The Faux Claims of John Woodman Regarding the “Natural Born Citizen” Clause

                                   By Mario Apuzzo, Esq.
                                          April 2, 2012





What is hilarious is how John Woodman, who claims to be a conservative Republican, is running around the internet proclaiming that he has saved the United States, its Constitution, and not only putative President Barack Obama, but also Republicans, Sen. Marco Rubio and Sen. Bobby Jindal (all three were not born to citizen parents, both of whom are citizens of the United States at the time of their birth) from the “Birthers.” He adds that he has proven that Attorney Leo Donofrio’s and my position on the definition of a “natural born Citizen” is nothing but “lies.”

There is plenty of historical evidence that I have provided which shows that John Woodman is a creation of his own mind and rhetoric. I have shown that history and legal precedents do not support what he and some others maintain is the definition of a “natural born Citizen,” i.e., any child simply born in the United States, regardless of the citizenship of the parents. I have shown that at the Founding, unlike the states which put in place statutes and state constitutions which retained the English common law on the state level except to the degree those laws were abrogated by the state legislature, the national government did not adopt the English common law for the needs of the national government, but rather the law of nations which was natural law applied to the affairs of nations. In fact, unlike the states, there is nothing in the Constitution or any Act of Congress which suggests that the English common law continued to have any effect on the national level. I have shown that in that connection, we adopted the definition of a “natural-born citizen” as provided by Emer de Vattel in his The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758), where he tells us:

          The citizens are the members of the civil society: bound to this society by
          certain duties, and subject to its authority, they equally participate in its
          advantages. The natives, or natural-born citizens, are those born in the
          country, of parents who are citizens. As the society cannot exist and
          perpetuate itself otherwise than by the children of the citizens, those
          children naturally follow the condition of their fathers, and succeed to all
          their rights. The society is supposed to desire this, in consequence of
          what it owes to its own preservation; and it is presumed, as matter of
          course, that each citizen, on entering into society, reserves to his children
          the right of becoming members of it. The country of the fathers is
          therefore that of the children; and these become true citizens merely by
          their tacit consent. We shall soon see, whether, on their coming to the
          years of discretion, they may renounce their right, and what they owe to
          the society in which they were born. I say, that, in order to be of the
          country, it is necessary that a person be born of a father who is a citizen;
          for if he is born there of a foreigner, it will be only the place of his birth,
          and not his country.

The definition that the law of nations provides, a definition that has been incorporated into American common law and recognized by Congress in 1790, 1795, 1802, and thereafter, is a child born in a country to citizen parents.

I have shown that Article II, Section 1, Clause 5 makes a critical constitutional distinction between an Article I “Citizen of the United States” and an Article II “natural born Citizen.” I have shown that this distinction necessarily means that any U.S. citizen who is not a “natural born Citizen” is only a “Citizen of the United States,” a member of American society and nothing more. I have shown that the Founders and Framers gave us only one and only one definition of an Article II “natural born Citizen” which is a child born in the country to parents, both of whom are citizens of the United States at the time of such birth. I have shown that Congress, through the Naturalization Acts of 1790, 1795, 1802, and 1855, showed us through a process of elimination that only a child born in the country to citizen parents did not come within the naturalization reach of any of those laws which means that it was only that child which Congress deemed to be a “natural born Citizen.” I have shown that influential and highly respected Founders, David Ramsay and St. George Tucker, both limited birthright citizenship after July 4, 1776 to the children of citizens. I have shown that throughout American history, there has been debate as to the doubtful meaning of a “citizen of the United States,” but never as to the meaning of a “natural born Citizen” whose meaning has never been in doubt.

This time-honored natural law/law of nations/American “common-law” definition of a “natural born Citizen” has also been recognized and accepted by a Founder and member of our U.S. Supreme Court as early as 1814 in The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (Chief Justice John Marshall dissenting and concurring for other reasons). It was also again confirmed by Inglis v. Sailors’ Snug Harbor, 28 U.S. 99 (1830) and Shanks v. Dupont, 28 U.S. 242, 245 (1830). It was again confirmed by Justice Daniels in Dred Scott v. Sandford, 60 U.S. 393 (1857). I have shown that the original American “common-law” definition of a “natural born Citizen” was not changed by either the Fourteenth Amendment or U.S. v. Wong Kim Ark,169 U.S. 649 (1898), which only deal with a “citizen of the United States” and not a “natural born Citizen.” Hence, the same original definition of a “natural born Citizen” was again expressly confirmed by the whole U.S. Supreme Court in Minor v. Happersett, 88 U.S. 162 (1875) and U.S. v. Wong Kim Ark,169 U.S. 649 (1898), and a lower federal court in Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879) and United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890). Finally, this same definition was implicitly confirmed by Slaughter-House Cases, 83 U.S. 36 (1872), Elk v. Wilkins, 112 U.S. 94 (1884), Perkins v. Elg, 307 U.S. 325 (1939) and Schneider v. Rusk, 377 U.S. 163 (1964).

My essays on the meaning of a “natural born Citizen” can be found at this blog, http://puzo1.blogspot.com/.  Additionally, I wrote a brief which Attorney Karen Keifer filed in the Commonwealth Court of Pennsylvania in the ballot challenge 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.  That brief thoroughly presents the evidence showing that an Article II “natural born Citizen” is a child born in the United States to citizen parents, both of whom are citizens of the United States at the time of such birth. Finally, on March 20, 2012, I filed a proposed amicus curiae brief in the Fourth Court Circuit Court of Appeals in the case of Tisdale v. Obama, No. 3: 12-cv-00036-JAG (E.D. Va. Jan. 23, 2012) (order dismissing complaint) (dismissing in forma pauperis complaint pursuant to 28 USC 1915(e)(2)(B)(ii) and holding that “It is well settled that those born in the United States are considered natural born citizens” and that plaintiff’s contentions otherwise are “without merit”), which is currently pending in the Fourth Circuit Court of Appeals in Virginia. That brief, which can be accessed at http://www.scribd.com/doc/86241834/Tisdale-v-Obama-4th-Cir-Appeal-2012-03-20-Apuzzo-Amicus-Brief , contains a shortened version of the evidence and my arguments showing that an Article II “natural born Citizen” is a child born in the United States to citizen parents, both of whom are citizens of the United States at the time of such birth.

One of John Woodman’s latest attempts to discredit me and Mr. Donofrio is found in his article entitled, “Horace Binney Directly Refutes the Mario Apuzzo/ Leo Donofrio Lie that it Takes Two Citizen Parents to Make a Natural Born Citizen,” accessed at his blog http://www.obamabirthbook.com/http:/www.obamabirthbook.com/2012/04/horace-binney-directly-refutes-the-mario-apuzzo-leo-donofrio-lie-that-it-takes-two-citizen-parents-to-make-a-natural-born-citizen/ .  What John Woodman attempts to do is to say that I “lie” when I maintain that to not disturb the definition of an Article II “natural born Citizen,” Wong Kim Ark distinguished between an Article II “natural born Citizen” and a Fourteenth Amendment “citizen.” Justice Gary in Wong Kim Ark said, by quoting from a footnote included by Mr. Binney in his second edition of his paper:

          The right of citizenship never descends in the legal sense, either by the
          common law, or under the common naturalization acts. It is incident to
          birth in the country, or it is given personally by statute. The child of an
          alien, if born in the country, is as much a citizen as the natural-born child
          of a citizen, and by operation of the same principle.

Id. at 665-66 (citing and quoting Horace Binney, The Alienigenae of the United States Under the Present Naturalization Laws (1853)). Later in his opinion when he provides his holding, Justice Gray again emphasized that the child of an alien, “‘if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’” Id. at 693.

In 1898, a wife upon marriage automatically acquired the citizenship of her husband. Hence, the Court recognized that only a child born “in the country” to citizen parents can be a “natural-born citizen.” The Court said that while a child “born in the country” to citizen parents and a child “born in the country” to alien parents are both “citizens” by the mere fact of being “born in the country,” only a child born “in the country” to citizen parents is a “natural-born citizen.” In other words for children born in the country, one born to citizens is a “natural born” citizen and one born to aliens is a “citizen.” The Court, citing and quoting its definition of a “natural-born citizen,” confirmed the definition of a “natural-born citizen” as put forth by Minor v. Happersett, which based that definition on American “common-law” and said “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” (emphasis supplied). Id. at 167-68. And on defining a “citizen” under the Fourteenth Amendment and the “subject to the jurisdiction” clause of that amendment, Wong Kim Ark relied upon the English common law and did not disturb Minor’s law of nations/American “common-law” definition of a “natural-born citizen.”

Now John Woodman wants to show that I am a “liar” by having the public view the first and third editions of Mr. Binney’s papers, but keeping from them the second edition which contains the above quoted language in the footnote by Mr. Binney. Here is the first edition, http://pds.lib.harvard.edu/pds/view/4393418?n=1&imagesize=1200&jp2Res=.25&printThumbnails=no , and here is the third edition http://www.jstor.org/stable/pdfplus/3301752.pdf?acceptTC=true& , which are the only two editions that John Woodman presents on his blog. A reading of these editions shows that the footnote does not contain the language quoted above. He does not present the second edition which is the only edition which contains the quoted language as part of the footnote and which Justice Gray relied upon in his Wong decision. The second edition can be read at Mr. Donofrio’s blog at http://naturalborncitizen.files.wordpress.com/2012/02/binney-2d.pdf.

Justice Gray in Wong Kim Ark included the quoted Binney additional language from the second edition of Mr. Binney’s paper, even though the passage does not appear in either the first (December 1, 1853) or the third (Feb. 1854) editions of that paper. Justice Gray explained: “This paper, without Mr. Binney’s name and with the note in a less complete form and not containing the passage last cited, was published (perhaps from the first edition) in the American Law Register for February, 1854. 2 Amer.Law Reg.193, 203, 204.” Id. at 666. As we can see, Justice Gray acknowledged all three editions of the Binney paper and said that the footnote in the second edition was the more complete and is the one from which he quoted the Binney passage. As John Woodman knows, using either the first or third editions of the Binney paper is much better for anyone trying to morph a “citizen of the United States” into a “natural born Citizen” and thereby erase the constitutional distinction between the two classes of citizens. It is critical that Justice Gray did not attempt to do what John Woodman tries, for Justice Gray, in the spirit of Chief Justice John Marshall who in Marbury v. Madison, 1 Cranch 163 (1803), cautioned that we cannot simply ignore clauses that are written in the Constitution, did not obliterate a “natural born Citizen” by blending one into a “citizen of the United States.” Rather, Justice Gray left intact Mr. Binney’s full footnote and inserted the complete language into his decision and by so doing acknowledged that he recognized that there are “citizens,” who also include those born in the United States to alien parents, and there are “natural born Citizens,” who only include those born in the United States to citizen parents. Justice Gray acknowledged that while both classes of persons were “citizens,” only the latter, who were born “in the country” to citizen parents, could be “natural-born citizens.” At that time, there probably was no better authoritative source than the second edition of the Binney paper which drove this point clearly home the way the Mr. Binney stated it in his complete footnote.

By making the quoted Binney passage disappear by only publishing on his blog the first and third editions of the Binney paper, of course, John Woodman, does not have to address what that passage means. Rather than address what the Binney passage means, he would rather attempt to distract us by looking to what Mr. Binney said about French citizenship law in 1854. Still, he fails here, too. He says that Mr. Binney informed that France “rejects the principle of the English law, and of our own laws, that birth within the limits and jurisdiction of France, makes a Frenchman, or a natural born citizen or subject of France absolutely, and provides only for the acquisition of that character by the child so born,” if he or she fixes his or her domicile in France and makes a declaration of citizenship all within one year of arriving at the age of majority. Note that John Woodman does not tell us that France actually used the clause “natural born citizen” which Mr. Binney assumes it did when he says France would once those additional conditions were met give “that character” to a person born “within the limits and jurisdiction” of France. If France uses a class of “citizen” other than a “natural-born citizen” which describes the national character that attached to the person described by Mr. Binney (i.e., attached to a child simply born in France, regardless of the citizenship of his or her parents), then we can conclude that Mr. Binney meant to refer to that other class of “citizen” rather than to “natural-born citizen.”

Hence, until John Woodman adequately (1) addresses all the historical evidence and case law that I have provided on this blog and in my briefs to the courts which convincingly shows that the Founders and Framers defined a “natural born Citizen” as a child born in the United States to citizen parents, both of whom are citizens of the United States at the time of such birth; (2) addresses the meaning of the missing passage which does exist in the second edition of Mr. Binney’s paper and which Justice Gray quotes in Wong Kim Ark; (3) reconciles the quoted passage with Mr. Binney’s statement regarding what the “principle of the English law, and of our own laws,” was; and (4) tells us exactly what in 1854 “that character” was that France gave a person who was simply born in its territory to alien parents, which Mr. Binney rightly or wrongly calls “natural-born citizen,” John Woodman’s comments and rhetoric add nothing to our correct understanding of the meaning of an Article II “natural born Citizen.”

Mario Apuzzo, Esq.
April 2, 2012
http://puzo1.blogspot.com/
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Mario Apuzzo, Esq.
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