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Monday, December 31, 2012

Congress Should Not Confirm Barack Obama As President, For He Is Not an Article II "Natural Born Citizen"

Congress Should Not Confirm Barack Obama As President, For He Is Not an 
                                      Article II “Natural Born Citizen”


                                            By Mario Apuzzo, Esq.
                                               December 30, 2012


 A joint session of Congress meets to count the Electoral College vote from the 2008 presidential election the House Chamber in the U.S. Captiol
       The joint session of Congress meets to
count the 2008 Electoral College vote 




 



The issue of Obama’s eligibility to be President has always been whether he is an Article II “natural born Citizen.” And that issue has always been about answering two questions: (1) whether he was born in the United States and (2) whether at the time of his birth in the United States he was born to United States citizen parents, for a “natural born Citizen” is defined as a child born in a country to parents who were citizens of that country. See Mario Apuzzo, The Two Constitutional Obstacles Obama Has to Overcome to be President, at http://puzo1.blogspot.com/2008/12/two-constitutional-obstacles-obama-has.html (published on December 20, 2008).

Obama eligibility supporters like to focus on the first question, place of birth, for it lends to so much controversy, speculation, and confusion. The place of birth question raises concerns about whether Obama’s birth certificate, social security number, and draft registration card are false. Of course, for any of that to be true would necessitate conspiracy among many individuals employed by various state and federal government agencies. The charges of conspiracy gives Obama's supporters great opportunity to ridicule and mock concerned American citizens who--given that Obama has never released his original birth certificate to any controlling government authority, Obama still refuses to give his consent to release to the public his birth, education, travel, and work records, and some have uncovered unconfirmed information suggesting that Obama was born in Kenya--are still searching for a conclusive answer to the question of whether Obama was born in the United States. These Obama supporters bask in the ease by which they are able to attack those who, without any government or law enforcement assistance, are still investigating Obama’s place of birth with little resources available to them. These Obama eligibility supporters also like to make everyone think that the place of birth issue seals a victory for Obama and them. But such a statement is false.

These Obama eligibility supporters have not been able to adequately cast off either by way of any current well-researched and reasoned court decision or otherwise the other requirement for being a “natural born Citizen,” i.e., that the child must be born to parents who were citizens of the country when the child was born. As we can see below, there is a great amount of historical, U.S. Supreme Court, and Congressional sources that confirms this additional requirement which neither a handful of lower law and administrative courts--which have ruled that they have no jurisdiction or plaintiffs have no standing, but yet have still decided the merits of the question of whether Obama is a “natural born Citizen”--nor these Obama eligibility supporters have been able to adequately address.

What does all this mean for Congress which on January 4, 2013 will be counting the Electoral College votes and deciding whether President Elect Barack Obama is constitutionally qualified to be President? Under Article I, II, and III, the legislative, executive, and judicial branches of government are each given specific and exclusive powers. This is our separation of powers feature of our tripartite form of government. Under this doctrine, powers given to one branch are not to be exercised by any other. Under this scheme and specifically under Article III, the power to interpret the constitution is given solely to the judiciary. The Constitution does not textually commit the resolution of the question of what is a “natural born Citizen” to any specific branch of government other than the judicial branch. The question is no different from the question faced countless times by our nation’s federal and state courts when deciding what the applicable eligibility requirements for any given elected office are. Hence, the constitutional question of the meaning of a “natural born Citizen” is left to the judicial branch to resolve.

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.” Hence, “natural born Citizen” is one of the three exclusive constitutional eligibility requirements to be President found in this article, with the other two being a minimum of 35 years of age and 14 years of U.S. residency. As Powell v. McCormack, 395 U. S. 486, 519 (1969) explained, to determine the nature and extent of constitutionally specified eligibility qualifications is within the court’s power to do. Id. at 522. Determining what a “natural born Citizen” is involves determining the meaning of a constitutional provision which is strictly within the power of the courts to decide. It is a constitutional birth status. The Constitution gives to the courts the authority and the specific task of interpreting the Constitution, which necessarily includes the words and clauses it uses. “Natural born Citizen” is a clause that exists in the Constitution. As Marbury v. Madison, 1 Cranch 163 (1803) long ago established, our judicial branch of government is duty bound to interpret the Constitution to provide meaning to its clauses and is well equipped to do so. In fact, the courts have been doing just that since the Founding. In fact, our judicial branch of government has for centuries engaged in judicial review of matters involving citizenship. The courts are therefore well equipped to interpret the Constitution which includes interpreting and applying the “natural born Citizen” clause, whose decision on the matter Congress must then respect.

In matter of citizenship, Congress has under Article I, Section 8, Clause 4, power only to make uniform the laws of naturalization. This power does not include the power to define an Article II “natural born Citizen.” To grant Congress the sole or any authority to decide what a “natural born Citizen” is would also defeat the U.S. Supreme Court’s constitutional mandate that it is the “ultimate interpreter of the Constitution.” Nixon v. United States, 506 U.S. 224, 237 (1993). Indeed, Congress is constitutionally bound to follow the lead of the U.S. Supreme Court on the meaning and application of the Constitution. Apart from the First Congress in the Naturalization Act of 1790 considering as a "natural born citizen" a person born out of the United States to U.S. citizen parents which the Third Congress changed to considered as a "citizen of the United States" in the Naturalization Act of 1795, and later Congresses just applying the already existing definition of the clause and providing a different definition of a “citizen of the United States” at birth under the Fourteenth Amendment, neither the Constitution nor historical practice show that Congress has ever taken it upon itself to define a “natural born Citizen.” Finally, for the Congress to take it upon itself to define a “natural born Citizen” in a manner that is not consistent with U.S. Supreme Court precedent would be an unconstitutional usurpation of judicial power which belongs only to the U.S. Supreme Court.

The Twentieth Amendment and 3 U.S.C. Sec. 1 et seq. provide a mechanism for Congress to follow when meeting in joint session for the purpose of counting the Electoral College votes and confirming the constitutional eligibility of a President Elect to actually hold that office. But while Congress surely has the power to count Electoral College votes and if necessary fully investigate the question of a President Elect’s constitutional eligibility to be President and make a decision based on its own investigation, the extent of its investigation can only go as far as its legislative and regulatory powers allow it to go. Again, Congress has no direct power to define a “natural born Citizen.” Defining a “natural born Citizen” also does not fall under any investigation in aid of any legislative function. Also, the Twentieth Amendment does not commit to Congress the task of determining what a “natural born Citizen” is, i.e., what is the definition of a “natural born Citizen.” See Nixon, 506 U.S. at 237 (“Our conclusion in Powell was based on the fixed meaning of ‘[q]ualifications’ set forth in Art. I, § 2. The claim by the House that its power to ‘be the Judge of the Elections, Returns and Qualifications of its own Members’ was a textual commitment of unreviewable authority was defeated by the existence of this separate provision specifying the only qualifications which might be imposed for House membership. The decision as to whether a Member satisfied these qualifications was placed with the House, but the decision as to what these qualifications consisted of was not” (citing and discussing Powell v. McCormack, 395 U.S. 486, 539 (1969)). See also Powell v. McCormack, 395 U.S. 486, 550 (1969) (in invalidating the House's decision not to seat a Member accused of misuse of funds, the Court held that “in judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution"). Surely, if Congress cannot add to those constitutionally prescribed qualifications for its own members, it also cannot take away from them. Giving Congress the power to define a “natural born Citizen” with respect to presidential qualifications would do just that, either add to the definition or take away from it and thereby impact on the qualifications to be President. Hence, it is clear under Powell that it is the U.S. Supreme Court which must determine the meaning of a “natural born Citizen,” and not Congress.

When the matter in issue is eligibility for public office, the point is well made by Justice Stevens in his concurring opinion in Nixon v. United States:

“In Powell, the House of Representatives argued that the grant to Congress of the power to ‘Judge’ the qualifications of its members in Art. I, § 5, precluded the Court from reviewing the House's decision that Powell was not fit for membership. We held to the contrary, noting that, although the Constitution leaves the power to "Judge" in the hands of Congress, it also enumerates, in Art. I, § 2, the ‘qualifications’ whose presence or absence Congress must adjudge. It is precisely the business of the courts, we concluded, to determine the nature and extent of these constitutionally specified qualifications. Id., at 522. The majority finds this case different from Powell only on the grounds that, whereas the qualifications 246*246 of Art. I, § 2, are readily susceptible to judicial interpretation, the term ‘try’ does not provide an ‘identifiable textual limit on the authority which is committed to the Senate.’ Ante, at 238.”

Nixon, at 245-46 (J. Stevens, concurring). The Constitution under the Twentieth Amendment gives to Congress the authority to decide whether a President Elect is constitutionally qualified for that office. But it also specifies in Article II, Section 1, Clause 5 what “‘qualifications whose presence or absence Congress must adjudge.’” And it is “precisely the business of the courts . . . to determine the nature and extent of these constitutionally specified qualifications.” Indeed, these qualifications are “readily susceptible to judicial interpretation.” Id.

So, while the members of the Senate and the House of Representatives are well qualified to adjudicate any objections to ballots for allegedly unqualified candidates, it is first the courts, interpreting and applying the eligibility criteria found in Article II, Section 1, Clause 5, which includes the “natural born Citizen” clause, which must first inform them whether a President Elect is constitutionally qualified for that office. To hold that Congress alone is qualified to adjudicate objections to any “unqualified” president elect is simply to beg the question of that person’s eligibility for that office.

So, does a settled definition of an Article II “natural born Citizen” exist which Congress is constitutionally bound to apply when deciding whether Obama is Article II eligible to be President? While the Constitution does not provide any fixed meaning of the “natural-born Citizen” clause, there exist outside the Constitution specific standards for us to follow in deciding what the definition of a “natural born Citizen” is and whether Obama meets that definition. These standards exist in historical, U.S. Supreme Court, and Congressional sources. For example, Minor v. Happersett 88 U.S. 162 (1875) has held that a “natural-born citizen” is a child born in a country to parents who were its citizens when the child was born. The unanimous U.S. Supreme Court held there:

“The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their 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, at 167-68.

Then United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898) held that a “citizen of the United States” under the Fourteenth Amendment is a child born or naturalized in the United States and “subject to the jurisdiction thereof,” but an Article II “natural born Citizen” is a child born in the United States to citizen parents, citing and quoting Minor v. Happersett and its definition of the clause. The question that Minor did not answer, i.e., whether a child born in the United States to alien parents is a Fourteenth Amendment “citizen of the United States,” was answered by Wong Kim Ark, wherein the United States argued that a child born in the U.S. to alien parents was not a “citizen of the United States” under the Fourteenth Amendment. Ruling against the government, Wong Kim Ark declared a child born in the country to domiciled and resident alien parents to be a “citizen of the United States” at birth under the Fourteenth Amendment. Wong Kim Ark, citing and quoting Minor and acknowledging its definition that a “natural-born citizen” was born in the country to citizen parents, in no way disturbed Minor’s definition of a “natural-born citizen,” for it was asked to decide only if Wong was a “citizen of the United States” under the Fourteenth Amendment. Wong Kim Ark also allowed Wong to be a Fourteenth Amendment “citizen of the United States” because it found that his parents, while not U.S. citizens, were, among other things, domiciliaries, residents of the United States, and not working in some foreign diplomatic capacity and therefore “subject to the jurisdiction” of the United States. So Wong decided only the “citizen” part of Wong’s status. It never decided whether he also had the “natural born” part. The Court cautioned in its opinion in the beginning and at its end that it was only deciding whether Wong was a “citizen of the United States” under the Fourteenth Amendment and also informed us under what limited conditions (born in the U.S. to alien parents who were domiciled and residing in the U.S. and not employed in some foreign diplomatic capacity) it ruled that he was. Hence, a Wong “citizen of the United States” at birth is not to be conflated or confounded with an Article II “natural born Citizen.”

For a full analysis and discussion of these and other sources which confirm that a “natural born Citizen” is a child born in a country to parents who were citizens of that country, see, among other sources such as the various briefs that I have filed with the courts in New Jersey (Kerchner v. Obama; Purpura and Moran v. Obama), Pennsylvania (Kerchner and Laudenslager v. Obama), Virginia (Tisdale v. Obama), and Vermont (Paige v. Obama), and the many articles that I have written at my blog, http://puzo1.blogspot.com/ , Mario Apuzzo, Barack Obama Is Ineligible to be President, For He Is Neither a “Natural Born Citizen” Nor a “Citizen of the United States, at the time of the Adoption of this Constitution,” at http://puzo1.blogspot.com/2012/10/barack-obama-is-ineligible-to-be.html (wherein I demonstrate that a “natural born Citizen” has always been defined in our nation as a child born in a country to parents who were citizens of the country and that that definition has never been changed by constitutional amendment or by the U.S. Supreme Court and that a “citizen of the United States” at birth under the Fourteenth Amendment and Wong Kim Ark is not to be conflated and confounded with a “natural born Citizen”) and Mario Apuzzo, Logic and Defining the “Natural Born Citizen” Clause, at http://puzo1.blogspot.com/2012/11/logic-and-defining-natural-born-citizen.html (where I show how some lower courts and Obama eligibility supporters have engaged in fallacious logical reasoning in how they have defined a “natural born Citizen”).

Having found and confirmed the time-honored definition of a “natural born Citizen,” Congress must then apply that definition to Obama. Assuming that Obama was born in Hawaii, the undisputed facts show the following:

“When Barack Obama Jr. was born on Aug. 4, 1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. [ http://www.uniset.ca/naty/BNA1948.htm ] That same act governed the status of Obama Sr.’s children:

British Nationality Act of 1948 (Part II, Section 5): ‘Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of the birth.’

In other words, at the time of his birth, Barack Obama Jr. was both a U.S. citizen (by virtue of being born in Hawaii) and a citizen of the United Kingdom and Colonies (or the UKC) by virtue of being born to a father who was a citizen of the UKC.

Obama’s British citizenship was short-lived. On Dec. 12, 1963, Kenya formally gained its independence from the United Kingdom. Chapter VI, Section 87 of the Kenyan Constitution specifies that:

‘1. Every person who, having been born in Kenya, is on 11th December, 1963 a citizen of the United Kingdom and Colonies or a British protected person shall become a citizen of Kenya on 12th December, 1963…

2. Every person who, having been born outside Kenya, is on 11th December, 1963 a citizen of the United Kingdom and Colonies or a British protected person shall, if his father becomes, or would but for his death have become, a citizen of Kenya by virtue of subsection (1), become a citizen of Kenya on 12th December, 1963.’

As a citizen of the UKC who was born in Kenya, Obama’s father automatically received Kenyan citizenship via subsection (1). So given that Obama qualified for citizen of the UKC status at birth and given that Obama’s father became a Kenyan citizen via subsection (1), it follows that Obama did in fact have Kenyan citizenship after 1963.”

http://www.factcheck.org/2008/08/obamas-kenyan-citizenship/ . Todd Leventhal, the chief of the Counter-Misinformation Team for the U.S. Department of State, has accepted as true this description of Obama’s birth circumstances and so stated on a State Department web page, http://blogs.america.gov/rumors/2009/08/21/the-obama-birth-controversy/ , This site now reads: “This site has been archived or suspended.”

Factcheck, in its attempt to show that Obama is a “natural born Citizen,” added: “[T]he Kenyan Constitution prohibits dual citizenship for adults. Kenya recognizes dual citizenship for children, but Kenya’s Constitution specifies that at age 23, Kenyan citizens who possesses [sic] citizenship in more than one country automatically lose their Kenyan citizenship unless they formally renounce any non-Kenyan citizenship and swear an oath of allegiance to Kenya.

Since Sen. Obama has neither renounced his U.S. citizenship nor sworn an oath of allegiance to Kenya, his Kenyan citizenship automatically expired on Aug. 4, 1984.”

Id.

But that Obama may have lost his British/Kenyan citizenship after his birth (there is no evidence that Obama ever renounced his British birth citizenship), like an alien losing his or her native citizenship later in life and becoming a U.S. citizen after birth, does not nor can it change his birth circumstances. He still was not born a “natural born Citizen” and cannot become one later in life.

So, Obama, even if born in Hawaii in 1961, while born to a U.S. citizen mother, was not born to a U.S. citizen father. Under the British Nationality Act 1948, Obama’s father, being born in Kenya when it was a British colony, was a British/Kenyan citizen. While he traveled to the United States on a student visa to study, he never became a U.S. citizen. Under the same British Nationality Act 1948, Obama himself, through inheritance from his father, was born a British citizen. Under the Kenya Independence Act 1963, also became a Kenyan citizen as age 2.

The Founders and Framers demanded that future presidents, who also were to be our commanders in chief of the military, have allegiance and loyalty from birth only to the United States. Being born the citizen of a foreign country, like a person who is born a citizen of a foreign country and who naturalizes to become a “citizen of the United States” after birth and who we have always recognized as being eligible to be President only if born before the adoption of the Constitution, Obama was not born with sole allegiance and loyalty from birth to the United States. The practical consequence of his birth which no one can change is that he not only was not born with unity of allegiance and citizenship to the United States, but he also was not born within the full and complete political and military jurisdiction of the United States. So, Obama from birth was not fully committed both politically and militarily to the United States, nor could the United States expect such total commitment from him. Obama therefore cannot be an Article II “natural born Citizen,” which under our Constitution is required only of the President, who is also the Commander in Chief of the Military, and the Vice President. who stands to take over the President’s civil and military powers should the need arise.

Apparently, if he was born in Hawaii, Obama can meet the more liberal definition of a Fourteenth Amendment “citizen of the United States” at birth, i.e., born in the United States and “subject to the jurisdiction thereof.” Under this definition, a child born in the United States to domiciled and resident alien parents is a “citizen of the United States” at birth. Wong Kim Ark. But he cannot meet the more stringent definition of an Article II “natural born Citizen,” which only applies to presidential and vice presidential eligibility, born in the United States to citizen parents. Minor. Since, Obama is neither “a natural born Citizen” nor “a citizen of the United States, at the time of the adoption of this Constitution” (was adopted in 1787), Obama is not eligible to be President and Commander in Chief.

One might ask what Congress can possibly do at Obama’s January 4 confirmation hearing given that it has already once confirmed him to be eligible and he has already served one term as President. That Obama has been President for the last four years does not mean that he is a constitutionally legitimate president. Rather, given that Obama is not Article II eligible to be president, he has acted as a de facto president but not a de jure one. A de facto president is a president who is not constitutionally legitimate but who has usurped the office and its powers and who because of practical reasons is tolerated for the time he occupies and exercises the powers of the office, but who can be legally removed through a prescribed legal process. On the other hand, a de jure president is a president who is constitutionally legitimate. Needless to say, tolerating a de facto president (one that is not a “natural born Citizen”) rather than a de jure president not only renders Article II’s presidential eligibility requirement meaningless, flouts the rule of law, and is inimical to a constitutional republic such as the United States of America, but puts the safety and security of our nation at risk.

Our historical precedents have spoken as to who is a “natural born Citizen.” The U.S. Supreme Court has confirmed the definition to be a child born in the country to citizen parents. Congress is constitutionally bound to apply this definition to Obama. Congress’s failure to apply this definition to Obama and to again declare him President of the United States would amount to nothing more than treason upon the constitution and the nation by allowing a de facto president to continue in that all powerful office for a second term rather than a constitutionally legitimate one. The fate of the nation is in the hands of Congress on January 4, 2013.

Mario Apuzzo, Esq.
December 30, 2012
http://puzo1.blogspot.com
####

Copyright © 2012
Mario Apuzzo, Esq.
All Rights Reserved





Saturday, December 22, 2012

The Florida Courts Say that If Anyone Can Be Santa Claus, Barack Obama Can Be President

The Florida Courts Say that If Anyone Can Be Santa Claus, Barack Obama Can Be President

                                        By Mario Apuzzo, Esq.
                                           December 22, 2012


Circuit Judge, Kevin J. Carroll, of the Circuit Court of the Second Judicial Circuit in Leon County, Florida, has abruptly dismissed the state Obama eligibility case of Michael C. Voeltz v. Barack Hussein Obama (Case No. 2012-CA-3857). Judge Carroll had given the plaintiffs until December 23, 2012 to respond to Obama’s motion to dismiss the case. But he then changed his mind and on Thursday issued an order dismissing the case.

After stating that the same case was already decided by the Florida courts and that the Florida courts lacked subject matter jurisdiction to decide the case because it raised a political question, Judge Carroll said that the court was now presented with “Voeltz III.” He then said:

“This court notes that President Obama lives in the White House. He flies on Air Force One. He has appeared before Congress, delivered State of the Union addresses and meets with congressional leaders on a regular basis. He has appointed countless ambassadors to represent the interests of the United States throughout the world.” President Obama’s recent appointment of The Honorable Mark Walker, formerly a member of this Court, has been confirmed by the United States Senate. Judge Walker has been sworn in as a United States District Court Judge and currently works at the Federal Courthouse down the street. The Electoral College has recently done its work and elected Mr. Obama to be President once again.”

Judge Carroll then added:

“As this matter has come before the Court at this time of the year it seems only appropriate to paraphrase the ruling rendered by the fictional Judge Henry X. Harper from New York in open court in the classic holiday film ‘Miracle on 34th St.’ ‘Since the United States Government declares this man to be President, this Court will not dispute it. Case dismissed.’”

Judge Carroll’s order and decision can be read at http://www.wnd.com/files/2012/12/12CA3857.pdf

Again, our judiciary is disappointing. Judge Carroll could have just said that the matter was moot (the matter no longer presents a justiciable controversy in that the controversy no longer presents any practical consequences to be remedied by the court), res judicata (the matter has already been decided among the same parties and that decision is binding on those same parties in a later action raising the same issues), or the court lacked subject matter jurisdiction (power over the specific matter presented for judicial decision) because the case presented a political question (the Constitution specifically assigns the question of presidential eligibility only to Congress), and that would have ended the case with the appearance of having been decided judiciously. But the judge felt compelled to go further and inject mockery into a judicial decision. I will now only address that part of the decision because that is the part that, despite what might appear to be or passed off as humor of some sort, in a subtle way goes to the merits of the question of whether Obama is a “natural born Citizen” and is most damaging and prejudicial to the judicial process and the rule of law.

I have shown in my article entitled, Logic and Defining the “Natural Born Citizen” Clause, accessed at http://puzo1.blogspot.com/2012/11/logic-and-defining-natural-born-citizen.html how a handful of courts that have reached the merits of the question of what is an Article II “natural born Citizen” and whether Obama meets that definition have engaged in tautological reasoning (by concluding that a “natural born Citizen is any “born citizen”) and committed the fallacy of affirming the consequent (by arguing that a “natural born Citizen” is a “born Citizen” or anyone who becomes at once a citizen of the United States. Obama is a “born Citizen” or someone who became at once a citizen of the United States. Therefore, Obama is a “natural born Citizen”) to reach their conclusion that Barack Obama is an Article II “natural born Citizen.” Now we have the Florida court committing more logical fallacies. First, plaintiff Michael C. Voeltz’s constitutional challenge is that Obama is not an Article II “natural born Citizen.” Mr. Voeltz is correct. Among the briefs that I have filed with various courts and the many articles that I have written on the subject at my blog http://puzo1.blogspot.com , see Mario Apuzzo, Barack Obama Is Ineligible to be President, For He Is Neither a “Natural Born Citizen” Nor a “Citizen of the United States, at the time of the Adoption of this Constitution,” accessed at http://puzo1.blogspot.com/2012/10/barack-obama-is-ineligible-to-be.html (demonstrates based on historical, U.S. Supreme Court, and Congressional sources that a “natural born Citizen” is a child born in a country to parents who were citizens of that country and that Obama does not meet that definition). Judge Carroll’s logic and reasoning would have us accept that by Obama acting presidential and the “United States Government” simply saying he is eligible, Obama somehow magically becomes and proves that he is an Article II “natural born Citizen.” Anyone who engages in sound critical thinking should know that things do not become something else by simply acting like something else (cowbirds in other birds’ nests which act like the species of birds they have invaded do not thereby become those other species) or that something is so merely because someone says it is so. (“Unlike in ‘Alice in Wonderland,’ simply saying something is so does not make it so.” U.S. District Court Judge Clay Land in Rhodes v. MacDonald, 4:09-cv-106 (CDL) (U.S. Dist. Ct. of Georgia, Middle Dist., Columbus Div., Sept. 16, 2009). Coincidently, the novel was written by Lewis Carroll).  After all, did not the United States Government in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), say that Wong was not a U.S. "citizen," but the Court nevertheless ruled that he was. 

Second, Judge Carroll should study what a de facto officer is because that is exactly what he has used to conclude that Obama is a “natural born Citizen.” Following Judge Carroll’s logic, a de facto president, a president who is not constitutionally legitimate but who has usurped the office and its powers and who because of practical reasons is tolerated for the time he occupies and exercises the powers of the office but who can be legally removed through a prescribed legal process, would automatically be converted into a de jure president, a president who is constitutionally legitimate. Needless to say, such a result renders Article II’s presidential eligibility requirement meaningless and flouts the rule of law.

Third, Judge Carroll’s reliance on Miracle on 34th St. Judge Henry X. Harper is not only misplaced, but actually contradicts his own point. Judge Harper ruled that since the United States Government says that God exists (“In God We Trust”) without there being any evidence of God’s existence, defendant Santa Claus could publicly say he was Santa Claus even though he did not have any evidence to prove that he was in fact Santa Claus. Hence, he dismissed the charges brought against Santa Claus. Is Judge Carroll telling us that Obama can be President even though there does not exist any evidence of his being an Article II “natural born Citizen” just like Judge Harper found, the United States Government can say God exists even though there is no evidence of His existence or Santa Claus can say he is Santa Claus even though he does not have any evidence to prove that he is in fact Santa Claus? In this connection, I am reminded how New Jersey Administrative Law Judge, Jeff S. Masin, ruled in election ballot challenge, Purpura v. Obama, that Obama did not have to demonstrate who he is or where he was born to get on the New Jersey election ballot, for even Mickey Mouse can run for President, and who ruled that Obama was a “natural born Citizen” even after admitting that there was absolutely no evidence before him as to who Obama is, where he was born, or who his parents are. See, Mario Apuzzo, Update on the Purpura and Moran New Jersey Obama Ballot Access Objection, at http://puzo1.blogspot.com/2012/04/update-on-purpura-and-moran-new-jersey.html . Or how about federal Judge James Robertson, who dismissed an Obama eligibility case, Hollister v. Soetoro, 08-2254 (JR), (U.S. Dist. Ct., Dist. of Columbia, March 5, 2009), because as he said Obama’s eligibility to be President had been adequately proven through evidence on the internet and wrote: “The issue of the president’s citizenship was raised, vetted, blogged, texted, twittered, and otherwise massaged by America’s vigilant citizenry during Mr. Obama’s two-year campaign for the presidency.” What is ironic is that Judge Carroll, Judge Masin, and Judge Robertson have actually described the state of affairs as they presently exist regarding Obama’s eligibility to be President without intending to do so.

The American people should expect from our courts logical and well-reasoned decisions, based on adherence to due process and well-established legal principles and real evidence. A judge is supposed to be a neutral arbiter who is guided only by the applicable rules of law and equity and whose purpose is to do justice based on those rules and the evidence before him or her for not only the parties in the case but also for society as a whole. In fulfilling that moral and legal duty, he or she must find the facts and the applicable law, apply that law to those facts, and render a reasoned decision, all done without any bias or prejudice. In a constitutional republic such as the United States, merely saying that someone acts presidential or merely saying that someone is presidential cannot take the place of demonstrating based on real law and evidence that someone truly is presidential. Apart from failing to decide the question of whether Barack Obama is constitutionally eligible to be President based strictly on the Constitution, the rule of law, and real evidence, such mockery and illogical reasoning as we have seen from Judge Carroll and other courts bring only contempt upon our courts and is a mar upon the integrity and professionalism of the American judiciary.

Mario Apuzzo, Esq.
December 22, 2012
http://puzo1.blogspot.com
####

Copyright © 2012
Mario Apuzzo, Esq.
All Rights Reserved



Wednesday, November 28, 2012

Logic and Defining the "Natural Born Citizen" Clause


                         Logic and Defining the “Natural Born Citizen” Clause

                                              By Mario Apuzzo, Esq.
                                                 November 28, 2012


Father of Logic



I recently posted this comment to Keith at Dr. Conspiracy’s blog called, Obama Conspiracy Theories:

“You said: ‘[S]o he [Wong] was a born citizen and therefore he was a natural born citizen.’ This is so logically fallacious. Have you ever heard of the fallacy of affirming the consequent? First, the clause is ‘natural born Citizen,’ not ‘born Citizen.’ The clause ‘natural born Citizen’ has one and only one definition which is a child born in the country to ‘citizen’ parents. See Minor v. Happersett (1875); U.S. v. Wong Kim Ark (1898). Second, being a born citizen is a necessary condition of being a ‘natural born Citizen.’ It is not a sufficient condition, for the definition also includes birth in the country to citizen parents. Hence, you commit the fallacy of affirming the consequent when you state that if someone is a born citizen he is therefore a ‘natural born Citizen.’"

Then a commentator at Dr. Conspiracy’s blog by the name of dunstvangeet posted this reply to me: “Mario, you talk about logical fallacies. You commit the fallacy of Denying the Antecedent all the time. Your entire argument on Minor is a denial of the Antecedent. If A, then B. Not A. Therefore Not B. If someone is born to two citizen parents and born in the country, then they are a natural born citizen. A is not born to two citizen parents and born in the country, therefore A is not a natural born citizen. Classic case of denying the antecedent. So, you lecturing someone on logical fallacies just broke my irony meter.”

My advice to dunstvangeet which I posted in the same thread is that he should go back to logic school and get his irony meter fixed.

Then on November 27, 2012, Dr. Conspiracy, the owner of the blog, responded to my comment by posting this: “As someone with a graduate degree in mathematics and who has an article published in a scholarly journal on explosions (‘The explosion point characterization theorem’), I hereby issue this affidavit stating: dunstvangeet's comment is a proper application of logical theory to Mr. Apuzzo's comment, and I endorse his conclusion that Apuzzo's reading of the Minor [Minor v. Happersett (1875)] case involves the fallacy of Denial of the Antecedent. Is there a notary in the house?”

So there you have the posture of the question of whether Obama’s supporters and the courts have committed the fallacy of Affirming the Consequent or whether I have committed the fallacy of Denial of the Antecedent. I will now further demonstrate that I have not argued any fallacious position and that on the contrary, it is the Obama supporters who engage in tautological argument and commit the fallacy of Affirming the Consequent. Let us now examine these issues.

In order to properly analyze the logical question presented here, we have to start with whether there is any settled definition of a “natural born Citizen.” Indeed, there is only one definition of a “natural born Citizen.” That definition is a child born in a country to “citizen” parents. As the reader can see, I have chosen to insert a picture of Aristotle in this article because Aristotle is the Father of Logic. But there is another reason why Aristotle is relevant to this article. Actually, Aristotle also gave us a definition of a “natural born Citizen.” In “Politics, Book Three, Part II, Aristotle, writing in 350 B.C.E., as translated by Benjamin Jowett, gave us his definition of citizenship:

“Part II

But in practice a citizen is defined to be one of whom both the parents are citizens; others insist on going further back; say to two or three or more ancestors. This is a short and practical definition but there are some who raise the further question: How this third or fourth ancestor came to be a citizen? Gorgias of Leontini, partly because he was in a difficulty, partly in irony, said- 'Mortars are what is made by the mortar-makers, and the citizens of Larissa are those who are made by the magistrates; for it is their trade to make Larissaeans.' Yet the question is really simple, for, if according to the definition just given they shared in the government, they were citizens. This is a better definition than the other. For the words, 'born of a father or mother who is a citizen,' cannot possibly apply to the first inhabitants or founders of a state.

There is a greater difficulty in the case of those who have been made citizens after a revolution, as by Cleisthenes at Athens after the expulsion of the tyrants, for he enrolled in tribes many metics, both strangers and slaves. The doubt in these cases is, not who is, but whether he who is ought to be a citizen; and there will still be a furthering the state, whether a certain act is or is not an act of the state; for what ought not to be is what is false. Now, there are some who hold office, and yet ought not to hold office, whom we describe as ruling, but ruling unjustly. And the citizen was defined by the fact of his holding some kind of rule or office- he who holds a judicial or legislative office fulfills our definition of a citizen. It is evident, therefore, that the citizens about whom the doubt has arisen must be called citizens.”

http://classics.mit.edu/Aristotle/politics.html . Here we can see that Aristotle did not define citizenship like the English did in the English common law in which they did not give any relevancy to the citizenship of the child’s parents, provided the parents were not diplomats or military invaders. Aristotle included in the definition of a “citizen” a person “of whom both the parents are citizens.” As we shall see, it is this definition which was handed down through the millennia through the law of nations and which the Founders and Framers adopted for the new republic. We shall also see that Minor v. Happersett (1875) informed that a person who became a citizen by being born in the country to “citizen” parents was know in common law with which the Framers were familiar as a “natural-born citizen.” How do we know that the Founders and Framers looked to Aristotle’s view of citizenship? We learn from the historical record that Supreme Court Justice James Wilson wrote in 1791: “‘Generally speaking,’ says the great political authority, Aristotle, ‘a citizen is one partaking equally of power and of subordination.’ … In Wilson's view, "a citizen of Pennsylvania is he, who has resided in the state two years; and, within that time, has paid a state or county tax: or he is between the ages of twenty one and twenty two years, and the son of a citizen.” James Wilson, 1st commentaries on the Constitution. Here we clearly see Wilson referring to what could only be a “natural born Citizen” as "the son of a citizen."

What the Founders and Framers learned from Greek ancient history was confirmed by Roman ancient history. The Founders and Framers looked to ancient Roman history to learn how best to constitute a republican form of government. They also looked to ancient Roman law to understand the law of nature. Roman law provided: “Lex MENSIA, That a child should be held as a foreigner, if either of the parents was so. But if both parents were Romans and married, children always obtained the rank of the father, (patrem sequuntur liberi, Liv. iv. 4.) and if unmarried, of the mother, Uipian.” Alexander Adam, Roman antiquities: or, An account of the manners and customs of the Romans 210 (6th ed. corrected 1807). Cicero wrote in A Proposal:

“The Colophonians claim Homer as their own free Denizen, the Chians challenge him as theirs, the Salaminians demand him again for their own, but the Smyrneans assert him to be their natural born Citizen; and therefore have also dedicated a Temple to him in their Town of Smyrna. There are a great many besides at Daggers-drawing among themselves, and contend for him.”

A Proposal For Printing in English, The Select Orations of Marcus Tullius Cicero, According to the last Oxford Edition 17 (Henry Eelbeck trans. London 1720).

We also know that the Founders and Framers studied Roman law. The Framers were well read in the Roman and Greek classics as is expounded upon in their writings in the Federalist Papers. Jefferson and other Founders had a love for Roman history and education. The Founders and Framers were great admirers of Cicero and read many of his works. It is not inconceivable that they would have read this English translation of The Proposal and seen the clause “natural born Citizen.” This shows that they did not need to borrow the clause from the English common law’s “natural born subject.” Rather, they had sources which they read which contained the exact clause, “natural born Citizen,” which clause also had its own meaning which was different from that of an English “natural born subject” which allowed children born in the King’s dominion and under his allegiance to aliens to be English “natural born subjects.”

A definition of a “natural born Citizen” was also provided by the world-renowned, Emer de Vattel in his The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758). Vattel had a great influence on the Founders and Framers in their constituting the new republic and writing the Constitution.  See, for example, J.S. Reeves, The Influence of the Law of Nature Upon International Law in the United States, 3 Am.J. Int’l L. 547 et. seq. passim (1909) (Vattel exerted such a profound political influence that it is often pointed out that his theories served as the backbone for American independence); Lee A. Casey, David B. Rivkin, Jr. and Darin R. Bartram, Unlawful Belligerency and Its Implications Under International Law, http://www.fed-soc.org/publications/PubID.104/pub_detail.asp (concerning U.S. constitutional analysis, “Vattel is highly important. He was probably the international law expert most widely read among the Framers”). In fact, Vattel continued to be practically applied in our nation for well over 100 years after the birth of the republic; F.S. Ruddy, The Acceptance of Vattel, Grotian Society Papers (1972) (Vattel was mainstream political philosophy during the writing of the Constitution. The Law of Nations was significantly the most cited legal source in America jurisprudence between 1789 and 1820). The Founders and Framers studied and were greatly influenced by Vattel. R.G. Natelson, The Original Constitution 49 and 69 (2010) (“Vattel was probably the Founders’ favorite authority on international law . . . .” and his, treatise, The Law of Nations, was their favorite).

“The fourth of the Four Horsemen of American liberty [Algernon Sidney, Samuel von Pufendorf, Jean Jacques Burlamaqui, and Emmerich de Vattel] is Emmerich de Vattel. Although last in this list of forgotten influences, it can be claimed, without exaggeration, that it is Vattel’s interpretations and writings on the subject of the proper constitution of government that was most influential on the Founders of the American Republic. As a matter of fact, Thomas Jefferson, indisputably one of the lead framers of our nation’s government, ranked Vattel’s seminal The Law of Nations, or the Principles of Natural Law as highly as similar treatises by Grotius and Pufendorf. Further proof of Vattel’s impression on the Founders is the fact that Vattel’s interpretations of the law of nature were cited more frequently than any other writer’s on international law in cases heard in the courts of the early United States, and The Law of Nations was the primary textbook on the subject in use in American universities.”

Joe Wolverton, II, Forgotten Influences of the Founders (December 24, 2009), http://www.thenewamerican.com/index.php/history/american/2606-forgotten-influences-of-the-founders .

One more source among many more deserves to be cited to show the authority that Vattel carried with the Founders and Framers on matters of citizenship. During the 1789 Ramsay-Smith congressional debate on whether Representative William Smith was at least a “Citizen of the United States” for seven-years so as to be eligible to be a representative under Article I, Section 2, Smith relied upon Vattel to show that he was such a “citizen.” Smith argued that he was a “citizen.” Smith did not refer to the English common law to show that he was a “citizen of the United States” for the requisite 7 years. Rather, he cited Emer de Vattel for support and said he did not have enough money to come back to America. In his own defense William Smith quotes Emer de Vattel:

“The Doctor [Ramsay] says the circumstances of birth do not make a citizen–This I also deny. Vattel says: 'The country of the father is that of the children and these become citizens by their tacit consent.' I was born a Carolinian [before the Declaration], and I defy the Doctor to say at what moment I was disenfranchised. The revolution which took place in America made me a citizen, though then resident at Geneva…. There was never a moment when I was a citizen of any other country.”

So we can see that William Smith, during a debate on the floor of the House of Representatives in 1789, cited Emer de Vattel in defense of his own citizenship to show that he was eligible to be a Representative of the United States under our Constitution.

Smith said that Vattel said: "The country of the father is that of the children and these become citizens by their tacit consent." Madison said: "Mr. Smith founds his claim upon his birthright; his ancestors were among the first settlers of that colony." The case for Vattel's "citizen" was clearly made. Smith, in defining his own citizenship did not mention the English common law, but rather looked to Vattel and the law of nations.

Having shown the influence that Vattel had over the Founders and Framers on matters of citizenship, let us now examine what Vattel wrote regarding a “citizen” and a “natural born Citizen.” Here is the full text of Vattel’s 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 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.”

Indeed, Vattel defined a “citizen” as simply a member of civil society. He then said that “[t]he natives, or natural-born citizens, are those born in the country, of parents who are citizens.” There is little doubt that in this statement Vattel confirmed the definition of a “natural born Citizen” and told us what a “natural-born citizen” was, saying that the “natural-born citizens, are . . .” Hence, he did not only provide a situation among many which defined a “natural-born citizen.” Rather, providing the only definition of the clause, he provided the sufficient and necessary conditions to be met in order for one to be a “natural-born citizen.”

Historical and legal evidence demonstrates that the Founders and Framers adopted this ancient definition as the only definition of a “natural born Citizen.” First, the Founders and Framers put forth in Article II, Section 1, Clause 5 presidential eligibility requirement. The clause reads: “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.” Like they made a bright line rule as to 35 years of age and 14 years residency, they did the same with the definition of a “natural born Citizen.” There is no evidence in the historical record that has come to light which suggests that the Founders and Framers did not agree on what the definition of a “natural born Citizen” was or that someone during the drafting and ratifying conventions took issue with the then existing definition. The Founders and Framers simply would not have used a clause in the Constitution for presidential eligibility purposes the meaning of which was not settled and not debated that meaning during those constitutional conventions. It is therefore absurd to think that there were other hidden definitions of the “natural born Citizen” clause which were yet to be discovered and confirmed in the future or that there could be other persons who could also be “natural born Citizens” but about whom there were doubts whether they were.

Second, there are various U.S. Supreme Court decisions which cited and quoted or paraphrased Vattel and his definition of a “natural-born citizen” and therefore recognized a “natural born Citizen” to be a child born in the country to “citizen” parents. For example, see The Venus, 12 U.S. 8 Cranch 253, 289 (1814) (C.J. Marshall concurring) (Founder Chief Justice John Marshall, concurring and dissenting for other reasons in a prize case the resolution of which depended upon the citizenship status of the parties, cited Vattel and provided his definition of natural born citizens and said: “Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says ‘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 indigenes are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.’”); Inglis v. Sailors’ Snug Harbor, 28 U.S. 99 (1830) (held that a child born in the United States inherits the citizenship of his parents); Shanks v. Dupont, 28 U.S. 242, 245, 252 (1830) (providing the same Vattelian definition without citing Vattel, Justice Story stated: “If she was not of age, then she might well be deemed under the circumstances of this case to hold the citizenship of her father, for children born in a country, continuing while under age in the family of the father, partake of his national character as a citizen of that country.” Justice Story in Shanks confirmed the common law maxim that existed in the colonies and during the Founding. That maxim was “partus sequitur patrem” or children follow the condition of their father. “Partus” is defined as “child” or “offspring.” Black’s Law Dictionary 1010 (5th ed. 1979). “Sequitur means to follow. “Patrem” means father. Justice Johnson in his dissent in Shanks further confirmed it when he explained that a “leading maxim[] of common law” then prevailing was “proles sequitur sortem paternam.” “Proles” is defined as [o]ffspring; progeny; the issue of a lawful marriage. In its enlarged sense, it signifies any children.” Black’s Law Dictionary 1091 (5th ed. 1979). Hence, the maxim means children follow the condition of their fathers); Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (the unanimous U.S. Supreme Court paraphrased Vattel almost word for word when defining a “natural-born citizen” thus: “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.” Id. at 167-68); Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879) (cited and quoted Vattel’s definition of a “natural-born citizen”); United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (same); and U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898) (cited, quoted, and affirmed Minor’s definition of a “natural-born citizen” and held that a child born in the United States to domiciled and resident alien parents was a “citizen of the United States” from the moment of birth under the Fourteenth Amendment). There has never been any other definition of a “natural born Citizen” articulated by our U.S. Supreme Court, from the early years of the republic down to the present. The same definition of a “natural born Citizen” has been repeated many times by our U.S. Supreme Court. Hence, this one definition can be the only one that the Founders and Framers used. So, there has never been any other definitions or classes of “natural born Citizens.” With a “natural born Citizen” having only one definition and therefore containing no subsets, it cannot by analogy be compared to animals, plants, or automobiles which each contain many subsets.

From these historical and legal developments, we can express the one and only definition of a “natural born Citizen” thus:

If and only if A is born in the country to citizen parents, then A is a "natural born Citizen."

Or

If A is a "natural born Citizen," then A is born in the country to citizen parents.

Neither of these statements commits what dunstvangeet and Dr. Conspiracy call the fallacy of Denying the Antecedent, for being born in the country to citizen parents are not only sufficient or necessary conditions, but both sufficient and necessary conditions. They are sufficient because if both exist, then one is a “natural born Citizen.” And they are necessary because if one or both conditions do not exist, one cannot be a “natural born Citizen.” The logical error that Obama’s supporters like dunstvangeet and Dr. Conspiracy commit is in not giving the “natural born Citizen” clause a specified and limited meaning. They want to treat a “natural born Citizen” like they would treat animals, plants, and automobiles. Yes, we can agree that the following represents the fallacy of Denying the Antecedent: If Bill owns a dog, he owns an animal. Bill does not own a dog, therefore Bill does not have an animal. The argument is fallacious because Bill could own a cat which is also an animal. But the problem with this simplistic approach is that there is not more than one class of “natural born Citizens” like there is animals which break up into subsets called dogs, cats, horses, cows, pigs, etc. As we have seen, the clause “natural born Citizen” has only one definition. Hence, the factors found in that definition which go to define the clause become both sufficient and necessary. A finding that one’s birth circumstances is missing any one of the necessary constituent factors, i.e., birth in the country or birth to “citizen” parents, is a sufficient basis for us to validly conclude that one is not a “natural born Citizen.” The logical error that Obama’s supporters like dunstvangeet and Dr. Conspiracy commit is in not realizing that because the “natural born Citizen” clause has only one definition, when we say that if a person is born in the country to “citizen” parents, that person is a “natural born Citizen,” we are really saying “if and only if” (expressed as “iff” in logic, and not just “if”) that person is born in the country to “citizen” parents, that person is a “natural born Citizen.”

Now let us examine how Obama’s supporters, in arguing that Obama is a “natural born Citizen,” arrive at their conclusion by way of tautology and the fallacy of Affirming the Consequent. Jack Maskell, in 2011 wrote a CRS memo entitled, “Qualifications for President and the ‘Natural Born’ Citizenship Eligibility Requirement, Jack Maskell, Congressional Research Service, November 2011, which can be read at http://www.fas.org/sgp/crs/misc/R42097.pdf . Mr. Maskell concludes that a "natural born Citizen" is any person who, under the Fourteenth Amendment or any Congressional Act, becomes a “citizen of the United States” "at birth." A handful of courts that have reached the merits of the meaning of a “natural born Citizen” and whether President Barack Obama meets that definition have adopted Mr. Maskell’s thesis and ruled that any child born in the United States who is a “citizen of the United States” under the Fourteenth Amendment is a “natural born Citizen,” regardless of the citizenship of the parents, simply because such a child is a “born citizen,” “citizen at birth,” or “citizen from birth.” But upon close scrutiny, we can see that there are some grave legal and logical problems with such a simplistic argument.

First, the argument that a “natural born Citizen” is any child that is a “born citizen” is a tautology. The argument is nothing but a repetition of part of the clause we are defining, “natural born Citizen,” with the word “natural” left out in order to make it look like one has actually unlocked some secret to defining the clause and provided a definition of the whole clause. But the definition provided, “born citizen,” or its equivalent, “citizen at birth” or “citizen from birth,” add absolutely no information to defining “natural born Citizen.” Of course, a “natural born Citizen” is a “born citizen,” or “citizen at birth,” or “citizen from birth.” The clause itself tells us that a “natural born Citizen” could not be one who is a citizen not from birth. But simply acknowledging the moment in time at which a “natural born Citizen” comes into being does not provide any definition of the clause, for the statement does not identify what conditions must be satisfied in order for such a person to be a citizen from the moment of birth. So, the Founders and Framers could not have had such a tautological statement in mind as the definition of a “natural born Citizen.” They had to have had a definition in mind that contained real conditions which when satisfied made one a “natural born Citizen.” We have seen above that that definition was a child born in the country to “citizen” parents.

Second, Mr. Maskell and the courts, like Keith, not only engage in reasoning that is tautological, but also commit the fallacy of Affirming the Consequent. dunstvangeet and Dr. Conspiracy did not address my argument concerning Keith committing the Fallacy of Affirming the Consequent. Let us examine this fallacy and how it is found in the argument that, Obama is a “natural born Citizen” because he is a U.S. “citizen” “at birth.” In the correct application and understanding of the statement: If one is a “natural born Citizen,” then one is a “citizen at birth,” the condition of being a “citizen at birth” is only a necessary consequence of being a “natural born Citizen.” “Citizen at birth” is not a factor which alone makes one a “natural born Citizen.” Being the necessary consequence of being a “natural born Citizen,” it is not a sufficient condition for becoming a “natural born Citizen,” for we have seen that what is also necessary is birth in the country to “citizen” parents which are the necessary conditions which produce the consequence of being a “citizen at birth.” So, to simply say that all those who are born in the United States and who are “born citizens,” “citizens at birth,” or “citizens from birth” are “natural born Citizens” is not only a tautology, but is also a case of the fallacy of affirming the consequent.

To further illustrate this, we can agree what champagne is. Champagne is defined as a sparkling wine produced from grapes that are grown in the Champagne region of France by using certain fermentation rules. Now let us go from this definition to this true statement: If wine is Champagne, then it was “made from grapes grown in the Champagne region of France.” Now let us assume that someone comes along and wants to prove that his sparkling wine is Champagne. He argues that his wine must be Champagne because it was “made from grapes grown in the Champagne region of France.” We scientifically examine his claim and learn that the sparkling wine was “made from grapes grown in the Champagne region of France,” but the producer did not use certain fermentation rules. Actually, “[s]ome use the term champagne as a generic term for sparkling wine, but many countries reserve the term exclusively for sparkling wines that come from Champagne and are produced under the rules of the appellation (footnotes omitted). http://en.wikipedia.org/wiki/Champagne . Did you see that? The wine must also be made under rules of the appellation which is an additional necessary factor to be satisfied in order for any given wine to be Champagne. We must therefore reasonably conclude that the wine is in fact not Champagne because the producer did not use certain fermentation rules which are a requirement to be met if the wine is to be Champagne. So, even though our person’s sparkling wine was “made from grapes grown in the Champagne region of France,” his wine was still not Champagne. That is because having a sparkling wine “made from grapes grown in the Champagne region of France” is a necessary consequence of producing Champagne wine, but it is not a sufficient condition for its creation, for the wine maker must also use certain fermentation rules. So, likewise, being a “born citizen,” or “citizen at birth” or “citizen from birth,” is only a necessary consequence of being a “natural born Citizen,” but it is not a sufficient condition for that type of citizen’s creation, for the age-old definition of the clause also requires birth in the country to “citizen” parents.

From this logical reasoning we conclude that even though Barack Obama may have been born in Hawaii, a fact which he has not yet conclusively proven, which would make him under the Fourteenth Amendment a “born Citizen,” or a “citizen at birth,” or a “citizen from birth,” he is still not a “natural born Citizen” because he was not born to “citizen” parents, meaning a U.S. “citizen” father and mother, which is what the American common law definition requires. And not being an Article II “natural born Citizen,” he is not eligible to be President and Commander in Chief of the Military.

For a more in-depth analysis of the meaning of a “natural born Citizen” and explanation of how the clause was defined under the law of nations and American common law rather than English common law, see Mario Apuzzo, “Barack Obama Is Ineligible to be President, For He Is Neither a ‘Natural Born Citizen’ Nor a ‘Citizen of the United States, at the time of the Adoption of this Constitution,’” accessed at http://puzo1.blogspot.com/2012/10/barack-obama-is-ineligible-to-be.html .

For an explanation of how the fallacy of Affirming the Consequent was recently used by the Vermont Superior Court to dismiss the Vermont ballot challenge of H. Brooke Paige v. Barack Obama, see Mario Apuzzo, “The Vermont Court Errs in Dismissing Presidential Ballot Challenge H. Brooke Paige v. Barack Obama, accessed at http://puzo1.blogspot.com/2012/11/the-vermont-court-errs-in-dismissing.html .

Mario Apuzzo, Esq.
November 28, 2012
http://puzo1.blogspot.com
####

Copyright © 2012
Mario Apuzzo, Esq.
All Rights Reserved



Saturday, November 17, 2012

The Vermont Court Errs in Dismissing Presidential Ballot Challenge H. Brooke Paige v. Barack Obama

The Vermont Court Errs in Dismissing Presidential Ballot Challenge H.
                                        Brooke Paige v.  Barack Obama
                                                
                                             By Mario Apuzzo, Esq.
                                               November 17, 2012

Judge Robert R. Bent, Presiding Judge of the Vermont Superior Court, on November 14, 2012 dismissed the candidate Barack Obama Vermont ballot challenge of Paige v. Obama, Docket No. 611-8-12. He ruled that H. Brooke Paige does not have standing to bring the action, the court does not have jurisdiction, and his argument on the meaning of a “natural born Citizen” has no merit. The decision can be read at http://www.scribd.com/doc/113533939/VT-Paige-v-Obama-Et-Al-DeCISION-Vt-Super-Ct-Nov-2012 .

Mr. Paige filed his ballot challenge against both candidate Barack Obama and the Vermont Secretary of State, arguing that Obama should not be allowed on any presidential election ballot in Vermont because, being born to a U.S. “citizen” mother, but not also to a U.S. “citizen” father, he is not an Article II “natural born Citizen.”

                                                            I.

As to standing, Judge Bent ruled that Vermont has adopted the federal rule on standing which requires a litigant to satisfy both the requirements of Article III and its related prudential component. He explained that standing requires a litigant to show injury in fact, causation, and redressability. He concluded that Paige has not shown injury in fact. But Barack Obama has again won the general election. He now stands to win the Electoral College vote. Paige has adequately shown that his life, liberty, and property can be particularly injured by having to live under the authority and power of a person who may occupy the Office of President and Commander in Chief of the Military who may not be constitutionally eligible to be there in the first place for not being a “natural born Citizen.” Mr. Paige has adequately shown that the Founders and Framers required future presidents to be “natural born Citizens” to protect and preserve the nation. Hence, the clause is a national security measure designed to assure the safety of the nation. Needless to say, the “natural born Citizen” clause is intended to protect and preserve Mr. Paige and to provide for his safety and well-being. That the clause protects all Americans is no reason to deny Mr. Paige its protection in a legal action in which he seeks to have the courts enforce the clause.

Judge Bent did recognize that Vermont also has two statutes, 17 V.S.A. Sec. 2603(a)(3), which allows any legal voter to challenge an election after it occurs. He conceded that on its face, the statute does not limit itself to any particular election issue as the subject of an election contest. He also cited Sec. 2617 which provides: “In all cases for which no other provision has been made, the superior court shall have general jurisdiction to hear and determine matters relating to elections and to fashion appropriate relief.” But he distinguished these statutes and concluded that they only apply to activities occurring during the conduct of the election itself which could change the result of the election and not to presidential eligibility. But the statutes say no such thing and Judge Bent has written words into these statutes which the Vermont legislature did not write. Additionally, whether a candidate is eligible for the office he or he seeks does affect the conduct of the election and could surely change the result of the election. What could be more fundamental to the conduct of an election for any given office than whether a candidate is constitutionally eligible for the office he or she seeks? So, the legislature has specifically passed these two statutes which allow a voter such as Mr. Paige to challenge in the Vermont Superior Court a presidential candidate’s eligibility to be placed on the Vermont presidential election ballot and election to that office through the general election and the Electoral College.

Judge Bent also concluded that these Vermont statutes are no reason for the court to find that Paige has satisfied the requirement of prudential standing, which requires that a plaintiff’s claim is included in “the zone of interest protected by the law invoked.” He found that these statutes do not expressly allow a challenge by Mr. Paige to presidential eligibility and that to allow such a challenge in state court would produce “wholesale chaos and lingering uncertainty to presidential elections.” But such speculation is no reason to deny jurisdiction and to deny Mr. Paige a judicial forum for him to protect his constitutional rights. Our nation’s courts are more than capable to handle and coordinate complex legal matters. That the issue involves presidential eligibility is hardly a reason to conclude that our state courts cannot handle the matter. Moreover, given that the contested issue involves the presidential election, any state court decision on presidential eligibility would be fast tracked to the U.S. Supreme Court which would decide the matter for all the states. Hence, while the Vermont legislature has decided to confer standing upon Mr. Paige to bring his challenge to Obama in the Vermont state courts, Judge Bent has denied him that right.

                                                            II.

Judge Bent also concluded that the Vermont state courts or any state courts have no jurisdiction over the question of whether a presidential candidate is constitutionally eligible because for a state court to get involved in the matter could potentially create national chaos. But such speculation is no reason to deny jurisdiction and to deny Mr. Paige a judicial forum for him to protect his constitutional rights. As we saw above, our nation’s courts are more than capable to handle and coordinate complex legal matters and any state challenge would be fast tracked to the U.S. Supreme Court which would decide the matter for all the states. Finally, Judge Bent was not sure whether Congress in joint session under 3 U.S.C. Sec. 15 has the authority to address the issue of presidential eligibility which would make the matter a nonjusticiable political question. Hence, without any say from the courts (both state and federal given the standing rule and the requirements of jurisdiction that he imposes) or Congress, Judge Bent does not allow for any means for resolving under the rule of law any question of presidential eligibility in our constitutional republic.

                                                            III.

Standing and jurisdiction do not address the merits of a case. But Judge Bent also concluded that Paige’s argument as to what is an Article II “natural born Citizen” has no merit. Judge Bent erred just based on the text of the “natural born Citizen” clause. “It cannot be presumed that any clause in the constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it….” Marbury v. Madison. 5 U.S. 137, 174 (1803). Hence, a basic rule of constitutional construction is that every word in the constitution must be given meaning. The Constitution says "natural born Citizen," not "born Citizen." Judge Bent is therefore wrong simply on the constitutional text when he says that anybody who is born a citizen is a "natural born Citizen." There must be a reason the Framers added the word “natural” to “born Citizen.” The reason is that the clause is a word of art, an idiom, a unitary clause, which has a very specific fixed meaning. By adopting such a definition, Judge Bent has given the word “natural” no meaning and has confounded the proper interpretation of the clause by focusing on the result of being a “natural born Citizen” (born a citizen) rather than focusing on the word of art itself which has a very specific meaning. There is nothing about the clause which suggests that the word “natural” is surplusage and intended to have no effect. Hence, his interpretation “is inadmissible” and must be rejected.

Historical sources, case law of the U.S Supreme Court, and acts of Congress also demonstrate that Judge Bent has erred. Vattel at § 212. Citizens and natives, defined the “citizens” and the “natural-born citizens” thus:

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

Emer de Vattel, The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758).  While recognizing that Vattel's The Law of Nations "was a work of significant value to the founding fathers," Judge Bent refers to the phrase, “The natives, or natural-born citizens, are those born in the country, of parents who are citizens” as a phrase used only by Vattel. He said that simply because Vattel used the phrase, the phrase does not have any “constitutional significance.” But Paige provided to the court numerous historical and legal sources that demonstrated that after July 4, 1776, our nation adopted the law of nations model of citizenship and not that of the English common law. Judge Bent avoided any discussion of the naturalization acts of 1790, 1795, 1802, and 1855 which were all jus sanguinis (citizenship derived from parents) based and therefore followed the Vattel model. He also does not address cases like Minor v. Happersett, 88 U.S. 162, 167-68 (1875), where the unanimous U.S. Supreme Court adopted that phrase and jus sanguinis and held that the "natural born citizens," “[a]t common law, with the nomenclature of which the framers of the Constitution were familiar” were “all children, born in a country, of parents who were its citizens” and that at “common law,” “there have been doubts” whether we ever adopted jus soli (citizenship derived from the place of birth) citizenship. Judge Bent wrote as though Vattel is the only person ever to use the phrase when we know that the phrase was also adopted by the U.S. Supreme Court justices in The Venus, 12 U.S. 8 Cranch 253, 289 (1814) (C.J. Marshall concurring), Dred Scott v. Sandford, 60 US 393, 405 (1857) (J. Daniels concurring), and the unanimous U.S. Supreme Court in Minor, not to mention Inglis v. Trustees of Sailor’s Snug Harbor, 28 U. S. 99 (1830) and Shanks v. Dupont, 28 U.S. 242, 245 (1830) which adopted the same rule of partus sequitur patrem, i.e., children follow the condition of their parents which is jus sanguinis citizenship and not jus soli citizenship. See also Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879) and United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (cite and quote Minor’s Vattelian/American common law definition of a “natural-born citizen”).

Judge Bent said that Vattel’s use of “parents” in the plural does not have any "particular significance." Judge Bent said that “[t]hus far, no judicial decisions have adopted such logic in connection with this or any related issues.” But first, Vattel is not the only person to use the word “parents” in the plural, for the above cited U.S. Supreme Court Justices and case law also did. So Judge Bent actually told us that there is no “particular significance” to the U.S. Supreme Court’s use of the term “parents.” Second, Judge Bent failed to address the fact that at the time of the founding and until 1922 when Congress passed the Cable Act, a wife’s citizenship merged into that of the husband. Hence, “parents,” meaning both husband and wife, always had the same citizenship. Third, “parents” in the plural is nothing new to our citizenship and naturalization laws, for there are so many such statutes in our history that required both parents to be citizens in order for the child to gain any naturalization or immigration benefits. Fourth, Judge Bent accepted that because other cases were fortuitously decided before his, he is bound by those cases and relinquished his own independent thinking on the matter.

Judge Bent's reliance on the Fourteenth Amendment and U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) to expand the group of "natural born Citizens" to include children born in the United States to alien parents is also misplaced. The Framers in Article II clearly distinguished between a "natural born Citizen" and a "Citizen of the United States." In the future, being a “Citizen of the United States” was not sufficient, for only a "natural born Citizen" could be President. The Fourteenth Amendment provides in relevant part:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." We can see from the plain text of the Fourteenth Amendment that it only addresses a "citizen of the United States," not a "natural born Citizen."

Wong Kim Ark explained:

“The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. Calvin's Case, 7 Rep. 1, 18b; Cockburn on Nationality, 7; Dicey Conflict of Laws, 177; Inglis v. Sailors' Snug Harbor, 3 Pet. 99, 155; 2 Kent Com. 39, 42.”

Wong Kim Ark, at 682. We can see that the amendment’s purpose was to exclude from basic membership in the United States, which it calls “citizen of the United States” and not “natural born Citizen,” certain children, i.e., those of American Indians, alien enemies, and diplomats. It was not designed to tell us who were included as Article II “natural born Citizens.” We have seen from Minor, as confirmed by Wong Kim Ark, that American common law did that.

Wong Kim Ark confirmed Minor’s American common law definition of a “natural-born citizen" not only when it cited and quoted Minor, but also when it recognized that Wong was a Fourteenth Amendment “citizen of the United States,” not an Article II “natural born Citizen.” Justice Gray told us twice of this distinction. The first time he said: “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.' Page 22, note. This paper, without Mr. Binney's name, and with the note in a less complete form, and not containing the passage last cited, was published (perhaps from the first edition) in the American Law Register for February, 1854. 2 Am. Law Reg. 193, 203, 204. ” Wong Kim Ark, at 665-66. Later in his opinion, Justice Gray, in speaking about a child born in the United States to alien parents again said that an alien’s “child, as said by Mr. Binney in his essay before quoted, '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.'” Id. at 694. It is critical that when he mentioned it for the second time, his sentence followed the Court’s conclusion which he based on how the colonial English common law held aliens in amity to have sufficient allegiance to the King to make his children born in the King’s dominion “natural born subjects,” that Wong was born “subject to the jurisdiction” of the United States. So twice, Justice Gray told us of the distinction between a child born in the country to aliens and a child born in the country to “citizen” parents. He explained that both are “citizens,” but only the latter is a “natural-born citizen.”

Hence, Wong Kim Ark interpreted the meaning of the Fourteenth Amendment’s “citizen of the United States,” not Article II’s “natural born Citizen.” As Minor instructs, the Founders and Framers had only one definition of a "natural born Citizen." It held that the "natural-born citizens," “[a]t common law, with the nomenclature of which the framers of the Constitution were familiar” were “all children, born in a country, of parents who were its citizens.” Minor v. Happersett, 88 U.S. 162, 167-68 (1875); U.S. v. Wong Kim Ark, 169 U.S. 649, 679-80 (1898) (citing and quoting Minor). It is this American common law (not English common law) definition which the Founders and Framers adopted at the time of the adoption of the Constitution that controls, not what the U.S. Supreme Court said in Wong Kim Ark about a child born in the United States to domiciled and resident alien parents being a "citizen of the United States" under the Fourteenth Amendment. In fact, Wong Kim Ark analyzed whether the law of nations, which is the basis of our American common law definition of a “natural born Citizen,” had any controlling effect on defining citizenship in our nation at the time that the Fourteenth Amendment was passed, not when the Constitution was passed. Hence, Wong Kim Ark was not concerned with the Founders’ and Framers’ view of what was a “natural born Citizen” and Article II, but rather with the Fourteenth Amendment. It is therefore error for Judge Bent to use the Wong Kim Ark decision to expand the class of people who can be held to be “natural born Citizens.”

In his cursory mention of Minor in Footnote 1, Judge Bent also conflated and confounded Minor’s use of the word “citizen” with “natural born Citizen.” He pointed out that Minor said that “there have been doubts” whether “children born within the jurisdiction without reference to the citizenship of their parents” were “citizens.” He added that Wong Kim Ark answered that question which Minor left unanswered. But then he also concluded that Wong Kim Ark defined who was a “natural born Citizen.” But if Wong Kim Ark answered the question left open by Minor, it did not define what a “natural born Citizen” was, but rather only what a “citizen” was. A careful reading of Wong Kim Ark shows that it recognized that Minor left open the question of who was a “citizen of the United States” under the Fourteenth Amendment, not who was an Article II “natural born Citizen.” For example, Wong Kim Ark said:

“That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment is manifest from a unanimous judgment of the Court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench, in which Chief Justice Waite said: ‘Allegiance and protection are, in this connection’ (that is, in relation to citizenship),

‘reciprocal obligations. The one is a compensation for the other: allegiance for protection, and protection for allegiance. . . . 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 [p680] 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 (1874), 21 Wall. 162, 166-168. The decision in that case was that a woman born of citizen parents within the United States was a citizen of the United States, although not entitled to vote, the right to the elective franchise not being essential to citizenship. The only adjudication that has been made by this court upon the meaning of the clause, ‘and subject to the jurisdiction thereof,’ in the leading provision of the Fourteenth Amendment is Elk v. Wilkins, 112 U.S. 94.” Wong Kim Ark, at 679-80. Here, we can see that Wong Kim Ark focused only on the Fourteenth Amendment, its “subject to the jurisdiction” clause, and its definition of a “citizen of the United States” when discussing The Slaughterhouse Cases, Minor, and Elk. It was not concerned with Article II and its meaning of a “natural born Citizen.”

Judge Bent stated that Wong Kim Ark concluded that the original framers obtained their model of citizenship from the English common law. While he told us by citing and quoting Wong Kim Ark what the English common law in England was on subjecthood, he did not present any evidence that the Founders and Framers adopted that English common law to define the new U.S. national citizenship. He concluded without citing to any evidence that “there is no apparent distinction between” a “natural born citizen” and a “natural-born subject.” He failed to discern that Wong Kim Ark, faced with having to interpret and apply the Fourteenth Amendment to determine whether Wong was a “citizen of the United States,” needed to decide who was a “citizen” under that amendment, not who was a “natural born Citizen” under Article II, and that the Court used the English common law as an aid in doing that and not to define an Article II “natural born Citizen.” He also failed to address Minor which in specifically defining a “natural-born citizen,” used a model of citizenship that was based on the law of nations which became American national common law and not the English common law. In this connection, he also avoided any discussion of, among other historical sources provided by Mr. Paige, the naturalization acts of 1790, 1795, 1802, and 1855 which were all jus sanguinis based (law of nations and American common law) and not jus soli based (English common law). These statutes are highly relevant in determining what the Founders and Framers meant by the “natural born Citizen” clause, for the early acts were passed by many members of the First and Third Congress who were intimately involved in the drafting and passage of the Constitution.

Judge Bent stated that the decision of Ankeny v. Governor of Indiana, 916 N.E.2d 678 (Ind.Ct.App. 2009) is the “most comprehensive decision” on the meaning of a “natural born Citizen” and as such discusses the “the historical basis for the use of the phrase.” As we saw above, Ankeny's reliance on Wong Kim Ark to expand the group of "natural born Citizens" to include children born in the United States to alien parents is misplaced. Additionally, there is not one word in the Ankeny decision that addresses the purpose for which the Founders and Framers included the “natural born Citizen” clause in the Constitution as part of the requirements to be eligible to be President and Commander in Chief of the Military. There is not one word in the decision which looks to what the Founders and Framers intended the clause to mean when they included it in the Constitution. What is also amazing is that the Ankeny court hardly even knew who Emer de Vattel was despite the historical record amply demonstrating the immense influence that Vattel had on the founding generation and beyond and as we have seen above the U.S. Supreme Court adopting his definition of a “natural born Citizen.”

In discussing Ankeny, Judge Bent said that “‘natural born Citizen’ is not dependent on the nationality of the parents but reflects the status of a person born into citizenship instead of having citizenship subsequently bestowed. The distinction is eminently logical.” But upon close examination, this distinction is not logical at all. This argument is tantamount to arguing that any person who is a “citizen at birth” is a “natural born Citizen.” This is fallacious reasoning called the fallacy of affirming the consequent. We know from the definition of a “natural-born citizen” provided by Minor and other historical sources and U.S. Supreme Court case law cited, that satisfying the definition means that one is necessarily a “citizen” from the moment of birth. But being a citizen from the moment of birth is a necessary condition of being a “natural born Citizen.” It is not a sufficient condition, for according to Minor v. Happersett, the definition also contains the two requirements of being born in the country to “citizen” parents. Hence, just showing that one was “a citizen at birth” only satisfies part of the definition which by the very nature of the definition is necessary but not sufficient. Here is an example of this fallacy: If someone is smart, then someone is a professor. Someone is a professor. Therefore someone is smart. This argument is not valid. It demonstrates the fallacy of affirming the consequent. The first premise does not state that if one is a professor one is smart. Rather, it states that being a professor is the consequence of or follows from being smart. So, being a professor does not necessarily mean that one is smart. So likewise, the definition of a “natural born Citizen” does not state that being “a citizen at birth” makes one a “natural born Citizen.” Rather, being “a citizen at birth” is the consequent of or follows from being a “natural born Citizen.” Being “a citizen at birth” does not prove that one is a “natural born Citizen,” for the other two conditions of being a “natural born Citizen” must also be proven. There is also case law and statutes which prove that simply being “a citizen at birth” does not make one a “natural born Citizen.” Wong Kim Ark and Rogers v. Bellei, 401 U.S. 815(1971) said that children born out of the United States to “citizen” parents are citizens at birth, but are made such by naturalization statutes of Congress and not the common law or even the Fourteenth Amendment. We know from a plain reading of these statutes that they only define “citizens of the United States” and not “natural born Citizens.”

Judge Bent said that “Mr. Paige has tendered a scholarly article authored by Attorney Mario Apuzzo of New Jersey.”  This article is entitled, Barack Obama Is Ineligible to be President, For He Is Neither a “Natural Born Citizen” Nor a “Citizen of the United States, at the time of the Adoption of this Constitution,” and may be accessed at http://puzo1.blogspot.com/2012/10/barack-obama-is-ineligible-to-be.html .  Judge Bent said that this article is “academic only.”  

So as we can see, Judge Bent has erred for various reasons in dismissing Mr. Paige’s ballot challenge against presidential candidate Barack Obama and Vermont Secretary of State. 

Mario Apuzzo, Esq.
November 17, 2012
http://puzo1.blogspot.com
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Mario Apuzzo, Esq.
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