Saturday, January 21, 2012

The McClellan/Obama Citizenship Debate and the Natural Born Citizen Clause

               The McClellan/Obama Citizenship Debate and the Natural Born Citizen Clause

                                                 By Mario Apuzzo, Esq.
                                                     January 21, 2012

George B. McClellan

Dr. Conspiracy likes to give the appearance of being an unbiased scholar in pursuit of the truth regarding whether putative President Barack Obama is a “natural born Citizen.” He has also created an internet persona of being a champion of civil rights. He has even gone as far as to take the unabashed position that most people who question Obama’s “natural born Citizen” status are racists. To date, he has made no apologies for his outlandish position.

At his blog, , Dr. Conspiracy has posted a story published in The Boston Globe on November 9, 1903, entitled “McClellan’s Citizenship. Question of Eligibility for Presidency.” The story can be read at .  The story is about whether George B. McClellan, then newly-elected Mayor of New York City, but who was born in Europe to U.S. citizen parents (his father was Civil War General McClellan), was a “natural born Citizen” and therefore eligible to be President. By looking at his picture posted by Dr. Conspiracy, Colonel McClellan was surely white, but yet American citizens raised the question of whether he was a “natural born Citizen.” Note that Dr. Conspiracy does not tell us that even though McClellan was white (and so was John McCain and George Romney who were also challenged), he was challenged by presumably other whites on his eligibility to be President. So I guess that it is after all possible to challenge a political candidate on his eligibility for a particular office without being motivated by race.

One lawyer at the end of the article, Edmund A. Whitman of the law firm Elder & Whitman, even said that the issue of whether McClellan was a “natural born Citizen” was “too trivial to bother discussing.” I guess they also had Obots in 1903.

Also, Dr. Conspiracy touts the opinion of the Boston lawyers who in the article maintained that McClellan was a “natural born Citizen” and that there was no mention by them of the need for a “natural born Citizen” to be born to citizen parents.

First, McClellan was born to U.S. citizen parents. So I do not understand why Dr. Conspiracy would expect the citizenship of McClellan’s parents to be an issue.

Second, the issue was whether one has to be “native born” in order to be a “natural born Citizen.” The way the lawyers treated that issue, it meant whether being born in the United States was a necessary element of being a “natural born Citizen.” That someone satisfies a necessary element of a definition does not equate to having satisfied all necessary elements of the definition.

Third, most of the lawyers who concluded that McClellan was a “natural born Citizen” said he was so because under the Constitution there are only “natural born Citizens” and naturalized citizens, and since McClellan was not a naturalized citizen, he must necessarily be a “natural born Citizen.” Yet, Dr. Conspiracy makes no mention of the fact that none of those lawyers even cited and quote from let alone addressed United States v. Wong Kim Ark, 169 U.S. 649 (1898), which clearly stated just five years earlier that, with citizenship not descending from parents but only given by statute to the children born out of the United States to citizen parents, children born out of the United States to U.S. citizen parents are naturalized “at birth.” Additionally, U.S. v. Wong Kim Ark 169 U.S. 649 (1898) and Rogers v. Bellei, 401 U.S. 815 (1971), both considered persons born abroad to U.S. citizen parents to be naturalized “at birth.” The dissenting opinion of Justice Black in Rogers v. Bellei, 401 U.S. 815, 839-44 (1971), further elucidates the point of one being naturalized “at birth.” There he stated:

A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts." 169 U. S., at 702-703.

The Court in Wong Kim Ark thus stated a broad and comprehensive definition of naturalization. As shown in Wong Kim Ark, naturalization when used in its constitutional sense is a generic term describing and including within its meaning all those modes of acquiring American citizenship other than birth in this country. All means of obtaining American citizenship which are dependent upon a congressional enactment are forms of naturalization. This inclusive definition has been adopted in several opinions of this Court besides United States v. Wong Kim Ark, supra. Thus in Minor v. Happersett, 21 Wall. 162, 167 (1875), the Court said: "Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. . . . [N]ew citizens may be born or they may be created by naturalization." And in Elk v. Wilkins, 112 U. S. 94 (1884), the Court took the position that the Fourteenth Amendment "contemplates two sources of citizenship, and two sources only: birth and naturalization. . . . Persons not . . . subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired." 112 U. S., at 101-102.

Moreover, this concept of naturalization is the only one permitted by this Court's consistent adoption of the view that the Fourteenth Amendment was intended to supply a comprehensive definition of American citizenship. In an opinion written shortly after the Fourteenth Amendment was ratified, the Court stated that one of the primary purposes of the Citizenship Clause was "to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States, and also citizenship of a State." Slaughter-House Cases, 16 Wall. 36, 73 (1873). In his study, The Adoption of the Fourteenth Amendment, Professor Flack similarly concluded that the Citizenship Clause "put beyond doubt and cavil in the original law, who were citizens of the United States." H. Flack, The Adoption of the Fourteenth Amendment 89 (1908). And in Afroyim both majority and dissenting Justices appear to have agreed on the basic proposition that the scope of the Citizenship Clause, whatever its effect, did reach all citizens. The opinion of the Court in Afroyim described the Citizenship Clause as "calculated completely to control the status of citizenship." 387 U. S., at 262. And the dissenting Justices agreed with this proposition to the extent of holding that the Citizenship Clause was a "declaration of the classes of individuals to whom citizenship initially attaches." Id., at 292.

Id. at 840-44.

So, according to Wong Kim Ark, McClellan would have been a naturalized citizen. It would then follow a fortiori from Wong Kim Ark that being a naturalized citizen, he could not be a “natural born Citizen.” But we do not see any mention of any of that by those lawyers or Dr. Conspiracy. I do not know any of the political affiliations of any of the Boston lawyers interviewed for the story nor do I have the desire to go looking it up. But I guess it must have been politics as usual also in 1903.

But the disqualifying effect of being naturalized “at birth” not only disqualified McClellan, but also disqualifies Obama. Because Obama was not born to citizen parents, assuming he was born in Hawaii, he has to rely on the Fourteenth Amendment or 8 U.S.C. Sec. 1401(a) to be a “citizen of the United States.” First, that amendment and statute do not provide anyone with the status of a “natural born Citizen,” which status is only obtained by satisfying the American “common-law” definition of the clause as confirmed by Minor v. Happersett, 88 U.S. 162, 167-68 (1875), which, after analyzing American citizenship at length, held:

"The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural- born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [88 U.S. 162, 168] parents. As to this class there have been doubts, but never as to the first. 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."

Id. at 168. As we see, only a child born “in a country of parents who were its citizens themselves” can be a “natural-born citizen.” So like Lord Coke in Calvin’s Case (1608), who naturalized Calvin “at birth” to be an English “natural born subject,” Wong Kim Ark in effect naturalized Wong “at birth” to be a Fourteenth Amendment “citizen of the United States.”

Second, because Obama needs either the Fourteenth Amendment or statute to remove the alienage with which he was born by being born to a non-U.S. citizen father, he is in effect at best a naturalized citizen “at birth,” who automatically becomes a “citizen of the United States” and needs no further naturalization after birth. But the Founders and Framers, as they revealed through the Naturalization Acts of 1790, 1795, and 1802, meant a “natural born Citizen” to be a child whose first breath of life was as a person in allegiance and citizenship only to the United States and to no other country. In other words, to be a “natural born Citizen” it was not sufficient that one was a citizen of the United States “at birth.” Rather, what was needed was that “at birth” one was only a “citizen of the United States” and of no other nation. Because of the possibility of jus sanguinis (citizenship inherited from one’s parents) and jus soli (citizenship acquired from the territory on which one is born) providing allegiance and citizenship to a child at the moment of birth, they adopted the “natural born citizen" standard for future presidents which was a child born in the country to citizen parents. This means that a “natural born Citizen” is a child who is born in the United States or its jurisdictional equivalent to a father and mother who are both either a “natural born Citizen” or a “citizen of the United States.”

Obama has conceded that his father was a citizen of Great Britain at the time Obama was born. Hence, even assuming that Obama was born in Hawaii, he was not born to a father who was either a “natural born Citizen” or a “citizen of the United States.” He was not born as a child whose first breath of life was as a person in allegiance and citizenship only to the United States and to no other country.  Obama may be a Fourteenth Amendment "naturalized born Citizen," but he is not and cannot be an Article II “natural born Citizen.” As for McClellan, it does not matter for him any more, but there may be more like him who come in the future.

Mario Apuzzo, Esq.
January 21, 2012

Copyright © 2012
Mario Apuzzo, Esq.
All Rights Reserved


Joe said...

I always enjoy your posts. They are very interesting and thoughtful.

I realize that you don't comment on other lawyers strategy. There are still issues of law that can be made clearer for us non-lawyers floundering around out here.

No one expects Obama to show up in GA next week. Can you weigh in on what the possible consequences of that may be. I don't think that would be harmful to any other attorney to discuss the possible scenarios.

Please help us out. The suspense is killing me.

Mick said...

McCain was naturalized at birth by US Code 8 s. 1403.

James said...


You should stand by for any legal support that might be needed to defeat any amended motions to quash the subpoena.

SaipanAnnie said...

Joe says:

No one expects Obama to show up in GA next week.

Actually, every law abiding citizen in America expects him to be there.

Every citizen who believes that NO ONE IS ABOVE THE LAW expects him to be there.

Every citizen WHO ENTRUSTED HIM WITH THE OFFICE OF THE UNITED STATES PRESIDENCY expects him to honor their trust in him.

Only The Contemptuous Of The Law feel he is entitled to disregard the order of a judge.

If he wants to be clearly counted among them, let him do so at his peril.

Bob said...

Speaking of Georgia (in my mind's eye the Atlanta burning scenes in Gone With the Wind), this is what the Memoirs of W. T. Sherman write about General McClellan -- '(he) had accepted the nomination of the Democratic party, whose platform was that the war was a failure, and this was better to allow the South to go free to establish a separate government, whose cornerstone would be slavery . . . The brilliant success at Atlanta filled that requirement, and made the election of Mr. Lincoln certain.'

McClellan's successor as Chief of Staff, Washington, D. C., Henry W. Halleck, also wrote to Sherman at the time (September 1864): 'I have seen enough of politics to last me for life. You are right in avoiding them. McClellan may possibly reach the White House, but he will lose the respect of all honest , high-minded patriots, by his affiliation with such traitors and Copperheads as B --, V --, W --, S --, & Co. He would not stand upon the traitorous Chicago platform, but he had not the manliness to oppose it. A major-general in the United States Army, and yet not word to utter against rebels or the rebellion! I had much respect for McClellan before he became a politician, but very little after reading his letter accepting the nomination.'

Some of these comments sound amazing, as if they could be written yesterday!

Mario Apuzzo, Esq. said...

The Obots keep telling us that the “Birthers” have little or no regard for courts or the rule of law. They accuse the “Birthers” of disrespect toward the judges who have so far ruled in favor of Obama. But let us see what the Obots say when the shoe is on the other foot. And it is when that shoe is on that other foot that we can best judge a person’s character.

First, we have Dr. Conspiracy trying to keep people away from the Georgia hearing that is scheduled for this Thursday, January 26, 2012, before Judge Michael M. Malihi. He says that if many “Birthers” show up at the hearing, they cannot make themselves heard because the court is only interested in facts and law. He adds that it would be inappropriate for "Birthers” to engage in any unruly behavior at the courthouse. Then he says that if the “Birthers” do show up and do not speak up, then no one will know what their position is. Conclusion: just stay home and watch the whole thing from the internet.

Second, that is not the worst of it. Here we have one of Dr. Conspiracy’s Obot contributors sharing his/her wisdom with us regarding Judge Michael M. Malihi, who will be presiding over the Georgia hearing on Thursday, January 26, 2012:

Paul Pieniezny January 22, 2012 at 1:17 pm Paul Pieniezny(Quote) #

“I am starting to think that the judge may be a birther, or a judge who wants his 15 mins of fame by being the judge who ordered the President to appear before him.


Oh, and when asked to comment by newspapers, Jablonski should not forget to upset the apple cart (hehe) by mentioning two of the plaintiffs (well, actually, one of the plaintiffs and one of the lawyers) are prominent members of the Republican party.”

So much for those righteous Obot citizens.

MichaelN said...

Go here and observe more of the desperation tactics of the truth suppression brigade ..... Mr. High and Mighty "ballantine"

Bill Cutting said...

Notice how the McClellan article goes on about his dual citizenship at birth but makes no mention of Chet Arthur's dual citizenship at birth.

That's because they didn't know!

Thanks Doc!

MichaelN said...

Within the very same passage of text, the US Supreme Court affirmed that a child born in US to US citizen parents (aka a native-born citizen or a citizen by birth) was a "natural born citizen", then futher the court noted without contest, that it was DOUBTFUL that a child native-born in US to alien parents was even a citizen at all.

Note in the following, the court speaks of native-born "citizens" by birth, but does not use the term NOT "natural born" for them.

Minor v Happersett:
"From this it is apparent that from the commencement of the legislation upon this subject, alien women and alien minors could be made citizens by naturalization, and we think it will not be contended that this would have been done if it had not been supposed that native women and native minors were already CITIZENS BY BIRTH."
(no "natural born" there)

Ergo: There are at least TWO CLASSES as subsets of "citizens by birth", i.e. those born in the US, to US citizen parents, who were such by natural descent AND native birth-right & because of these TWO qualities they were titled "natural born citizens" (an apt description of one whom there would be NO DOUBTS about foreign allegiance, loyalty, influence and claim - perfect for a POTUS), then there were those born in US, to non-citizen parents, who were such by native birth-right ONLY and titled "citizens".

The very fact that the Congress and the Senate of 1790, a mere three years after the adoption of the US Constitution in 1787, titled a child born NON-NATIVE as "natural born", proves that the language "natural" was PRIMARILY intended to mean by DESCENT.

It therefore becomes CLEAR and without ANY doubt that the framers choice of "natural" rather than "native" in the Article II POTUS eligibility clause, was deliberate and with careful regard to citizen status of the parent and with the operation of the principle of descent as THE PARAMOUNT & ESSENTIAL quality of a "natural born".

This is consistent with the English common law, in the case cited by "honest" Horace Gray, i.e. Calvin's case, where Lord Coke pointed out that the "subject" status of the father and with the principle of descent was THE PARAMOUNT & ESSENTIAL quality of a "natural born".

The Obots entire argument is based on the ABSURDITY that the framers were so lax as to be negligent in their responsible duty and imperative, to ensure protection and security of the highest office of POTUS & commander in chief, by way of setting the highest imaginable standard of loyalty, allegiance and dedication for the office of POTUS, this could only be achieved by setting the eligibility qualifications to be based on nature and birth-right, i.e. by natural descent and native birth-right.

MichaelN said...

In the 39th US Congress, Mr. Trumbull speaks in a debate session, stating that the US legislature "would have no right to make citizens" of persons born native in US, who were temporary visitors............... and he WAS referring to BORN persons.

Mr. Trumbull:
“There is a difficulty in framing the amendment so as to make citizens of all the people born in the United States and who owe allegiance to it.

I thought that might perhaps be the best form in which to put the amendment at one time, ‘That all persons born in the United State and owing allegiance thereto are hereby declared to be citizens;’

But upon investigation it was found that a sort of allegiance was due to the country from persons temporarily resident in it whom we would have no right to make citizens, and that that form would not answer”.

Joe said...


No one realistically expects him to be there. He is the President and you are not going to get a sitting president on a witness stand in an administrative law judges courtroom.

In fact, the wh already has stated as much.

So what we need to consider is how this hearing will proceed. They will argue NBC and then it will be Orly's turn. From what all I read, posters here and there could argue it as good as any lawyer. You guys are very good.

I wish Mr. Apuzzo would be there. I wish we had a army of lawyers filing these cases all over the country. Unfortunately we have only one attorney willing to do it.
So if this and a handful of other cases she is working on fail, we can look forward to anyone becoming president. Americans won't bother to get any legislation passed in their states. And even if they did, we don't have any attorneys willing to represent us, so....
pretty sad state of affairs when citizens are brushed aside and the law only applies to us and not the elite.

Mario Apuzzo, Esq. said...


Obot super scholar ballantine’s favorite put down of people with whom he does not agree is that no matter what one argues, the person arguing the point simply did not read the case or whatever other source is being discussed.

Another one of ballantine’s favorite lines is that the Constitution only recognizes two classes of citizens, the “natural born citizens” and the naturalized citizens.

But consider this statement from ballantine: “The [Minor v. Happersett ] court never said Minor was a natural born citizen, only a ‘citizen.’" May I ask given that Virginia Minor was not a naturalized citizen, and as ballantine concedes the only other possibility for her to be was a “natural born citizen,” what else could she be but a “natural-born citizen?”

Bill Cutting said...

From the article

"Among those who have made the
claim that Col McClellan. is not a
natural-born citizen of this country
there seems to be the theory that there
are several kinds of citizenship, as the
natural born, the naturalized, the foreign
born and the American born."

I count 4 kinds of citizenship, but only 1 Natural Born. So someone at the time realized that American born did not mean Natural Born.

It continues

all the lawyers talked with on
this matter were agreed that there are
but two classes of citizenship, the
natural born and the naturalized. In
answering the argument of " those who
say Col McClellan is not ellgigble, these
lawyers say that as tho mayor-elect of
New York is-not a naturalized citizen,
he must of necessity be classed aa a
natural-born citizen."

Joe said...

Thank you Mr. Apuzo. Q. So if Obama has to be there, why is Fuddy saying she doesn't have to honor the subpoena? Is Fuddy just being difficult?

Leo Donofrio has just sent in a 150 page Amicus Brief.

James said...


You should consider submitting an Amicus brief as well. Maybe Herb Titus could submit one as well. That would make an Amius brief from the 3 top authorities on NBC:
1. Leo Donofrio
2. Mario Apuzzo
3. Herb Titus

Mario Apuzzo, Esq. said...

Someone sent me this question by email:

"Is it possible we have 2 GOP candidates who are not Natural Born Citizens?
Romney's father was born in Mexico - And
Santorum's father was born in Italy?"

Here is my response:

It matters not where their fathers were born, as long as the fathers were U.S. “citizens” at the time that their sons were born. One can be born in a foreign country and if born to one or two U.S. citizen parents, one will be a "citizen of the United States" from the moment of birth. If one is born in a foreign country to alien parents, one can naturalize to become a "citizen of the United States" after birth.

So, if Romney and Santorum were born in the United States to parents who were U.S. "citizens," i.e., either "natural born Citizens" or "citizens of the United States," then they are "natural born Citizens."

juniper55 said...

The Georgia subpoena made Drudge this morning. Fox News "Special Report" reported the subpoena also during their "Grapevine" segment a few minutes ago.

There are four cases in all, aren't they (two submitted by the same attorney). I hope the other lawyers are also VERY well prepared.

Zamas said...

I have to again offer my compliments for this fine writing. However, in this case you have, more than any other analysis that I've read that attempts to effectively set forth what it means to be a "Natural Born Citizen", beautifully provided that meaning. "At first breath of life" so completely nails the point in maximum effectiveness. From nature, not law. Just a grand way to make the point.

Thank you for what you do.

Mick said...
This comment has been removed by the author.
Texoma said...

Regarding Mitt Romney, the question is whether his father (George) was a US citizen when Mitt was born in 1947.

Mitt Romney was born in Detroit, MI in 1947 to George and Lenore Romney. George Romney was born in Mexico in 1907 to US citizen parents. Lenore Romney was born in 1908 in Utah to US citizen parents.

The 1940 Nationality Act conferred US citizenship to the foreign-born children of US citizens, and so George Romney was a US citizen at birth. But George was also born with Mexican citizenship at birth due to his birth in Mexico. George Romney was a dual citizen (US/Mexico) at birth, and a naturalized US citizen at birth (naturalized by the 1940 Nationality Act).

Prior to 1952, children born with dual citizenship were required to "elect" US citizenship when they became adults. The US State Department insisted that children born with double nationality had to choose one or the other upon attaining majority -- a process known as "election."

To date, no one has seen a published naturalization or immigration document showing that George Romney fulfilled his citizenship "election" requirement. If George Romney was a Mexican citizen at the time of Mitt’s birth in 1947, then Mitt Romney would not be a natural born citizen, since he would not have been born in the US to two US citizen parents.

juniper55 said...

From American Thinker this morning (Tuesday 24th):

There are three attorneys for four cases, Taitz, Hatfield, and David Weldon (assisted by Van Irion of the Liberty Legal Foundation). Sounds like Weldon and Irion have been reading this website!

Here is the link:

LLF(first I've heard of them) has a very interesting mission statement. Here is their link.

The hearings are supposed to be broadcast at this link beginning 9 am on Thursday:

The BIG QUESTION: presuming O doesn't show, and this gets referred to Ga Superior Court, WHAT JUDGE IS GOING TO UPHOLD A CONTEMPT CHARGE AND MAKE OBAMA FINALLY PROVE HE IS ELIGIBLE???

Why oh why won't any judge hear and settle this constitutional NBC issue once and for all?

Does it really come down to fear of some kind of riot breaking out should Obama be declared ineligible?

Mario Apuzzo, Esq. said...


Sometimes I cannot immediately post comments that come in. I only have so much time.

On the substance of your comment, an Article II "natural born Citizen" is defined by "common-law" which I have always argued is based on the law of nations and not the English common law.

Under the Constitution, Congress has the power to naturalize, but no power to create or limit who may be a "natural born Citizen" as defined by the "common-law" to which the Founders and Framers looked for their definition of the clause.

cfkerchner said...


You have to look at the Mexican constitution and laws in effect at the time of George Romney's birth in 1907, that is the 1857 Mexican Constitution and a law passed in 1886, not the subsequent 1917 Mexican constitution and laws.

I do not believe that George Romney was born a Mexican national under Mexican law or recognized as such under U.S. law. It is my understanding that the “jus soli” provision in the 1886 law only applied to persons born in Mexico who maintain Mexican residency to the age of majority. That is they had to be born in Mexico and remain and live there until they were legally an adult. Since George Romney left Mexico at circa age 5 with his father Gaskell Romney, that jus soli provision of 1886 law would not apply to George Romney. It is also my understanding, that the 1886 law also had a provision for loss of Mexican status, if one had it in the first place, for extended absence from the country. I do not believe that George Romney was born a Mexican national and recognized as such under Mexican law or U.S. law.

Bob said...

Mick --

This is what a sworn affidavit filed by Mark Seidenberg, Vice Chairman, American Independent Party says --

'In a move to get the above October 15, 2008 certificate full faith and credit, I recorded it on October 28, 2008 as Instrument # 20080001666 at the Office of the Hidalgo County Clerk, Lordsburg, New Mexico at 02:38:57 PM.

'With a return 42 cent SASE and a check made out to the Hildago County Clerk for $1.50 you can get a certified copy of this document showing that John Sidney McCain III parents never got married in Baja California.'

'Portion of the ABOVE certificate'

'So, Lic. Rogelio Aros Guzman, Director del Registro Civil del Estado de Baja California, issued a “Certificado de Inexistencia de Registro de Matrimonio” # B0015879, stating the Jack McCain did not marry Roberta Wright.

By the terms of the Collective Naturization Act of August 4, 1937 [8 USC 5e], repealed on January 13, 1941, which require a parent of a child born in the Republic of Panama to get the United States Citizenship after birth, one or both of the parents in wedlock had to be employed by the United States Government or the Panama Railroad Company (or successor in title).

John Sidney McCain II never married Roberta Wright prior to John McCains birth and Roberta Wright list herself on that August 29, 1936 birth certificate for employment as a housewife.'


This information directly effects the law that you have cited.


This is part of the murky waters that I have waded through chasing the 'natural-born Citizen" status of the Senior Senator of Arizona.

Mario Apuzzo, Esq. said...

I of II


You maintain that Mitt Romney is not an Article II “natural born Citizen.” I disagree.
You said: “But George [Romney] was also born with Mexican citizenship at birth due to his birth in Mexico. George Romney was a dual citizen (US/Mexico) at birth.” You have to provide evidence of such Mexican citizenship. You also argue that George Romney could have lost his U.S. citizenship before Mitt Romney was born in 1947 by failure to make an election to maintain his U.S. citizenship. You assume that the State Department’s election requirement has the force of law. You also assume that George Romney was born a dual national without proving that he was or that even if he was a dual national, that he did not make the election. You also have to produce evidence of both dual nationality and failure to make the election.

Let us assume for sake of argument that George Romney was born a dual citizen (USA and Mexico). Under such a scenario, Mitt Romney is still a “natural born Citizen.” A “natural born Citizen” is a child born in the country to citizen parents. The definition does not address the nature of the parents’ citizenship. It is sufficient that they are members of American society. We know that U.S. citizenship or membership can either be that of a “natural born Citizen” or a “citizen of the United States.” The latter includes those persons who are naturalized either “at birth” or after birth. In any event, all these persons are members of American society.

With respect to the parentage element, the only requirement is that the parents be U.S. citizens. With both U.S. parentage and U.S. place of birth satisfied, under American common-law, the child is born in allegiance only to and fully subject to the political and legal jurisdiction of the United States which makes the child a “natural born Citizen.”

Accepting your argument would mean that the parents of a “natural born Citizen” would both have to be born in the United States. There is no evidence that this is what the Founders and Framers required. On the contrary, Vattel in Section 212 and 216 of The Law of Nations says that under the law of nature, place of birth does not change the national character, for “it is our extraction, not the place of our birth, that gives us rights.” Hence, what matters is parentage. He adds, however, that under the circumstances of foreign births, national character can be changed either by one quitting his or her country or by positive law. Under natural law, George Romney followed the condition of his U.S. citizen parents. There is no evidence that George Romney’s parents ever renounced their U.S. citizenship. George Romney was therefore born a U.S. citizen. But he was not born “in the country.” Not being born in the United States, this means that he was born a “citizen of the United States” under both natural law and positive law, but not a “natural born Citizen.” Our positive laws that confirmed his U.S. citizen status was The Nationality Act of 1940, which naturalized George Romney to be a “citizen of the United States” “at birth.” That Act, like all Acts of Congress except the Naturalization Act of 1790, clearly states that he was a “citizen of the United States,” not a “natural born Citizen.” As Vattel instructs, that positive law must be followed. But even though George was not a “natural born Citizen,” he was still a “citizen of the United States” under Congress’s positive law.

Continued . . .

Mario Apuzzo, Esq. said...

II of II

Also, the Founders and Framers, as is evidenced by the Naturalization Acts of 1790, 1795, and 1802, rejected the jus soli of the English common law and therefore did not recognize dual citizenship. In fact, under these acts, Congress treated children born in the United States to alien parents as aliens. They also did not recognize any concept of electing one’s citizenship out side expatriation. Hence, the Founders and Framers would not have expected that Mexico under the law of nations would grant its citizenship to a child born on its territory to aliens of that country. They also would not have expected George Romney to have to make any election to show that he was, indeed, born a “citizen of the United States.” But even though they rejected jus soli, they still had to live with a nation such a Great Britain and any other which practiced jus soli. You are going to prove for me that Mexico, like Great Britain during the Founding, practiced jus soli when George Romney was born in Mexico. But as I have shown, even if it did, the result does not matter. Today, we still do not officially recognize dual citizenship, which is a product of how Wong Kim Ark interpreted the Fourteenth Amendment’s “subject to the jurisdiction” clause, although we tolerate it. Hence, it matters not that George Romney could have been a dual citizen under positive law at the time of Mitt Romney’s birth. By the law of nature and by positive law, George Romney was still a U.S. citizen and that is what counts in determining whether Mitt Romney is a “natural born Citizen.”

If you are going to maintain that George Romney, because of some election requirement or for some other reason, was not a U.S. citizen at all when Mitt Romney was born, then you have the burden of proof to show that. First, you have to show that the State Department’s election requirement has the force of law. Second, you have to prove that George Romney was born a dual national which would then cause the election requirement to be enforced against him. Third, should you prove that the election requirement has the force of law and that George Romney was born a dual national, you are then going to have to prove that George Romney did not make the required election as required by that law. So far, you have not shown any of this. If you should meet this burden, then, depending on the circumstances, I may reconsider my position.

The current evidence that we have shows the following: we have seen that with respect to the parentage element, the only requirement is that Romney’s parents be U.S. citizens when he was born which they were. With respect to the place of birth element, we also know that he was born in the United States. With both U.S. parentage and U.S. place of birth satisfied, under American common-law and in the eyes of the Founders and Framers, Mitt Romney was born in allegiance only to and fully subject to the political and legal jurisdiction of the United States which makes him a “natural born Citizen.”

cfkerchner said...


Here is my genealogy and citizenship status analysis and report for Mitt Romney and his parents.

You have to look at the Mexican constitution and laws in effect at the time of George Romney's birth in 1907, that is the 1857 Mexican Constitution and a law passed in 1886, not the subsequent 1917 Mexican constitution and laws.

I do not believe that George Romney was born a Mexican national under Mexican law or recognized as such under U.S. law. It is my understanding that the “jus soli” provision in the 1886 law only applied to persons born in Mexico who maintain Mexican residency to the age of majority. That is they had to be born in Mexico and remain and live there until they were legally an adult. Since George Romney left Mexico at circa age 5 with his father U.S. Citizen father Gaskell Romney, that jus soli provision of 1886 law would not apply to George Romney. It is also my understanding, that the 1886 law also had a provision for loss of Mexican status, if one had it in the first place, for extended absence from the country. I do not believe that George Romney was born a Mexican national and recognized as such under Mexican law or U.S. law.

CDR Charles Kerchner (Ret)

Bob said...

Here is a New York Times article
reprint from 1915 that addresses the issues of 'dual nationality' in a time of war (the second page needs a magnification zoom).

The author of the article is the same Richard W. Flournoy whose 1934 American Bar Association Journal article, 'Proposed Codification of Our Chaotic Nationality Laws,' explained 'we have no statutory provisions defining the nationality status of persons born in the Canal Zone . . . .'

Flournoy pointed out to Congress that the Republic of Panama (both the Canal Zone and areas external to the Canal Zone) fell into a gap in the law, covered neither by the citizenship clause, nor the Revised Statutes (Section 1993, passed as the Act of May 24, 1934).

This was the reason Congress closed the legal gap by the Act of August 4, 1937.

Bob said...

Mario --

Your clear arguments in this article simply makes me wonder, for what it is worth, whether the clause 'natural-born Citizen' in the 1790 Act is really a reference to de Vattel (without attribution) as opposed to Article II -- in fact, both are a reference to de Vattel (without attribution).

Your see, the 'nati trans mare' in the 1790 are an matter raised by de Vattel, but not by Article II.

So, it is more natural in law to consider both references to be made to de Vattel, rather than to each other (which has caused endless confusion).

Using Occam's Razor, the simplest explanation is the right one, and that is the simplest explanation.

Bob said...

If the attribution to de Vattel is the correct interpretation of the 1790 Act, then the following is what George Washington and the Federalist Party intended -- 'if you are born overseas and both parents are Americans,' you will be considered the same as a 'natural-born Citizen.'

However, there is a warning also, you get 1 bite at the apple -- if you stay in the overseas nation of your birth, you cannot pass your citizenship on to your non-American children.

Also, if you choose to retain your American citizenship, you must take up residency in the United States.'

As far as I know, this law has never been interpreted this way.

cfkerchner said...

A loose end out there with another Republican Party candidate is with Rick Santorum. His father was born in Italy to Italian parents. Thus when Rick's father Aldo emigrated to the USA in 1930 at age 7 he would have had to naturalize at some point in time. Rick's mom stated to the reporter for WND that he did naturalize but searches of online databases for naturalization records which run up to the year 1972 do not show any naturalization record for Aldo Santorum, Rick's father. Rick's mom asserts he served in the U.S. military and became a naturalized citizen. Service in the U.S. military puts one to the front of the line and makes one eligible for naturalization but one still has to apply for it and take the oath of allegiance renouncing all foreign citizenship. I and others can find no record of Aldo Santorum doing that. Emails and phone calls to Rick Santorum's office yield no answers or promises of an answer later, which never comes. If Aldo Santorum did naturalize, Rick should release a copy of those documents to see if the naturalization occurred before or after Rick's birth in 1958.

Bob said...

CDR Kerchner --

You are too polite when you use the verb 'should' --

I think the verb should be 'must.'

I know it may come as a surprise to Rick, if his father never 'naturalized,' because it may be a surprise to Senator McCain that his parents never went to the registrar in Tijuana to get married.

Seantor McCain wrote in his book, “My parents met when my father, a young ensign, served on the battleship USS Oklahoma, which was homeported at the time in Long Beach, California.”

“When my mother met my father, she was a beautiful nineteen-year-old student at the University of Southern California.”

“Ensign McAvee developed a crush on my mother. He took her out on several occassions and often invited her to visit the Oklahoma. On one of those visits she met my father, who was dressed in his bathrobe when McAvee introduced them. My mother only remembers thinking how young my father looked, and small, with cheeks, she said, like two small apples. My father, however, was infatuated at once.”

“My parents were married in 1933 at Caesar’s Bar in Tijuana, Mexico. They had eloped.”

McCain is wrong. His parents could not have been married in Caesar’s Bar, because that Bar has never been an office of the civil registry of Baja California.

Since 1927 all marriages in Baja California must be at an office of the civil registry.


It turns out in my own family that the history was not at all like it was thought to be. A genetic illness cropped up that was impossible to trace.

My Dad spent his retirement visiting the National Archives, the Mormon Temple, and numerous other valuable resources, and the differences in family history were simply amazing: still, the truth was far more valuable than the fiction the family had lived with.

Texoma said...

Mario and Commander Kerchner,

Thanks for the replies and thoughtful analysis.

I presented my post as a question regarding Mitt Romney’s eligibility and not as a statement that he was not. My last sentence uses the word “if”: If George Romney was a Mexican citizen at the time of Mitt’s birth in 1947, then Mitt Romney would not be a natural born citizen, since he would not have been born in the US to two US citizen parents.

In rereading the 1886 Mexican Nationality Act, I was incorrect in saying George Romney was a Mexican citizen at birth. The nationality act conferred automatic Mexican citizenship to the Mexico-born child of non-citizens one year after attaining the age of majority unless the person declared to keep the citizenship of his/her parents.

George Romney was given Mexican citizenship at age 10 with the enactment of the Mexican Constitution of 1917, which stated that Mexicans by birth included those that are born in the territory of the Republic, regardless of the nationality of their parents. Hence, George Romney, from the perspective of Mexico, received Mexican citizenship at age 10. This Mexican citizenship, when combined with George’s naturalized US citizenship at birth, rendered George a dual citizen.

My source for the State Department’s requirement that dual citizens “elect” one of their two citizenships at the age of majority is this article:

So, these questions remain for George Romney: At the age of majority, did he elect US or Mexican citizenship as required by the State Department? If he elected US citizenship, then all is well for Mitt. If George elected Mexican citizenship, did he later become a naturalized US citizen, and if so, did he naturalize before Mitt’s birth? What would his citizenship have been if he failed to make an election?

In all likelihood, George was a US citizen and not a Mexican citizen or dual citizen at the time of Mitt’s birth. But without some documentation, questions will remain.

While writing the above, a question came to mind: if a child is born in the US to US citizen parents, but one of the parents is a dual citizen (US and some other country) and the other parent a full US citizen, would that child be a natural born citizen? I think not, since the child would be born with a foreign allegiance on account of the foreign citizenship of the dual citizen parent. What say you?

Bob said...

Herb Titus who once was with Regent University and left, points out clearly the jus naturae origin of 'natural-born Citizen.'

Bob Unruh from WND quoted him this way --

'An extensive analysis of the issue was conducted by Titus, who has taught constitutional law, common law and other subjects for 30 years at five different American Bar Association-approved law schools. He also was the founding dean of the College of Law at Regent University, a trial attorney and special assistant U.S. attorney in the Department of Justice.

“‘Natural born citizen’ in relation to the office of president, and whether someone is eligible, was in the Constitution from the very beginning,” he said. “Another way of putting it; there is a law of the nature of citizenship. If you are a natural born citizen, you are a citizen according to the law of nature, not according to any positive statement in a Constitution or in a statute, but because of the very nature of your birth and the very nature of nations.”

If you “go back and look at what the law of nature would be or would require … that’s precisely what a natural born citizen is …. is one who is born to a father and mother each of whom is a citizen of the U.S. or whatever other country,” he said.

These paragraphs close Unruh's most recent article on the ballot access hearings in Georgia that Obama is refusing to attend, even through counsel.

Does the words 'above the law' ring a bell?'

As an aside, one of the matters that Chief Justice John Jay discusses in Chisholm v Georgia are the sovereign princes of a feudal system in Europe who are 'above the law.'

It looks like some 210 years later, we have one of our own: Prince Barack the Only.

Mario Apuzzo, Esq. said...

Bob @ January 24, 2012 12:33 PM.

The early Congresses were all Vattel.

Mario Apuzzo, Esq. said...

Texoma @January 24, 2012 8:50 PM,

The answer to your question is that a "natural born Citizen" is a child born in the country to citizen parents.

Mario Apuzzo, Esq. said...

Regarding the Georgia hearing, report from Gary Wilmott:

"I just got off the phone with Dean Haskins who was in the courtroom this morning assisting with the Art 2Pac live stream. Judge Malihi talked to the attorneys in chambers before the hearing this morning and told them that he was going to enter a DEFAULT JUDGMENT against Obama and recommend that Obama's name not be on the Georgia ballot! Alll the attorneys expressed a desire to put an abbreviated streamlined case on the record and the judge agreed. How does the mainstream media spin this? The Georgia SOS has already indicated that he will follow the judge's recommendation. Obama will not get any popular vote or electors from the great state of Georgia! Congratulations to all freedom-loving Americans!"

Bob said...

It costs a lost of money to put on a state-wide election -- in fact, millions of dollars.

A state like Georgia has every right to demand that candidates for office meet the eligibility requirements for that office BEFORE allowing a name to be placed on the ballot.

I have no clue what the putative Democrat challenger is thinking -- I'll lose Georgia anyway?

What about the down-ballot candidates?

He has no adult supervision, but needs it for sure.

Bob said...

Obama really has only three choices in Georgia:

1. comply

2. disrupt

3. not run (one and done).

I think he plans on Number 2, myself.

Joe said...

It should have been you.

Carlyle said...

Activity seems to be renewed for Marco Rubio for Vice President.

How can we best advertise that he is not eligible? I like him a lot and I wish he were. But the constitution and the law are more important than any one person or any political party.

In addition to the obvious love of law, we also need to be strong on this to show we are not ideologically nor racially biased.

This is really important.

James said...


Will you consider submitting an Amicis Brief in the Georgia case? Your scholarly and legal knowledge of differattionating the Definition of Natural Born Citizen with that of a 14th Amendment Citizen would be invaluable to the case. Please consider.

James said...

ATTENTION!! Leo Donofrio has a message for Birthers:
according to the following Georgia Administrative Court Rule, my Amicus Brief has been entered into the official public record of the case:

“616-1-2-.23 Record of Hearings. Amended.
(1) All rulings, orders, and notices issued by the Administrative Law Judge, all pleadings and motions, all recordings or transcripts of oral hearings or arguments, all written direct testimony, all other data, studies, reports, documentation, information, and other written material of any kind submitted in the proceedings, a statement of matters officially noticed, all proposed findings of fact, conclusions of law, and briefs, as well as the Initial or Final Decision shall be a part of the hearing record and shall be available to the public, except as provided by law according confidentiality.” (Emphasis added.)

Mario Apuzzo and Herb Titus should submit Amicis Briefs as well.

juniper55 said...

Mario, I hope you file an amicus brief! I think the deadline is Feb. 5.

Judge came back yesterday and said his court cannot compel Hawaii to release a COLB to the PLAINTIFF.

However, I am taking that to mean that someone could still compel Hawaii to release a COLB to the COURT! Or the Secretary of State!

Am I wrong on this?

Mario Apuzzo, Esq. said...


A subpoena is issued so that a party to a pending case can get evidence. The evidence that is produced in response to that properly served subpoena is produced for the party who subpoened it, not for the court or for someone who is not a party to the proceedings. Hence, any subpoena for the production of the Obama birth certificate would be for it to be produced for the party subpoening it, not for the court or the Georgia Secretary of State.

Also, Georgia court civil subpoena power normally extends only over persons residing or located in the State of Georgia, and not over anyone residing or located in the State of Hawaii. There does exist case law that provides that personal service of the subpoena within the territorial boundries of the issuing state is not necessary to a valid administrative order to appear. In other words, a subpoena served out-of-state could be acceptable for an administrative investigation.

Bill Cutting said...

Comment form DOC COn at his blog.

"I guess that I must mention that every legal scholar in history has said the same thing. Before the crank theory of Leo Donofrio, no one in the history of the United States ever said that someone born a citizen in the United States was not a natural born citizen. Some, before Wong, argued that they were not citizens, but all understood that if they were, they could run for President."

Maybe obots can inform him he is wrong. Need I actually say why?

Must be stressful being an obot these days.

James said...

I agree Juniper. Mario could compare notes with Leo Donofrio and submit his own Amicis Brief. In addition, an Amicis Brief from Herb Titus could really close it for Obama in Georgia. Herb Titus is a PHd and is recognized as a top Constitutional expert and scholar. Having an Amicis Brief submitted into the record by a recognized constitutional scholar and expert could provide all it needs to make a finding that Obama is not an NBC. It would be wonderful for each legal party in the case to be able to refer to Herb Titus's Amicis Brief as well as briefs by Leo and Mario to conclusive proof that Obama is not an NBC.

Mario Apuzzo, Esq. said...

Bill Cutting,

I will not address at this time everything that is wrong with the statement made by Dr. Conspiracy. I will only make two brief points:

(1) Dr. Conspiracy and Jack Maskell rely (although incorrectly) upon U.S. v. Wong Kim Ark (1898) to make Obama a "natural born Citizen." But that very case tells us that while children born abroad to citizen parents are citizens from the moment of birth, they are nevertheless naturalized at birth by Acts of Congress. See also Rogers v. Bellei, 401 U.S. 815 (1971) (also treats children born abroad to citizen parents as naturalized at birth by Acts of Congress). I would like Dr. Conspiracy and Mr. Maskell to show us how a naturalized citizen can also be a "natural born Citizen." I would also like for them to show us how a naturalized citizen may be eligible to be President.

Additionally, as I have long argued, our early Congresses, as is evidenced by the Naturalization Acts of 1790, 1795, and 1802, considered children born in the United States to alien parents to be themselves aliens. Even with the passage of the Fourteenth Amendment, Minor v. Happersett (1898) was not willing to declare these children to be “citizens” let alone “natural born Citizens.” It left that question to be decided another day. As I have also long argued, it was not until U.S. v. Wong Kim Ark (1898) that our U.S. Supreme Court judicially naturalized these children to be “citizens of the United States” from the moment of birth. Moreover, from 1802 to 1855, Congress considered children born abroad to parents who became U.S. citizens after 1802 to be aliens. In 1855, Congress again treated these children to be “citizens of the United States.” I would like Dr. Conspiracy to explain to me how a child, who was at one moment in time considered an alien at birth can then later become a “natural born Citizen.” So, we can see from not only our naturalization laws, but also from how U.S. citizenship from the moment of birth has been defined historically that Dr. Conspiracy and Jack Maskell are wrong in maintaining that simply being born a U.S. citizen automatically makes one a "natural born citizen.”

(2) But Dr. Conspiracy and Jack Maskell are also wrong because of a more fundamental reason. They are both confused as to what the issue is. The issue is how the Founders and Framers defined a "natural born Citizen?" The answer is that they defined one as a child born in the country to citizen parents. Simply stated, that constitutionally established definition did not become amended by a subsequent process which changed who may be considered a citizen of the United States at birth. For the Founders and Framers, what drives the definition of a "natural born Citizen" is not the time at which a child is made a U.S. citizen. Rather, the existing circumstances under which the child is born is what was controlling for them. The circumstances that they demanded were birth in the country to citizen parents. So, if any one of those two constituent elements is missing, a child cannot be a "natural born Citizen." So simply being a U.S. citizen from the moment of birth without also meeting both of those elements is not sufficient to make one a “natural born Citizen.”

Joe said...

The deadline to file an Amicus Brief is now Feb. 1, 2012.
The judge changed the date in a recent order. He wasn't clear with the order but he did say he would be ruling after that, so it would seem everything must be in by the 1st.

Robert said...

Whether or not Hawaii can be compelled to release Mr. Obama's birth documents Georgia and the other states are definitely compelled as parties to the Constitution to uphold the Constitution. They are bound by their mutual agreement that none but a natural born citizen may be President.

The States can not in good faith place Mr. Obama or anyone else on their ballots until such time as he demonstrates that he has unquestionably met all of the requirements for the office he seeks.

Perhaps Mr. Obama needs to have another talk with Hawaii and arrange for the release of any information and documentation they might have that would prove that Mr. Obama was born in their state to two citizen parents.

The only duty that Hawaii has it to release the documents when asked by a legal requester. And that only applies to the documents they actually have.

It's Mr. Obama's duty and responsibility to ensure that every state on whose ballot he wishes to have his name placed is provided the proper verifiable documents proving his eligibility. Until he does so, he's not qualified to be on any ballot or for the office of President.

Georgia is absolutely justified to refuse Mr. Obama and any other undocumented candidate access to their ballots. What else can they do?

Unknown said...

Both Mr. Apuzzo and Mr. Donofrio have done much fine work getting this most valuable information out. I for one definitely appreciate their work.
There are several psychological factors at work in this issue of Obama's eligibility that I have not seen addressed very much. One has to do with the matter of loyalty or divided loyalties. It should not be hard for a person to imagine,if it is not the case for him or her, what it would be like to have one parent an American citizen and the other say an Israeli citizen. Or one who was such when one was a child. Next imagine that you are in the government and your department has to make some policy decisions regarding Israel and the Palestinians . . . I think you can imagine the internal conflicts that might arise. How much more so for a President. Another problem that I see is that concepts like honor and loyalty are less commonly used these days than they once were. Marriages for example dissolve much more readily now. Businesses dismiss loyal employees with little or no notice. Etc. We simply do not value loyalty as we once did--or so it seems to me. And the word honor usually only comes up in formal circumstances. So for many it may actually be too much of an effort to grasp why the Founders would be so set on such a "little" matter as the citizenship issue. Modern or post-modern persons think more in scientific terms and loyalty seems less than scientific.
I believe I am correct in the following. In the 18th century and for half of the 19th anyone who was born in America was either a natural born citizen or an alien. One did not have one parent an American and one an alien. So for a long time this could not have been an issue. One born overseas needed naturalization even if both parents were American citizens. This being the case the issue of what natural born citizen meant would have been simple and clear. Currently one has a much more complex field to chose in. Someone in another comment section wondered about a person one of whose parents was a dual citizen. What then? Life has made things more complicated. Even in the early 19th century there were bound to be cases where a woman had a child out of wedlock with a man who disappeared and who citizenship was unknown. Etc.
Finally, imagine a house with three entrances. At night in a dangerous neighborhood would not one want to check and make sure all the doors were barred? Of course. Well, one is age--35; one is residency:14 years; and one is natural born citizen. Is it not odd at a time when so much emphasis has been place on safety that one door is left unbarred?