- Law Cases
by Mario Apuzzo, Esq., ©2013, blogging at Natural Born Citizen
(Jan. 22, 2013) — Barack Obama eligibility supporters maintain that he is an Article II “natural born Citizen” and therefore eligible to be President. But to do so, they have blended together, through ignorance or intent, “citizen,” “born citizen,” and “natural born Citizen,” and denied that there is a critical constitutional distinction between these phrases. These supporters and enablers, who I call the citizen/born citizen/natural born citizen conflationists, in constitutionally supporting Barack Obama to be president, have allowed our Constitution, the rule of law, and our nation to be violated. Allow me to explain.
In order to understand the meaning of an Article II “natural born Citizen,” we have to understand the constitutional distinction between a “citizen,” “born citizen,” and “natural born Citizen.” The first constitutional distinction is between “citizen” and “natural born Citizen.” In Article II, Section 1, Clause 5 the Framers provided in pertinent part: “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.” Here, we see the Framers distinguished between a “natural born Citizen” and a “Citizen of the United States.” There is no other type of “citizen” mentioned. So, our Constitution, Acts of Congress, and treaties, call “citizens,” or members of the United States, either “natural born Citizens” or “citizens of the United States.” As we shall see, the former are defined by American common law (the definition being based on natural law and the law of nations) and the latter by the Fourteenth Amendment (the definition being in part based on colonial English common law), Congressional Acts, or treaties. From this we can see that a “citizen” is either a “natural born Citizen” or a “citizen of the United States.” Because of the requirement of having to be born in the country to citizen parents, a “natural born Citizen” will necessarily also qualify under these sources as a “citizen of the United States.”
Article II refers to a “natural born Citizen,” but does not define it. In fact, the definition of a “natural born Citizen” is not found anywhere in the original or amended Constitution or any Act of Congress. Rather, it is found in the common law upon which the Founders and Framers relied at the time of the adoption and ratification of the Constitution. Under this common law, the three constituent elements of being a “natural-born citizen” are time (at the moment of birth), birth place (in the country), and birth parents (U.S. citizen parents), what I will call birth time, birth country, and birth parents. See Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (the unanimous U.S. Supreme Court explained that the definition of a “natural-born citizen” is not found in the Constitution and confirmed that “[a]t 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”); United States v. Wong Kim Ark, 169 U.S. 649, 679-80 (1898) (the majority and dissent agreed on the Minor definition of a “natural-born citizen,” but they disagreed as to the definition of a Fourteenth Amendment “citizen of the United States” at birth). Given this settled common law definition of a “natural born Citizen,” these elements are both necessary and sufficient to make a “natural born Citizen.” In the definition, the parents have to have as a minimum the status of a “citizen” (“born citizen” or “natural born Citizen” is not necessary) in order to produce a “natural born Citizen.” Note that Minor said that at common law, if one was not a “natural-born citizen,” one was an alien or foreigner. This means that if these persons qualified, the Fourteenth Amendment, Act of Congress, or treaty could make them a “citizen of the United States.”
These historical and legal developments inform that at common law there is a critical distinction between a “citizen” and a “natural born citizen.” In fact, natural law and the law of nations have always recognized this distinction. See Emer de Vattel, The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758) (“The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” http://www.lonang.com/exlibris/vattel/vatt-119.htm ). At common law, if one was a “citizen” but not a “natural born citizen,” then, except for the original “citizens” who became such by the Declaration of Independence and by adhering to the American Revolution, one had to have been alien born and become a “citizen” by naturalization statute. Natural law and the law of nations, along with both English and American common law, have also always recognized that a child gains allegiance and citizenship by either being born on the soil of a country (jus soli) or by being born to parents of that country (jus sanguinis). The Founders and Framers accepted the distinction between a “citizen” and a “natural born Citizen” and understood that birth country and birth parents produce in the child allegiance from the moment of birth. Because they expected the President and Commander in Chief of the Military to have absolute allegiance from birth only to the United States, they applied the distinction to the Office of President. In fact, they used it when they made the “natural born Citizen” clause a requirement of eligibility for the Office of President (the XII Amendment extends it to the Office of Vice-President) and for no other office, requiring, for those to born after the adoption of the Constitution and who would aspire to be President and Commander in Chief of the Military, that they be not only a “citizen,” but a “natural born Citizen.” (The grandfather clause of Article II, Section 1, Clause 5 allowed “Citizens of the United States” to be eligible to be President, provided they had that status “at the time of Adoption of this Constitution.”) The English did not nor did they have to demand such allegiance from their would-be Kings, for their Kings did not have to qualify from among the people. Rather, they lay their claim to the throne by royal blood. Rejecting as a requisite to be President royal blood, the Founders and Framers instead settled with the natural elements of birth time, birth country, and birth parents, and made their distinction between a “citizen” who was also a “natural born Citizen” and a “citizen” who was not. And it was the combination of these three elements at the time of birth which assured them that all means of inheriting allegiance and citizenship (birth country and birth parents) were united at the moment of birth to produce in the child absolute allegiance only to the United States.
The next constitutional distinction is between “born citizen” and “natural born Citizen.” These same Obama eligibility supporters add the word “born” to the word “citizen” and want us to accept that combination as the definition of a “natural born Citizen.” But those who assert that a “natural born Citizen” is just any “born citizen” commit two errors: a textual error of missing the point (or by refusing to see the point) that the clause is “natural born Citizen,” not “born citizen” and a definitional error of not understanding (or refusing to accept) that “born citizen” is neither a definition nor a description of the clause “natural born Citizen.”
First, regarding the textual error, as I have already explained in other articles such as Logic and Defining the “Natural Born Citizen” Clause, at http://puzo1.blogspot.com/2012/11/logic-and-defining-natural-born-citizen.html, we cannot define a clause by merely repeating parts of the clause itself. For example, if we wanted to know what the definition of a “natural born German shepherd” is, we would not accept as a correct definition the answer that it is a “born German shepherd.” To argue that a “natural born German shepherd” is a “born German shepherd” is tautological, for it only repeats part of the form of the clause and does not define the clause. Such an argument does nothing more than to state the obvious that a “natural born German shepherd” is a “born German shepherd.” Likewise, a “natural born Citizen,” is, of course, a “born citizen,” but saying so does not define the clause.
Second, in this “born German shepherd” definition example, a rational person should also want to know what happened to the qualifier “natural” and its meaning. Does not that word tell us something about under what conditions the “born German shepherd” must come into existence? Likewise, those rational persons who want to know the meaning of a “natural born Citizen” should want to know what happened to the qualifier “natural,” and whether that qualifier also requires that certain conditions be met in order to have a “natural born Citizen.” Actually, these persons would be correct in raising such questions. Given the meaning of a “natural born Citizen,” with its three constituent elements of birth time, birth country, and birth parents, we know that the word “natural” when combined with “born citizen” demands that all three elements be satisfied in order to have a “natural born Citizen.” We might be willing to include others as “born citizens” and Congress has the naturalization powers to do so and has done so throughout our history. But that we are willing to tolerate by the application of some law certain persons as “born citizens” does not, given the applicable common law definition of the clause and its requirements, make them “natural born Citizens”
Regarding the definitional error, the clauses “natural born Citizen” and “born Citizen” are conclusions, birth statuses that do not provide sufficient factual information as to how one arrives at the conclusions or statuses themselves. Rather, to know if one satisfies the status of being a “natural born Citizen,” one must start with the definition of a “natural born Citizen,” identifying its constituent elements. If one satisfies those elements, then one is a “natural born Citizen.” And to know if one satisfies the status of being a “born citizen,” one must also start with the available definitions, however many there are and whether provided by the Fourteenth Amendment or Congressional Acts, of a “born citizen,” identifying their constituent elements. If one satisfies those elements, then one is a “born citizen.” But obviously, we are defining two different clauses which necessarily contain different definitions and requirements. The clause does not tell us how one arrives at being a “born citizen,” which process must be equivalent to the process by which one arrives at being a “natural born Citizen” if the two clauses are to mean the same thing. Hence, to simply use other legal mechanisms of citizenship which produce a “born citizen” and proclaim that they too produce a “natural born Citizen,” simply because they, like “natural born Citizens,” are “born citizens,” is to err. It is to err because being a “born citizen” is only a necessary consequent (a conclusion or status) of being a “natural born Citizen” and by itself, because it is based on a different definition, represents a different class of citizen, one produced by the Fourteenth Amendment or Congressional Act and not by American common law.
There is only one process or means by which one can be a “natural born Citizen,” i.e., by satisfying the necessary and sufficient conditions of birth time (at the moment of birth), birth country (born in the United States), and birth parents (born to U.S. citizen parents). Simply stated, any “born citizen” who does not satisfy these three conditions, while still being a “born citizen” under some legal mechanism (e.g., under the Fourteenth Amendment or Congressional Act), is not a “natural born Citizen” under American common law which is the natural law/law of nations-based law that provides the constitutional definition of the clause.
Minor v. Happersett confirms all this and United States v. Wong Kim Ark changes none of it.
Barack Obama maintains that he was born in Hawaii. With a dispute involving whether his birth certificate, social security number, and military draft registration are authentic still continuing and not having been definitively resolved through any legal process, we have yet to see conclusive legal proof of his place of birth. But even assuming for sake of argument that he was born in Hawaii, he is still not an Article II “natural born Citizen.” We have seen that the three elements of being a “natural born Citizen” are birth time, birth country, and birth parents. Minor; Wong Kim Ark. If Obama was born in Hawaii, he satisfies the birth country requirement. But while Obama was born to a U.S. “citizen” mother, his father never became nor did he strive to become a U.S. “citizen.” Rather, his father was born in the English colony of Kenya, was born a British citizen, and remained such until his death. Hence, Obama was not born to a U.S. “citizen” father. He therefore fails to satisfy the elements of being born to citizen parents at the moment of birth. This means that he can be a “born citizen” under the Fourteenth Amendment or Congressional Act, which provide a more relaxed allegiance standard, but he cannot be a “natural born Citizen” under Article II, which provides a more exacting allegiance standard for would-be Presidents and Commanders of the Military. This also means that because he is neither “a natural born Citizen” nor “a Citizen of the United States, at the time of the Adoption of this Constitution,” he is not eligible to be President.
On January 20, 2013, Barack Obama was again sworn in as the President of the United States. But because he is not an Article II “natural born Citizen,” he is at best a de facto President of the United States, not a constitutionally legitimate one.
Mario Apuzzo, Esq.
January 21, 2013
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Mario Apuzzo, Esq.
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