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Defining Natural Born Citizen

Hollister v. Soetoro

Natural born citizen

While coming tantalizingly close, no US Court  has ever decided the definition of “natural born citizen.” The term was not explained in the debates of the Constitutional Convention, nor the state legislatures when it was ratified, nor by individual framers in their speeches, letters or papers. Where do we go for a definition–to an 18th century Swiss philosopher–to an appeal to our shared prejudices?

The US Constitution is replete with terms that it doesn’t define: citizen, impeachment, felonies, treason, bribery, bankruptcy, warrants, grand jury and attainder. These are, however, familiar terms in the common law. The Supreme Court wrote in the case of Smith v. Alabama (1888) 124 U.S. 465:

There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.

It is clear from the language of colonial laws, from inheritance law in South Carolina in 1711 and the Georgia Charter of 1732 to the naturalization acts of  New York and Massachusetts in 1770-1776, that the colonial legislatures followed the principle of English common law, that all persons born in the colony were natural born subjects.

The state of English common law may be succinctly summed up by this comment from Lord Chief Justice Cockburn, as cited by the United States Supreme Court in United States v. Wong Kim Ark:

By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.

When looking at some comments in the legislative debates over citizenship, we see words like “allegiance” and “sovereignty.” What must be understood is that a nation exercises absolute sovereignty within its borders. Chief Justice Marshall in the case of The Exchange (1812) said:

The jurisdiction of the nation within its own territory is  necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may be either express or implied. In the latter case, it is less determinate, exposed more to the uncertainties of construction; but, if understood, not less obligatory.

(This principle is not honored by anyone who says that the British Nationality Act of 1948 controls who may and who may not be president of the United States.)

Because the internal sovereignty of the United States is absolute, those aliens visiting here are also absolutely under the sovereignty of the United States. This and many other similar principles, dicta and precedent lead Chief Justice Gray, in Wong, to conclude:

Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;” [emphasis added]

And there, in most abbreviated form, is the argument that leads inevitably to the conclusion that all those born within one of the United States of America except those whom our country grants exemption from our jurisdiction (such as foreign ambassadors), are natural born citizens of the United States.

For a more lengthy set of citations, see The Great Mother of All Natural Born Citizen Quotation Pages and Natural Born Citizen: Defined!

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62 Responses to Defining Natural Born Citizen

  1. avatar
    James May 2, 2009 at 12:19 pm #

    Obama is NOT a “Natural Born” Citizen.

    To serve as POTUS, one must be born in the US to 2 US Citizens.

    The cases cited including the Wonk Kim Ark case are irrevelent for establishing that Obama is a “Natural Born” citizen for once reason only: All of the cases concerned only “ordinary” citizens.

    Obama is not an “ordinary” citizen, he the POTUS.

    The “Natural Born” citizenship requirement is far stricter to a person who is the POTUS than an “ordinary” citizen.

    Obama is NOT a “natural born” citizen in terms of the qualifications to be POTUS.

    To qualify for POTUS, you must be a 2nd Generation American with total 100% allegiance to the US.

    This can be obtained by being born on US soil to 2 US ctizens.

  2. avatar
    James May 2, 2009 at 12:20 pm #

    Article II “Natural Born Citizen” Means Unity of Citizenship At Birth
    Article II of our Constitution has a lot to say about how a would-be President is born. “Natural born Citizen” status requires not only birth on U.S. soil but also birth to parents who are both U.S. citizens by birth or naturalization. This unity of jus soli (soil) and jus sanguinis (descent) in the child at the time of birth assures that the child is born with sole allegiance (obligation of fidelity and obedience to government in consideration for protection that government gives (U.S. v. Kuhn, 49 F.Supp.407, 414 (D.C.N.Y)) and loyalty to the United States and that no other nation can lay any claim to the child’s (later an adult) allegiance and loyalty. Indeed, under such birth circumstances, no other nation can legally or morally demand any military or political obligations from that person. The child, as he/she grows, will also have a better chance of not psychologically struggling with conflicted allegiance and loyalty to any other nation.

    Unity of citizenship is based on the teachings of the law of nature and the law of nations, as confirmed by ancient Greek and Roman law; American, European, and English constitutions, common and civil law, and statutes; and Vattel’s, The Law of Nations, all of which the Founding Fathers read and understood. These sources have taught civilizations from time immemorial that a person gains allegiance and loyalty and therefore attachment for a nation from either being born on the soil of the community defining that nation or from being born to parents who were also born on that same soil or who naturalized as though they were born on that soil. It is only by combining at birth in the child both means to inherit these two sources of citizenship that the child by nature and therefore also by law is born with only one allegiance and loyalty to and consequently attachment for only the United States.

    Our Constitution requires unity of U.S. citizenship from birth only for the Office of President and Commander in Chief of the Military, given the unique nature of the position, a position that empowers one person to decide whether our national survival requires the destruction of or a nuclear attack on or some less military measure against another nation or group. It is required of the President because such a status gives the American people the best Constitutional chance that a would-be President will not have any foreign influences which because of conflict of conscience can most certainly taint his/her critical decisions made when leading the nation. Hence, the special status is a Constitutional eligibility requirement to be President and thereby to be vested with the sole power to decide the fate and survival of the American people. Of course, the status, being a minimum Constitutional requirement, does not guarantee that a would-be President will have love and fealty only for the United States. Therefore, the final informed and intelligent decision on who the President will be is left to the voters, the Electors, and Congress at the Joint Session, to whom hopefully responsible media and political institutions will have provided all the necessary vetting information concerning the candidate’s character and qualifications to be President.

    Through historical development, unity of citizenship and sole allegiance at birth is not required for U.S. born citizen Senators, Representatives, and regular citizens under the 14th Amendment and Congressional enactments. In contradiction and which confirms the Founding Fathers’ meaning of what a “natural born Citizen” is, naturalized citizens, since 1795, before becoming such must swear an oath that they renounce all other allegiances to other nations. During the Washington Administration, the First Congress passed the Naturalization Act of 1795 in which it provided that new citizens take a solemn oath to support the Constitution and “renounce” all “allegiance” to their former political regimes. This is during the time that most of the Framers were alive and still actively involved in guiding and forming the new national government and Constitutional Republic. Today, we still require that an alien upon being naturalized must give an oath that he/she renounces all former allegiances and that he/she will “support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic.” Hence, allegiance is not simply a thing of the past but very much with us today. It is important to also understand that naturalization takes an alien back to the moment of birth and by law changes that alien’s birth status. In other words, naturalization, which by legal definition requires sole allegiance to the United States, re-creates the individual as though he were a born Citizen but only does it by law and not by nature. This is the reason that the 14th Amendment considers a naturalized person to be a “citizen” of the United States and not a “natural born Citizen” of the United States. This recreation of birth status through naturalization which also existed under English common law also probably explains why John Jay underlined the word “born” when he recommended to General Washington that only a “natural born Citizen” (as to say born in fact, by nature, and not by law) be allowed to be President. Consequently, naturalized citizens stand on an equal footing with born Citizens (who are so recognized and confirmed by the 14th Amendment or by an Act of Congress and who can be but not necessarily are also “natural born Citizens”) except that they cannot be President or Vice President, for they were born with an allegiance not owing to the United States and acquire that allegiance only after birth. Surely, if a naturalized citizen, even though having sole allegiance to the United States, is not Constitutionally eligible to be President, we cannot expect any less of someone who we are willing to declare so Constitutionally eligible.

    The Founding Fathers emphasized that, for the sake of the survival of the Constitutional Republic, the Office of President and Commander in Chief of the Military be free of foreign influence and intrigue. It is the “natural born Citizen” clause that gives the American people the best fighting chance to keep it that way for generations to come. American people do not have the Constitutional right to have any certain person be President. But for the reasons stated above, minimally they do have a Constitutional right to protect their liberty by knowing and assuring that their President is Constitutionally qualified to hold the Office of President and Commander in Chief of the Military.

  3. avatar
    JTB May 2, 2009 at 12:32 pm #

    The framers of The Constitution were familiar with Vattel. Dr Conspiracy admitted that fact on Ken Dunbar’s ‘Liberty Pole’ broadcast on Plains Radio on the 29th April 2009. Vattel defined ‘natural born citizen’ as ‘BORN IN THE COUNTRY OF PARENTS WHO ARE CITIZENS’. There was no other definition of ‘natural born citizen’ at the time, in 1787, that the framers wrote The Constitution.

    It is time for Dr Conspiracy to concede that Mr Barack Obama II is not a ‘natural born citizen’ of the United States of America, because his natural biological Father, Barack Obama I, was NEVER a citizen of the USA. Consequently, Mr Barack Obama II is barred from being the President of the USA, under Section II, Article I, Clause 5 of The Constitution of the USA.

  4. avatar
    richCares May 2, 2009 at 1:03 pm #

    I looked very carefully at the constitution and need your help, where does it say “To qualify for POTUS, you must be a 2nd Generation American with total 100% allegiance to the US.” I can’t find it, maybe with your brilliant help I can find it. Can you do that?

  5. avatar
    elmo May 2, 2009 at 1:52 pm #

    Re: dual citizenship

    Why should the law of a foreign nation control the eligibility of an American citizen to become president? Imagine if a nation such as Iran decided to confer Iranian citizenship on a presidential candidate that they did not want to see elected. Under the dual citizenship theory some are suggesting, this would disqualify the candidate for office. Isn’t that ridiculous?

    No, you can’t and shouldn’t refer to foreign law to determine something so critically important. The only thing that matters is what U.S. law says about U.S. citizenship.

  6. avatar
    Bob Weber May 2, 2009 at 1:55 pm #

    Sheesh! What pettifoggery! Guys, if the authors of the Constitution had meant “natural-born” = “born in the U.S. to two U.S. citizens” then WHY DIDN’T THEY JUST SAY IT? (Sorry for the caps.) It’s not like thare was some ink or paper shortage and they had to scrimp on words. Please show us one statute law, any phrase in the debates on the constitution (Madison’s notes, Federalist Papers, or any of the pro or anti-ratification writings), any common textbook on constitutional law, or any contemporary legal or common dictionary that defines it the way you want. I note in passing that Obama’s book was published more than a dozen years ago, yet you only seem to have discovered this amazing legal principle in the weeks preceding the election, when Obama was clearly headed for victory. Get a life!

  7. avatar
    NBC May 2, 2009 at 2:03 pm #

    There was no other definition of natural born citizen’ at the time, in 1787, that the framers wrote The Constitution.

    On the contrary, the far more common definition was born on US soil.

    I am surprised you did not know this.

  8. avatar
    NBC May 2, 2009 at 2:06 pm #

    To qualify for POTUS, you must be a 2nd Generation American with total 100% allegiance to the US.

    Under allegiance of refers to being held to the laws of the country, this excludes only children of ambassadors and invading military since they are not bound by the laws of this country.

    You really should do your homework

  9. avatar
    Dr. Conspiracy May 2, 2009 at 2:09 pm #

    I concede that some of the framers of the Constitution were familiar with de Vattel’s book in French, but de Vattel does not define “natural born citizen” and doesn’t even use the phrase in the French. However, you must concede that some of the framers were also English-trained lawyers. If they had intended “natural born citizen” to mean something different from English common law (which at the time was also the common law of the United States), then they would have said so — since everything else in the Constitution is framed in common law (Smith v. Alabama).

    Julia Lynch was born in the United States to alien parents and subsequently left the country. The Supreme Court of New York said:

    It is an indisputable proposition that by the rule of the common law of England if applied to these facts Julia Lynch was a natural born citizen of the United States. And this rule was established and inflexible in the common law long anterior to the first settlement of the United States and indeed before the discovery of America by Columbus. By the common law all persons born within the ligeance of the crown of England were natural born subjects without reference to the status or condition of their parents.

    The New-York Legal Observer Containing Reports of Cases Decided in the Courts of Equity and Common Law, and Important Decisions in the English Courts ; Also, Articles on Legal Subjects … with a Table of Cases, a General Index, and a Digest of the Reports By Samuel Owen

    and

    The term citizen was used in the constitution as a word the meaning of which was already established and well understood. And the constitution itself contains a direct recognition of the subsisting common law principle in the section which defines the qualification of the President: “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 &c.” The only standard which then existed of a natural born citizen was the rule of the common law and no different standard has been adopted since. Suppose a person should be elected President who was native born but of alien parents could there be any reasonable doubt that he was eligible under the constitution? I think not.

    The New-York Legal Observer Containing Reports of Cases Decided in the Courts of Equity and Common Law, and Important Decisions in the English Courts ; Also, Articles on Legal Subjects … with a Table of Cases, a General Index, and a Digest of the Reports By Samuel Owen

  10. avatar
    Dr. Conspiracy May 2, 2009 at 2:39 pm #

    James says: ““Natural born Citizen” status requires not only birth on U.S. soil but also birth to parents who are both U.S. citizens by birth or naturalization.” but fails to cite any law, any court case or any authority in support of the assertion.

    While you are entitled to your personal view as to what qualities are required to be president, only your vote matters.

    You cite the John Jay letter and point out that his brief note to Washington suggests that the commander in chief not be a “foreigner” but rather a “natural born citizen”. You correctly note that Jay underlined the word born. What you seem not to appreciate is that the word “natural” was not underlined, and without it any possible emphasis on “natural law” which is the position of Emerich de Vattel. What Jay’s underlining says to me is that the president must be born a citizen, which of course President Obama was.

    James, your argument, as eloquent as it is, is not an argument based on law or the constitution. An argument like yours would only be appropriate should you be trying to persuade someone to amend the Constitution to add a “2 US Citizen parents” to the presidential requirements.

  11. avatar
    Dr. Conspiracy May 2, 2009 at 2:47 pm #

    I see your assertions, but you fail to make any argument at all. If you want to refute what I said, you must show either that the Constitution’s language is not founded on the Common Law of England, or that the Common law of England did not make natural born subjects of those born there, without regard for the status of their parents. You have done neither.

    While the decision in US v Wong Kim Ark is about ordinary citizenship, it is clear that the Court understood there to be only two kinds of citizens: those natural born and those naturalized, and it is also clear from the arguments the court used that it is just an accident of history that the court didn’t call Wong a “natural born citizen of the United States” as lower courts (cited in Wong) most specifically did of others in the same situation. (For example Wong cited Lynch v. Clarke where the court said that Julia Lynch (daughter of Irish citizens) was a “natural born citizen of the United States”.

  12. avatar
    Dr. Conspiracy May 2, 2009 at 3:07 pm #

    While I tried to make this a short article, I still wish that I could come up with something even someone with a short attention span could grasp.

    Folks responding just don’t understand the difference between a philosophical argument and a legal argument.

  13. avatar
    ballantine May 2, 2009 at 5:58 pm #

    “There was no other definition of natural born citizen’ at the time, in 1787, that the framers wrote The Constitution.”

    Don’t people actually do some research before posting such nonsense over and over and over. The english transalations of de Vattel’s Law of Nations at the time of the founding did not include the phrase “natural born citizen.” Such phrase did not appear in an english translation until ten years later and that version was not the version cited by American courts in the early 19th century. Thus, there was no other documented use of “natural born” at the founding other than the British common law. Pretty much game, set, match on that point. In addition, no authority in the early republic connects the phrase “natural born citizen”(or citizenship in general) with de Vattel but rather uniformly connects it with Blackstone.

    As far as I am aware, every authority from the revolution to the civil war who spoke on the phrase “natural born citizen” or citizenship at birth in general spoke of the common law meaning. I am writing a paper on this, so I will be happy if someone points out an authority I am not aware of to the contrary, but the early commentators from Rawle, Tucker, Kent, Story Bouvier, Paschal, etc., as well as the early case law and including the early statutory history is about as clear as can be on this point. I think there are few constitutional provisions upon which the early authority is so uniformly agreed on.

  14. avatar
    richCares May 2, 2009 at 6:04 pm #

    Birthers don’t do research, they follow talking points!

  15. avatar
    Dr. Conspiracy May 2, 2009 at 7:23 pm #

    The Georgia Charter (1732) makes natural born subjects both of those born in the colony, and their children born elsewhere. See:
    http://www.obamaconspiracy.org/2009/03/natural-born-in-georgia/

    The Naturalization acts of Massachusetts ca 1776 carry the implication that natural born subjects/citizens are those born in the colony and continued to reside there.

    That’s the best I can come up with for variance. PS: I’d love to read your paper.

  16. avatar
    Dr. Conspiracy May 2, 2009 at 7:25 pm #

    When every Tom, Dick and Harry thinks they can practice law by reading a couple of web sites, we’re in trouble. (Yes, that includes me.)

  17. avatar
    Expelliarmus May 2, 2009 at 8:20 pm #

    They don’t want to “understand”, Doc. They have an agenda and they are looking for talking points to support their agenda, and they are as happy with fantasy or invented points as well as any tidbit that can be connected to some real case or treatise.

    De Vattel? Sound good, might convince someone.

    Some blogger who calls himself “Techdude”? Great.

    Your contribution is that you can expose their lies; you can’t make them stop lying.

  18. avatar
    Joyce May 2, 2009 at 8:49 pm #

    They seem to be the same people that don’t know the difference between a forgery and a digital reproduction.

  19. avatar
    Bob Weber May 2, 2009 at 10:32 pm #

    What I don’t get about the birfers is what they think they’re accomplishing with their arguments. They’re like the people who try to prove in court that the income tax in unconstitutional. They haven’t a legal leg to stand on, and their arguments are ridiculously tendentious. Difference between them and the taxers is the taxers get laughed out of court (before the IRS cleans them out) but the birfers can’t even get INTO court.

  20. avatar
    Dr. Conspiracy May 2, 2009 at 11:11 pm #

    One observes that James plagiarized the preceding text from Apuzzo’s blog: http://puzo1.blogspot.com/2009/04/article-ii-natural-born-citizen-means.html and so we cannot criticize James for the pettifoggery of the comment, although we can criticize him for selecting it.

    It appears that some misdirection is included in the bastardized paraphrase of U. S. v. Kuhn. In a real legal pleading one would include the exact text of the citation and then comment on or argue from it. Here the sloppy reader may be misled into thinking that “and loyalty to the United States and that no other nation can lay any claim to the child’s (later an adult) allegiance and loyalty” was something the court said.

  21. avatar
    Mario Apuzzo May 3, 2009 at 1:10 am #

    Hi guys,

    You argue that the citizenship status of the parents of a child born on U.S. soil is irrelevant when defining an Article II “natural born Citizen.” You would agree with me that like Obama (assuming he was born in Hawaii), a child born on U.S. soil to foreign parents also acquires by descent the citizenship of the parents. By legal definition starting in 1795, naturalized citizens have allegiance and loyalty only to the United States. Hence, what makes you believe that the Founding Fathers expected a naturalized citizen, who is not eligible to be President, to have greater allegiance and loyalty to the United States than some one who is qualified to be President?

    With the Founding Fathers in Article II focusing on the birth citizenship status of the child, do you honestly believe that the Founding Fathers would have allowed an individual born a citizen of Great Britain to be President?

    Also, do you really believe that how the Founding Fathers defined an Article II “natural born Citizen” came from the English common law definition of a “natural born subject” who never had a chance to be King? How could the citizenship definition of the two be the same when kings were made by birth to royalty while presidents were made through election by the people and, given the unique nature of the position and the desire to keep out of the Office of President to the greatest degree possible any foreign influence (“a strong check to the admission of Foreigners” into the office of President), needed absolute allegiance and loyal to the nation they would be elected to lead?

  22. avatar
    richCares May 3, 2009 at 1:42 am #

    With the Founding Fathers in Article II focusing on the birth citizenship status of the child, do you honestly believe that the Founding Fathers would have allowed an individual born a citizen of Great Britain to be President?

    Yes!

  23. avatar
    NBC May 3, 2009 at 3:12 am #

    Hence, what makes you believe that the Founding Fathers expected a naturalized citizen, who is not eligible to be President, to have greater allegiance and loyalty to the United States than some one who is qualified to be President?

    Simple, by maintaining his birthright when reaching the age of majority.
    And allegiance refers to the fact that the person falls under the laws of the country, or in other words, unless child of an ambassador or invading military, the child is likely natural born.
    The reason why naturalized citizens were excluded seems simple, when looking at some of the paranoia of those days about rumors that a foreign born may run for president of the US.

    Also, do you really believe that how the Founding Fathers defined an Article II “natural born Citizen” came from the English common law definition of a “natural born subject”

    It’s not a matter what we believe, it’s what legal precedent, legislative history tells us. The term was not defined in the Constitution and thus its meaning has to be inferred from how it was used in those days. Common law is one way of determining the meaning of the term.
    Which is why Dr Conspiracy is able to find so many relevant examples which run counter to your ‘arguments’.

    Frustrating, isn’t it… What a little homework can do to the foundation of an already shaky suit…

    Good luck Mario.

  24. avatar
    Gordon May 3, 2009 at 3:39 am #

    Since the Founding Fathers and all of their fathers and the first seven Presidents fathers were British citizens I would call that a big yes.

  25. avatar
    Gordon May 3, 2009 at 3:41 am #

    Then what did that make Washington and Jefferson, since their fathers were never citizens of the USA?

  26. avatar
    Gordon May 3, 2009 at 3:42 am #

    It was a slippery slope since their own fathers were British citizens.

  27. avatar
    Gordon May 3, 2009 at 4:33 am #

    Doc I was completely unaware of the Writ of Certiorari that Obama responded to and the SCOTUS findings. It seems to cover all the bases, from the authenticity of the birth certificate, to the question of Obama’s citizenship. I’m sure a great legal mind like Heavy can find a loophole.

    The Court made the following findings:
    1. The Certification of Live Birth presented to the court is unquestionably authentic.
    The court noted that the certification had a raised seal from the state of Hawaii, had a stamp bearing the signature of the registrar of vital statistics. The court found “wholly unpersuasive” any of the internet claims that the birth certificate was altered in any way. Furthermore, the document itself was accompanied by an affidavit from the State Health Director (of Hawaii) verifying that the document is an authentic certification of live birth. The court held that there could be no doubt that the document was authentic unless one believed that the state of Hawaii’s health department were in on an elaborate and complex conspiracy – and that there is not a shred of evidence that this is the case.

    The following shall be nationals and citizens of the United States at birth: ***(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years:…..
    is irrelevant to this matter, as Mr. Obama was conclusively born in Hawaii.

    There is more, it’s lengthy, but I love the end where they cut the birthers to the quick.

    http://thevalleytruth.wordpress.com/2008/11/07/the-supreme-court-and-obamas-birth-certificate/

  28. avatar
    Dr. Conspiracy May 3, 2009 at 7:14 am #

    Apuzzo: “You argue that the citizenship status of the parents of a child born on U.S. soil is irrelevant when defining an Article II “natural born Citizen.””

    Yes, that’s what English common law says, and what numerous court cases have said in the commentary supporting their decisions. A lawyer like yourself is obliged to find arguments that support his client. I, on the other hand, have the luxury of examining the arguments and then choosing sides. And it does seem that in US jurisprudence there is a tradition in favor of the immigrant (or their children) and against xenophobia. Surely there were aberrations: slavery, the Chinese Exclusion Act and Japanese internment, but these were eventually corrected.

    Apuzzo: “By legal definition starting in 1795, naturalized citizens have allegiance and loyalty only to the United States. Hence, what makes you believe that the Founding Fathers expected a naturalized citizen, who is not eligible to be President, to have greater allegiance and loyalty to the United States than some one who is qualified to be”

    The Supreme Court decided (not commented) in Perkins v. Elg that dual citizenship does not erase natural born citizenship.

    Apuzzo asks: “do you honestly believe that the Founding Fathers would have allowed an individual born a citizen of Great Britain to be President?”

    I can answer that in two words: “George Washington”.

    Apuzzo asks: “Also, do you really believe that how the Founding Fathers defined an Article II “natural born Citizen” came from the English common law definition of a “natural born subject” who never had a chance to be King?”

    I am rather confused by your comment here. It is certainly false that all of the monarchs of England were “born in England of parents who were English subjects.” What definition of “natural born subject” could you find that fits all of the English monarchs? For example, neither William of Orange nor his father were born in England. And surely you aren’t saying the the office of the US President was modeled on the hereditary English monarchy.

    Regarding: “a strong check to the admission of Foreigners” into the office of President

    I would comment that the Constitutional qualifications for president allowed the president to have lived over half his life (21 of 35 years) outside the United States. In the words of Framer Charles Pinckney, their intent was that the president have an “attachment” to the country. The words “unique nature of the position and the desire to keep out of the Office of President to the greatest degree possible any foreign influence” are your words, and your viewpoint. They are not those of the framers of the Constitution, or that of the US courts and legislation. Are you arguing that Barack Obama is a “foreigner”? If Barack Obama is not a foreigner, then he was not the kind of person the framers were trying to exclude.

    Mr. Apuzzo, your argument might appeal to a segment of the population, but I’m sure you know that there’s nothing in it that court would even consider. On questions of law, judges, not juries, decide.

  29. avatar
    Dr. Conspiracy May 3, 2009 at 7:32 am #

    I have serious doubts as to the authenticity of the “Virginia decision””, in fact I’m fairly sure it’s a hoax. The most obvious sign that it’s a fraud is that the name of the case is missing. Other signs include “non-judicial language” and misspelling in the full version. Finally, there is the old adage “if it’s too good to be true, then it’s probably not.” The What’s Your Evidence? web site also questions the authenticity of the decision. No newspaper coverage (and this was supposedly in November), and no mention on any pro-Obama web site.

    See also:
    http://www.americanconservativedaily.com/2008/11/is-va-court-dismisses-obama-suit-story-a-hoax/
    http://citizenwells.wordpress.com/2008/11/19/obama-is-not-eligible-virginia-petition-for-writ-of-mandamus-circuit-court-richmond-virginia-judge-walter-w-stout-iii-court-ruling-wild-bill-va-board-of-elections-obama-camp-fraud-breaking/?referer=sphere_search

  30. avatar
    TRUTH May 3, 2009 at 9:25 am #

    FUnny how you make the sarcastic remark towards HEAVY, saying he’ll find a loophole, yet you admit that you were “completely unaware….” prior to what you apparently recently learned, but you Talked Smack based on WHAT in the Past? YOUR Expert Blogging legal training?

    And although this blog starts with. . . “While coming tantalizingly close, no US Court has ever decided the definition of “natural born citizen”. . . . although no court has decided it SURE seems decided withing the confounds of the liberal Blogosphere walls.

  31. avatar
    ballantine May 3, 2009 at 9:37 am #

    “Also, do you really believe that how the Founding Fathers defined an Article II “natural born Citizen” came from the English common law definition of a “natural born subject”

    Yes, it is just unimaginable that the common law lawyers who wrote the constitution would define terms by the common law or incorporate any of the common law doctrines they were trained under that continued to apply in America after the revolution. Just unimaginable.

    It is unimaginable to me that anyone would think anything else. Considering that everyone agrees that “natural born subject” would have been a well-know term of art to the founders and considering founders clearly would have known that the terms “subject” and “citizen” (and even “natural born subject” and “natural born citizen”) were used interechangably in the decades following the revolution, the founders would had to be idiots to think that anyone would give it any other meaning.

    Evidence of the conflation of these terms can be seen by merely looking at the post-Declaration statutes and constitutions. For example, look at the link below for Massachusetts naturalization statutes from the 1780s, sometimes using “subject” sometimes “citizen” in the same context and even “natural born subject” and “natural born citizen” in the same context.

    http://www.greschak.com/articles/natactma/index.htm

    A number of other states continued to call their natives “natural born subjects” in states and constitutions for decades after the revolution when clearly they had technically become citizens and at the same time other states used the term “natural born citizens” in the same context in nearly identical statutes, as was pointed out in Lynch v. Clarke.

    This point is made by perhaps the most influential early legal scholar:

    “Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land.” James Kent, COMMENTARIES ON AMERICAN LAW 258 (1826)

    Or one of the most famous early citizenship cases:

    “The term ‘citizen,’ as understood in our law, is precisely analogous to the term ‘subject’ in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people; and he who before was a ‘subject of the King’ is now ‘a citizen of the state.” State v. Manuel, 20 N. C. (4 Dev. & B. L.) 20, 26 (1838)

    In an early legal periodical:

    “The word citizen expresses precisely the same relation to the State which subject does to the king. Indeed for a considerable period after the revolution, the word subject was used as synonymous with citizen. Thus in the declaration of rights in the constitution of Massachusetts, the word subject is several times introduced, where we should now use citizen. So in Mass. St. 1784, c. 72, s. 10, a punishment is enacted for kidnapping “any subject of this Commonwealth, or other person lawfully residing and inhabiting therein.” In this passage the word subject can have no other meaning than that of citizen.” American Jurist and Law Magazine, January, 1834

  32. avatar
    Gordon May 3, 2009 at 10:18 am #

    TRUTH you are absolutely right. After later reviewing the source, I too had my suspicions. However my sarcasm direct at Heavy has more to do with the continuous anger he directs at other posters, so excuse me if I don’t stop.

  33. avatar
    Mary Brown May 3, 2009 at 11:57 am #

    Gordon, Heavy is like a science fiction character who lives and grows when fed negative energy. While I understand your response, my advice is to give him food for thought. I think that retards his growth.

  34. avatar
    Dr. Conspiracy May 3, 2009 at 1:53 pm #

    Truth, I was very intentional when I used the words “decided” because no case to my knowledge has ever come up to decide the eligibility of a person to be president based on their citizenship (there was a case based on age), nor has there ever been a case to my knowledge where a question was raised whether a person be a natural born citizen as opposed to just someone who was born a citizen (my reading suggests the courts use the terms interchangeably).

    However, there are a number of cases where the court in its arguments about a case have SAID that those born in the country are its natural born citizens without regard to the condition of their parents. The arguments made in these citizenship cases are the SAME arguments that would be made in deciding the natural born citizenship question, and the same law and court commentary would be cited. Did you know that de Vattel is even mentioned in Lynch v. Clarke and in US v. Wong Kim Ark? The case may not have been decided but it has been argued and the conclusion reached. All this leads me to the firm conclusion that if a court were placed in the position of having to issue a decision, they would do so in harmony with what they have been saying for over 150 years in case after case.

  35. avatar
    Dr. Conspiracy May 3, 2009 at 2:00 pm #

    Thanks very much for the Greschak link which I had forgotten. I edited your comment to add the “e” on the end “Clarke” and some other typos.

  36. avatar
    TRUTH May 3, 2009 at 6:55 pm #

    I just love the negative chatter about someone being negative. I’m not positive but I think that’s called hypocrisy. My Websters may be a bit weak, I’m not going to look that up even.

  37. avatar
    TRUTH May 3, 2009 at 6:59 pm #

    You’re very educational in my opinion, which I very much appreciate. As you know, I’m the devils advocate, and of course there’s that thing I can’t stand you-know-who. 🙂

    I forgot about you being on Plains. Did that go off as planned? I’ve not taken the time to look through here yet to find out. I will in a little while, after supper. Hope all’s going well over your way. ps..keep the change..haha.

  38. avatar
    Dr. Conspiracy May 3, 2009 at 9:08 pm #

    My 25 minutes on Plains Radio stretched to an hour and a half. It went very well from my point of view. Unfortunately, no one recorded it as far as I have been able to find out.

  39. avatar
    Mario Apuzzo May 4, 2009 at 8:57 am #

    The way you make your point sounds as though you are proud of that.

    Those early Presidents were eligible under the grandfather clause which surely does not apply to Obama. And that makes my exact point. The early Presidents would not have been eligible post 1789 (when the Constitution was adopted). If your categorical “yes” is correct, then why did the Framers include the grandfather clause in Article II?

  40. avatar
    TRUTH May 4, 2009 at 9:32 am #

    WHAT!? No Recording?!..bummer Hour n a Half, Wow! It must’ve been going well to have lasted that long. Well good, I’m glad to hear that. You have to be a much better talker than crazy lady I heard on there a few months back. I’ve not listened to them since.

  41. avatar
    Dr. Conspiracy May 4, 2009 at 10:34 am #

    The issue is the claim that the framers were extremely averse to someone born English being President. That’s silly since they were born English themselves.

    The problem is that some people, yourself included, are trying to overlay a particular point of view on the framers that is not supported by the historical record.

    Someone here said (if I remember correctly): If you have the facts on your side, hammer on the facts. If you have the law on your side hammer on the law. If you have neither, hammer on the table. That seems to be what’s happening here: a diversionary appeal to prejudice (against foreigners) and an attempt to put these views into the minds of the framers. If the framers wanted purity of loyalty, why did they allow the president to have lived most of his life overseas? The Article II requirements were a compromise to insure attachment to the United States, and to exclude General von Steuben.

    The framers didn’t want the United States entangled in European politics. That’s why we have the Article II requirements for president. Well, the United States is entangled all over the world anyway.

    Well, tomorrow’s the big day. I can hardly wait.

  42. avatar
    NBC May 4, 2009 at 10:46 am #

    As Dr Conspiracy already pointed out, Apuzzo has to please his client while we have the luxury to pursue the facts unconstrained by such requirements and explore the logic or lack thereof behind the ‘arguments’.
    History, legal precedent, legislative history and facts all seem to support the simple fact that natural born means ‘born on US soil, under US law’. This precludes, children born to embassadors and invading military. The citizenship of the parents has nothing to do with who is and who is not a natural born citizen.
    Arguing against solid precedent is not going to be too successful. Like Dr C I am waiting for the ‘big day’ as well.

  43. avatar
    richCares May 4, 2009 at 12:31 pm #

    “My Websters may be a bit weak, I’m not going to look that up even.”

    look up “Truth” as well!

  44. avatar
    Patrick McKinnion May 4, 2009 at 7:24 pm #

    Not to mention that Dr. Orly cites it as an example of “dirty tricks” that “stole the election”.

    It would have been nice if the Wild Bill decision was real, but it looks a lot like it was someone making stuff up.

  45. avatar
    Expelliarmus May 4, 2009 at 10:56 pm #

    A lawyer has an ethical obligation to adequately research the law, and to refrain from initiating frivolous actions or misrepresenting the state of the decisional law to courts. It doesn’t matter who the client is — lawyers are not supposed to simply do whatever their clients ask. If the client insists on filing or pursuing an action that is clearly frivolous, an ethical lawyer would withdraw.

  46. avatar
    StayAlive October 16, 2009 at 11:47 am #

    I agree with your statement that there has been no specific statement by the Courts or Congress defining what is a “natural-born citizen”. And various cases can be selected to support one’s position, e.g., Minor v. Happersett, 88 U.S. 162 (1874), specifically implies that a natural-born citizen requires BOTH parents to have been citizens at the time of birth of the candidate for President.

    What about supporting a bill by Congress to specifically define “natural-born citizen” and the governmental entities responsible for ensuring all candidates for POTUS and Vice POTUS are elgible, in time for the elections of 2012? Such a bill was unsuccessful the last time it was tried in 2004, S.2128: Natural Born Citizen Act.

  47. avatar
    SFJeff October 16, 2009 at 12:00 pm #

    I don’t know that Congress can define what a “natural-born” citizen is- I would think that would require a Constitutional Amendment.

    Looking at S.2128- it actually read pretty much per our understanding but expanded the class by including persons adopted by U.S. citizens but born outside the U.S. I wouldn’t be against such a bill, but I don’t know it would be Constitutional.

    I wouldn’t have a problem with a bill that would define what governmental entities are responsible for vetting Presidential candidates.

  48. avatar
    Dr. Conspiracy October 16, 2009 at 12:01 pm #

    StayAlive: Minor v. Happersett, 88 U.S. 162 (1874), specifically implies that a natural-born citizen requires BOTH parents to have been citizens at the time of birth of the candidate for President.

    No it does not. It specifically says that this is a disputed question, and further there is no way you conclude that Minor’s phrasing of “parents of children” means one or two parents per child. And of course while the Minor court left the question hanging, the Wong court cleared it up. This is what the court says:

    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 [not “natural born citizens”, but “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.

    Note the affirmation of the common-law definition and the equivalence of “natives” and “natural born citizens”.

  49. avatar
    Bob October 16, 2009 at 12:03 pm #

    Here is the doctor’s article on Minor; it does not support the birther position.

    H.R. 1503 proposes to institute eligibility requirements. Why is it languishing with only 11 co-sponsors? Because it is partisian politics in disguise.

    (A federal law could not write a definition that is contrary to the Constitution, so such a law is ultimately pointless at it will be challenged in court.)

  50. avatar
    mrlqban October 29, 2009 at 12:54 am #

    If being a British subject at birth was fine to the framers, then why did the framers included this in Article II? “… or a citizen at the time of this Constitution…”.

    Can you please explain this?

  51. avatar
    Dr. Conspiracy October 29, 2009 at 8:19 am #

    mrlqban: If being a British subject at birth was fine to the framers, then why did the framers included this in Article II? “… or a citizen at the time of this Constitution…”.

    The short answer is that one of the most important framers of the Constitution, Alexander Hamilton, was born in the Caribbean. The addition of “citizens at the time…” allowed persons not born in the United States, but who supported the Revolution, like Hamilton to run for President.

  52. avatar
    Black Lion October 29, 2009 at 9:14 am #

    I saw this over at tROSL….

    There are two separate citizenships (see: Slaughterhouse cases), the de-jure sovereign common-law State citizenship, and the ipso-facto (after the fact) subject citizenship created by the 14th (an exception made to the Law of the Land) on the federal level to “accommodate a class of persons who heretofore could not be brought within the operation of the naturalization laws”, but were now being adopted in. Obama is a 14th citizen, dependent entirely thereupon, who could not have been a citizen AT THE TIME THE CONSTITUTION WAS ADOPTED (there was no 14th at this time), which also disqualifies him from the office of the Presidency.

    No one will take this case because a definition of Natural Born Citizen was already clearly stated as De Vattel’s definition in the infamous Dred Scott Decision Apuzzo cites.

    No matter how many time you show that their conclusions are wrong, the birthers continue to make the argument…

  53. avatar
    dunstvangeet October 29, 2009 at 11:04 am #

    There’s also a theory that since the United States was not a country at the time that any of the founders were born, they had to put that in there, because none of the founders were actually born citizens of the United States, and therefore not Natural Born Citizens.

    So, unless they wanted to wait until July 4, 1811, before someone was eligible for being a President, they had to put it in there.

    Still nothing to do with whether or not someone was British, just a reality.

  54. avatar
    Dr. Conspiracy October 29, 2009 at 11:55 am #

    I agree this is true, but if it were simply a matter of dealing with the United States not existing at the time of the founders’ birth, they could have made alternate wording to include the country or the territory it occupies. On the date the Constitution was ratified, the only way new citizens were admitted was by birth in the country or by naturalization. So in the founders’ minds birth in the country was synonymous with natural born citizen, and this excluded Hamilton. In order to include Hamilton and persons like him, they had to include people who were not natural born citizens (meaning those born outside the country).

  55. avatar
    Expelliarmus October 29, 2009 at 5:26 pm #

    Well at least they show their true colors with that argument.

  56. avatar
    mrlqban October 29, 2009 at 11:17 pm #

    Very interesting, thanks for your explanation.

    However, one can still argue that the Framers also wanted to exclude dual citizenship or foreign allegiance to avoid enemies within, due to their conflict with England or any other countries for that matter.

    Your conclusions that Natural Born Citizens equates to Natural Born Subjects simply opens the door to numerous unlikeable scenarios to the founding fathers. Let’s just throw an example.

    After the Constitution was written, a child of British parents is born in the U.S. (according to your interpretation, in the founder’s minds, this child is a natural born citizen regardless of blood, parenthood, or allegiance, and will always be). Then the child leaves the U.S. at an early age and is raised in England. There, the boy is trained for many years to spy on the U.S. government. When the child turns 30, he comes back to the U.S. Being born a citizen of the U.S. at birth, (he is a natural born citizen and will always be)he has no problem in becoming a Presidential canditate after 14 years of residing in the U.S. The man becomes President and perpetuates the biggest fraud in American history by delivering strategic military information to his friends in England. This is just one of many potential scenarios.

    How is it possible for the founding fathers to ignore this loophole?

    It is uncomprehensable in anyone’s mind to believe the founding fathers did not think about these potential problems. Therefore, I believe that Natural Born Citizen has a different meaning than Natural Born Subjects in the founder’s minds.

  57. avatar
    Dr. Conspiracy October 29, 2009 at 11:46 pm #

    mrlqban: Therefore, I believe that Natural Born Citizen has a different meaning than Natural Born Subjects in the founder’s minds.

    You are certainly entitled to your beliefs, but I believe that you will find, as I did, that there is no hint left by the founders that they had in mind what you suggest, quite the opposite.

    Your thought experiment doesn’t work. What you are suggesting is that birth in the county to citizen parents guarantees loyalty and birth in the country to non-citizen parents does not guarantee loyalty. But you are begging the question. There is nothing in your scenario that does not apply equally to the child of citizen parents and to the child of non-citizen parents. The citizen parents could have died and the child be raised by distant foreign relatives anyway. All you have done is attach an undesirable outcome to one scenario in order to prejudice against it.

    You are welcome to read the notes taken at the constitutional convention, as I have. There’s nothing in there about considering any “loopholes”. Later, one of the Framers (Pinckney) said that the reason they added the qualification was so that the president would have “attachment to the country” which is certainly true of anyone who is born here and lived here for 14 years. When you make arguments like “it must have been” or “I cannot see how” or “it is incomprehensible that” and substitute such for reading the historical record, all you do is overlay your own viewpoint on other people from a different time and circumstance. In the end, the result is little more than wishful thinking on your part.

    The simple answer is that no one-sentence rule in the Constitution is going to guarantee a wise choice for president and it cannot rule out every conceivable odd scenario. This is why we have elections, and that is what you seem to have omitted in your argument.

  58. avatar
    Izzy October 29, 2009 at 11:54 pm #

    Your scenario could just as easily happen with an American citizen born to two citizen parents.

  59. avatar
    Izzy October 29, 2009 at 11:55 pm #

    Sorry, I posted that in the wrong place. 🙂

  60. avatar
    dunstvangeet October 30, 2009 at 12:47 am #

    mrlqban…

    Your scenario can easily happen with parents who are American Citizens.

    For instance, Italy allows dual citizenship through adult hood, and believes in jus saguinus abroad for their children.

    So, here’s your scenario a little different. Two Itilian Citizens move to the United states. They have children here before they are Naturalized as citizens of the United States (or these people are never naturalized). Their children marry other Itilian-American Citizens in the United States, and have children in the United States. This person would be an American Citizen, born to 2 American Citizen Parents. This person would also be an Itilian Citizen.

    At an early age, this family moves back to Italy, and remains with their citizenship there. “There, the boy is trained for many years to spy on the U.S. government. When the child turns 30, he comes back to the U.S. Being born a citizen of the U.S. at birth, (he is a natural born citizen and will always be) he has no problem in becoming a Presidential canditate after 14 years of residing in the U.S. The man becomes President and perpetuates the biggest fraud in American history by delivering strategic military information to his friends in Italy. This is just one of many potential scenarios.”

    Having two citizen parents doesn’t prevent this. It all depends upon the laws of other countries. And I’m sorry, but I do not believe that the laws of other countries have one ounce of influence on our citizenship laws. And neither does the Supreme Court. A case by the name of Perkins v. Elg already said that a Natural Born Citizen can have dual citizenship.

  61. avatar
    dunstvangeet October 30, 2009 at 12:49 am #

    Oh, and one more thing…

    Another scenario under your ban of dual citizenship…

    Britian passes a law that makes anybody born a United States Citizen, a British Citizen. Did Britian just bring down the entire government, by making everybody ineligible for the U.S. Presidency?

  62. avatar
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