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A DISCUSSION OF NATIVE AND NATURAL-BORN CITIZENSHIP
by paralegalnm, blogging at Paralegalnm’s Blog
(Feb. 24, 2011) — The concept of birthright U.S. citizenship by native-birth alone is a carryover from English law as practiced by the American colonies, but superseded by the 1790 Uniform Naturalization Act that relied on the ‘Law of Nation’s’ § 212 description of “those born in the country, of parents who are citizens.”
The reason ‘native-born citizen’ is so terribly conflated in the American psyche as synonymous with ‘natural born citizen’ is because of over a century of the judiciary ignoring U.S. statute.
The Lynch case (1844) violated the 1790, 1795, 1798, 1802, and 1804 uniform naturalization acts through semantic gymnastics and false logic, implying law and intent that went beyond the clear language of the acts themselves.
Wong Kim Ark (1897) side-stepped the existing requirements of legislated Act by creating a special ‘constitutional’ citizenship-at-birth. Ark’s violation of jurisprudence (neglecting to address treaty and equity issues actually within the court’s jurisdiction) completely ignored the 1866 Civil Rights Act’s “not subject to any foreign power” as precursor to the 14th Amendment’s “under the jurisdiction thereof” clause. Ark continues in its effect to this day, causing the courts to ignore the conflicts of dual nationality at birth and, through Plyler vs. Doe (1982), forcing states to treat children of even illegal aliens as citizens.
The Judiciary versus Congress; Removing the Redundancy
The constitution clearly enumerates congressional plenary power over uniform naturalization law. However, while Minor vs. Happersett (1874) commented in dicta that a ‘natural born citizen’ was without doubt a child born of U.S. citizens, the judge in Ark intentionally fabricated a ‘constitutional’ citizen out of reach of congressional Article I powers.
The judiciary’s misguided reliance on English jus solis principles for citizenship at birth was belied by English law itself, that relied on both ‘descent’ and ‘otherwise than by descent,’ i.e., of patrilineal inheritance, or just born within English dominion. The courts compounded their error by creating the ‘birthright’ native-born citizen, which has burdened the states by encouraging illegal immigration.
In addition, judicial error has created a constitutional crisis, for it has justified the son of a British subject, Barack Hussein Obama, to erroneously claim Article II eligibility to the presidency through native-birth alone.
Congress has the power to correct over one-hundred years of judicial ‘legislation’ simply by clarifying Title 8, U.S.C. § 1401(a) with a definition that “under the jurisdiction thereof” is extended from the 1866 Civil Rights Act’s “not subject to any foreign power.” The legislative history supports this amendment.
In addition, the current misinterpretation is a gross redundancy; a child ‘born in the United States’ is obviously within its territorial jurisdiction. The reality is, as defined in the rest of the Aliens and Nationality Act, is the effect of one alien or non-citizen parent who introduces alienage through foreign jurisdiction.
For a more complete, fully-cited legal analysis, please forward your request to the address below.
Jedi Pauly was not talking straight when he said below, “5) The term ‘natural born citizen’ that is defined under the 14th Amendment . . . .” That is not playing fair, since the 14th A. concerns plain “citizens,” not nbC.
I agree with Pauly that in the specific case of Obama, the mother’s citizenship status is irrelevant because the father was a foreigner, but in addressing the abstract issue of nbC Pauly places undue weight on capitalization, trying to make that definitive, and he strains credulity by claiming to find in the word “repatriation” some imaginary support in Article II for his pet theory.
Mario Apuzzo has repeatedly refuted Pauly here at The P & E, so let us hear briefly from Apuzzo’s latest (Feb. 24) essay on eligibility: “As we shall see below, the U.S. Supreme Court has informed us several times throughout our history that a child born in the country to citizen parents is a ‘natural born Citizen.’ This American common law definition of a ‘natural born Citizen,’ based on natural law and the law of nations, has to this day never been changed by the Constitution, Congressional Act, or the U.S. Supreme Court, and continues to prevail as originally written in Article II by the Framers in 1787.” (http://puzo1.blogspot.com/)
In referring to Apuzzo’s well-documented position, it is disingenuous for Pauly to claim that he can ” find no evidence in law at all to support this bogus theory.” So why does Pauly keep peddling his pet theory as if it had great consequence for Obama’s eligibility? This may be his hobby horse, but it does not advance the cause of removing an ineligible president-elect. Instead it just sows confusion, and it hurts the cause for Pauly to attempt to discredit legitimate legal cases as “bogus theory.”
1) “Jedi Pauly was not talking straight when he said below, “5) The term ‘natural born citizen’ that is defined under the 14th Amendment . . . .” ”
You are correct that the words “natural born citizen” are not specifically in the 14th Amendment however the Supreme court cases regarding what “citizen” is being referred to most definitely defines the 14th Amendment “citizen” to be a “natural born citizen” they even say so. The point that I believe you are missing is that the definition of “natural born citizen” derived from the 14th Amendment means the same thing as a “naturalized” citizen. In fact, that is what the 14th Amendment says when it relates “those born or naturalized in the United States…” The courts have held that “born” or “naturalized” in the United States both mean exactly the same thing and then the courts have borrowed the term “natural born citizen” from English common law (not from Article II) which means a natural born citizen subject of the soil to describe what is only a “naturalized” citizenship and not a Article II “natural born Citizen” which has nothing at all to do with “subject” status as in one who is “subject” to Positive Law (soil jurisdiction of the king/state). Nice try though.
2) “but in addressing the abstract issue of nbC Pauly places undue weight on capitalization, trying to make that definitive, and he strains credulity by claiming to find in the word “repatriation” some imaginary support in Article II for his pet theory.”
I am only relating the same weight that the Supreme Court has placed on the capitalization. Any examination of the Supreme Court cases that I provided links to will clearly show that the capitalization is considered significant and determinative. This is not my “pet” theory, it happens to be the opinions of the Supreme Court that I have just discovered and been forced to accept and explain. I refer you once again to this link that clearly shows that there is a difference between “Citizen” and “citizen” in the Constitution. Here is the link once again. I suggest you study it and try and refute it with Supreme Court cases that say otherwise. Good luck!
3) “As we shall see below, the U.S. Supreme Court has informed us several times throughout our history that a child born in the country to citizen parents is a ‘natural born Citizen.’”
There is no Supreme Court case that says what you have claimed. Now it is you that is not “talking straight” If you know of this case, please provide a link so that we may all see it. I don’t believe it exists. Even if it does, the question is not whether or not a person born to two U.S. citizen parents upon U.S. soil jurisdiction is an Article II “natural born Citizen” or not. Of course they are by Natural Law definition. However, that is not the issue or the stated position of you and Mario Apuzzo. The issue that you put forth is that of what is REQUIRED. The “pet” theory is that both parents and the soil are REQUIRED, not whether or not a person is a “natural born Citizen” by definition because they are born to two citizen parents upon their native soil. That is obvious and not in contention.
When one asks the correct question which is what is REQUIRED to meet Article II purpose and intent, then it is clear that by the proper reading of Vattel and the Declaration of Independence, and by the application of the jurisdictional differences between Natural Law and Positive Law, only a citizen father is REQUIRED and the soil and a mother’s citizenship status are irrelevant.
4) “Instead it just sows confusion, and it hurts the cause for Pauly to attempt to discredit legitimate legal cases as “bogus theory.”
My stated position is clear, self evident, squares all of the laws of the land and is not at all confusing. There is a difference between Natural Law and Positive Law and Natural Rights and Legal Rights.
OK, Jedi Pauly, we agree that Obama is not eligible because his father was a foreigner. We differ is on whether paternity alone determines whether one is a natural born citizen or natural born Citizen (nbC). (Allow me to defer debate on capitalization, which I believe in the 18th century reflected common practice in the parent language of English, which is German.) So following your enumeration:
1. Mario Apuzzo says in his latest article (to which I linked), “The meaning of a ‘natural born Citizen’ has nothing to do with the 14th Amendment. The Framers wrote the clause in 1787 and the 14th Amendment was passed in 1868. There is no indication in the text of the amendment, its history, or in any court decision that suggests that the amendment changed Article II’s ‘natural born Citizen’ clause.” That seems like somewhat more than a nice try.
2. As I indicated above, 18th century capitalization involves linguistics as well as law, but I defer that topic at present. You apparently likewise defer or decline to further discuss repatriation in relation to Article II.
3. I was quoting Mario Apuzzo, who said “a child born in the country to citizen parents is a ‘natural born Citizen,’ ” and you agree with that, so why is this not talking straight? I cited Apuzzo and provided the link to his blog, where ample discussion of relevant Supreme Court cases is found. And just today The P & E has published another article by Apuzzo in which he cites numerous SCOTUS cases to support his position. Please see: http://www.thepostemail.com/2011/02/27/arizona%e2%80%99s-proposed-interstate-birth-certificate-compact-law-is-both-unconstitutional-and-contrary-to-the-best-interests-of-the-united-states/.
Consider these summative words from the above article: “The point is that unless the child is born to two U.S. citizen parents in the U.S. which cuts off any possibility that either natural law foreign allegiance, inherited from alien parents, or positive law foreign allegiance, acquired from birth on foreign soil, will attach to the child, he or she will acquire either a natural foreign allegiance or a positive law foreign allegiance. Any one of these conditions under the natural law definition of a ‘natural born Citizen,’ prevents that child from being considered a ‘natural born Citizen.’ ” So foreign birth as well as foreign blood would militate against nbC-status.
I still do not understand why you refuse to admit the existence of relevant SCOTUS documention, as cited in massive doses by Apuzzo in his lawsuit and numerous writings posted at his website. It is there. I am not making up case law.
4. I disagree that your position is “self evident” and “not at all confusing.” Obama’s birthplace is important in that the general public can easily understand that a foreigner should not be C-in C. I believe we need to focus on the actionable argument here: Obama is not president because he does not satisfy what is REQUIRED by Article II. Let us unite behind that fact and support constructive action based on it. The easiest action to achieve would seem to be a congressional hearing, which should comprise both soil and blood, not either/or.
The essence of my view is that nbC means one who at birth naturally, automatically, indisputably belongs to this country and to no other country. Birth abroad OR a foreign parent would mean a child’s birth status is not unitary and is open to dispute. Manifestly, Obama’s birth status is open to dispute.
Well said, Harry H. I would suggest one thing though. We know of course that Obama’s occupancy of the Presidency is a blatant and serious violation of the Constitution. So, our stated cause is, and should be communicated as, fighting for the Constitution. The result of successfully defending the meaning of the natural born citizen clause in Article II Section 1 will be the peaceful and legal removal of Obama from office.
This is what we are up against. This is a response from a poster at http://www.canadafreepress.com concerning an article by J.B. Williams titled, “The Bottom Line on Natural Born Citizen”.
Man, are you seriously misinformed.
1) There’s no actual evidence that Obama’s Hawaiian BC is a phony. Lots
of claims, all of which have turned out to be frauds themselves.
2) There is no legal requirement that both parents be citizens for one to
be a “natural born citizen”. All that’s required, according to the
Supreme Court, is that you be born here.
3) I’m assuming that when you talk about “the Democrats were screaming
‘natural born citizen’ all over the place before the election”, that
you’re talking about McCain. Why didn’t McCain show anyone in authority
his BC? The Senate just took his word for it and proclaimed him a natural
born citizen (in a non-binding resolution even).
4) Obama never signed anything to “seal all of his records”. That’s
another lie. What he did was roll back a Bush executive order to the less
strict version that Reagan originally issued.
5) Most likely, Obama hasn’t shown his “long form BC” because there’s
no legal reason to. Also, this gives him a unique opportunity to portray
much of his opposition as delusional.
6) Prove that he spent “a couple of million to hide his BC”. Last time I
looked, even WND wasn’t making that claim any more.
7) It’s not just the nutcakes that elected him that are scary. The
nutcakes that believe in lies because they want to, whichever side they’re
on, are what’s scary. That apparently includes you, as well as the fools
that elected him.
8) Final point: Obama’s competence at being President has nothing to do
with his constitutional eligibility to be President.
I have noticed more Obots spewing nonsense at various websites lately. I think Obama created a few more jobs.
More nonsense. This people done have brains, even an elementary school textbook tells you have to have BOTH parents citizens to be one. We should show up in mass 7 million on the Capitol steps would do it with our school books in hand to show them!
Once again everyone is missing the mark. Wong Kim Ark has no bearing on the issue at all. What you all fail to realize is that Article II “natural born Citizen” is a unique construct that has absolutely nothing at all to do with English Common Law or U.S. Positive Law. Article II “natural born Citizen” is solely defined under NATURAL LAW as meaning one who INHERITS a natural sovereign political right at birth which only comes from MALES (citizen FATHER) via the Laws of Nature (Vattel section 212 and 215 Chapter 19 book 1 Law of Nations and the Declaration of Independence). By ignoring the rest of Vattel and the Declaration of Independence, you are misunderstanding and misinterpreting the first sentence of section 212 which is not stating any requirement that it requires both parents and soil. (See analysis of Vattel in the article “He blinded them with Science” by Jedi Pauly posted here in the archives of the Post and Email News) Here is the correct legal outline that proves what Article II means:
1) The Constitution embodies only two jurisdictions from where authority is derived, a Natural Law jurisdiction and a Positive Law jurisdiction.
2) Article II “natural born Citizen” is a unique construct that is not defined in English Common law, or U.S. Positive Law, but is defined solely in Natural Law and just declared in the Positive Law at Article II in order to be protected. Article II “natural born Citizen” derives its authority solely from the Natural Law jurisdiction of the Constitution as meaning one who is born a native sovereign of the country. Sovereign political rights are Natural Rights that are inherited from males (father) under the Natural Law jurisdiction, because it is males who create the Positive Law (government) to secure the natural political rights and membership in the father’s society that is inherited. (Explained by Vattel and declared as a self-evident truth of Nature in the Declaration of Independence.) This is probably due to the natural fact that under the Natural Law jurisdiction, males are physically superior in strength and aggression and no female can physically prevent a father from securing the political rights and membership of his children into his society.
3) When it comes to citizenship and political rights, the jurisdiction of foreign soil or a foreign mother are only considered to be a Positive Law jurisdiction in contrast to that of the father’s Natural Law jurisdiction. The soil is obvious because soil is always a Positive Law jurisdiction. A foreign mother might seem to be a Natural Law jurisdiction that is equal to the father’s, but upon investigation you will see that this is not so. Whenever there is a foreign father, then the political rights and membership of the children in the mother’s society are in question, and must be adjudicated and secured solely by the Positive Law via statute. Any citizenship or political rights must be defined by statutory authority due to the competing superior Natural Law jurisdiction of the father. The father’s Natural Law jurisdiction is always considered to be the superior controlling jurisdiction and forces the mother to be under the Positive Law jurisdiction for describing or securing any political rights or membership in the mother’s society.
Since the Natural Law jurisdiction is superior to and controlling over that of the Positive Law jurisdiction, it makes no difference where you are born or the citizenship status of a foreign mother, as both jurisdictions will only be Positive Law jurisdictions that will define the citizenship rights or political rights which will not compete with the father’s pre-eminent Natural Law jurisdiction no matter whether the father is native or foreign. Therefore your place of birth or the status of your mother are irrelevant as long as you have a citizen father.
4) Loyalty and Allegiance considerations. Any loyalties or allegiances that are derived from foreign soil or a foreign mother at birth, are only statutory in nature due to the Positive Law jurisdictions that are controlling in such matters, and so they are not inherited loyalties or allegiances from a citizen father due to the Laws of Nature for the reasons outlined above. Therefore, it makes no difference whether one is born into the Positive Law with foreign loyalties and allegiances or if one develops foreign Positive Law loyalties and allegiances after birth through migrating to some other country. Both situations are easily remedied by the repatriation requirements of Article II, that requires one to be born a native citizen of the country which is secured solely by a citizen father under Natural Law jurisdiction (Vattel), and the 14 year residency requirement in Article II that causes one to sever any foreign loyalties or allegiances that are derived solely form the Positive Law jurisdiction and repatriate and reestablish the loyalties and allegiances of the native father, that one is born inheriting as a function of the Laws of Nature which is the Natural Law jurisdiction. Patriot is derived from the Greek/Latin “patros” meaning “father”, so to repatriate means to return to the land of your father and take up his loyalties and allegiances. This is what Article II requires and provides for.
5) The term “natural born citizen” that is defined under the 14th Amendment and by U.S. case law and Supreme Court decisions is only referring to “subject” status as in one who is “subject to the jurisdiction of” the Positive Law, and so it is only a Positive Law construct of a “legal right” or privilege, not a Natural Right; and any political rights that are derived from “natural born citizen” status are thus only legal political rights and not natural political rights. This term is defined and borrowed from English Common law as a citizen “subject” of the King/State whose authority is derived solely from the king’s/state’s soil jurisdiction that the king/state claims dominion over. This is solely a Positive Law jurisdiction, as the King/State is not the source of Natural Rights only Positive Law “legal rights”. This is what differs “natural born citizen” from “natural born Citizen” . The former is a function solely of Positive Law and is a privilege of soil only, where a citizen father is not even required, and the latter is a function solely of Natural Law where ONLY a citizen father is required and the soil is irrelevant. Article II is a unique construct that has nothing at all to do with Positive Law or English Common Law, but rather represents the break with England and the form of monarchy political system that caused an automatic involuntary allegiance to the King/State by being born under the king’s/state’s soil jurisdiction. Instead the construct “natural born Citizen” is defined solely under Natural Law to represent the Natural Sovereign authority that all People inherit and are entitled to, that was the purpose of the Declaration of Independence and the war of 1776 that secured the recognition of these natural sovereign political rights to be inherited from our fathers that the King had refused to recognize.
6) One can see that not only is there a big legal difference, as defined by the Constitution and by Supreme Court cases, between “natural born citizen” and “natural born Citizen”, as just outlined in 5 above, but also between “Citizen of the United States” and the 14th amendment “citizen of the United States”. The term “Citizen of the United States” is referring to a sovereign State Citizen. The term “citizen of the United States” is referring to a citizen “subject” of the State that is declared in the 14th amendment to be a citizen “subject” of the State jurisdiction, as in a ward of the State, and not a sovereign State Citizen who is not a “subject” of State jurisdiction without voluntary consent and who is not a ward of the State. Here is a link with Supreme Court references that helps to clarify this distinction: http://usa-the-republic.com/mark%20of%20beast/AppendixC.htm
As you can see, a correct understanding of the Natural Law jurisdiction and the Positive Law jurisdiction –both of which are well-defined in law to be opposite and “opposed” jurisdictions, with the Natural Law jurisdiction being superior– perfectly defines and describes Article II “natural born Citizen” as only requiring a citizen father who creates you, and your place of birth and the status of one’s mother are both irrelevant. One need only claim the natural political rights in order to be a sovereign representative of the sovereign citizens of the country and then repatriate for 14 years to sever any foreign allegiances or loyalties, in order to qualify under Article II for the Office of President
I will continue to study these comments. But my first reading finds this to be commentary without insight. There is a fundamental principle which has been simply stated over and over again. Both parents must be citizens for the child to be Natural Born. Whatever letters you want to capitalize or not, however you invoke or criticize natural law, common law, positive law, that fundamental principle still applies. Any attempt to make the argument more complex and thereby chip away at the fundamental principle is destined to fail.
Your arguments are in the spirit of logical positivism – a line of philosophical inquiry long since declared sterile and just plain dead wrong.
You are entitled to your opinion but the facts of natural reality speak for themselves. Fortunately I do not have to rely on opinion or whatever it is you are supposing I am trying to accomplish. I am just describing natural reality that I discovered and did not invent. I am sorry if you cannot perceive the truth. Sovereignty, which is a political right, is a natural right that is inherited from males because it is males who create governments (Positive Law) and it is males who secure our natural political rights for both males and females, and because it is naturally impossible to politically serve two masters at the same time (mother and father if they are both politically equal). This is not my opinion, it is just a natural observable fact of nature that is also declared in the Declaration of Independence. I just happen to agree with our founding fathers that these truths are self evident facts of nature. It is a shame that you are unable to perceive this reality. You are not alone. That is why so many people cannot understand the simple fact that Obama is not qualified.
Furthermore, there is no fundamental principle at all in the arguments that it requires both parents to be citizens or that one must be born on U.S. soil. Your belief that some fundamental issue is at stake is an invented illusion. You and a few attorneys like Mario Apuzzo and Orly Taitz etc. keep telling everyone that there is some requirement but upon investigation of these claims, we find no evidence in law at all to support this bogus theory. In fact, if a person would just bother to read Vattel he makes it clear that native soil and native mother are irrelevant and only the native father matters to be considered a native sovereign citizen which is what Vattel is describing. There are also no loyalty issues at all due to foreign birth or a foreign mother because neither allow for inherited political loyalties at birth and any statutory allegiances can be dispensed with by repatriation which Article II provides for as long as you have a citizen father. The only fundamental issue is the inheritance of natural political rights which come form a father. Perhaps I can give you and example that proves the point.
I was born to a U.S. citizen father so I can claim that I inherited a sovereign political right to claim to be a sovereign representative of the sovereign citizens of the U.S. that I was born with due to my father being a citizen. I cannot claim however to have been born being able to claim the political right to be a sovereign representative of sovereign Kenyan citizens at birth because my daddy was not a Kenyan citizen. Now do you get it? Not all people are born inheriting the same sovereign political rights although all inherit equal sovereign authority within there own natural circumstances.
The Wong Kim Ark decision affirmed Justice Waite’s definition of natural born citizen (from Minor v. Happersett). Gray cited the definition verbatim and acknowledged that Waite REJECTED Virginia Minor’s claim of 14th amendment citizenship. Gray wrote that the Supreme Court was “committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment …” IOW, this is saying the 14th amendment does NOT apply to natural born citizens (since they are already citizens). Gray further affirmed this by noting that Minor’s citizenship was due to jus soli AND jus sanguinis criteria: “The decision in that case was that a woman born of citizen parents within the United States was a citizen of the United States …”
The other thing that’s noteworthy about the MInor and WKA decisions is that both technically acknowledged that the concept of being a “native” is equivalent to being a natural born citizen in that you still need to be born in the country to citizen parents. Gray’s concept of 14th amendment “citizenship by birth” is a public law class of citizenship, but it is not technically “native born” citizenship. The modern concept of “native born” citizenship is based on a superficial understanding of the term, but is not based on the Supreme Court’s actual interpretation.
The very last phrase of your post is undoubtedly correct!!!
A well written and powerful discussion of the subject.
Paralegalnm seems to have fingered the necessary distinctions here, but waiting for a walrus-like judiciary to act appropriately and justly could take a while. And many people will never understand or admit to understanding what they consider the legal niceties of Article II.
In contrast, everyone can understand that a non-citizen should not be our Commander-in-Chief. Since I believe Obama is not even a citizen, much less nbC, I think the easiest, surest way out of this mess is to indisputably verify where the usurper was born. If by some miracle it turns out Obama was indisputably born in the U.S., the nbC question still has to be answered.
Congress should take the easiest step first by establishing as a legal fact where our putative president was born. If it can’t even do that, Congress is a useless parasite on the body politic.
One thing that is certain, recent revelations (Adams, Abercrombie, Miss Tickly’s blog, etc.) have made it more and more evident that Obama-liar was born somewhere else than in Hawaii. That contradictory fact alone constitutes criminal fraud and should be sufficient legal justification to oust the usurper, regardless of wherever he actually was born.
Certainly there are plenty of Kenyans (apparently including his step grandmother) who are convinced that he is a native son of Kenya and drew his first brand-spanking-new breath as a Kenyan on Kenyan soil.
Given that eyewitnesses and university enrollment records placed his mother in Seattle within scant weeks of his purported birth date, and given that he had a great aunt who lived nearby in northern Washington state at that time (the perfect hiding place for a “very young and very single” mother), it is also quite possible that he was born just over the border from Blaine, Washington in White Rock, Canada.
In my opinion, these are the two most likely scenarios, but given the dearth of nativity information from the “most transparent administration ever,” all we know for certain is that, whatever the truth actually is, it would mean the immediate end of the Obama-fraud’s illegal occupation of the Presidency.
I couldn’t agree more, especially/specifically with your last paragraph. The fact that neither Congress or any Court has demonstrated any willingness whatsoever to at least establish where our putative president was born renders both of them traitors to “We the people…”.