classes of American citizenship, just one. It is time to repeal the Natural Born Citizen Clause.”  People have posted comments to his article and  Professor Walsh addresses them here

https://reason.com/volokh/2018/05/17/replies-to-comments-on-a-constitutional and here http://beforeitsnews.com/libertarian/2018/05/replies-to-comments-on-a-constitutional-amendment-to-repeal-the-natural-born-citizen-clause-2712011.html .  I have picked two of the questions and Professor Walsh’s responses for my own comment.  They are: 

1.  Question:  If very few people care much about this amendment, why would anyone sponsor it?

Professor Walsh’s response:  Putting aside the fact that it is good for America generally, uses include: (1) deflection of false “anti-immigrant” accusations based on a lawmaker’s stance against illegal immigration; (2) attraction of votes from naturalized citizens and their friends; (3) rejection of “blood and soil” nationalism.

My comment:  We are supposed to believe without any explanation that this amendment would be “good for America generally.”  To avoid “’anti-immigrant’ accusations,” we are told we need to change our presidential eligibility by getting rid of the natural born citizen clause, a clause that the Framers included in the Constitution for national security’s sake.  We are also told to change our presidential eligibility so that some unstated person or party can garner more votes at the polls.  And the best of all, Professor Walsh tells us that removing the natural born citizen clause will get rid of “’blood and soil’ nationalism” from American politics.  In his actual article, he calls it “’blood and soil’ white nationalism.”  In that article he also says that politicians should be amendable to advocating getting rid of the natural born citizen clause to give the appearance of not being anti-immigrant(“easy inoculation against the virulent accusation of being anti-immigrant”) and not being associated with people who advocate such a bad idea.  His plan for getting the amendment accomplished is for Democrats to set up Republicans to do the job for them.  His scheme is for two-thirds of both Houses of Congress to propose the amendment, led by Republicans who for the sake of winning elections should want to give voters the appearance that they are not anti-immigrant or racists and supported by Democrats who are already on board.  It looks like in Professor Walsh’s world, there should be no problem with “Russian collusion.”  Did it ever occur to Professor Walsh that blood and soil is what makes a nation state and that it is the energy which when used properly keeps people free?   

2.  Question:  What about competing loyalties to country of birth for a candidate who is a naturalized citizen?

Professor Walsh’s response: Let’s remember we’re only talking about eligibility. Presumably voters can decide about allegiance. And there’s no good reason to treat circumstances of birth as a reliable proxy. (The Manchurian Candidate was born in the United States.) With respect to competing loyalties more generally, the naturalization process requires a choice and newly naturalized Americans are akin to converts.

My comment:  What Professor Walsh does not address is the question of whether it is voters or parties who produce our elected leaders.  He should examine why the Framers guaranteed the States a republican form of government and gave us the Electoral College as part of the process for electing our President and Commander in Chief.  If voters without more can in the heat and partisanship of an election be trusted to make the right decision about who shall be the single person to wield not only the executive power, but also all our military power, then why even have a Constitution or even laws?  Will Professor Walsh next be advocating getting rid of our republican form of government and replace it with mob rule?  He states that citizenship is no guarantee of allegiance.  If the natural born citizen clause is to die because it is not a guarantee of loyalty, then why have the age and residency eligibility requirements or any requirements for that matter?  Finally, he tells us that a naturalized person is as loyal as a natural born citizen because naturalization requires “a choice.”  What he fails to tell us is what exactly is that choice and how does it relate to allegiance to the United States. 

Needless to say, I am not impressed with the reasons that Professor Walsh puts forth for justifying his proposal to remove the natural born citizen clause from presidential eligibility and ultimately from the Constitution. The Framers inserted the clause into the Constitution to assure that the constitutional republic would be preserved by requiring that the nation be led in international relations and military combat by a person who had undivided allegiance and loyalty to the United States. For those reasons, the clause is worth preserving.      

While I am at it, I might as well again state what my position is on the meaning of an Article II natural born citizen.  My years of research and litigation in the courts have led me to the conclusion that the definition of a natural born citizen comes from natural law and that under that law, which was codified into the law of nations, a natural born citizen is a child who becomes a member of society (“citizen”) at birth by virtue of his or her birth circumstances alone and therefore needs no positive law to make or deem him or her a citizen.  American common law at the time of the framing of the Constitution reflected this natural law and law of nations understanding.  See Emer de Vattel, The Law of Nations, Section 212 (1758) (1797) ("The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens"); Minor v. Happersett, 88 U.S. 162 (1875) ("all children born in a country of parents who were its citizens became. . . natives, or natural-born citizens"); accord U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) ("The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle").

Hence, there are two necessary and sufficient elements in the definition of a natural born citizen under the common law with which the Framers were familiar when they drafted the Constitution and therefore under the Constitution, i.e., (1) birth or reputed birth in the country (2) to parents who were both U.S. citizens at the time of the child's birth.  Again, these elements are both necessary and sufficient to make a natural born citizen (place of birth alone is necessary but not sufficient).  Satisfying just one of the elements will not be sufficient for producing a natural born citizen.  This definition is enshrined in the Constitution.  While the 14th Amendment could have changed this definition, it did not.  Nor can any Act of Congress supplant it.  Scholars and professors who have been publishing papers on the meaning of a natural born citizen argue whether place of birth or parentage is necessary or sufficient to make one a natural born subject.  They fail to understand that these two elements are both necessary and sufficient to make one a natural born citizen.  

One other point merits discussion.  New Jersey Administrative Law Judge Jeff Masin, in my latest New Jersey ballot challenges against Senator Ted Cruz, found in 2016 that English and U.S. naturalization Acts were incorporated into and became part of English and therefore U.S. common law and that therefore under that “common law,” a child born out of the United States to two or even one U.S. citizen parent is a natural born citizen. "The more persuasive legal analysis is that such a child, born of a citizen-father, citizen-mother, or both, is indeed a 'natural born citizen' within the contemplation of the Constitution," ALJ Masin wrote. The full decision can be read here:  https://www.scribd.com/doc/308269472/NJ-Judge-Advisory-Opinion-Rules-Canadian-Born-Cruz-Eligible-To-Be-President-4-12-2016.  Reduced, this means that he concluded that birth to one U.S. citizen parent, no matter where that child may be born in the world, is sufficient to make one a natural born citizen.  I objected to this position and holding, arguing that if it were correct that American common law had been so transformed by such statutes and such common law formed the basis of the constitutional definition of a natural born citizen, then all of Congress’s naturalization Acts since the beginning of our nation have been unconstitutional and the U.S. Supreme Court, which has ruled on the meaning of U.S. citizenship and interpreted those Acts throughout the centuries, has gotten it wrong.  The Supreme Court ruled in 1967 in Afroyim v. Rusk, 387 U.S. 253 (1967) that the government can expatriate an American citizen only after he or she commits a voluntary act that demonstrates an intent to renounce his or her U.S. citizenship. The Court said: “We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.”  Id. at 268.  If the Fourteenth Amendment has such power which I agree it does, then, if ALJ Masin is correct, it, along with the Fifth Amendment, can also be used as a basis for arguing that Congress has since the beginning of our nation violated the Constitution by not recognizing the natural born citizen status of all children born out of the United States to one or two U.S. citizen parents.  Neither ALJ Masin nor the New Jersey Appellate Division addressed my observation and objection.

The debate on the meaning of a natural born citizen continues.  It will not end until the U.S. Supreme Court rules on the merits of the meaning of the clause.  In the meantime, we should keep the natural born citizen clause right where it is, in our Constitution.  

Mario Apuzzo, Esq.

May 17, 2018

http://puzo1.blogspot.com

####

Copyright © 2018

Mario Apuzzo, Esq.

All Rights Reserved 

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

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 (2^nd 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.]

http://www.archives.gov/publications/prologue/1998/summer/women-and-naturalization-1.html 

Under the 1855 Act, Churchill’s U.S. citizen mother would have lost her U.S. citizenship when she married her non-U.S. citizen husband and moved to England.  Even if she did not lose her U.S. citizenship, Churchill could not become a citizen of the United States 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
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Copyright © 2016
Mario Apuzzo, Esq.
All Rights Reserved 

  

New Hampshire Ballot Access Challenges Against Ted Cruz and Marco Rubio Fail for Want of Jurisdiction

New Hampshire Ballot Access Challenges Against Ted Cruz and Marco Rubio Fail for Want of
                                                           Jurisdiction

                                                    By Mario Apuzzo, Esq.
                                                       November 25, 2015







Christopher Booth of Concord, New Hampshire, Cameron Elliott of Pittsburgh, Pennsylvania, and Robert Laity of Tonawanda, New York, filed ballot access challenges in New Hampshire against presidential contenders Senator Ted Cruz and Senator Marco Rubio, arguing that neither of them is an Article II natural born citizen.  The challengers are correct.

Still, the New Hampshire Ballot Law Commission refused to rule on the question of whether the senators are natural born citizens because, chairman Brad Cook said, the issues were not under the panel’s purview.

“Our precedents say we don’t’ go there,” Cook said. “Personally, would I like the U.S. Supreme Court to decide these issues so we know what is, so it doesn’t keep coming up? Absolutely. Are we the vehicle to start that discussion? No, we’re not.”

http://www.wmur.com/politics/elections-panel-allows-cruz-rubio-to-appear-on-primary-ballot/36641254

~~~~~

The Commission refused to rule, basically saying that it does not have jurisdiction over the question of whether Ted Cruz and Marco Rubio are Article II natural born citizens.  It also said that it would like the U.S. Supreme Court to rule on the issue.

On the merits, neither Ted Cruz nor Marco Rubio are natural born citizens.  Neither the original nor amended Constitution defines a natural born citizen.  The unanimous U.S. Supreme Court in Minor v. Happersett (1875) informed that we have to look outside the Constitution for its meaning.  It explained that at common law the nomenclature with which the Framers were familiar when the Constitution was adopted, all children born in a country to parents who were its citizens were "natives, or natural-born citizens," and that under that same common law all the rest of the people were "aliens or foreigners," who could be naturalized if they met the requirements of naturalization Acts of Congress. Minor v. Happersett (1875).

Cruz was neither born in the country, nor was he born to two U.S. citizen parents.  He was born in Canada, presumably to a U.S. citizen mother and a non-U.S. citizen father.  Unlike Senator John McCain, who was born in Panama to two U.S. citizen parents who were there to serve the military interest of the United States, neither of Cruz's parents were in Canada for purposes of serving in the U.S. military.  He therefore does not meet the definition of a natural born citizen.  Cruz is a citizen of the United States at birth only by virtue of a naturalization Act of Congress.  He is therefore not a "natural born citizen" of the United States by virtue of the common law.  A “naturalized born” citizen of the United States is not and cannot be a “natural born” citizen of the United States.

Rubio was born in the country.  But he was not born to two U.S. citizen parents.  He was born in the United States, but to two non-U.S. citizen parents.  Hence, he also does not meet the definition of a natural born citizen.  He is a citizen of the United States at birth only by virtue of the Fourteenth Amendment and not by virtue of the common law that provides the only definition of the clause.  He needs the Fourteenth Amendment because, while born in the United States, he was not born to two U.S. citizen parents.  Rubio is a "born citizen" of the United States only by virtue of the Fourteenth Amendment.  He is therefore not a "natural born citizen" of the United States by virtue of the common law. Simply being a born citizen of the United States under the Fourteenth Amendment does not make one a natural born citizen of the United States under the common law.
 
So, neither Cruz nor Rubio are natural born citizens.  It is treason upon the Constitution and the rule of law to see our political institutions kick the can down the road under the guise of want of jurisdiction.

Mario Apuzzo, Esq.
November 25, 2015
http://puzo1.blogspot.com/
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Copyright © 2015

Mario Apuzzo, Esq.

All Rights Reserved

July 4, 1776, the Birth Day of the Nation and the Natural Born Citizen

July 4, 1776, the Birth Day of the Nation and the Natural Born Citizen

By Mario Apuzzo, Esq.

July 4, 2015

In defining an Article II “natural born Citizen,” it is important to find any authority from the Founding period who may inform us how the Founders and Framers themselves defined the clause. Who else but a highly respected historian from the Founding period itself would be highly persuasive in telling us how the Founders and Framers defined a natural born citizen.  Such an important person is David Ramsay, who in 1789 wrote, A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789), a very important and influential essay on defining a natural born citizen.

David Ramsay (April 2, 1749 to May 8, 1815) was an American physician, patriot, and historian from South Carolina and a delegate from that state to the Continental Congress in 1782-1783 and 1785-1786. He was the Acting President of the United States in Congress Assembled. He was one of the American Revolution’s first major historians. A contemporary of Washington, Ramsay wrote with the knowledge and insights one acquires only by being personally involved in the events of the Founding period. In 1785 he published History of the Revolution of South Carolina (two volumes), in 1789 History of the American Revolution (two volumes), in 1807 a Life of Washington, and in 1809 a History of South Carolina (two volumes). Ramsay “was a major intellectual figure in the early republic, known and respected in America and abroad for his medical and historical writings, especially for The History of the American Revolution (1789)…” Arthur H. Shaffer, “Between Two Worlds: David Ramsay and the Politics of Slavery,” J.S.Hist., Vol. L, No. 2 (May 1984). “During the progress of the Revolution, Doctor Ramsay collected materials for its history, and his great impartiality, his fine memory, and his acquaintance with many of the actors in the contest, eminently qualified him for the task….” http://www.famousamericans.net/davidramsay/. In 1965 Professor Page Smith of the University of California at Los Angeles published an extensive study of Ramsay's “History of the American Revolution” in which he stressed the advantage that Ramsay had because of being involved in the events of which he wrote and the wisdom he exercised in taking advantage of this opportunity. “The generosity of mind and spirit which marks his pages, his critical sense, his balanced judgment and compassion,'' Professor Smith concluded, “are gifts that were uniquely his own and that clearly entitle him to an honorable position in the front rank of American historians.”

In his 1789 essay, Ramsay explained: 

The “United States” are a new nation, or political society, formed at first by the declaration of independence, out of those “British subjects” in “America,” who were thrown out of royal protection by act of parliament, passed in “December,” 1775.   

A citizen of the “United States,” means a member of this new nation.  The principle of government being radically changed by the revolution, the political character of the people was also changed from subjects to citizens. 

The difference is immense.  Subject is derived from the latin word, “sub” and “jacio,” and means one who is “under” the power of another; but a citizen is a “unit” of a mass of free people, who, collectively, possess sovereignty. 

Subjects look up to a master, but citizens are so far equal, that none have hereditary rights superior to others.  Each citizen of a free state contains, within himself, by nature and the constitution, as much of the common sovereignty as another.  In the eye of reason and philosophy, the political condition of citizens is more exalted than that of noblemen.  Dukes and earls are the creatures of kings, and may be made by them at pleasure; but citizens possess in their own right original sovereignty. 

Id. at 3. (emphasis in the original).   

Here Ramsay described how the new nation came into being from the revolution with Great Britain and that its new members were citizens and not subjects.  He then explained the “immense” difference between a citizen and a subject.  Indeed, citizens were masters of their own destiny, all equal to each other, and under no one. 

Then he went on to explain how one became a citizen, stating: 

The following appear to be the only modes of acquiring this distinguishing privilege.

1^st.  By being parties to the original compact, the declaration of independence.

2d.  By taking an oath of fidelity to some one of the “United States,” agreeable to law.

3d.  By tacit consent and acquiescence. 

4^th.  By birth or inheritance. 

5^th.  By adoption.

Id. at 4  (emphasis in the original). 

He then explained how one acquired citizenship through each one of his categories.  As to the 1^st category, these included all those persons who adhered to the American Revolution by being a party to the Declaration of Independence through which “’a nation was born in a day.’”  The 2^nd and 3^rd categories included those who took an oath of allegiance to the American cause, or upon reaching the age of majority just accepted the new states and continued to reside there under their protection. 

Ramsay then went on to describe the 4^th category persons who the Framers in Article II, Section 1, Clause 5 called the “natural born Citizens.”  Here is what he said: 

4^th.  None can claim citizenship as a birth-right, but such as have been born since the declaration of independence, for obvious reasons:  no man can be born a citizen of a state or government, which did not exist at the time of this birth.  Citizenship is the inheritance of the children of those who have taken a part in the last revolution; but this is confined exclusively to the children of those who were themselves citizens.  Those who died before the revolution, could leave no political character to their children, but of subjects, which they themselves possessed.  If they had lived, no one could be certain whether they would have adhered to the king or congress.  Their children, therefore, may claim by inheritance the rights of “British subjects,” but not of “American citizens.” 

5^th.  Persons born in any country may have acquired citizenship by adoption, or naturalization, agreeably to law.  The citizenship of such must be dated from the time of their adoption. 

Id. at 6 (emphasis in the original). 

Then Ramsay drew these conclusions:  "The citizenship of no man could be previous to the declaration of independence, and, as a natural right, belongs to none but those who have been born of citizens since the 4^th of 'July,' 1776. . . . From the premises already established, it may be farther inferred, that citizenship, from inheritance, belong to none but the children of those 'Americans,' who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring.”  Id. at 6-7 (emphasis in the original).   

While not using the phrase “natural born citizen,” Ramsay described the original citizens that existed during the Founding and what it meant to acquire citizenship by birthright after the Founding. The Constitution itself shows that the Framers called the original citizens “Citizens of the United States” and those that followed them “natural born Citizens.” He said concerning the children born after the declaration of independence, “[c]itizenship is the inheritance of the children of those who have taken part in the late revolution; but this is confined exclusively to the children of those who were themselves citizens….” Id. at 6. He added that “citizenship by inheritance belongs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring….” Id. at 7. He continued that citizenship “as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776….” Id. at 6. We can see why the Framers in Article II, Section 1, Clause 5 grandfathered "Citizens of the United States," which included themselves, to be eligible to be President.  He also explained that persons born in any country may have acquired citizenship by adoption or naturalization, telling us that in order to be a natural born citizen one had to be born in the United States.  Ramsay did not use the clause “natural born Citizen.” Rather, he referred to citizenship as a birthright which he said was a natural right. But there is little doubt that how he defined birthright citizenship meant the same as "natural born citizen," "native," and "indigenes," all terms that were then used interchangeably.

Here we have direct and convincing evidence of how a very influential Founder defined a natural born citizen. Noah Webster, 1828, in explaining how an American dictionary of the English language was necessary because American words took on different meanings than the same word in England, placed David Ramsay among great Founders such as “Franklin, Washington, Adams, Jay, Madison, Marshall, Ramsay, Dwight, Smith, Trumbull...” Given his position of influence and especially given that he was a highly respected historian, Ramsay would have had the contacts with other influential Founders and Framers and would have known how they too defined a natural born citizen.  Ramsay, being of the Founding generation and being intimately involved in the events of the time would have known how the Founders and Framers defined a natural born citizen and he told us that such a person was one born in the country to citizen parents. In giving us this definition, it is clear that Ramsay did not follow the English common law but rather natural law, the law of nations, and Emer de Vattel, who also defined the “natives, or natural-born citizen” the same as did Ramsay in his highly acclaimed and influential treatise, The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, Section 212 (1758 French) (1759 English). We can reasonably assume that the other Founders and Framers would have defined a natural born citizen the same way that Ramsay did, for being a meticulous historian he would have gotten his definition from the general consensus that existed at the time. Ramsay’s dissertation presents valuable evidence of how the Founding generation defined the original citizens and the future generations of citizens, who were either descendants of the original citizens or children of naturalized citizens, born in the United States, who the Framers called natural born citizens. It is valuable because it is evidence of the public meaning of these terms at the time they were framed and ratified.

Ramsay’s article and explication are further evidence of the influence that Vattel had on the Founders in how they defined the new national citizenship. This article by Ramsay, provided to me by an anonymous source in 2010 while I was handling the Kerchner v. Obama and Congress case, is one of the most important pieces of evidence which provides direct evidence on how the Founders and Framers defined a natural born citizen and that there is little doubt that they defined one as a child born in the country to citizen parents.  This time-honored definition of a natural born citizen has been confirmed by subsequent United States Supreme Court and lower court cases such as The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (Marshall, C.J., concurring and dissenting for other reasons, cites Vattel and provides his definition of “natives, or indigenes,” or who the Framers called natural born citizens); Inglis v. Trustees of Sailors’ Snug Harbor (1830) (decided on the citizenship principles of the law of nations and Vattel and not the English common law); Shanks v. Dupont, 28 U.S. 242, 245 (1830) (decided on the citizenship principles of the law of nations and Vattel and not the English common law); Dred Scott v. Sandford, 60 U.S. 393 (1857) (relied upon the law of nations definition of citizenship and not the English common law definition of a natural born subject) (Daniel, J., concurring) (specifically citing and quoting Vattel and his Section 212 for the definition of “natives, or natural-born citizens” and not the English common law); Slaughter-House Cases, 83 U.S. 36 (1873) (in explaining the meaning of the Fourteenth Amendment clause, “subject to the jurisdiction thereof,” said that the clause “was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States”); Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (same definition without citing Vattel); Ex parte Reynolds, 1879, 5 Dill., 394, 402 (same definition and cites Vattel); United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (same definition and cites Vattel); U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) (quoted the same definition of natural born citizen as did Minor v. Happersett); Rep. John Bingham (in the House on March 9, 1866, in commenting on the Civil Rights Act of 1866 which was the precursor to the Fourteenth Amendment: "[I] find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.” John A. Bingham, (R-Ohio) US Congressman, March 9, 1866 Cong. Globe, 39th, 1st Sess., 1291 (1866)). 

The two-citizen-parent requirement would have followed from the common law that provided that a woman upon marriage took the citizenship of her husband. In other words, the Framers required both (1) birth on United States soil (or its equivalent) and (2) birth to two United States citizen parents as necessary conditions of being granted that special status which under our Constitution only the President and Commander in Chief of the Military (and also the Vice President under the Twelfth Amendment) must have at the time of his or her birth. Given the necessary conditions that must be satisfied to be granted the status, all natural born citizens" are "citizens of the United States" but not all "citizens of the United States" are natural born citizens.  It was only through both parents being citizens that the child was born with unity of citizenship and allegiance to the United States which the Framers required the President and Commander in Chief of the Military to have.

De facto President Barrack Obama fails to meet this “natural born Citizen” eligibility test because when he was born in 1961 (regardless of where that may be), he was not born to a United States citizen mother and father. At his birth, his mother was a United States citizen. But under the British Nationality Act 1948, his father, who was born in the British colony of Kenya, was born a Citizen of the United Kingdom and Colonies (CUKC) which by descent made Obama himself a CUKC. Prior to Obama’s birth, Obama’s father neither intended to nor did he become a United States citizen. Being temporarily in the United States only for purpose of study and with the intent to return to Kenya, his father did not intend to nor did he even become a legal resident or immigrant to the United States.

Obama may be a plain born “citizen of the United States” under the Fourteenth Amendment or a Congressional Act (if he was born in Hawaii). But as we can see from David Ramsay’s clear presentation, citizenship “as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776….” Id. at 6. Hence, Obama is not an Article II natural born citizen, for upon Obama's birth his father was a British subject and Obama himself by descent was also the same. Hence, Obama was born subject to a foreign power. Obama lacks the birth status of natural sole and absolute allegiance and loyalty to the United States which only the President and Commander in Chief of the Military and Vice President must have at the time of birth. Being born subject to a foreign power, he lacks Unity of Citizenship and Allegiance to the United States from the time of birth which assures that required degree of natural sole and absolute birth allegiance and loyalty to the United States, a trait that is constitutionally indispensable in a President and Commander in Chief of the Military. Like a naturalized citizen, who despite taking an oath later in life to having sole allegiance to the United States, is not a natural born citizen because of being born subject to a foreign power, Obama too is not a natural born citizen.  He has therefore held the civil and military powers of the Office of President and Commander in Chief contrary to the Constitution and therefore without any constitutional legitimacy.  

For a demonstration as to why Senator Ted Cruz, Senator Marco Rubio, and Governor Bobby Jindal are also not natural born citizens and therefore not constitutionally eligible to be elected President, see Mario Apuzzo, “Senator Cruz, Senator Rubio, and Governor Jindal Should Not Be Allowed to Participate in the Presidential Debates Because They, Like De Facto President Obama, Are All Not Natural Born Citizens and Therefore Not Eligible to Be President, accessed at http://puzo1.blogspot.com/2015/05/senator-cruz-senator-rubio-and-governor.html .    

So, David Ramsay told us that a natural born citizen was born on July 4, 1776.  Today is July 4, 2015, or 239 years since that birth.  Happy Birth Day natural born citizen of the United States of America. 

Mario Apuzzo, Esq.
July 4, 2015
http://puzo1.blogspot.com/
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Copyright © 2015

Mario Apuzzo, Esq.

All Rights Reserved

I have adapted this article from an article that I wrote and published on David Ramsay on April 2, 2010, entitled, “Founder and Historian David Ramsay Defines a Natural Born Citizen in 1789,” accessed at http://puzo1.blogspot.com/2010/04/founder-and-historian-david-ramsay.html

Senator Cruz, Senator Rubio, and Governor Jindal Should Not Be Allowed to Participate in the Presidential Debates Because They, Like De Facto President Obama, Are All Not Natural Born Citizens and Therefore Not Eligible to Be President

Senator Cruz, Senator Rubio, and Governor Jindal Should Not Be Allowed to Participate in the Presidential Debates Because They, Like De Facto President Obama, Are All Not Natural Born Citizens and Therefore Not Eligible to Be President

By Mario Apuzzo, Esq.

May 25, 2015

Soon, we will see various presidential candidates debate each other for the right to win their party’s nomination for President and ultimately to win the people’s and Electoral College’s vote for that Office.  The organizations that will be sponsoring these presidential debates, Commission on Presidential Debates, Fox News, Fox Business Network, Reagan Library Foundation, Salem Media Group, CNBC, ABC, CBS, NBC, Telemundo, and National Review, in keeping with their bylaws, should not allow any person who is not constitutionally eligible for that office to debate.  Allowing constitutionally ineligible candidates to debate will only give the false impression to the American people that such persons are constitutionally eligible to be elected President.  This result is more damaging to the Constitution and the rule of law, given that the federal courts refused to get involved in the question of whether de facto President Barack Obama is an Article II natural born citizen.  There has been mentioned in the news of some individuals who will be vying for the Office of President.  These are Senator Ted Cruz, Senator Marco Rubio, and Governor Bobby Jindal.  But these individuals, like Obama, are not natural born citizens and hence not eligible to be elected President.  They should therefore not be allowed to debate.  Allow me to explain. 

Article II, Section 1, Clause 5 provides that for those born before the adoption of the Constitution, having satisfied the 35 years age and 14 years residency requirements, being a "citizen" of the United States was sufficient to be eligible to be President.  It also provides that for those born after the adoption, only a "natural born citizen" of the United States is eligible to be President.  So, with presidential eligibility under Article II, for those born after the adoption of the Constitution, we are looking to define a natural born citizen, not a citizen.  We can also see from this constitutional scheme that in the United States there are only “citizens” or “natural born citizens” and that all natural born citizens are citizens, but not all citizens are natural born citizens. 

The Framers used the natural born citizen clause to assure that future Presidents and Commanders in Chief of the Military would be born citizens of and in allegiance with only the United States from the moment of birth and throughout their lives.  They concluded that such a person would be one to least have sympathies for some foreign power or influence which could result in conflict of interests which could harm the United States and its people.    

Since the Framers wrote citizen and natural born citizen into the Constitution, the next question is what do these terms mean?  The historical and legal record demonstrates that they did not look to the English common law for the definitions of those terms.  Indeed, Justice Noah H. Swayne, commenting on whether the English common law defined a “citizen” or a “natural born citizen,” said:  “The constitution uses the words 'citizen' and 'natural born citizens;' but neither that instrument nor any act of congress has attempted to define their meaning.  British jurisprudence, whence so much of our own is drawn, throws little light upon the subject . . . . Blackstone and Tomlin contain nothing upon the subject.”  United States v. Rhodes, 27 F. Cas. 785,  788 (Cir. Ct. Ky 1866).  Rather, that record shows that the Founders and Framers looked to natural law and the law of nations and the Enlightenment for principles which justified and motivated the American Revolution, the Declaration of Independence, and the writing of the Constitution.   It was also in natural law and the law of nations that they found their definitions of citizens and natural born citizens. 

As their most trusted expert on the law of nations, the Founders and Framers looked to Emer de Vattel.  In his, The Law of Nations or Principles of Natural Law, Book I, Chapter XIX, Section 212 (1758) (1797), Vattel defined a citizen as:   “The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. Id. at Section 212.  The Framers also knew from the teachings of both the English common law and the law of nations that citizenship and allegiance can be either inherited from one’s parents (jus sanguinis) or acquired from being born in a country (jus soli).  Hence, when the Framers wrote the Constitution, a citizen was any member of the United States made so by any means, which included the American Revolution, Acts of Congress, or treaty.  These citizens were subject to the laws of the United States and enjoyed all the privileges, immunities, and rights of all other citizens, including the right of being protected by the United States.  The early naturalization Acts of Congress reflected this understanding.  As time went on and because of the immediate need to make freed slaves citizens of the United States, the Civil Rights Act of 1866 and the Fourteenth Amendment were added to the list of laws that could make citizens.  As we shall see below, these laws, while capable of making one a citizen from the moment of birth or after birth, did not make one a natural born citizen.  

The Framers also defined a natural born citizen under natural law and the law of nations.  Again looking to Vattel upon whom they would have relied for that definition, he defined a natural born citizen as follows: 

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

Id. Sec. 212 Citizens and natives.  We can see that Vattel expected not the citizens, but the natural born citizens as being the persons upon whom the expectation lied as being the ones who would best protect and perpetuate the civil and political society into which they were born.  

Under this natural law and law of nations rule, a natural born citizen had to do nothing other than be born in the county to parents who were both citizens of that country.  No law, including any naturalization act or treaty, was needed to make him or her a natural born citizen. 

The universal and immutable principle of the law of nations that defined a natural born citizen was incorporated into American national common law.  We know this by what the unanimous U.S. Supreme Court said in Minor.  There it explained: 

At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children, born in a country, of parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens.

Minor v. Happersett, 88 U.S. 162, 167-68 (1875).

So Minor explained that it was this common law to which the Framers looked to define a natural born citizen.  Accord U.S. v. Wong Kim Ark (1898) (distinguishing a natural born citizen from a citizen of the United States under the Fourteenth Amendment, said that “[t]he child of an alien, if born in the country” can be a citizen of the United States from the moment of birth by virtue of the Fourteenth Amendment and “is as much a citizen as the natural born child of a citizen, and by operation of the same principle").  Hence, the Framers defined a natural born citizen as a child born in a country to parents who were its citizens at the time of the child's birth.  Under that same common law, they saw all the rest of the people as "aliens or foreigners," who could be naturalized under some positive law.  With the ratification of the Fourteenth Amendment, those otherwise aliens or foreigners became citizens of the United States “at birth” under Wong Kim Ark’s interpretation of the Fourteenth Amendment. 

The definition of a natural born citizen as reflected in American common law became under Article IV, Clause 2 upon ratification of the Constitution the supreme law of the land subject to change under Article V only by duly ratified constitutional amendment.  

During the Founding and until the Cable Act of 1922 (ch. 411, 42 Stat. 1021, "Married Women’s Independent Nationality Act") was passed, married parents of children were both either U.S. citizens or aliens.  See Minor and Wong Kim Ark (only provided for scenarios in which the child’s parents were both either citizens or aliens).  Hence, citizen parents meant that both father and mother had to be citizens. The Cable Act reversed former immigration laws regarding marriage. 

Previously, a woman lost her U.S. citizenship if she married an alien, since she acquired the citizenship of her husband.  The law did not apply to men who married foreign women, for such women became U.S. citizens.   The law repealed sections 3 and 4 of the Expatriation Act of 1907.  With this new law, women did not lose their citizenship if they married an alien, provided he was an alien eligible to be naturalized under U.S. law.  Marian L. Smith, "Women and Naturalization, ca. 1802-1940," Prologue Magazine 30 (2) (1998).  Additionally, under the Act, women who married aliens who were eligible for naturalization could keep their U.S. citizenship, provided they lived in the United States.  If they married such aliens and lived on foreign soil for two years, they could lose their U.S. citizenship. In 1931, an amendment allowed females to retain their U.S. citizenship even if they married aliens who were not eligible for U.S. citizenship (e.g. at that time an Asian).  The Cable Act was repealed in 1936. The liberation of wives from their husband’s citizenship done by the 1922 Cable Act, an Act of Congress and not a constitutional amendment, has not nor could it amend the constitutional rule that both father and mother had to be citizens at the time of their child’s birth in their country in order to make a natural born citizen. 

To date, the American national common law meaning of a natural born citizen has never been changed by any constitutional amendment or decision of the U.S. Supreme Court.  

    

So, a "citizen" of the United States "at birth" is defined by either the Fourteenth Amendment (only if born in the U.S.) or naturalization Act of Congress (if born in or out of the U.S.).  Regarding the former, it is any person born in the United States and "subject to the jurisdiction thereof."  As to the latter, it includes any person born out of the United States to one or two U.S. citizen parents.  Neither the Fourteenth Amendment nor Act of Congress has any impact on the meaning of a natural born citizen, for, not only because they did not exist when the Constitution was adopted and ratified, but also because they did not repeal or amend the natural born citizen clause or define it. Under these well-established rules, a child of one or two alien parents, if born in the U.S., can be a "citizen" of the United States "at birth" under the Fourteenth Amendment.  A child born out of the U.S., if born to one or two U.S. citizen parents, can also be a "citizen" of the United States "at birth." But not being born in the United States to two U.S. citizen parents, neither of them can be an Article II "natural born citizen" of the United States, regardless of their "at birth" citizen status, for they are born citizens, not natural born citizens.   

    

De facto President Barack Obama is not a natural born citizen because, even if he was born in the United States, he was not born to two U.S. citizen parents.  Obama was born to a U.S. citizen mother, but to a non-U.S. citizen father.  His father was a citizen of Great Britain and then Kenya upon it gaining independence in 1963.  Senator Ted Cruz is also not a natural born citizen.  Unlike Senator John McCain who was born in Panama to two U.S. citizen parents who were serving the national defense of the United States and therefore reputed born in the United States to two U.S. citizen parents, Senator Cruz was born in Canada presumably to a U.S. citizen mother and a non-U.S. citizen father who was a citizen of Cuba and both in Canada for private purposes.  Senator Marco Rubio and Governor Bobby Jindal are also not natural born citizens, for while they were born in the United States, they were born to two non-U.S. citizen parents who were citizens of Cuba and India, respectively.     

If they are not natural born citizens, then what are they?  President Obama, Senator Cruz, Senator Rubio, and Governor Jindal are all "citizens" of the United States "at birth,” but only by virtue of some non-common law positive law.  None of them are "natural born citizens" by virtue of common law which provides the only definition of the clause which is a child born in a country to parents (father and mother) who were its citizens at the time of the child's birth. Obama (if born in the United States), Rubio, and Jindal are “citizens” of the United States “at birth,” but only because of the Fourteenth Amendment, by the only fact of being born in the United States.  Cruz is a “citizen” of the United States “at birth,” but only because of a naturalization Act of Congress, by the only fact of being born to one U.S. citizen parent.  None of them were born with the complete facts and circumstances needed at birth to be a natural born citizen and which allows one to be a natural born citizen and therefore a citizen without the aid of any positive law.  They are all missing either birth to two U.S. citizen parents or birth in the United States. Obama was born a citizen of and in allegiance to the United States (through jus soli if he was born in the United States) and Great Britain and then Kenya upon conversion through its independence from Great Britain (through jus sanguinis from his father).  Cruz was born a citizen of and in allegiance to the United States (through jus sanguinis if his mother was still a U.S. citizen at the time of his birth) and born a citizen of and in allegiance to Canada (through jus soli) and Cuba (through jus sanguinis from his father).  Rubio and Jindal were born citizens of and in allegiance to the United States (through jus soli) and Cuba for Rubio and India for Jindal (through jus sanguinis from both of their parents).  They are all therefore under U.S. law not born with sole allegiance to the United States, but also subject to a foreign power and with natural sympathies for those foreign nations, a condition that the Framers did not allow future Presidents and Commanders to have.  Being born subject to foreign powers and influence and with such sympathies, they are not nor can they be natural born citizens.  Not being natural born citizens, they are not eligible to be President. 

These ineligible candidates should not be allowed to participate in the upcoming presidential debates.   

Mario Apuzzo, Esq.

May 25, 2015

http://puzo1.blogspot.com

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Mario Apuzzo, Esq.

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