Donald Trump Is Right to Retweet that Marco Rubio Is Not a Natural Born Citizen

Donald Trump Is Right to Retweet that Marco Rubio Is Not a Natural Born Citizen 

                                                 By Mario Apuzzo, Esq.

                                                     February 22, 2016

Donald Trump retweeted that both Ted Cruz and Marco Rubio are not natural born citizens.  See https://twitter.com/realDonaldTrump/status/701045567783219201 .  George Stephanopoulos on Sunday, February 21, 2016, asked Trump on ABC’s “This Week” about his Saturday retweet and whether he really believed that Marco Rubio was not a natural born citizen.  See at about 1:30 at  https://youtu.be/R9GkFo1Kfno  ("Donald Trump on His South Carolina Primary Win, the GOP, and the Cruz Campaign Tactics") and http://redstatewatcher.com/article.asp?id=7663 and http://thehill.com/blogs/ballot-box/presidential-races/270208-trump-im-not-sure-if-rubio-is-eligible-to-run-for .  Trump responded:  “I think the lawyers have to determine it.”  It was a retweet. Not so much with Marco, I’m not really that familiar with Marco’s circumstances.  I know that Ted has a problem.”  Again, Stephanopoulos pressed Trump why he would retweet the message if he was not be sure whether Rubio was a natural born citizen.  Trump said he did it because “I’m not sure.”  Stephanopoulos responded in amazement:  “You’re really not sure?”  Trump responded:  “I don’t know.  I’ve never really looked at it, honestly George.”  Again, Stephanopoulos forged forward “You’re not sure?”  Trump then said that he has contact with 14 million people on social media and “I retweet things and we start a dialogue.  It’s very interesting.” 

Donald Trump is correct for retweeting that Marco Rubio is not a natural born citizen and therefore not eligible to be President. 

A natural born citizen is a citizen by virtue of birth and birth alone.  But birth does not exist in a vacuum.  There are circumstances that exist at the time of birth.  Those circumstances are, among many, the parents to whom one is born and the place where one is born.  In order to have a valid definition of the natural born citizen, it is necessary that we take these birth circumstances and make them part of a definition.

There does, indeed, exist a definition that contains the necessary and sufficient birth circumstances that must exist in order for one to be a natural born citizen.  The historical and legal record demonstrates that in order to be a citizen by virtue of birth alone, one must be born in the country to parents who were its citizen at the time of the child’s birth.  Indeed, a natural born citizen is a child born or reputed born in the country to parents who were its citizens at the time of the child’s birth.  See Emer de Vattel, The Law of Nations, Sections 212 to 217 (1758) (1797) ("The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens"); Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (“The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. 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”); accord U.S. v. Wong Kim Ark, 169 U.S. 649, 665 (1898) ("The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle").  All other birth circumstances, i.e., either not being born in the country or not being born to two citizen parents, do not produce citizenship by virtue of birth alone. 

Since 1790, Congress has for policy reasons seen the need, exactly for the reason that they are not natural born citizens, to naturalize children of U.S. citizens born out of the United States and before the ratification of the Fourteenth Amendment and its interpretation by U.S. v. Wong Kim Ark (1898) to naturalize children born in the U.S. to alien parents.  The First and Third Congress, which included James Madison and many Founders and Framers, with the approval of President George Washington, passed the Naturalization Acts of 1790 (An act to establish an uniform rule of naturalization, Sess. II, Chap. 3; 1 stat 103, 1st Congress; March 26, 1790, available at http://www.indiana.edu/~kdhist/H105-documents-web/week08/naturalization1790.html ) and the Naturalization Act 1795 (An act to establish an uniform rule of naturalization, and to repeal the act heretofore passed on that subject, Sess. II, Chap. 19, 20; 1 stat 414, 3rd Congress; January 29, 1795, available at same).  The 1790 Act provided:

That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such Court  that he is a person of good character, and taking the oath or affirmation prescribed by law to support the Constitution of the United States, which Oath or Affirmation such Court shall administer, and the Clerk of such Court shall record such Application, and the proceedings thereon; and thereupon such person shall be considered as a Citizen of the United States.  And the children of such person so naturalized, dwelling within the United States, being under the age of twenty one years at the time of such naturalization, shall also be considered as citizens of the United States. 

~~~~~

The 1795 Act made it harder for aliens to become citizens of the United States, but repeated:  “that the children of persons duly naturalized, dwelling within the United States, and being under the age of twenty-one years, at the time of such naturalization. . . shall be considered as citizens of the United States:   Provided, That the right of citizenship shall not descend to persons, whose fathers have never been resident of the United States.”  So, under both Acts parents had to naturalize in the United States to make their minor children citizens of the United States and those children had to be dwelling in the United States for the new status to attach to them.  If parents did not naturalize during their children’s years of minority, their children remained aliens unless they naturalized on their own during their years of majority. 

As we can see, the Acts’ language was broad and applied to both children born in or out of the United States.  These Acts explained that a child born in the United States to alien parents could become a citizen of the United States only if his or her parents naturalized during the child's minority and when the child shall be dwelling in the United States, and if not done during that time period, only upon the child-turned adult's own naturalization petition. Hence, there is no question that when the Framers drafted and adopted the Constitution and when it was ratified by the states, a child born in the United States to alien parents was not a natural born citizen.  Such a child could become a “citizen” of the United States, but only after birth and only through naturalization of the parents if done during the child’s minority or upon the child’s personal naturalization petition upon reaching the age of majority (which was 21 years of age). 

We have further evidence of the need, not only that the child be born in the country, but also that the child be born to U.S. citizen “parents” in order for the child to be a natural born citizen, from our Congress.  The Civil Rights Act of 1868 was passed in that year.  It provided:  “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” In 1862, Representative John Bingham said on the House floor:

The Constitution leaves no room for doubt upon this subject.  The words “natural-born citizen of the United States” occur in it, and the other provision also occurs in it that “Congress shall have power to pass a uniform system of naturalization.”  To naturalize a person is to admit him to citizenship.  Who are “natural-born citizens” but those born within the Republic?  Those born within the Republic, whether black or white, are citizens by birth—natural born citizens.  There is no such word as “white” in your Constitution.   Citizenship, therefore, does not depend upon complexion any more than it depends upon the rights of election or of office.  All from other lands, who by the terms of [congressional] laws and a compliance with their provisions become naturalized, are adopted citizens of the United States; all other persons born within the Republic, of parents owing allegiance to no other sovereignty, are natural born citizens. Gentleman can find no exception to this statement touching natural-born citizens except what is said in the Constitution relating to Indians.” (emphasis in the original).

John A. Bingham, Cong. Globe, 37th, 2nd Sess., 1639 (1862).

Note that in defining a natural born citizen, at first he said that “[t[hose born within the Republic . . . are  . . . natural born citizens.”  Then he said “all other persons born within the Republic, of parents owing allegiance to no other sovereignty, are natural born citizens.”  So in his second statement he was more complete in his definition, adding birth to “parents owing allegiance to no other sovereignty.”  The record does not contain any indication that any member of Congress disagreed with Bingham’s statements on the House floor regarding the definition of a natural born citizen.

Then in 1866, Bingham, in the House on March 9, 1866, in commenting on the Civil Rights Act of 1866, which was the precursor to the Fourteenth Amendment, and on the meaning of a natural born citizen paraphrased Vattel’s definition of the clause thus:

[I] find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen. . . .

John A. Bingham, Cong. Globe, 39th, 1st Sess., 1291 (1866).

Here he explained that a natural born citizen was a child born in the United States to parents who did not owe any allegiance to any foreign power.  That was a correct definition of an Article II natural born citizen and a repeat of what he had said in 1862.  The record does not contain any indication that any member of Congress disagreed with Bingham’s statements on the House floor regarding the definition of a natural born citizen.

Then in 1867, Bingham made another statement, saying:

“Who does not know that every person born within the limits of the Republic is, in the language of the Constitution, a natural-born citizen.”

John A. Bingham, Cong. Globe, Cong. Globe, 40^th, 2^nd Sess., 2212 (1867).  He made this statement with reference to the right to vote and not in reference to defining a natural born citizen.  Here, Bingham, in defining a natural born citizen, only mentioned birth “within the limits of the Republic.”

In 1872, Bingham again addressed the meaning of a natural born citizen.  He made more statements on the floor of the House.  On April 25, 1872, he addressed the case of Dr. John Emilio Houard being incarcerated in Spain for allegedly having committed a criminal offense there.  Bingham demanded that the government of Spain afford Dr. Houard due process of law under Spanish law.  During the debate, the issue was raised on the floor of the House whether the doctor was a citizen of the United States, for if he was not such a citizen, the United States would have nothing to do with the matter.  Bingham argued:

As to the question of citizenship I am willing to resolve all doubts in favor of a citizen of the United States.  That Dr. Houard is a natural-born citizen of the United States there is not room for the shadow of a doubt.  He was born of naturalized parents within the jurisdiction of the United States, and by the express words of the Constitution, as amended to-day, he is declared to all the world to be a citizen of the United States by birth.”

John A. Bingham, Cong. Globe, 42^nd, 2^nd Sess., 2791 (1872).

Bingham said that what made Huard a natural born citizen was being born in the United States to U.S. citizen parents.  So, here, as before, he defined a natural born citizen as someone born in the United States to U.S. citizen parents.  Again, the record does not contain any indication that any member of Congress disagreed with Bingham’s statements on the House floor regarding the definition of a natural born citizen.

One can argue that Bingham’s 1867 statement contradicts his two previous and one subsequent statements, because in that statement he only refers to birth in the United States and makes no mention of having to be born to parents who were citizens of the United States.  But actually they are not contradictory if we analyze what Bingham probably meant to say in his 1867 statement and conclude that it is not what appears on the surface.  We can see in his statement of 1862, that first he only called for birth in the United States.  But then later in his statement he said that only those born in the United States to parents who owed no allegiance to any foreign power were natural born citizens.  So, when he first mentioned just birth in the country, he was only saying that it was necessary to be a natural born citizen.  But then later he provided the full definition of a natural born citizen which included birth in the country to parents who were its citizens.  The same can be said for what Bingham said in 1867.  In mentioning birth in the country, he was only saying that it was a necessary condition for being a natural born citizen.  We know that he did not mean to say it was sufficient, because then in 1872, he again explained that a natural born citizen was a child born in the United States to parents who did not owe any foreign allegiance to any foreign power.

So, Bingham provides a look into how the House of Representatives defined a natural born citizen in the 1860’s and 1870’s.  Bingham’s statement of 1872 was also made by him after the Fourteenth Amendment had been passed and still, he included in the definition of a natural born citizen not only birth in the country, but also birth to U.S. citizen parents.  This information is valuable because it tells us how Congress was defining a natural born citizen before the Civil Rights Act of 1866 and the Fourteenth Amendment, and then shortly thereafter.  There is little doubt that the House defined a natural born citizen as a child born in the country to parents who were its citizens.  Also, the U.S. Supreme Court in The Slaughterhouse Cases (1873) agreed with Bingham, stating that a child born in the United States to alien parents was not a citizen of the United States under the Fourteenth Amendment.  Hence, a natural born citizen could be only a person born in the United States to U.S. citizen parents, which is what Bingham has said as early as 1862.

The Fourteenth Amendment was ratified in 1868 and replaced the Civil Rights Act.  The Amendment was passed to provide through the Constitution and not only through an Act of Congress for the citizenship of recently freed slaves and to protect their civil rights.  It provided: “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.”  The Fourteenth Amendment should not be read any further than providing for the remedy of making all persons born in the United States while subject to its jurisdiction "citizens" of the United States, not Article II "natural born citizens" of the United States.  A plain and simple reading of its text shows that it only defines a “citizen” of the United States, not an Article II “natural born Citizen” of the United States.  As far as the debates on the Fourteenth Amendment go, we have to understand the first principle which is that that the text of that Amendment concerns a “citizen” of the United States, and not a “natural born citizen” of the United States.  Plainly on its face and except for those born before the adoption of the Constitution, Article II, Section 1, Clause 5 informs that being a citizen of the United States is not sufficient to be eligible to be President.  Rather, it demands that one be a natural born citizen.  Those who rely on the comments made in debate during the adoption of the Amendment fail to demonstrate with those comments by members of Congress that they were defining an Article II natural born citizen as opposed to who was to be a citizen of the United States under the Fourteenth Amendment.  After all, the issue before them was who was to be a citizen under that Amendment, not who was to be an Article II natural born citizen.

Additionally, what those debate comments show is that those commentators all agreed that to be a natural born citizen and eligible to be President, it was necessary that one had to be a “native-born citizen,” meaning one was born in the United States and a citizen.   So birth in the United States was a necessary condition of being a natural born citizen and eligible to be President.  There is nothing in those statements to indicate that they were saying that birth in the United States was sufficient to be a natural born citizen and eligible to be President.  And to the degree that such a position can be inferred from what they said, whether they thoroughly studied and considered whether birth in the United States was sufficient is another story.  But in any event, those commentators agreed that birth in the United States was a necessary condition of being eligible to be President.  That alone shows that Senator Ted Cruz, born in Canada, is not eligible to be President.

As we saw from Wong Kim Ark, the Fourteenth Amendment abrogated Congress’s naturalization Acts that applied to children born in the United States and any conflicting treaties.  Wong Kim Ark informed that birth in the country while subject to its jurisdiction, when it is through birth in the United States to one or two alien parents, is strong enough to produce U.S. citizenship at birth and only by virtue of the Fourteenth Amendment (under English common law called a “natural-born subject”).  But such birth circumstances are not strong enough to produce a natural born citizen under American common law (not to be conflated, confounded, and confused with an English “natural-born subject” under the English common law).  That a person born in the United States to one or two alien parents satisfies the material elements of the Amendment does not make the very Amendment, the source of the citizenship, disappear. It is still by virtue of the Amendment itself, and not by virtue of birth alone, which is the case for a natural born citizen, that one becomes a citizen of the United States at birth.  

Rubio was born in the United States to alien parents (they were both citizens of Cuba when Rubio was born).  If born after Congress passed its first naturalization Acts and before the ratification of the Fourteenth Amendment, at best, he could have naturalized under a naturalization Act of Congress to become a citizen of the United States after his birth, either by his parents naturalizing during his minority or upon his own personal naturalization as an adult.  Having to naturalize by either method in order to become at best a citizen of the United States after his birth, he surely could not be a natural born citizen. 

Rubio was born in 1971 and therefore gets the benefit of the Fourteenth Amendment.  But the Fourteenth Amendment also does not make Rubio a natural born citizen.  Only by virtue of the Fourteenth Amendment, which was passed so that freed slaves could become citizens of the United States, which abrogated Congress's naturalization Acts as they applied to persons born in the United States, which came 81 years after the adoption of the Constitution, which did not repeal the natural born citizen clause nor amend it, and which only grants entry-level membership in the United States to children born in the United States to aliens who are domiciled and permanently residing in the United States and neither foreign diplomats nor military invaders, hence, children born in the United States while subject to its jurisdiction, Rubio became a "citizen" of the United States "at birth," but not a natural born citizen.  Rubio, only by virtue of the Fourteenth Amendment (a positive law), became a citizen of the United States before both of his birth parents did.  It is not possible that he is a natural born citizen, who, by reason of his or her birth circumstances, i.e., birth in the country to parents who were its citizens, needs no law to be a natural born citizen.  

  

So, Trump should do more than just retweet that he is not sure whether Rubio is a natural born citizen.  Trump should forcefully expose Rubio for not being one, as he has done with Ted Cruz.

Finally, South Carolina Governor, Nikki Haley, recently endorsed Marco Rubio. But the endorsement by one who like Haley, born in the United States to alien parents like Rubio, who is like Rubio not a natural born citizen, does not nor can it convert Rubio into a natural born citizen.  

     

Mario Apuzzo, Esq.
February 22, 2016
http://puzo1.blogspot.com
####

Copyright © 2016
Mario Apuzzo, Esq.
All Rights Reserved   

What Do President Obama and Senator Cruz Have In Common? They Are Both Not Natural Born Citizens

What Do President Obama and Senator Cruz Have In Common?  They Are Both Not Natural Born 

                                                                  Citizens

                                                         By Mario Apuzzo, Esq. 

                                                             February 20, 2015

Article II, Section 1, Clause 5 provides:

“No person except a natural-born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office, who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.” 

This constitutional provision raises two questions:  who are the “citizens” of the United States?; and who are the “natural born citizens” of the United States?  Let us examine these questions.   

Members of nations that are politically constituted as republics are called citizens. 

Citizens can be either citizens from the moment of birth or after birth.

Persons who are citizens from the moment of birth are automatically made so by either their birth circumstances alone or by some law that grants them that birth status without which they would not be so recognized.  In the United States, the former are the “natural born citizens” of the United States and the latter are “citizens” of the United States “at birth.”   Those who are made citizens after birth are also made so by circumstances or by some law without which they would also not be citizens.  In the United States, these citizens are commonly called “naturalized” citizens of the United States, meaning they did not acquire their citizenship automatically at the moment of their birth, but rather after birth through circumstances (the original citizens of the United States who acquired that status by adhering to the American Revolution) or formal naturalization process.   

Thomas Jefferson in The Declaration of Independence wrote about “the Laws of Nature and of Nature’s God” entitling the American people to “the separate but equal Station” “among the Powers of the Earth.”  To understand why he would have used these words which also leads us to an understanding of what a natural born citizen is, consider this passage regarding what Aristotle, the Stoics, Christian teaching, and modern thought said about natural law or natural right:

Aristotle  

It is in accordance with the general character of Aristotle’s philosophy that his teaching regarding natural right is much closer to the ordinary understanding of justice than is Plato’s [see Aristotle]. In his Rhetoric he speaks of “the law according to nature” as the unchangeable law common to all men, but it is not entirely certain that he takes that law to be more than something generally admitted and hence useful in forensic rhetoric. At least two of his three examples of natural law do not agree with what he himself regarded as naturally right (Rhetoric 1373b4-18). In the Nicomachean Ethics (1134bl8-1135a5) he speaks not, indeed, of natural law but of natural right. Natural right is that right which has everywhere the same power and does not owe its validity to human enactment. Aristotle does not give a single explicit example; but he seems to imply that such things as helping fellow citizens who are victims of misfortune resulting from the performance of a civic duty, and worshiping the gods by sacrifices, belong to natural right. If this interpretation is correct, natural right is that right which must be recognized by any political society if it is to last and which for this reason is everywhere in force. Natural right thus understood delineates the minimum conditions of political life, so much so that sound positive right occupies a higher rank than natural right. Natural right in this sense is indifferent to the difference among regimes, whereas positive right is relative to the type of regime—positive right is democratic, oligarchic, etc. (cf. Politics 1280a8-22). “Yet,” Aristotle concludes his laconic statement on natural right, “one regime alone is by nature the best everywhere.” This regime, “the most divine regime,” is a certain kind of kingship, the only regime that does not require any positive right (Politics 1284a4-15; 1288al5-29). The flooring and the ceiling, the minimum condition and the maximum possibility of political society, are natural and do not in any way depend on (positive) law.

Stoicism

Natural law becomes a philosophic theme for the first time in Stoicism. It there becomes the theme not primarily of moral or political philosophy but of physics (the science of the universe). The natural (or divine or eternal) law is identified with God, the highest god (fire, ether, or air), or his reason, i.e., with the ordering principle that pervades and thus governs the whole by molding eternal matter. Rational beings can know that law and knowingly comply with it insofar as it applies to their conduct. In this application natural law directs man toward his perfection, the perfection of a rational and social animal; it is “the guide of life and the teacher of the duties” (Cicero, On the Nature of the Gods I, 40); it is the dictate of reason regarding human life. Thus the virtuous life as choice worthy for its own sake comes to be understood as compliance with natural law—with a law, and hence as a life of obedience.

Inversely, the content of natural law is the whole of virtue. The virtuous life as the Stoics understood it is, however, not identical with the life of moral virtue (as distinguished from the life of contemplation), for one of the four cardinal virtues is wisdom that is above all theoretical wisdom; the virtuous man is the wise man or the philosopher. One is tempted to say that the Stoics treat the study of philosophy as if it were a moral virtue, i.e., as something which could be demanded from most men. Justice, another of the four virtues, consists primarily in doing what is by nature right. The foundation of right is man’s natural inclination to love his fellow men, not merely his fellow citizens: there is a natural society comprising all men (as well as all gods). The inclination toward the universal society is perfectly compatible with the equally natural inclination toward political society, which is of necessity a particular society. The unchangeable and universally valid natural law—a part of which determines natural right, i.e., that with which justice, in contradistinction to wisdom, courage, and temperance, is concerned—is the ground of all positive law; positive laws contradicting natural law are not valid.

It is sometimes asserted that the Stoics differ from Plato and Aristotle by being egalitarians. Differing from Aristotle (but not from Plato), they denied that there are slaves by nature; but this does not prove that according to them all men are by nature equal in the decisive respect, i.e., as regards the possibility of becoming wise or virtuous (Cicero, On the Ends of the Good and Bad Things iv, 56). The peculiarity of the Stoics, in contradistinction to Plato and Aristotle, that explains why the Stoics were the first philosophers to assert unambiguously the existence of natural law would seem to be the fact that they teach in a much less ambiguous way than Plato, to say nothing of Aristotle, the existence of a divine providence that supplies divine sanctions for the compliance or noncompliance with the requirements of virtue. (Cf. Cicero, Laws II, 15-17; Republic III, 33-34.)

The Stoic natural law teaching is the basic stratum of the natural law tradition. It affected Roman law to some extent. With important modifications it became an ingredient of the Christian doctrine.

Christian teaching

The Christian natural law teaching reached its theoretical perfection in the work of Thomas Aquinas [see Aquinas]. It goes without saying that in the Christian version, Stoic corporealism (“materialism”) is abandoned. While natural law retains its status as rational, it is treated within the context of Christian (revealed) theology. The precise context within which Thomas treats natural law is that of the principles of human action; these principles are intrinsic (the virtues or vices) or extrinsic; the extrinsic principle moving men toward the good is God, who instructs men by law and assists them by his grace. Natural law is clearly distinguished from the eternal law—God himself or the principle of his governance of all creatures —on the one hand, and the divine law, i.e., the positive law contained in the Bible, on the other. The eternal law is the ground of the natural law, and natural law must be supplemented by the divine law if man is to reach eternal felicity and if no evil is to remain unpunished. All creatures participate in the eternal law insofar as they possess, by virtue of divine providence, inclinations toward their proper acts and ends. Rational beings participate in divine providence in a more excellent manner because they can exercise some providence for themselves; they can know the ends toward which they are by nature inclined as good and direct themselves toward them. Man is by nature inclined toward a variety of ends which possess a natural order; they ascend from self-preservation and procreation via life in society toward knowledge of God. Natural law directs men’s action toward those ends by commands and prohibitions.

Differently stated, as a rational being man is by nature inclined toward acting according to reason; acting according to reason is acting virtuously; natural law prescribes, therefore, the acts of virtue. Man by nature possesses knowledge of the first principles of natural law, which are universally valid or unchangeable. Owing to the contingent character of human actions, however, those conclusions from the principles which are somewhat remote possess neither the evidence nor the universality of the principles themselves; this fact alone would require that natural law be supplemented by human law. A human law that disagrees with natural law does not have the force of law (Summa theologica I, 2, 90 ff.). All moral precepts of the Old Testament (as distinguished from its ceremonial and judicial precepts) can be reduced to the Decalogue; they belong to the natural law. This is true in the strictest sense of the precepts of the Second Table of the Decalogue, i.e., the seven commandments which order men’s relations among themselves (Exodus 20.12-17). The precepts in question are intelligible as self-evident even to the people and are at the same time valid without exception; compliance with them does not require the habit of virtue (Summa theologica I, 2, 100).

A sufficient sanction is supplied by divine punishment for transgressions of the natural law, but it is not entirely clear whether human reason can establish the fact of such punishment; Thomas surely rejects the Gnostic assertion that God does not punish and the assertion of certain Islamic Aristotelians that the only divine punishment is the loss of eternal felicity. He does say that sin is considered by the theologians chiefly insofar as it is an offense against God, whereas the moral philosophers consider sin chiefly insofar as it is opposed to reason. These thoughts could lead to the view of some later writers that natural law strictly understood is natural reason itself, i.e., natural law does not command and forbid but only “indicates”; natural law thus understood would be possible even if there were no God (cf. Suárez, Tractatus de legibus ac de Deo legislatore n, 6, sec. 3; Grotius,De jure belli ac pads, Prolegomena, sec. 11; Hobbes, Leviathan, chapter 15-end; Locke, Treatises of Civil Government n, sec. 6; Leibniz, Théodicée, sec. 183).

Thomas treats natural right (as distinguished from natural law) in his discussion of justice as a special virtue (Summa theologica n, 2, 57). Therein he is confronted with the task of reconciling with the Aristotelian teaching the Roman law distinction between ius naturale and ius gentium, according to which natural right deals only with things common to all animals (like procreation and the raising of offspring), whereas the ius gentium is particularly human. The Roman law distinction might seem to reflect early conventionalist teaching (cf. Democritus, fr. 278). Thomas’ reconciliation apparently paved the way for the conception of “the state of nature” as a status antedating human society. (Cf. Suárez, Tractatus II, 18, sec. 4.)

The Thomistic natural law teaching, which is the classic form of natural law teaching, was already contested in the Middle Ages on various grounds. According to Duns Scotus, only the commandment to love God—or, rather, the prohibition against hating God—belongs to natural law in the strictest sense. According to Marsilius of Padua, natural right as Aristotle meant it is that part of positive right which is recognized and observed everywhere (divine worship, honoring of parents, raising of offspring, etc.); it can only metaphorically be called natural right [See Marsilius of Padua]. The dictates of right reason regarding the things to be done (i.e., natural law in the Thomistic sense), on the other hand, are not as such universally valid because they are not universally known and observed.

Modern developments

Natural law acquired its greatest visible power in modern times: in both the American and the French revolutions, solemn state papers appealed to natural law. The change in effectiveness was connected with a substantive change; modern natural law differs essentially from premodern natural law. Premodern natural law continued to be powerful; but it was adapted to modern natural law, with varying degrees of awareness of what was involved in that adaptation. The most striking characteristics of modern natural law are these: (1) Natural law is treated independently, i.e., no longer in the context of theology or of positive law. Special chairs for natural law were established in some Protestant countries; treatises on natural law took on the form of codes of natural law. The independent treatment of natural law was made possible by the belief that natural law can be treated “geometrically,” i.e., that the conclusions possess the same certainty as the principles. (2) Natural law became more and more natural public law; Hobbes’s doctrine of sovereignty, Locke’s doctrine of “no taxation without representation,” and Rousseau’s doctrine of the general will are not simply political but legal doctrines. They belong to natural public law; they do not declare what the best political order is, which by its nature is not realizable except under very favorable conditions, but they state the conditions of legitimacy which obtain regardless of place and time. (3) Natural law by itself is supposed to be at home in the state of nature, i.e., a state antedating civil society. (4) In the modern development “natural law” is replaced by “the rights of man”; the emphasis shifts from man’s duties to his rights. (5) Whereas premodern natural law was on the whole “conservative,” modern natural law is essentially “revolutionary.” The radical difference between modern and premodern natural law appears most clearly if one studies the still remembered great modern natural law teachers rather than the university professors who as a rule rest satisfied with compromises.

The principles informing modern natural law were established by two thinkers who were not themselves natural law teachers, Machiavelli and Descartes. According to Machiavelli, the traditional political doctrines take their bearings by how men should live and thus culminate in the description of imaginary commonwealths (“Utopias”), which are useless in practice; one ought to start from how men do live. Descartes begins his revolution with the universal doubt, which leads to the discovery of the Ego and its “ideas” as the absolute basis of knowledge and to a mathematical-mechanical account of the universe as a mere object of man’s knowledge and exploitation.

Modern natural law as originated by Hobbes did not start, as traditional natural law did, from the hierarchic order of man’s natural ends, but rather from the lowest of those ends (self-preservation) that could be thought to be more effective than the higher ends [See Hobbes]. (A civil society ultimately based on nothing but the right of self preservation would not be Utopian.) Man is still asserted to be the rational animal, but his natural sociality is denied. Man is not by nature ordered toward society, but he orders himself toward it prompted by mere calculation. This view in itself is very old, but now it is animated by the concern for a natural-right basis of civil society. The desire for self-preservation has the character of a passion rather than of a natural inclination; the fact that it is the most powerful passion makes it the sufficient basis of all rights and duties. Natural law, which dictates men’s duties, is derived from the natural right of self-preservation. The right is absolute, while all duties are conditional. Since men are equal with regard to the desire for self-preservation as well as with regard to the power of killing others, all men are by nature equal. There is no natural hierarchy of men, so that the sovereign to whom all must submit for the sake of peace and ultimately of the self-preservation of each is understood as a “person,” i.e., as the representative or agent, of each; the primacy of the individual—of any individual—and of his natural right remain intact (cf. Leviathan, chapter 21).

The doctrine of Locke may be described as the peak of modern natural law [See Locke]. At first glance it appears to be a compromise between the traditional and the Hobbesian doctrines. Agreeing with Hobbes, Locke denies that the natural law is imprinted in the minds of men, that it can be known from the consent of mankind, and that it can be known from men’s natural inclination. His deduction of natural law is generally admitted to be confusing—not to say confused—which does not prove, however, that Locke himself was confused. It seems to be safest to understand his doctrine as a profound modification of the Hobbesian doctrine.

It is certain that, unlike Hobbes, Locke sees the crucially important consequence of the natural right of self-preservation in the natural right of property, i.e., of acquiring property, a natural right that within civil society becomes the natural right of unlimited acquisition. Property is rightfully acquired primarily by labor; in civil society, however, labor ceases to be the title to property while remaining the source of all value. Locke’s natural law doctrine is the original form of capitalist theory.

Rousseau too starts from the Hobbesian premise [See Rousseau]. Hobbes asserted that the natural right to judge the means of self-preservation is the necessary consequence of the right of self-preservation itself and belongs, as does the fundamental right, equally to all men, wise or foolish. But Rousseau demands that the natural right to judge the means of self-preservation be preserved as an institution within civil society. Every person subject to the laws must as a natural right have a say in the making of the laws by being a member of the sovereign, i.e., of the legislative assembly. The corrective to folly is to be found above all in the character of the laws in general, both in origin and in content: all subject to the laws determine what all must or may not do. The justice or rationality of the laws is thereby guaranteed in the only way compatible with the freedom and equality of all. In the society established in accordance with natural right, there is no longer a need or a possibility of appealing from positive law to natural right, because the members or rulers of that society are not supposed to be just men.

Rousseau further differed from Hobbes by realizing that if man is by nature asocial, he is by nature arational; questioning the traditional view that man is the rational animal, he found the peculiarity of man in his perfectibility or, more generally stated, his malleability. This led to the conclusions that the human race is what we wish to make it and that human nature cannot supply us with guidance as to how man and human society ought to be.

Kant drew the decisive conclusion from Rousseau’s epoch-making innovations: the Ought cannot be derived from the Is, from human nature; the moral law is neither a natural law nor a derivative of natural law [See Kant]. The criterion of the moral law is its form alone, the form of rationality, i.e., the form of universality.

At about the same time that Kant, sympathizing with the French Revolution, radicalized the most radical form of modern natural right and thus transformed natural right and natural law into a law and a right which are rational but no longer natural, Burke, opposing the French Revolution and its theoretical basis, which is a certain version of modern natural right, returned to premodern natural law [See Burke]. In doing so, he made thematic the conservatism which was implicit to some extent in premodern natural law. Therewith he profoundly modified the premodern teaching and prepared decisively the transition from the natural “rights of man” to the prescriptive “rights of Englishmen,” from natural law to “the historical school.”

Leo Strauss, "Natural Law." International Encyclopedia of the Social Sciences. 1968. Encyclopedia.com. 20 Feb. 2015, at http://www.encyclopedia.com/topic/natural_law.aspx . 

In this explanation we can see the power, whether real or imagined, ascribed to natural law as the common law of all men, as the source for providing the minimum and maximum human conditions, in contradistinction to positive law which was established by societies in order to satisfy their own particular needs that may pertain only to that society. We can see how natural law evolved into that philosophy to be adopted by man to guarantee his or her “natural right of self-preservation.” 

  

With these principles of natural law in mind, let us now examine what birth circumstances make one a natural born citizen.  In other words, under natural law what means or mechanism makes one a natural born citizen?  The long-time settled definition of a natural born citizen, based on common or universal consent of nations, is a child born in a country to parents who were its citizens at the time of the child’s birth.  Emer de Vattel, The Law of Nations, Section 211 to 217 (1758) (1797).  Vattel explains that the law of nations is the law of nature applied to the affairs of nations.  Under that law of nations, he defines the “citizens” as “the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages.”  Section 212.  He also explains that the virtue of love of country, which is necessary for the preservation, survival, and perpetuation of that country, is naturally given to our “native country” by its “natives, or natural-born citizens, [who] are those born in the country of parents who are citizens.”  Section 211 to 212.  (In Section 122, he also explains the duty that one has to defend one’s adopted country “with his utmost efforts.”) 

America had recently fought an independence war with Great Britain, which divided the loyalties of its own people.  So, the Framers knew firsthand how critical undivided loyalty and allegiance were to the future survival of their cause for liberty and the preservation of the new republic.  The Framers commanded that Presidents and Commanders of the Military born after the adoption of the Constitution be natural born citizens to assure that they would be born with those circumstances which would best assure that they would develop the virtue of love of country and thereby be free of monarchical and foreign influence in whatever form it may present itself.  The historical record demonstrates that, with the Office of President being a singular and all-powerful office both civilly and militarily, the Framers took extra measures to keep monarchical and foreign influence out of the Office of President.  Rather than relying upon Congress to elect the President, they gave that power to the Electoral College.  Unlike allowing “citizens” to serve in Congress, they required future Presidents to be “natural born citizens.”  They looked to the natural born citizen clause to assure that the President would in the future protect and preserve the constitutional Republic which they had built.  They sought to achieve this end by requiring that those future Presidents and Commanders be born with unity of citizenship and allegiance to the United States.  They looked upon the natural born citizen clause as a means to accomplish their end. 

Regardless of whether or not their value judgment is correct or how the modern world thinks about natural law, the Founding generation incorporated the universally binding natural law and law of nations definition of a natural born citizen into American common law and the Framers relied upon that common law when they drafted and adopted the Constitution.  Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (“At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners”); U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898) (cited and quoted Minor’s definition of a natural born citizen and its source as coming from the common law and held that a child born in the United States to alien parents, who were neither foreign ambassadors nor military invaders, was under principles laid down by colonial English common law born subject to the jurisdiction of the United States and therefore a “citizen” of the United States by virtue of the Fourteenth Amendment [not to be confused with an Article II natural born citizen]).  As we can see from this definition, a natural born citizen is a citizen from the moment of birth by virtue of his or her birth (a citizen “by birth”) and nothing more, by the force of being born in the country of which both of his or her parents were member citizens at the time of his or her birth.  A natural born citizen needs no law in order to gain that status at birth, for he or she gains that birth status strictly by the circumstances of his or her birth, just like a natural or biological child of certain parents gains that status simply by being born to those parents as opposed to an adopted child of certain parents who gains that status by being adopted by those parents by the grace of a particular law.  As applied to the United States, a natural born citizen of the United States is a child born or reputed born in the United States to parents who were both U.S. citizens at the time of the child’s birth.   Having been incorporated into the Constitution, this definition of a natural born citizen is the law of the land until amended by constitutional amendment or re-interpreted by a U.S. Supreme Court decision.  

A simpler way to look at the meaning of an Article II natural born citizen is to consider that under the law of nations, only a child who was born in a country to parents who were citizens of that country were "true" natural born citizens. This law of nations definition was incorporated into American common law. 

All other citizens who may be so made "at birth" under the positive laws of a nation may be citizens "at birth," and even considered by some as natural born citizens, but they are not "true" natural born citizens. In this connection, consider the Naturalization Act of 1790 which said that children born out of the United States to U.S. citizen parents "shall be considered as natural born citizens," which the Naturalization Act of 1795 changed to "shall be considered as citizens of the United States." Notice how the First Congress said that those citizens "at birth" shall be considered as natural born citizens, but since they were not true natural born citizens, the Third Congress said that they shall be considered only as citizens of the United States. Consider further that with the Naturalization Act of 1802, as interpreted, Congress treated those same children (born out of the United States to U.S. citizen parents who in 1790 were considered as natural born citizens and in 1795 were considered as citizens of the United States “at birth”) as aliens and in need of naturalization after birth. Surely, if those same children were true natural born citizens, neither Congress nor those who interpreted its naturalization act would have conclude that they were aliens. 

In this same connection, today the Fourteenth Amendment and naturalization Acts of Congress make children born in the United States and subject to the jurisdiction thereof “citizens” of the United States “at birth.” Other naturalization Acts of Congress make children born out of the United States to U.S. citizen parents also “citizens” of the United States “at birth.” Of these children, those who do not meet the original common law definition of a true natural born citizen, are “citizens” of the United States “at birth.” Some consider them to be natural born citizens, like the British, under colonial English common law and statutes, considered all children born as or made “subjects,” “natural-born subjects.” But they are not true natural born citizens under the more demanding and strict American common law and hence constitutional requirement. 

Since the Framers used the original American common law definition of a natural born citizen which came from the law of nations, which definition became incorporated into the Constitution as part of the supreme law of the land, only a "true" natural born citizen may be President and Commander in Chief of the Military. And that true natural born citizen is only that child who is born or reputed born in the United States to parents who were both U.S. citizens at the time of the child's birth. 

Senator Ted Cruz was not born in the country of which both his parents were citizens at the time of his birth.  He was born in Canada to a U.S. citizen mother and a non-U.S. citizen (Cuban) father.  He cannot be a natural born citizen of the United States because he was not born in the United States and also because he was born to a non-U.S. citizen father.  Rather, Senator Cruz’s birth circumstances qualify him under Canadian law to be a citizen at birth of Canada and under a naturalization Act of Congress as a “citizen” of the United States “at birth.”  He may also qualify as a citizen at birth under Cuban law through birth to a Cuban citizen.  These laws are positive internal or municipal laws of these nations and not universally binding upon nations as the natural law of nations. Under 8 U.S.C. 1401(g), a naturalization Act of Congress, Senator Ted Cruz is a “citizen” of the United States “at birth.”  He is made a citizen at birth not only by his birth circumstances, but rather because this naturalization Act of Congress makes him a citizen of the United States at birth.  Hence, he is a citizen only because Congress allows him to be one through one of its naturalization Acts, which it can change at any time it pleases.  (In the past, and specifically under the Naturalization Act of 1802, as interpreted, Congress has even denied altogether the status of a citizen of the United States to children born out of the United States to U.S. citizen parents.)  Additionally, the Constitution gives to Congress in matters of citizenship only the power to naturalize which does not include the power to make anyone a natural born citizen.  Congress has recognized this limitation on its power and therefor in its statutes calls persons it is naturalizing from the moment of birth only “citizens” of the United States “at birth” and not natural born citizens of the United States. Consider that the First Congress in the Naturalization Act of 1790 said that children born out of the United States to U.S. citizen parents “shall be considered as natural born citizens” which the Third Congress changed in the Naturalization Act of 1795 to “shall be considered as citizens of the United States.”  Hence, at best under the very text of the statute, Senator Cruz is a “citizen” of the United States “at birth,” not a natural born citizen of the United States.  

  

Senator Ted Cruz is a “citizen” of the United States “at birth” by virtue of his birth circumstances and a naturalization act of Congress (a positive law), not by virtue of his birth circumstances alone.  At best, he is also a “citizen” of the United States “at birth” by the very text of the statute.  He is a “citizen” at birth of the United States, Canada, and maybe Cuba also.  But he is not an Article II natural born citizen which could not under U.S. law possibly allow one to be simultaneously a citizen at birth of other nations.  Renouncing his birthright Canadian citizenship as he has recently done does not nor can it retroactively change the birth circumstances with which he was born.   

Similarly, de facto President Barack Obama, was not born in the country of which both his parents were citizens at the time of his birth.  He was presumably born in the United States to a U.S. citizen mother, but to a non-U.S. citizen father (his father was a Citizen of the United Kingdom and Colonies (CUKC) under the British Nationality Act 1948 which converted to a citizen of Kenya upon Kenya’s independence from Great Britain in 1963).  Not being born to a U.S. citizen father, he does not satisfy the common law definition of a natural born citizen.  He is, however, presumably a “citizen” of the United States “at birth,” by virtue of his birth circumstances, and the Fourteenth Amendment or 8 U.S.C. Section 1401(a) (laws which provide that “[a]ll persons born . . . in the United States and subject to the jurisdiction thereof, are citizens of the United States. . . ”), not by virtue of his birth circumstances alone or some law that constitutionally declares textually that he is a natural born citizen.  He is therefore also not an Article II natural born citizen. 

So, what do Mr. Obama and Mr. Cruz have in common?  They are both not born with unity of citizenship and allegiance to the United States and therefore not Article II natural born citizens.    Being neither a “natural born Citizen, [n]or a “Citizen of the United States, at the time of the Adoption of this Constitution,” neither Obama nor Cruz are constitutionally eligible under Article II to be President and Commander in Chief of the Military.

To review my examination of the numerous historical and legal sources that support my position on the meaning of a natural born citizen, see the many articles and comments that I have published at my blog, www.puzo1.blogspot.com . 

Mario Apuzzo, Esq.

February 20, 2015

http://puzo1.blogspot.com

####

Copyright © 2015

Mario Apuzzo, Esq.

All Rights Reserved   

The Rule of Law and the “Natural Born Citizen” Clause

                                           The Rule of Law and the “Natural Born Citizen” Clause

                                                            By: Mario Apuzzo, Esq.

                                                                 August 21, 2011

 Watch this video of putative President Obama at http://www.telegraph.co.uk/news/worldnews/us-election/8712959/Barack-Obama-accuses-Congress-of-holding-back-recovery.html. His point, which was also made by George Washington in his Farewell Address of 1796, http://www.ourdocuments.gov/doc.php?flash=true&doc=15, is that we can bring our nation back to greatness if politicians would only put country before party. But what is Obama talking about? When we talk about putting country before party, are we not really saying that we should put first what is good for the country as a whole rather than what is good for a particular political party? But how could Obama pretend to promote and defend the greater good of the country without at the same time honoring and respecting the rule of law that keeps that country together? The answer is that the country and the rule of law are inseparable. We cannot have one without the other.

The rule of law is nothing more than intelligence and reason applied to produce a just and predictable result concerning the distribution to people of benefits and obligations offered by the society in which they live. It is a fundamental component of good government and its proper administration. The rule of law, joined with military might, has made our country great and will allow us to prevail in the future. The Founders and Framers, being passionate students of ancient history, recognized the vital importance of the rule of law. In fact, they saw the rule of law to be so critical to life, liberty, and the pursuit of happiness that as a testament of that understanding they gave us a constitutional republic in which military power is subordinate to civilian power. Indeed, the rule of law, which picked up where the Roman Empire ( http://www.usu.edu/markdamen/1320Hist&Civ/chapters/08ROMFAL.htm) left off when it transitioned into the medieval ages, has brought both quantity and quality to world populations. It has given our lives order and civility, allowing Americans to freely study, pray, work, trade, and travel, and thereby to live healthy, prosperous, and peaceful lives.

There exists plenty of historical and legal evidence that Obama is not and cannot be an Article II "natural born Citizen" and is therefore ineligible to be President. Since the Founding, a “natural born Citizen” has been understood to be a child born in the country to citizen parents. The Founders and Framers were particularly careful to keep out of the Office of President and Commander in Chief of the Military foreign and monarchial influence. They therefore demanded that future presidents be "natural born Citizen[s]." By demanding such birth status, they assured that future presidents would be born with no allegiance to any foreign power and therefore loyal and attached only to the United States from birth.

A "natural born Citizen" was well-defined in natural law and the law of nations upon which the Founders and Framers heavily relied in the early years of our Republic. Founder historian, David Ramsay (http://puzo1.blogspot.com/2010/04/founder-and-historian-david-ramsay.html) who in his A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789) ( http://www.scribd.com/doc/33676461/Founder-and-Historian-David-Ramsay-Defined-Natural-Born-Citizenship-in-1789-by-Atty-Mario-Apuzzo) told us that after July 4, 1776, birthright citizenship was preserved only for a child born to U.S. citizens, making no mention of place of birth.  This definition surely came from natural law and the law of nations and not from the English common law which in defining a “natural born subject” made no reference to the nationality of the parents.  In his 1789 article, Ramsay first explained who the “original citizens” were and then defined the “natural born citizens” as the children born to citizen parents. He said concerning the children born after the declaration of independence, “[c]itizenship is the inheritance of the children of those who have taken part in the late revolution; but this is confined exclusively to the children of those who were themselves citizens….” Id. at 6. He added that “citizenship by inheritance belongs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring….” Id. at 7. He continued that citizenship “as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776….” Id. at 6. As we can see, Ramsay put forth a definition of a “natural born Citizen” that only depended upon the child being born to U.S. citizen parents with no mention of place of birth.

Other relevant historical materials such as Emer de Vattel’s, The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758) (http://www.constitution.org/vattel/vattel_00.htm), tell us: “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.”

Then we have Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0088_0162_ZS.html), which providing the same Vattelian definition without citing Vattel, and not in any way referring to the English common law, stated: “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.” Id., 169 U.S. at 679-80.  We can see from this American common law definition of a "natural-born citizen" that the Supreme Court did not rely upon the English common law for the definition, but rather on natural law and the law of nations as set forth by Vattel in Section 212 of The Law of Nations.  We can also see from the Minor decision that an American “natural born Citizen” is much different from a British “natural born subject,” for the latter did not consider the nationality of the parents and also included naturalized British subjects “at birth” and after birth.

Then there is U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898) (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZS.html), which cited and quoted Minor and its definition that a “natural-born citizen” is a child born in the country to citizen parents. Wong then decided that a child born in the country to alien parents who were domiciled in the U.S. was a "citizen" under the Fourteenth Amendment. The Court did not nor did it have to rule that he was an Article II "natural born Citizen" which the Court told us was defined by Minor. Rather, the Court told us that he was a "citizen" under the Fourteenth Amendment. So what the Court actually did was naturalize Wong to be a “citizen of the United States” “at birth” like the Exchequer Chamber in Calvin’s Case (1608), creating the English rule of jus soli birthright citizenship, naturalized Calvin (the postnati) based on “procreation and birthright” to be a “natural born subject.” It is interesting to note that neither the British Parliament which started to debate the matter in 1604 nor the U.S. Congress prior to 1898 were willing to naturalize persons like Calvin and Wong, respectively, so the matter fell upon the courts of justice, and that those who were born prior to 1603 (the antenati), when James VI of Scotland inherited the throne of England as James I, could naturalize only by statute. Hence, the jus soli rule of Calvin’s Case is really a naturalization rule used to bestow citizenship or nationality at birth.  This is confirmed by Vattel who in Section 214 of The Law of Nations, entitled, Naturalisation, said: “Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalises the children of a foreigner.” Hence, the jus soli rule of Calvin’s Case, as applied by Justice Gray in Wong Kim Ark, is a rule allowing person to become naturalized “at birth” and not a rule that can be used to establish “natural born Citizen” status in the new republic, for being naturalized “at birth” one cannot be a “natural born Citizen.” Our courts have incorporated the jus soli rule of Calvin’s Case into the application of the Fourteenth Amendment. By doing so, they have declared children born in the United States to one or two alien parents to be “born” “citizens of the United States.” But these children, being naturalized “at birth” under jus soli are not “natural born" “citizens of the United States.” 

There are other historical sources and cases which inform on the definition of a “natural born Citizen” but for the sake of brevity, I will not include them here.

We know from Vattel and Minor that "citizens" can be the parents of "natural born Citizens" but are not necessarily "natural born Citizens" themselves. Being born in the country to citizen parents allows a child to be born with no foreign allegiance and with loyalty and attachment only to the country of his or her parents. Such birth circumstances allow a child to be born under the full and complete allegiance and jurisdiction of the United States.

Obama's father, a British citizen, was never a U.S. citizen. Hence, Obama was not born in the country to citizen parents. Because Obama’s father was not a U.S. citizen, Obama, even if born in Hawaii which he has yet to conclusively prove, was also born with allegiance to and citizenship in Great Britain. Consequently, Obama was not born with no foreign allegiance and with sole loyalty and attachment to the United States. He was not born with sole allegiance and unity of citizenship in the United States at birth, a natural condition that the Founders and Framers wanted in future presidents and commanders in chief. He was not born under the full and complete allegiance and jurisdiction of the United States. He is not and cannot be an Article II "natural born Citizen." Under Article II, Section 1, Clause 5, he is therefore not eligible to be President and Commander in Chief.

But how can we expect to achieve and maintain greatness as a nation when our own president does not follow the rule of law as it pertains to his eligibility to be President? Being the putative President and Commander in Chief, Obama should be the first one to follow his own advice of putting country first. He and his enablers should put the Constitution (country) before his personal political ambitions (party). But up to now, Obama and his enablers are just saying "do as I say, not as I do."

A great number of Americans have come to understand these fundamental truths and are not happy with how Obama and political and legal institutions have turned a blind eye to Obama’s ineligibility to be President. These Americans are demanding justice on a daily basis. If Obama and his enablers were to follow Obama’s advice, these Americans, who have lost respect for their political and legal institutions, could once again get behind their political leaders and help them solve the many social and economic issues which are currently disrupting our nation. On the other hand, some Americans believe that the “natural born Citizen” issue is a “distraction” from the real issues pressing our country. But as we have seen, the "natural born Citizen" issue goes to the heart of our constitutional republic, the rule of law. Without the rule of law, we have no constitution or republic. I would not consider any of that a "distraction."

This state of affairs leaves Americans who truly care about their country and the rule of law with having to continue this fight on their own. Their fight will not go unrewarded, for as history has shown, those who persevere will in the end win.

Mario Apuzzo, Esq.

August 21, 2011

http://puzo1.blogspot.com/  

####

Copyright © 2011

Mario Apuzzo, Esq.

All Rights Reserved

Donald Trump Is a “Natural Born Citizen” But Putative President Barack Obama Is Not

Donald Trump Is a “Natural Born Citizen” But Putative President Barack Obama Is Not

By Mario Apuzzo, Esq.
March 31, 2011

Based on the information that has so far been provided to the public, I conclude that Donald Trump is an Article II "natural born Citizen" but Barack Obama is not.

The Founders and Framers understood that under natural law and the law of nations, as explained by Emer de Vattel in his, The Law of Nations, Or, Principles of the Law of Nature (London 1797) (1st ed. Neuchatel 1758) (“Vattel”), a nation’s most fundamental duty is self-preservation. They therefore included the "natural born Citizen" clause in the Constitution so that each and every citizen would be protected by having someone assume and exercise the great and singular civil and military powers of the President and Commander in Chief with only their and the nation's values and safety at heart. To accomplish that end, the Founders and Framers required in Article II, Section 1, Clause 5 of our Constitution that anyone who was a “citizen of the United States” at the time of the adoption of the Constitution was eligible to be President. But for anyone born thereafter, they built in extra protection for the nation by requiring that anyone born after the adoption of the Constitution be a “natural born Citizen.”

While a “citizen of the United States” is any citizen so made by the Fourteenth Amendment, Act of Congress, or treaty, a "natural born Citizen" is a child born in the country to citizen parents. Vattel, Sections 212-217. Here are some supporting sources, and there are more, for this definition:

(1) Founder historian, David Ramsay, who in his A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789) told us that after July 4, 1776, birthright citizenship was preserved only for a child born to U.S. citizens, making no mention of place of birth. In his 1789 article, Ramsay first explained who the “original citizens” were and then defined the “natural born citizens” as the children born to citizen parents. He said concerning the children born after the declaration of independence, “[c]itizenship is the inheritance of the children of those who have taken part in the late revolution; but this is confined exclusively to the children of those who were themselves citizens….” Id. at 6. He added that “citizenship by inheritance belongs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring….” Id. at 7. He continued that citizenship “as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776….” Id. at 6. As we can see, Ramsay put forth a definition of a “natural born Citizen” that only depended upon the child being born to U.S. citizen parents with no mention of place of birth;

(2) The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (Chief Justice John Marshall, concurring and dissenting for other reasons, 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’”);

(3) Inglis v. Sailors’ Snug Harbor, 28 U.S. 99, 3 Pet. 99, 7 L.Ed. 617 (1830) (the majority, which included Chief Justice John Marshall, cited Vattel on the right of election to change one’s allegiance and thus citizenship in the context of the new nation being formed after revolution. The Court found on principles consistent with Vattel’s jus sanguinis and not on the English common law rule of jus soli, that simply being born in New York, after July 4, 1776 and before September 15, 1776, when the British took possession of New York, was not sufficient to establish one’s status as an American citizen, for a child of minor years is incapacitated from making any citizenship election but rather followed the citizenship held or chosen by the father. On the contrary, relying upon principles of the English common law, Justice Johnson and Justice Story, who wrote separate minority concurring opinions, would have found the child born in New York during the same time period a citizen of the State of New York or American citizen, respectively, regardless of the citizenship of his parents. Id. 136 and 164. This case shows what the majority rule was on citizenship and that it followed the Vattelian doctrine that a child when born took on the national character of his or her father (meaning father and mother under the doctrine of merger of the wife’s citizenship into the husband) and did not acquire his or her citizenship from the territory in which he or she was born);

(4) Dred Scott v. Sandford, 60 U.S. 393 (1857) (Justice Daniels concurring cited Vattel and The Law of Nations and provided his definition of natural born citizens and took out of Vattel’s definition the reference to “fathers” and “father” and replaced it with “parents” and “person,” respectively, and stated: “'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 society cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights.' Again: 'I say, to be of the country, it is necessary to be born of a person who is a citizen; for if he be born there of a foreigner, it will be only the place of his birth, and not his country. . . .'”);

(5) Minor v. Happersett, 88 U.S. (21 Wall.) 162, 167-68 (1875) (providing the same Vattelian definition without citing Vattel, and not in any way referring to the English common law, stated: “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.” Id., 169 U.S. at 679-80);

(6) United States v. Wong Kim Ark 169 U.S. 649, 693 (1898) (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 for that definition. The question that Minor did not answer 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 14th Amendment. Ruling against the government, Wong Kim Ark declared a child born in the country to alien parents to be a “citizen of the United States” under the 14th 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 14th Amendment. Wong Kim Ark also allowed Wong to be a 14th 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 14th 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 so); and

(7) Perkins v. Elg, 307 U.S. 325 (1939) (confirmed that a child born in the United States to a naturalized U.S. citizen father and naturalized citizen mother, the mother being derivatively naturalized by marrying a U.S. citizen, was a “natural born Citizen.”

Donald Trump has expressed some interest in running for President in 2012. We have recently seen some commentators say that Trump is not a “natural born Citizen.” The question now is whether they are correct? Trump was born on June 14, 1946, in New York to U.S. citizen parents. He is therefore a “natural born Citizen.” His father, Fred C. Trump, was born on October 11, 1905, in New York, New York. His mother, Mary Anne (Mac Leod) Trump, was born on May 10, 1912, in Stornoway, Scotland. Trumps father was a U.S. citizen when he married Trump’s mother, who at that time had not yet naturalized to be a U.S. citizen. Trump was born in the United States thereafter. Under merger of the husband’s citizenship into that of the wife which was the doctrine existing at the time the Constitution was adopted and under Elg, this makes Trump a “natural born Citizen.”

In 1924, the Congress passed the Married Women’s Act, also known as the Cable Act. This act gave each woman a nationality of her own. Under this act, an alien woman who married a U.S. citizen did not need to file a declaration of intention to become a U.S. citizen. She needed only to file a naturalization petition to become a U.S. citizen. Given their dates of birth, Trump’s parents most probably married after 1924, the year the Cable Act was passed. Hence, Trump’s mother would have had to naturalize on her own to acquire U.S. citizenship. Trump’s mother naturalized to be a U.S. citizen on her own on March 10, 1942, which is over 4 years before Trump was born. Hence, when Trump was born, both his parents were "citizens of the United States." These birth circumstances make Trump a “natural born Citizen.” See http://www.thebirthers.org/misc/trumped.html for screen shots of the supporting documentation which shows that Donald Trump is a “natural born Citizen.”

Putative President Barrack Obama might also run for re-election in 2012. While our legal and political institutions have allowed Obama to escape having to prove that he is a “natural born Citizen,” he will not be able to do the same when running for re-election in 2012. Hence, the question still remains whether Obama is a “natural born Citizen.” As I have stated repeatedly in the past, I cannot conclude that Obama is a “natural born Citizen.” Obama fails to meet the “natural born Citizen” eligibility test because when he was born in 1961 (wherever that may be), he was not born to a United States citizen father and mother.

There are two open issues regarding whether putative President Obama is eligible to be President. One is place of birth. Consider that in all the law suits filed against Obama and others on the place of birth issue, including the Kerchner v. Obama/Congress law suit (which also argued that regardless of place of birth, Obama is not and cannot be a “natural born Citizen” because he was not born in the United States to a U.S. citizen father and mother), Obama never once produced any birth certificate (neither his Certification of Live Birth known as the COLB nor his long-form, hospital generated Certificate of Live Birth) for the court which would have put an end to the birth place issue. Why did he pursue a legal strategy (e.g. standing, political question, and other justiciability defenses) which only worked in the short term rather than just produce the birth certificate which would finally end the birth place controversy?

Why spend so much private and public money and resources fighting the same issue over and over again? Even now, over two years after the 2008 election, we see the same place of birth issue raised in various contexts. It has risen in the military context with LTC Terry Lakin, who is serving 6 months in federal prison for defending the Constitution by wanting to assure that Obama is a “natural born Citizen.” We see it in ObamaCare litigation. Now some states are also moving to require proof of birth as part of a presidential candidate's requirements to get on the ballot. Officials with the National Conference of State Legislatures report that 10 states already have some sort of requirement to prove eligibility. There is Arizona's H.B. 2177 and S.B. 1157, Connecticut's SB391, Georgia's HB37, Indiana's SB114, Maine's LD34, Missouri's HB283, Montana's HB205, Nebraska's LB654, Oklahoma's SB91, SB384 and SB540, and Texas; HB295 and HB529. With Texas' 34 votes, these states possess 107 Electoral College votes. http://www.wnd.com/index.php?fa=PAGE.printable&pageId=258585 .

Hawaii Governor Abercrombie has recently revived the birth place issue, vowing to find the birth certificate and put an end to the debate. But we have seen that he found no birth certificate. Now Donald Trump has publicly announced that Obama should do the right and simple thing and just release his long form, hospital generated birth certificate.

So, there is no end to the issue of Obama’s place of birth. Should we not blame Obama himself for this issue still existing? After all, the Constitution says that he must be a “natural born Citizen.” Is not the burden on him to satisfy that requirement? The question of where Obama was born is not a distraction, for it only takes 10 minutes and $10.00 to resolve (the amount of time and money needed to produce his real birth certificate).

Why has Obama allowed this issue to continue unabated? Why have all the Department of Justice attorneys repeatedly taken the same approach in defending Obama, i.e., fighting jurisdiction (standing) and raising any other justiciability defense? Why have they fought so hard to prevent any litigant to have discovery so that a copy of the birth certificate could be obtained? Why have they to this day never produced a copy of any birth certificate in any court which would have put an end to the birth place issue not only in that court but in all other courts present and in the future?

While the courts have not been too kind to the "birthers," why has not one court even mentioned the fact that not one court in the whole nation has yet to see Obama’s alleged birth certificate?

But apart from the place of birth issue, we also have the question of whether Obama is an Article II "natural born Citizen." Assuming that he was born in Hawaii and also assuming that his parents are who he says they are, does Obama meet the definition of an Article II "natural born Citizen?" At his birth, his mother was a United States citizen. But under the British Nationality Act of 1948, his father, who was born in the British colony of Kenya, was born a Citizen of the United Kingdom and Colonies (CUKC) which under that same law and by descent made Obama himself a CUKC. Prior to Obama’s birth, Obama’s father neither intended to nor did he become a United States citizen. Being temporarily in the United States only for purpose of study and with the intent to return to Kenya, his father did not intend to nor did he become even a legal resident or immigrant to the United States.

The U.S. State Department has confirmed that Obama was born with dual allegiances. Leventhal cites FactCheck.org to state, "Obama was originally both a U.S. citizen and a citizen of the United Kingdom and Colonies from 1961 to 1963 given that his father was from Kenya, which gained its independence from the British Empire in 1963. Upon independence, Obama became both a U.S. and Kenyan citizen from 1963 to 1982 [sic should be 1984], and solely a U.S. citizen after that." The entry "The Obama Birth Controversy" was written by Todd Leventhal, the chief of the Counter-Misinformation Team for the U.S. Department of State.

Obama may be a plain born “citizen of the United States” under the 14th Amendment or a Congressional Act (if he was born in Hawaii). But he is not an Article II "natural born Citizen," for upon Obama's birth his father was a British subject and Obama himself by descent was also the same. Hence, Obama was born subject to a foreign power. Obama lacks the birth status of natural sole and absolute allegiance and loyalty to the United States which only the President and Commander in Chief of the Military and Vice President must have at the time of birth. Being born subject to a foreign power, he lacks sole allegiance and unity of citizenship to the United States from the time of birth which assures that required degree of natural sole and absolute birth allegiance and loyalty to the United States from birth, a trait that is constitutionally indispensable in a President and Commander in Chief of the Military. Like a naturalized citizen, who despite taking an oath later in life to having sole allegiance to the United States cannot be President because of being born subject to a foreign power, Obama too cannot be President.

Mario Apuzzo, Esq.
March 31, 2011
http://puzo1.blogspot.com/
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Mario Apuzzo, Esq.
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