Friday, May 28, 2010

Obama’s “Natural Born Citizen” Status: Is It Place of Birth or Parentage that Controls?

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.” The current debate is whether Putative President Obama is a “natural born Citizen” under this Presidential eligibility article.

There has been much confusion regarding the role that Obama's place of birth (represented by his birth certificate) or parentage (represented by his alien father) plays in his being a "natural born Citizen." A “natural born Citizen” must be born in the United States or what is deemed its equivalent. This is called the jus soli requirement. We know that while Obama maintains that he was born in Hawaii, there exists a considerable amount of evidence that he was born in Kenya. Some argue that Obama has to date not yet conclusively shown that he was born in Hawaii and that on the contrary, he was born in Kenya. They argue that since Obama was born in Kenya, he is not and cannot be a “natural born Citizen.” Hence, some focus on Obama's place of birth as the only factor that needs to be considered in the question of whether he is a "natural born Citizen." However, as I will explain below, being born in the USA is only one part of the issue.  Being born in the USA is a necessary but not sufficient part of being a "natural born Citizen."

The original and only definition of an Article II "natural born Citizen" is that one must be born in the country, or what is deemed its equivalent, to citizen parents (mother and father). Emer de Vattel, The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns (1758), Section 212 (“The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. . . .”). As we can see, this definition contains two factors, place of birth and parentage or what is known as the jus soli and jus sanguinis factors. While Obama's mother was born in the United States and was a "natural born Citizen," Obama has admitted that under the British Nationality Act 1948, when Obama was born in 1961, his father, who was born in the then-British colony of Kenya, was a British subject/citizen and that Obama himself by descent from his father was also born a British subject/citizen. Hence, since his father was not a United States citizen when Obama was born and he himself was a British subject/citizen by descent from his father, Obama is not and cannot be a “natural born Citizen.” Given Obama’s admission, some therefore focus only on Obama’s parentage (alien father) factor and maintain that it is not necessary to know his place of birth wherever that may be because Obama is not and cannot be a "natural born Citizen" because his father was not a United States citizen when Obama was born. Under this argument, Obama is not a “natural born Citizen” because he is missing the parentage factor, a necessary condition found in the original and only definition of a “natural born Citizen.”

The Fourteenth Amendment citizenship clause also causes further confusion in the Obama eligibility question, for some incorrectly ascribe a controlling effect to it. The Fourteenth Amendment requires that one be born in the United States and be “subject to the jurisdiction thereof” in order to be a born “citizen of the United States” thereunder. The way that the Amendment’s “subject to the jurisdiction thereof” clause is currently interpreted, it does not contain any parentage requirement. But a simple reading of the Amendment’s text shows that it only deals with a “citizen of the United States” and not a “natural born Citizen.” Hence, showing that Obama is a Fourteenth Amendment born “citizen of the United States” (the Fourteenth Amendment born “citizen of the United States” standard) without more is not sufficient to demonstrate that he is an Article II “natural born Citizen” (the Article II “natural born Citizen” standard). Nevertheless, Obama must at least prove that he is a born “citizen of the United States” (born in the United States) before he can prove that he is an Article II “natural born Citizen."

What this means is that proving that Obama was born in the United States is a necessary condition for proving that he is a "natural born Citizen" but is not a sufficient condition. Hence, that Obama may have been born in the United States does not necessarily make him a "natural born Citizen." Rather, with his being born in the United States being a necessary condition, his not being born there would disqualify him from being both a Fourteenth Amendment born “citizen of the United States” and also an Article II "natural born Citizen." In such a case, he would be disqualified from being President. But since we might in the end learn that Obama was born in Hawaii, it is not wise to rely solely on the place of birth factor when questioning whether Obama is a “natural born Citizen” and to completely disregard the parentage factor contained in the original definition of a "natural born Citizen." Likewise, since the United States Supreme Court has yet to rule on the definition of an Article II "natural born Citizen" within the context of a case raising the question of whether a person is eligible to be President and Commander in Chief of the Military, it is not wise to rely only on the parentage factor when questioning whether Obama is a “natural born Citizen” and to totally discount the place of birth factor.

Please note that the Kerchner et al. v. Obama/Congress et al. case which was filed on January 20, 2009, after Congress confirmed Obama but before Chief Justice Roberts swore him in, and which is currently pending before the Third Circuit Court of Appeals in Philadelphia with a tentative oral argument dated of June 29, 2010, argues both the place of birth and parentage factors.

Mario Apuzzo, Esq.
May 28, 2010


Doublee said...

I wish someone would take a poll of members of Congress and ask them the following questions.

1. What is a natural born citizen?

2. Can a person who is born with dual citizenship be a natural born citizen?

3. Did you know that President Obama was born a British citizen?

It is my conjecture that a large majority of Congress would "flunk" this test. I think that most members would answer as follows (assuming that the questioner doesn't get the brushoff):

1. Someone who is born on U.S. soil (no mention of the parents' citizenship).

2. An evasive answer of some kind, because they wouldn't know for sure. Would most answer yes?

3. No I did not know. How do you know this?

For extra credit, a member of Congress could be asked why the Framers placed the requirement of natural born citizenship only on the office of President. How many members would give a correct answer?

juniper55 said...

Hello! I saw on Pacer (and on here) that the request for filing the supplemental appendix has been denied. Any thoughts on what that portends?

I'm disappointed about not including the Ramsay stuff.

Good luck, and praying for your success!

Anonymous said...

With the 14th Amendment being written specifically to ensure the various States would recognize the then recently emancipated Blacks as citizens within and amongst the various States, it, like the Grandfather Clause of A2S1C5, has long since accomplished its original intent.

The fact is, the ONLY persons that currently BENEFIT from the ‘collective naturalization’ wording of the 14th Amendment are those persons born within the jurisdiction to parents who are in fact ‘BOTH foreign nationals’ with NO claim to citizenship rights.

To clarify, any person born to at least ONE CITIZEN parent derives citizenship from that parent and NOT the 14th Amendment, whether within the jurisdiction or on Foreign Soil.

The US immigration and Nationality Laws provides for EVERY possible and conceivable means of conveying citizenship to any person with even the most tenuous link to a citizen relative leaving the ONLY OPERATIVE FUNCTION of the 14th Amendment to be the granting of citizenship to children of ILLEGAL ALIENS.

That is not to say that I am claiming the ‘0’ is not a 14th Amendment baby……..who knows with ANY certainty?

Mick said...

Absolutely Mr. Apuzzo. Leave no stone unturned, and close all possible escape windows. Triangulate!

Incredulous said...

I've asked my congress rep (being tricky) if Obama was a "naturalized citizen" and they said yes he was...this person espoused that any US citizen is eligible, and didn't sound like they even knew there were different types (playing dumb I suspect). I'm so sick of being abused by talking to them, and it's pointless. They all know he's ineligible and are playing dumb about US Citizen vs NBC...which I suppose is their only hope of any defense when they're all prosecuted for misprison of felony and treason.

cfkerchner said...


This link to John Greschak's writings works ...

Tell me which essay in Mario's blog has a non-working link and I'll fix it. But I need specific guidance to find exactly where, in which essay, it is broken so I can fix it. Give me the essay name and the date it was posted, etc.

CDR Kerchner

Mario Apuzzo, Esq. said...


You said in reference to the Court denying our request to file a supplemental appendix: "I'm disappointed about not including the Ramsay stuff."

This is not a correct assessment of the effect of the Court's denial of our motion to include in the brief appendix the Ramsay dissertation. The Ramsay dissertation, along with the other essays that were included with the Supplemental Appendix, is a legal essay and is part of our constitutioal history. It does not get erased because it is not part of the brief appendix. I included it in the appendix with the other articles for the convenience of the Court. Rather, the Court just probably concluded that it, along with the other articles, was not necessary to be part of the brief appendix, for the Court can simply access and read it and the other article from whatever other available offical source other than the appendix.

Mario Apuzzo, Esq. said...

Obama supporters object to the parentage factor of the "natural born Citizen" standard. They argue, among other things, that the standard is difficult to apply because we can never be sure as to who a child's father is. Obama's supporters want to know what happens if there are void or voidable marriages, illegitimate children, or foundlings involved. Because of these so-called problems, they argue that the parentage factor is not workable and should not be part of the "natural born Citizen" standard. Now, because we are dealing with whether Obama is a "natural born Citizen," Obama supporters present all these imaginary hurdles which they say would prevent a fair application of the parentage factor. This argument fails on several grounds.

First, the Founders made it part of being a "natural born Citizen" and it is in our Constitution. If society does not like the standard, then society can amend the Constitution.

Second, the question of "natural born Citizen" only comes up for our President and Vice President. Hence, the question will only arise when we have Presidential elections which is once every four years.

Third, we already have so many laws that are based on parentage and we are able to overcome any problems that identity of the father may present. Areas of human affairs in which parentage decides rights and obligations include but are not limited to current citizenship and naturalization laws, inheritance, custody of children, and child support. We do not see objections in these areas to using parentage as a determining factor.

Fourth, if there ever arose a rare case where identity of the father or mother was a real issue, we have DNA technology today which provides an almost 100 percent correct answer on whether a person is the biological parent of another.

Fifth, the parentage factor provides an additional level of protection to the nation. It provides a better chance that a would-be President was reared from birth with American constitutional, political, and cultural values. It therefore provides more assurance to the American people that they will be able to trust the person for whom they vote for President and Commander in Chief after he or she assumes the great and singular powers of those civil and military offices. The rare but possible practical problems that may arise with the parentage factor are worth it when we consider the added benefits that we get from such additional protection for the American people and the nation.

Anonymous said...

As always you manage to ‘xplain things so that even we 5 yr olds can follow along……..

1st; I have often found that it ends the debate with an 0’pologist by insisting that that ‘show the words or the words that require it’ when they suggest that A2S1C5 was Amended by the 14th Amendment……..Some take the time to look then remark, ‘who cares what the Constitution says’…others are never heard of again.

2nd; Leo Donofrio’s analysis of the 10th Circuit remarks that ‘no one has a ‘right’ to be a NBC’ found it a poignant point in regards to the ‘0’, however I still believe I have the ‘right’ to be recognized as an NBC, insofar as citizenship is concerned. To me, it is the very Foundation of a ‘representative Republic’, that being the ‘representatives are ‘selected and elected’ from the ‘eligible’ population,

3rd; It’s not PC to support an intact family … and goes down hill morally from there.

4th; IMO, the Big ‘0’ is the ‘little 0s’ ‘legal daddy’ by virtue of ‘affirmative declarations’, a ‘divorce degree with the little ‘0’ mentioned, regardless of what OTHER TRUTH we may be asked to believe in the future.

5th; I’ve come to believe the NBC requirement is a ‘minimum standard’ and in vetting a potential POTUS no amount of scrutiny can be said to be too much, but it is worth recalling that Joseph Story considered the NBC requirement to be ‘indispensable’.

jayjay said...


Seems to me that the various "legal arguments" raised about "parents" by some of the Flying Monkeys are merely straw men/red herring distractions since they can find no solid arguments that have ever shown the legal eligibility of the man to hold the office he now occupies.

Just keep right on the current course - both you and CDR Kerchner. Do not be bothered by the noise in the outhouse.

Anonymous said...

Thanks Charles and Mario...

Keep up the good fight.

juniper55 said...

Thanks, Mario, for the clarification! I saw the denial and didn't know what it meant. Best of luck!

Robert said...

It's as I wrote before:

1 Citizen Mother
+1 Citizen Father
+1 Birth in the country.
=3 points necessary to meet the constitutional requirements to be president.

There are no substitutes for any of the three points. One either has them or he does not.

Mr. Obama has only established that he has the first point.

He has personally stipulated and substantiated that he does not have the second point.

He has claimed the 3rd point through unsubstantiated hearsay and directly sought to obstruct further discovery of relevant evidence and documentation.

The evidence is clear. Obama is one of the people who does not have all three points. He is not eligible to hold the office of the President. He has not met the terms of the contract. He is not qualified or legally empowered to exercise the authority of the people.

Just as we are not bound legally or morally through any natural or man-made law to any contract that has been intentionally broken, we are not bound by any of Obama's actions or those of any of his appointments. We are also, through the same natural and man-made laws, entitled to seek damages against Mr. Obama and all who through action or inaction perpetuate this fraud.