Putative President Barack Obama’s Unconstitutional Amending of Article II’s “Natural Born Citizen” Clause

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Putative President Barack Obama’s Unconstitutional Amending of Article II’s “Natural Born Citizen”
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                                                      By Mario Apuzzo, Esq.
                                                            March 6, 2012



St. George Tucker


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 eligibility requirement raise the issue of whether putative President is a “natural born Citizen” thereunder so as to make him eligible to be President.

But what is a “natural born Citizen?” There is a wealth of information which informs us on what the exact definition is of a “natural born Citizen.” I have included this information in a brief that I wrote and which Attorney Karen Keifer filed with the Commonwealth Court of Pennsylvania in the case of In Re: Barack Hussein Obama, II et al Objection of : Charles F. Kerchner, Jr. and Dale A. Laudenslager. That brief may be read at http://www.scribd.com/doc/83104811/Kerchner-Laudenslager-v-Obama-Ballot-Challenge-Brief-on-Behalf-of-Objectors-Filed-28Feb2012.  Here I will only highlight a part of the brief which Obama’s supporters do not want the public to read.

In Minor v. Happersett, 88 U.S. 162 (1875), our U.S. Supreme Court defined the Article II “natural-born citizen” class as part of its analysis of whether Virginia Minor was a “citizen” and as such, entitled to vote under the Constitution’s Article IV’s privileges and immunities clause. The Court held:

          The Constitution does not in words say who shall be natural-born citizens. Resort must be had  
          elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the
          Constitution were familiar, it was never doubted that all children born in a country of parents who
          were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born
          citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens
          children born within the jurisdiction without reference to the citizenship of their parents. As to this
          class there have been doubts, but never as to the first. For the purposes of this case, it is not
          necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all
          children, born of citizen parents within the jurisdiction, are themselves citizens.”

Id., at 167-68 (emphasis supplied). Minor did not cite Vattel, but the Court’s definition of a “citizen” and a “natural-born citizen” are paraphrased directly from Emer de Vattel’s, The Law of Nations, Sec. 212 (London 1797) (1st ed. Neuchatel 1758), where he defined a “natural-born citizen” as “those born in the country, of parents who are citizens.” http://www.lonang.com/exlibris/vattel/vatt-119.htm.  Finding this source for the Court’s definition is critical because it shows that the entire Minor Supreme Court, like Chief Justice John Marshall dissenting (for other reasons) and concurring in The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) and Justice Daniels in Dred Scott v. Sandford, 60 U.S. 393, 476-77 (1857), did not rely upon the English common law to define the clause, but rather Vattel and natural law and the law of nations which was incorporated with the adoption of the Constitution into Article III “Laws of the United States” and thereby became American federal common law. [Endnote 1]

To correctly understand what the Founders and Minor meant by birth to citizen parents, we have to understand that at the time that the Framers drafted and adopted the Constitution and when the U.S. Supreme Court decided Minor in 1875, a woman automatically became a U.S. citizen by marrying a U.S. citizen. When parents became U.S. citizens, so did their children, no matter where born. Naturalization records for both alien women and children are virtually non-existing because of this derivative naturalization. http://www.archives.gov/publications/prologue/1998/summer/women-and-naturalization-1.html.  What is critical to understand in this connection is that Congress before 1922, to avoid dual allegiance and nationality, had caused American-born women, “of perhaps Mayflower ancestry, whose forebears fought through the Revolution, and whose family names bear honor and conspicuous places in our history, who are thoroughly American at heart, and perhaps who have never left these shores” to forfeit their American citizenship.  (http://www.archives.gov/publications/prologue/1998/summer/women-and-naturalization-2.html.

          The connection between an immigrant woman’s nationality and that of her husband convinced many
          judges that unless the husband of an alien couple became naturalized, the wife could not become a
          citizen. While one will find some courts that naturalized the wives of aliens, until 1922 the courts
          generally held that the alien wife of an alien husband could not herself be naturalized.

http://www.archives.gov/publications/prologue/1998/summer/women-and-naturalization-1.html (citing Act of Feb. 10, 1855 (§ 1994, rev. § 2172); see In re Rionda, 164 F 368 (1908); United States v. Cohen, 179 F 834 (1910)).

Congress did eventually allow widowed and divorced women to regain their U.S. citizenship through actual naturalization. In 1936, Congress allowed widowed and divorce women who had lost their U.S. citizenship by marriage between 1907 and 1922 to regain their U.S. citizenship by applying (using Form N-415, Application to Take Oath of Allegiance to the United States) and taking the oath of allegiance. Then in 1940, Congress allowed even women who continued to be happily married to alien husbands and who had lost their U.S. citizenship by marriage between 1907 and 1922 to resume their U.S. citizenship by applying and taking the oath of allegiance. Id. With such policy concerning dual allegiance and citizenship having been passed down through generations, early Congress surely would not have allowed children born to aliens to become citizens. With such strong policy of allegiance to the United States, it is nonsensical to believe that early Congress would have allowed a child to be a U.S. citizen while treating his parents to be aliens.

Derivative citizenship for married women only ended when Congress passed on September 22, 1922 the Cable Act (42 Stat. 1021). This means that when one spoke about “parents” or “father” in relation to our citizenship laws before 1922, one was really referring to father and mother. With the elimination of derivative citizenship, the Cable Act just made it more difficult for a husband and wife to achieve unity of allegiance and citizenship if that is their desire, for after the act each non-citizen spouse has to naturalize under the naturalization laws.

With that backdrop, let us now examine the Minor decision. Those who argue that putative President Barack Obama is an Article II “natural born Citizen” insist that when Minor v. Happersett said that “there have been doubts” as to whether a child born in the United States to alien parents was a “citizen,” the Court really said that “there have been doubts” whether that child was a “natural born citizen.” In other words, these persons argue that Minor included those other potential “citizens” into the “natural-born Citizen” class. But these persons not only ignore the clear text of what the Court wrote, but are also putting intentions into the mind and words into the mouth of our U.S. Supreme Court which simply are not there.

First, we know from the text of what Minor wrote that it distinguished between a “citizen” and a “natural-born citizen” and rightfully so. The Founders and Framers based the new constitutional republic on principles of natural law and the law of nations. The commentators on natural law (Samuel von Pufendorf in, The Whole Duty of Man According to the Laws of Nature (William Tooke trans., Ian Hunter & David Saunders, eds., Liberty Fund 2003) Book II, Chapter 6 (1691) and Vattel in, The Law of Nations) distinguished between a “natural born citizen” and a “citizen.” Our nation has since the Founding always distinguished between a “natural born Citizen” and a “citizen.” The Constitution clearly distinguished between an Article II “natural born Citizen” and an Article I “Citizen.” Founders/judge/lawyer St. George Tucker [Endnote 2] and Founder/doctor/historian David Ramsay [Endnote 3] also made this critical distinction and both told us that birthright citizenship after July 4, 1776 belonged only to the children of citizens. Tucker even told us that the “civil right” to be elected President belonged only to the children of citizens which informs us that he too defined a “natural born Citizen” as a child born to citizen parents. And so has our early Congress since the Naturalization Acts of 1790 (1 Stat. 103), 1795 (1 Stat. 414), 1802 (2 Stat. 153) (except for the 1790 Act which referred to “natural born citizens,” all referred only to “citizens”), and thereafter. The distinction was also recognized by the framers of the Civil Rights Act of 1866 (referred only to “citizens”) and the Fourteenth Amendment (referred only to “citizens”). A full discussion on Pufendorf, Vattel, Tucker, Ramsay, the early Naturalization Acts, the Civil Rights Act of 1866, and Fourteenth Amendment may be found in my brief to the Commonwealth Court of Pennsylvania.

Second, we know that Minor could not have doubted whether a child born in the United States to alien parents was a “natural born Citizen,” for the Court knew very well that such a child could not be a “natural born Citizen,” for the Court in the very same paragraph told us that a “natural born Citizen” was a child born in the country to citizen parents. Such a child was born to alien parents and subject to a foreign power (in the case of Great Britain, an English “natural born subject”). Clearly, under the Court’s definition which it had just confirmed in the same paragraph, without “citizen” parents, that child was not and could not be a “natural born Citizen.”

Third, Minor’s “doubts” were about whether a child born in the country to alien parents belonged to potentially a new class of “citizen,” one created by the newly passed Fourteenth Amendment, the question being was such a child born to alien parents “subject to the jurisdiction” of the United States” and therefore a “citizen” under that new amendment. Minor had good reason to state that “there have been doubts” whether a child born in the United States to alien parents was even a “citizen.” All prior Acts of Congress had treated children born in the United States to alien parents to be themselves aliens. Congress still had statutes in effect that treated children born in the United States to alien parents as aliens and allowed those children to become “citizens” (not “natural born Citizens”) upon the naturalization of their parents if done during their minority or on their own naturalization petition if done thereafter (the Naturalization Acts of 1802 [2 Stat. 153] and 1855 [10 Stat. 604]). Since 1790, Congress had always required that children born abroad needed to be born to “citizen” parents in order to be themselves “citizens” and it did not expect anything less for children born in the United States to also be considered “citizens.” Minor would have been as was Congress well aware that Great Britain treated its children born in the United States to British subjects to be themselves English “natural born subject” just as Congress treated its children born abroad to citizen parents to be U.S. “citizens.” Also, the United States only 23 years following the Minor decision in Wong Kim Ark argued that a child born in the United States to alien parents was not a “citizen” under the Fourteenth Amendment, but rather an alien. The United State’s position was correct given the then-existing U.S. Supreme Court decisions (like Minor) and Acts of Congress which still treated children born in the United States to alien parents as aliens. Even today, there are plenty of scholars who maintain that because born with foreign alienage and thereby not born completely “subject to the jurisdiction” of the United States, such a child is not a Fourteenth Amendment “citizen.” So, while Minor never had any doubts whether a child born in the United States to citizen parents was a “natural born Citizen,” it did correctly state that “there have been doubts” whether a child born in the United States to alien parents was even a “citizen.”

Minor told us that for one to be a “natural-born citizen,” one could not be a first generation “citizen” vis-à-vis any one parent. Rather, one had to be at least a second generation “citizen” by birth to two “citizen” parents (keeping in mind unity of citizenship of the husband and wife) to be a “natural-born citizen.” As far as the doubts regarding whether that child born to alien parents was even a “citizen,” as we have seen, Minor was correct that such doubts existed.

The doubts identified by Minor in 1875 were finally resolved by U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898), which held that a child born in the United States to domiciled alien parents was a Fourteenth Amendment “citizen of the United States.” Wong Kim Ark distinguished between a “natural born Citizen” and a “citizen of the United States” and cited and quoted Vattel’s and Minor’s definition of “natural born Citizen,” but relied on the English common law to resolve the doubts identified in Minor and to determine whether a child born in the United States to alien parents was born “subject to the jurisdiction” of the United States and therefore a born “citizen of the United States” under the Fourteenth Amendment. Wong Kim Ark did not alter or amend the definition of an Article II “natural born Citizen” other than to increase the class of people who can be “citizens” and who then go on to procreate “natural born Citizens.”

To not conflate and confound the meaning of a “natural born Citizen” with that of a “citizen,” it is critical to understand that never has the debate, including that in Wong Kim Ark, been about whether a child born in the United States to alien parents is an Article II “natural born Citizen” until Mr. Obama entered the political/legal stage. Prior to that, it has always been whether that child was a “citizen.” And in this current debate we have seen not only the Obama’s supporters but some courts (e.g. Ankeny v. Governor of the State of Indiana, 916 N.E.2d 678 (Ind. Ct.App. 2009), transfer denied, 929 N.E.2d 789 (2010), and Tisdale) that have reached the merits of the issue of what is a “natural born Citizen” conflate and confound all that is “citizen” into “natural born Citizen.” We have even seen them go as far as to take Wong Kim Ark’s clear holding which speaks only of a “citizen of the United States” and substitute in the place of those clearly written words “natural born Citizen.” In other words, what they have done is, without due process and the rule of law, transform a “citizen” into a “natural born Citizen.” By doing so, they have violated the Founders’ and Framers’ intent that a “natural born Citizen,” who was to assume the great and singular civil and military powers of the Office of President and Commander in Chief, be born free of any foreign influence and allegiance.

These Obama supporters do not have one decision from the U.S. Supreme Court, including Wong Kim Ark, or even one Congressional Act which says that any child born in the United States to one or two alien parents is a “natural born Citizen.” On the other hand, I have cited and discussed in my Kerchner Pennsylvania Obama ballot challenge brief and at this blog the several U.S. Supreme Court cases that define a “natural born Citizen” as a child born in the country to citizen parents, along with Congressional Acts and other historical sources that support that conclusion.

The Constitution at Article V prescribes the means by which the people can amend its provisions. But what we see happening today is Obama, with the aid of the Ankeny [Endnote 4] and Tisdale [Endnote 5] courts, a reticent Congress, power-hungry political parties, and a complicit media, amending Article II’s “natural born Citizen” clause without an Article V constitutional amendment. The question is will our constitutional republic allow him to get away with it.

                                                                     ENDNOTES

1. In his 1793 charge to a grand jury, John Jay, our first Chief Justice of the Supreme Court, stated that the “laws of the United States” fell under “three heads or descriptions”: “1st. All treaties made under the authority of the United States. 2d. The laws of nations. 3d The constitution and statutes of the United States.” Patrick J. Charles, Decoding the Fourteenth Amendment’s Citizenship Clause: Unlawful Immigration, Allegiance, Personal Subjection, and the Law, 51 Washburn L.J., Issue 2 (forthcoming Spring 2012) (citing The City Gazette and Daily Advertiser (Charleston, S.C.), August 14, 1793, at 2, col. 1).

2. St. George Tucker was born in Bermuda on July 10, 1752, and died on November 10, 1827 in Virginia. He studied law at the College of William and Mary in 1771 under George Wythe, who also taught law to Thomas Jefferson and John Marshall, and served as chief justice of Virginia. He was fluent in French. He also fought in the Revolutionary War. He became a lawyer in 1775, a law professor at the College of William and Mary, and a judge of Virginia’s highest court. As we shall see below, being a law professor at the College of William and Mary is also an important factor in understanding what Tucker’s view would have been on the meaning of a “natural born Citizen.” St. George Tucker wrote in 1803: “The spirit of monarchy is war, and the enlargement of dominion; peace and moderation is the spirit of a republic.” http://www.history.org/foundation/journal/summer08/republican.cfm.  Upon President James Madison’s nomination, in 1813 he became a federal district judge for Virginia. He denounced slavery as a contradiction to the American ideal of freedom and an immorality. In 1796, he wrote and published the pamphlet “A Dissertation on Slavery: With A Proposal for the Gradual Abolition of It in the State of Virginia.” Tucker “was arguably the most important American legal scholar of the first half of the nineteenth century.” Paul Carrington, The Revolutionary Idea of University Legal Education, 31 Wm. & Mary L.Rev. 527, 540 (1990). Davison M. Douglas, Foreword: The Legacy of St. George Tucker, 47 Wm. & Mary L.Rev. 1111 (2006) (same), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1758861.  “Tucker established a virtual dynasty of legal and constitutional talent that carried on Jeffersonian principles through successive generations.” Clyde N. Wilson, ed., Views of the Constitution of the United States x (Indianapolis: Liberty Fund 1999) (foreword) p. viii (1803). An article which shows what influence St. George Tucker had regarding interpreting and understanding the Constitution is one written by Kurt T. Lash, “Tucker’s Rule”: St. George Tucker and the Limited Construction of Federal Power, 47 Wm. & Mary L. Rev. 1343 (2006), http://scholarship.law.wm.edu/wmlr/vol47/iss4/8 ; http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1242&context=wmlr (explores Tucker’s view of federalism, called Tucker’s Rule, which was that the state’s maintained their sovereignty and reserved powers despite having become part of the union under the Constitution). Further information on St. George Tucker may be read at: http://www.history.org/almanack/people/bios/biotuck.cfm; http://en.wikipedia.org/wiki/St._George_Tucker.

3. Founder historian, David Ramsay, 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. citizen parents. Ramsay provides direct evidence from the Founding period that the Founders and Framers used natural law to define a “natural born Citizen” and that they did not simply take the English common law “natural born subject” and substitute in its place a “natural born Citizen.”

David Ramsay, a highly respected doctor and historian from the Founding period, wrote an essay on citizenship during the Founding entitled, A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789). David Ramsay (April 2, 1749 to May 8, 1815) was an American physician and historian from South Carolina and a delegate from that state to the Continental Congress in 1782-1783 and 1785-1786. He was one of the American Revolution’s first major historians. Ramsay “was a major intellectual figure in the early republic, known and respected in America and abroad for his medical and historical writings, especially for The History of the American Revolution (1789)…” Arthur H. Shaffer, Between Two Worlds: David Ramsay and the Politics of Slavery, J.S.Hist., Vol. L, No. 2 (May 1984). In his 1789 article, Ramsay first explained that there is an “immense” difference between a British “subject” and a United States “citizen,” with the former being “under the power of another” and the latter being “a unit of mass of free people, who, collectively, posses sovereignty.” He informed that “Republics, both ancient and modern, have been jealous of the rights of citizenship.” He then explained that the “original citizens” of the United States were those who were parties to the Declaration of Independence and thereby adhered to the revolutionary cause. But the importance of his work does not stop there, for he also described the future citizens to come after the original citizens, whom he defined 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. Here, Ramsay referred to “natural right,” which ties into the Framers’ use of the clause “natural born Citizen.” By focusing on citizenship that occurs by “natural right,” Ramsay distinguished citizenship that occurs naturally versus citizenship that occurs by operation of law. It is evident from his writing that in defining the original citizens and the future citizens who were to follow them, Ramsay did not look to English common law but rather to natural law. As we can see, Ramsay required the future citizens to be children of citizens. 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. While he did not call these future citizens “natural-born citizens,” Ramsay’s standard was the same standard Pufendorf provided when he defined the “Indigenes, or Natives,” who he defined as the “Descendants” of the “Original[]” “Citizens.” Ramsay would have been in a position to know how the Founders and Framers defined a “natural born Citizen.” For further information on David Ramsay, see my essay entitled, Founder and Historian David Ramsay Defines a Natural Born Citizen in 1789 , accessed at http://puzo1.blogspot.com/2010/04/founder-and-historian-david-ramsay.html.

4. For my comments on the Ankeny decision, see All That Is Wrong with Georgia State Judge Michael M. Malihi’s Decision that Putative President Obama Is a “Natural Born Citizen” , accessed at http://puzo1.blogspot.com/2012/02/all-that-is-wrong-with-georgia-state.html.

5. For my comments on the Tisdale decisions, see Tisdale v. Obama and the “Natural Born Citizen” Clause , accessed at http://puzo1.blogspot.com/2012/02/tisdale-v-obama-and-natural-born.html.

Mario Apuzzo, Esq.
March 6, 2012
http://puzo1.blogspot.com/
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