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by Mario Apuzzo, Esq.

Mario Apuzzo is an attorney practicing law in New Jersey who brought the suit Kerchner v. Obama & Congress, et al to the U.S. Supreme Court

(Apr. 12, 2011) — Jedi Pauly separates the “Unity Theory” from the “Natural Law Theory.” He also says that the “Natural Law Theory” “is not so well known.” He also adds that we need only look to the allegiance and citizenship of the father and not even consider the mother’s when defining a “natural born Citizen.” Finally, he argues that birth in the country is irrelevant when defining a “natural born Citizen.”


I have argued from early on that in order to be a “natural born Citizen,” one must have Sole Allegiance and Unity of Citizenship (unity of jus sanguinis and jus soli) and that such a requirement has its basis in the natural law and the law of nations definition of a “natural born Citizen” which is a child born in the country (or equivalent like a military installation for families serving in the armies of the state) to a U.S. citizen father and mother. I have also argued that the Founders and Framers looked to natural law and the law of nations for their definition of a “natural born Citizen’ and not to the English common law definition of a “natural born subject.” This definition became part of American common law. Hence, the two are not separate theories but rather all part of natural law and the law of nations.


Additionally, many of us already subscribe to natural law and the law of nations and not the English common law as the source of the rules of decision for defining a “natural born Citizen.”


I have also argued that during the Founding and framing of the Constitution, the concept of the wife’s citizenship merging into that of the husband prevailed. Hence, anyone then like Jefferson and earlier like Vattel, when referring to the citizenship of the “father” in essence was referring to the citizenship of the father and mother. So under unity of husband and wife, it was expected that the child’s parents would have only one allegiance and citizenship which they would then pass on to their children. I have also explained that this changed with the Cable Act of 1922, which created in women their own means of acquiring citizenship.


He also says that the definition of a “natural born Citizen” does not require birth in the U.S. How could he make such an argument when Vattel says that the positive law of nations are binding in this regard. Vattel, The Law of Nations, Section 215 (“their regulations must be followed”). The Constitution in Article I, Section 8, Clause 4 gives Congress the power to naturalize and nothing more. The First Congress in the Naturalization Act of 1790 said that a child born abroad to U.S. citizen parents would be “considered as” a “natural born citizen.” This only means that Congress naturalized these children to be as, not that Congress declared them to be, “natural born citizens.” The Third Congress in the Naturalization Act of 1795 took out “natural born citizen” and replaced it with “citizen of the United States.” Hence, the First and Third Congresses both told us that not only is there a distinction between a “citizen” and a “natural born Citizen,” but also that place of birth does matter in the “natural born Citizen” equation.

Further proof of how important place of birth has been in our history is the Naturalization Act of 1802 which repealed all former naturalization acts. This act provided: “The children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject by the Government of the United States, may have become citizens of any one of the said States under the laws thereof, being under the age of twenty-one years at the time of their parents being so naturalized or admitted to the rights of citizenship, shall, of dwelling in the United States, be considered as citizens of the United States; and the children of persons who now are, or have been citizens of the United States shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States: Provided, that the right of citizenship shall not descend to persons whose fathers have never resided within the United States.” Act of April 14, 1802, c. 28, § 4; 2 Stat. 155. Wong Kim Ark explained that this act did not extend citizenship to foreign-born children of any person who became a citizen since its enactment. Id. at 673.

Congress changed this law by the statute of February 10, 1855, c. 71, that provided that “persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered and are hereby declared to be citizens of the United States: Provided, however, that the rights of citizenship shall not descend to persons whose fathers never resided in the United States.” 10 Stat. 604; Rev. Stat. § 1993. Wong Kim Ark, at 674. “It thus clearly appears that, during the half century intervening between 1802 and 1855, there was no legislation whatever for the citizenship of children born abroad, during that period, of American parents who had not become citizens of the United States before the act of 1802; and that the act of 1855, like every other act of Congress upon the subject, has, by express proviso, restricted the right of citizenship, thereby conferred upon foreign-born children of American citizens, to those children themselves, unless they became residents of the United States.” Id.

Even the Fourteenth Amendment declares children to be “citizens of the United States” at birth provided they are born in the U.S. and “subject to the jurisdiction thereof.” There is no mention of being born out of the U.S. in that amendment as it may enable one to be declared a “citizen of the United States” at birth. Of course, we know that Congress can create U.S. citizens “at birth” through its naturalization powers and it has declared children born abroad to one or two U.S. citizen parents to be “citizens of the United States” “at birth.” That does not mean that those children are “natural born Citizens.” Rather, those children are “naturalized born” “citizens of the United States,” not “natural born” Citizens of the United States.” After all, the Founders and Framers said “natural born” and not just “born,” and the word “natural” must be given meaning.

It has been my position and I have written on it in my blog that John McCain is a “natural born Citizen” because he was born abroad to a U.S. citizen father and mother who were serving in the armies of the state. See Vattel, Section 217. Furthermore, Panama, having earlier amended its Constitution, followed jus sanguinis when he was born.

Hence, I disagree with Jedi Pauly on these four points.

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  1. John McCain is not a natural born citizen, which is a person born in the country to citizen parents. This is Vattel’s natural law definition. “Reputed born in the country” is not the same thing as actually being born in the country. Reputed? Reputed by who? Reputed by man, and not by nature. By the laws of nature, McCain was born in the sovereign territory of Panama — which includes the Canal Zone and military bases therein.

    John McCain was born with no foreign allegiance (which is also true of natural born citizen) and this because Panama did not bestow citizenship to the children born in Panama to foreign citizens. Hence, McCain shares the same important characteristic of a natural born citizen, which is exclusive allegiance to the US at birth. He is also of age and has lived the last 14 years in the US. So, would McCain be eligible to be President?

    The intent of the Founding Fathers was to have Presidents who were free of foreign allegiance at birth and foreign influence as an adult. The natural born citizen and 14-year residency requirements were both means to these ends. John McCain was born free of foreign allegiances and has resided in the US the last 14 years. He meets the intent of the Founding Fathers regarding foreign allegiance at birth and foreign influence as an adult. Hence, it is my opinion that he would be eligible to be President, despite not being a natural born citizen.

  2. @thinkwell

    The expressed point of the natural born Citizen requirement was and remains to ensure both that our Commander-in-Chief be born and raised with exclusive dedication and allegiance to the USA and that no other country have any legitimate claim of fealty or duty from our CiC under any circumstance.

    Note that naturalized-as-an-adult citizens must first officially renounce any other citizenship and then freely swear an oath of sole allegiance to the USA, thereby breaking all bonds to any other country. It makes no sense for our government to recognize dual citizenship for any such naturalized citizen. Their freely sworn exclusive loyalty is also why they may produce and raise children who are themselves are then natural born Citizens.


    Thank you, and everyone.

    We are talking about the Kenya Senator, and don’t anyone forget it!

    Kenyan Born!

    WE know he fails every test.

  3. Mario is correct. Jedi is wrong about the definition of a Natural Born Citizen.


    Now what part of Vattel’s clear and concise Definition of a NATURAL BORN CITIZEN do Communists, Socialists, Liberals and Democrats not understand?


    If we take BHO Jr. at his word then there is no doubt that he is not a Natural Born Citizen of the United States as required by the Presidential Qualifications Clause of Article II Section 1 Paragraph 5 of the United States Constitution. The Constitution requires that to be the President of the United States, a person must be born in the United States of two parents who are citizens of the United States. By BHO Junior’s own admission his father was a British/Kenyan subject (citizen) at the time of his birth. Thus BHO Jr. is disqualified for the Presidency.

    There is a clear, concise definition of the term “Natural Born Citizen” in Vattel’s Law of Nations which was the principal legal reference book used by the Founding Fathers in writing the Constitution.

    “The natural-born citizens, are those born in the country, of parents who are citizens…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.”

    There have been innumerable United States Supreme Court Decisions that have referenced Vattel’s Law of Nations as a resource in interpreting the original intent of the Founding Fathers when writing the Constitution.

    1. Lucas… I have had the same problem… i.e. My posts not being posted… on a few occasions. In fact, the last one being a reply to a post of yours, entailing your listing on ebay and my bids. I emailed Sharon regarding same and received no reply. However… being the person she is… I have no doubts when she says ‘they are not’. I believe, though drag it may be.. the problem is a computer ‘glitch’ of some sort.
      Mrs. Rondeau replies: I have explained in previous articles that there have been problems with all of the comments coming through. I did not receive your email, sir, and am doing my best to handle what does come in, which is hundreds of comments and emails each day. Please feel free to contact me at editor@thepostemail.com. However, if you did try to post something about bidding, it would not have been permitted here. However, I can honestly say I never saw the comment. Please review our comment policy here: http://www.thepostemail.com/about/

  4. Question Mario… would not born abroad, or ‘overseas’ fall under the defined Territorial Jurisdiction of the United States? Where, included in this definition of US Territory.. are embassies, military bases and other needful buildings. ?
    If so, the problem of two US military personnel.. bearing a child on sovereign American soil.. i.e. A US military base.. would be encompassed and making said child, justly.. a Natural Born American? title 18 sub sec 7

    1. Duke-Jinx,

      Vattel in Section 217 of The Law of Nations considers those born abroad “in the armies of the state, or in the house of its minister at a foreign court,” as being “reputed born in the country.” Hence, under natural law and the law of nations, anyone born under these circumstances is deemed to be born “in the country” or as we say today, in the United States and “subject to the jurisdcition thereof.”

      Also note that under English common law, birth under these same circumstances was an exception to jus soli citizenship, i.e., preventing one from acquiring British “natural born subject” status even though born in the physical dominion of the King. Under British common law (although it is in dispute whether English common law extended such a right) and English statutes, the children of “natural born subjects” born abroad under these circumstances was also considered to be a British “natural born subject.” This later rule is consistent with natural law and the law of nations.

      1. Thanks!…. it’s nice to see common sense prevail. A Country should, be possive to the point of greed regarding It’s Peoples.

  5. From my perspective, it is kind of like “the chicken and the egg” question – which came first? Obviously on the date and time when the Constitution was written there were no U.S. “Acts,” laws, etc., in existence that were or could be used to somehow determine the reasoning and definition underlying “natural born Citizen” (nbC) as used in the Constitution. So any appeal to all those “authorities” to now define nbC, which authorities all POST-date the actual inscription of nbC in that original document known as the Constitution, does not make any logical sense to me. Whatever it was that formed the use of the phrase nbC in the minds of those who wrote the Constitution, it was not something that came into existence after the Constitution was written. That, to me, is just common sense.

    Take for instance Abraham, Isaac, and Ishmael. What Abraham passed on to both consisted of “royalty” type of lineage. There was a special covenant with Isaac, but Ishmael was also the head of a line of princes, both passed on by the same father through two different mothers, Sarah and Hagar.

  6. Mario,

    I enjoy the logic that permeates your writings on this issue. If only the U.S. Supreme Ct. would provide you with an audience to argue such before them instead of running away from their exclusive duty to dispositively interprete Art. II, Sec. 1, Clause 5. Thank you.

  7. Mr. Apuzzo (esquire),

    First off, you and Commander Kerchner (retired) have my deepest gratitude for all the tireless effort put in and personal risk endured on both your parts over the last several years in defense of our great nation.

    Mr. Pauly’s archaic view of citizenship is based on his interpretation of natural law as it existed in the time of the nation’s founding. As you noted in your editorial, this premise is faulty because although the principle of adherence to natural law has not changed, the pervasive acceptance and understanding of what is considered “natural” in society most certainly has. Race-based differentiations in citizenship status are gone. Likewise, a wife no longer automatically takes on her husband’s citizenship upon marriage.

    In my opinion, consequences with regards to divided allegiances never envisioned by the Founders are a direct result in particular of this last societal change, which is itself a direct result of several trends:

    1. The waning of the importance of physical strength and muscle power in modern society (the rise of the machine). This has greatly reduced a man’s relative productivity advantage in the workplace. It also has led to changes in social morés that support the notion that men and women are interchangeable in society, which has been reinforced by pervasive legal shackles to a man’s natural tendency to dominance via sheer strength and aggressiveness (whether all this is good or not is another discussion).

    2. The rise of modern medical care and technology has freed women from near exclusive lifelong dedication to the role of breeding the next generation. This is both because women no longer suffer a significant risk of death through childbirth and they need to produce fewer children since almost all survive. Note, too, that all of today’s modern conveniences mean that the direct labor required to support rearing children and maintaining a household has been vastly reduced.

    These trends have resulted in a paradigm shift of what is considered “natural” in society, to the point (in my opinion) that Vattel would consider it to have changed natural law, at least in modern Western civilization (remember, Vattel’s treatise was that of an observer, merely describing as accurately as possible the natural order of Man in society — he did not make up natural law, rather only wrote it down).

    Thus, even though the Constitutional requirement for a natural born Citizen President has remained steadfast since the Founding, the basis of determination of what is “natural” has not — men and women are now fully equal natural citizens and children no longer exclusively follow the condition of their fathers. In other words, dual citizenship and split allegiance at birth, which once was rare-to-nonexistent, is now routinely possible.

    I think this fundamental change is a large part of the reason for the doubts that exist about the Constitutional meaning of “natural born Citizen.” A new birth class of natural dual citizenship has evolved, but does it meet the Founders’ intent for Presidential eligibility?

    The short answer is NO, it does not. The nbC requirement was simply the Founders’ way of protecting the Presidency from a person of inborn foreign influence (of which, Obama, as a self-proclaimed citizen of the world, is a good example). The Founders clearly wanted to ensure that the President was 100 percent red-blooded all-American, and would therefore have a natural affinity exclusively to America and its people above all others.

    In light of the Founders’ driving goal of excluding any foreign allegiance, it is ludicrous to suggest that dual birth-citizenship (due to the new “natural” of independent and equal parental heritage) should result in the possibility of one being a natural born Citizen of two countries at once. Except for certain mind-numbed Obots, the thought simply does not compute.

    In my opinion the Founders did not explicitly express this obvious exclusivity requirement because, in their day, it was completely redundant to and coherent with the “natural born” requirement.

    The expressed point of the natural born Citizen requirement was and remains to ensure both that our Commander-in-Chief be born and raised with exclusive dedication and allegiance to the USA and that no other country have any legitimate claim of fealty or duty from our CiC under any circumstance.

    Note that naturalized-as-an-adult citizens must first officially renounce any other citizenship and then freely swear an oath of sole allegiance to the USA, thereby breaking all bonds to any other country. It makes no sense for our government to recognize dual citizenship for any such naturalized citizen. Their freely sworn exclusive loyalty is also why they may produce and raise children who are themselves are then natural born Citizens.

    US-government-recognized dual citizens may occur by birth and apparently in some cases by the free choice of a former exclusively American citizen (something that should never be allowed in my opinion – either you are in or you are out). This leads to a gray area with regard to natural born Citizenship where citizens may be born on native soil, but to parents one or both of whom themselves may be dual citizens. Such children clearly may be born and raised with divided allegiance (in fact, quite plausibly with a stronger loyalty to their “other” country).

    That these children could ever be classified as natural born Citizens is an anathema to the Constitution, the security and protection of our country and the intent of the Founders. I believe this debased sort of hybrid “natural born Citizen” was neither possible nor ever envisioned as being possible in the time of the Founders, which is, no doubt, why it likely never has been directly addressed. But one only need look to the guidance of the clearly expressed intent to protect the nation from foreign interest and influence to see that such an ill spawned classification of “natural born Citizen” should never be allowed.

    In my opinion, Mr. Pauly is not at all an obot. He sincerely believes Obama is a usurper fraud, but Mr. Pauly is also pushing his personal agenda and is simply sticking his head into the sands of past times in an attempt to justify natural born status for himself and/or others very close to him (a pointless vanity since neither he nor anyone in his family – nor any among us here, for that matter – are ever likely to become President).
    Mrs. Rondeau replies: Although with the many fine researchers and patriots here, one never knows!

  8. Thanks, Mario. Those with “an ear to hear” get it. Those who feel a need to throw sand in our eyes will persist. Whatever Pauly is trying to do is not working….
    Mrs. Rondeau replies: I actually see value in both viewpoints and do not feel threatened by either one. The Post & Email welcomes other serious research on the definition of “natural born Citizen” as well. We are seeking the truth, no matter where it leads.