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A question for Mr. Apuzzo

If left this over on Apuzzo’s blog. It’s currently awaiting approval.

Mr. Apuzzo,

Do you really believe that the E. de Vattel actually intended to say that his “natural born citizen” must be born in the country and have TWO citizen parents?

The French grammar, once cast into the plural, must continue in plural to the end of the sentence. Is it not clear from the context of the following chapters that de Vattel clearly meant ONE citizen parent, and specifically ONE CITIZEN FATHER?

It would not be correct to overlay our 21st century notions of equality of gender onto 18th texts. What de Vattel clearly meant to say was that the indigenous people are those who are born in the country to citizen parents [fathers].

[Update: Mr. Apuzzo has addressed this question on his blog]

167 Responses to A question for Mr. Apuzzo

  1. avatar
    Welsh Dragon September 5, 2009 at 11:28 am #

    Oh No! I’ve often been tempted to raise the same question but resisted out of fear of giving birth to a whole new sect in the cult of birtherism! What shall we call it fatherism? dada-ism?(yes I know that’s taken) how about papa-ism?

    Seriously though I’ve looked again and again at the sentence in english and french(not that my french is that good!). The paragraph and indeed the whole chapter seems to hang together better if we interpret it as father rather than two citizen parents.

    Also in odd moments I’ve been trying to find where the twofer definition started. My research is far from complete but so far I’ve not come across any unambiguous reference prior to the Obama & McCain controversies.

  2. avatar
    Dr. Conspiracy September 5, 2009 at 11:38 am #

    P. A. Madison had an article on the Federalist Blog that I think goes back to before Obama. The oldest one I can find is September 2007, but I believe there is an earlier one.

    http://federalistblog.us/2007/09/revisiting_subject_to_the_jurisdiction.html

  3. avatar
    brygenon September 5, 2009 at 11:44 am #

    That’s a pretty subtle point to ask of birther. How about asking him if tried looking up “natural born citizen” in the preeminent legal dictionary in America, and if so, why he’s still on about this eligibility nonsense. Or ask him if agrees with his client that Obama, most of congress, and probably you and I, should be lead away in shackles.

    This is not a reasoned debate over legal interpretation. Apuzzo is representing a ludicrous conspiracy theory motivated by hate.

  4. avatar
    Paul Pieniezny September 5, 2009 at 11:51 am #

    I have downloaded Vattel’s text in PDF but cannot search in the text. Everything seems graphic.

    Now someone here once posted that Vattel wrote that a country would be justified to go to war by a desire to correct a population imbalance by grabbing women from the other country. Could that person tell us where that is to be found?

    Just suppose it is true and a country were to do this or something similar. Obviously, if all the mothers in a country were foreigners, by virtue of the birfer interpretation, there would be no natural born citizens anymore in the next generation and the nation would be set to disappear.

    If we believe the legend and Apuzzo, Julius caesar was not a natural born Roman.

  5. avatar
    brygenon September 5, 2009 at 12:23 pm #

    So that’s not pre-Obama yet. Obama announced his candidacy for president in February of 2007. Even earlier there widespread talk of Obama as a future president, from right after his keynote speech at the 2004 Democratic national convention.

  6. avatar
    kimba September 5, 2009 at 12:47 pm #

    I have no doubt that many birthers would unashamedly insist that the status of the father takes precedence over the mother, be it 1961 or 2009. These people yearn for a pre-thirteenth amendment America, where blacks and women knew their place and white men ruled the day. They celebrate when they think they find some nugget that suggests the Founders agreed with them. To imagine any of these people have positions of authority over or make hiring decisions concerning women or minorities in the workplace is frightening.

    If Mario or Leo agrees there is some special priority of the status of the father, then they are sexists as well as racists.

  7. avatar
    AXJ September 5, 2009 at 1:06 pm #

    Pretty strong statement here. We still don’t know who the father was. In the divorce papers filed in 1964 Barack Hussein Obama senior was never properly served nor ever publicly admitted that “he had a sex with that woman”. You are being scammed.

  8. avatar
    BenjiFranklin September 5, 2009 at 1:19 pm #

    Dear Paul,

    Here’s the cite you asked about: Book 2 Chapter 9 Section 122 “The Right To Carry Off Women”

    It begins: § 122. Right of carrying off women.
    Let us say a few words on a more singular case, since authors have treated of it — a case in which at present, people are never reduced to employ force. A nation cannot preserve and perpetuate itself, except by propagation. A nation of men has, therefore, a right to procure women, who are absolutely necessary to its preservation; and if its neighbours, who have a redundancy of females, refuse to give some of them in marriage to those men, the latter may justly have recourse to force. We have a famous example of this in the rape of the Sabine women………”

    I suspect that behind closed doors, these anti-Obama newly self-found worshippers of Vattel, have their glass of wine with a “carried off woman” and worry quite a lot about the sanctity of The Constitution, when they aren’t righteously raping one or the other.

    Benji Franklin

  9. avatar
    misha September 5, 2009 at 1:44 pm #

    @Kimba: you’re right on it. Read this from HuffPo: “So just when you think you’ve heard it all – meet Bob McDonnell, Republican candidate for governor in the state of Virginia… He’s a true believer – railing against legalized birth control, public schools, childcare and, believe it, working women!”

    http://www.huffingtonpost.com/cecile-richards/virginia-women-get-back-i_b_276830.html

  10. avatar
    kimba September 5, 2009 at 2:23 pm #

    *big eye roll* what is with these southern men? I’ll bet you twenty dollars the guy’s got a “walk on the ol’ Appalachian trail* of some sort in his closet. (oops, Doc’s gonna Great Mother this one!!)

  11. avatar
    misha September 5, 2009 at 3:01 pm #

    I lived in the South for 14 years. You have to see it, to believe it. I saw an article in the Washington Post: Infirmaries in the Virginia state university system dispensed Plan B, to any student who requested it.

    You guessed it: some Christofascist in Richmond, on the University’s trustee board, said if they were not married, they shouldn’t be sleeping with a man. So he got the entire state university system to stop dispensing Plan B. Infirmaries put up a sign: “Plan B is no longer available at the infirmary. The nearest pharmacy is at ____.”

    Keep the government out of health care. Except the Schiavo case. Then they wanted all the interference government could muster. People don’t know what it was like before the FDA. My step-father told me about the book 100 Million Guinea Pigs. Google it.

    Here’s from The Onion: Christian Science Pharmacist Refuses To Fill Any Prescription.

    And here’s my take on it: Christian Photographer Renounces Cameras.

  12. avatar
    Dr. Conspiracy September 5, 2009 at 3:21 pm #

    Here is a searchable version of de Vattel: The Law of Nations (1852) translation.

    While I don’t have everything, I have lots of links to relevant information on the Bookmarks page.

  13. avatar
    kimba September 5, 2009 at 3:25 pm #

    AXJ, you are a liar and a troll. Go back to your own website if you want to spew nonsense and filth.

  14. avatar
    kimba September 5, 2009 at 3:33 pm #

    And AXJ, just for the record, why don’t you cite for us what law requires a father to publicly admit, announce, proclaim that he has had sex with the mother of his children. On behalf of right-thinking Americans, let me tell you how deeply offended I am by you referring to Pres Obama’s mother as “that woman”. You are a troll. You deserve to be banned because you have added nothing salient, intelligent or important to the discussion here. You are simply seeking publicity for and traffic to your own site.

  15. avatar
    AXJ September 5, 2009 at 3:39 pm #

    On behalf of right-thinking Americans..

    Funny how McCain caved in so quickly…

    So now you represent the American Right wing? The ones that though Sadam Hussein (another Hussein) had weapons of mass destruction? Curious but none were found…they were probably made in the USA if they had…we know what they were really after…it is in the Bible…you think man has invented anything? You even believe we went to the moon…gullible American…

    kimba: On behalf of right-thinking Americans

  16. avatar
    misha September 5, 2009 at 4:04 pm #

    “We still don’t know who the father was.”

    Obama’s father was Sidney Poitier. I thought everyone knew that.

  17. avatar
    richCares September 5, 2009 at 4:54 pm #

    change your screen name to Bonkers, that’s what you are!

  18. avatar
    misha September 5, 2009 at 5:23 pm #

    The “moon landing” was filmed in my backyard. I rented the land; the film crew was there for three days.

    I had to sign a NDA, but no one at NASA knows where I’m writing from.

  19. avatar
    jtx September 5, 2009 at 5:34 pm #

    brygenon:

    By the very wording in your post, it seems that you’re the one motivated by hate.

    Most of us merely wish to know definitively that our laws have been followed, so why is it you don’t join in asking the Oborter to prove to everyone that he is eligible??? Are you perhaps afraid that he isn’t???

  20. avatar
    jtx September 5, 2009 at 5:51 pm #

    BenjiFranklin:

    You’d better learn to read in context my man. What is being discussed in the passage you referred to is a retrospective right … in fact it clearly refers to the Sabine women (or as your “tribe” would know it – them “sobbin’ women”).

    So you guys are pretty pathetic it trying to dredge up as much nonsense as possible. Let’s see … which of Alinsky’s Rules for Radicals is that one??

  21. avatar
    jtx September 5, 2009 at 5:56 pm #

    kimba:

    Now you’re projecting your pathetic biases onto others. In fact, YOU’RE the one who is frightening.

    As one would think you would have learned in, say, 3rd grade in the early years of this country women had very few rights but have consistently gained them as time went on. Ever hear of women’s suffrage for example … or do you even know what “suffrage” means?

  22. avatar
    kimba September 5, 2009 at 6:20 pm #

    “So now you represent the American right wing?”

    Um, no. Get out your English dictionary and look up “right-thinking.”

  23. avatar
    AXJ September 5, 2009 at 6:38 pm #

    Paul Pieniezny: I have downloaded Vattel’s text in PDF but cannot search in the text. Everything seems graphic.Now someone here once posted that Vattel wrote that a country would be justified to go to war by a desire to correct a population imbalance by grabbing women from the other country. Could that person tell us where that is to be found?Just suppose it is true and a country were to do this or something similar. Obviously, if all the mothers in a country were foreigners, by virtue of the birfer interpretation, there would be no natural born citizens anymore in the next generation and the nation would be set to disappear.If we believe the legend and Apuzzo, Julius caesar was not a natural born Roman.

    The natural born thing in Rome only referred to the Praetorians…Seneca and Augustus where from Spain, part of the Roman Empire by the way…

  24. avatar
    misha September 5, 2009 at 6:48 pm #

    xxxxx

  25. avatar
    Dr. Conspiracy September 5, 2009 at 7:02 pm #

    The Sabine women were an example of the general principle, not the context. I am very careful not to abuse the context.

  26. avatar
    brygenon September 5, 2009 at 7:12 pm #

    jtx: brygenon:By the very wording in your post, it seems that you’re the one motivated by hate.Most of us merely wish to know definitively that our laws have been followed, so why is it you don’t join in asking the Oborter to prove to everyone that he is eligible???Are you perhaps afraid that he isn’t???

    Hating lying bigots is entirely justified. How should we feel, for example, about holocaust-deniers? Should we accept their claims to be merely interested in researching open historical questions?

    Even so, I haven’t asked for you to be rounded up and imprisoned, as Mario’s disgusting lead plaintiff wants for Obama’s supporters.

  27. avatar
    misha September 5, 2009 at 8:05 pm #

    Nothing less than the Spanish Inquisition.

  28. avatar
    kimba September 5, 2009 at 8:09 pm #

    Did someone say “Spanish Inquisition”?

  29. avatar
    Paul Pieniezny September 5, 2009 at 8:14 pm #

    Thanks. My version is French, however. I forgot where I downloaded it, but it was an official US site. Considering the language problems involved in a number of relevant passages (the “parens-parents-family” problem for instance) I would surely like a searchable French version. Perhaps it does not exist.

  30. avatar
    Paul Pieniezny September 5, 2009 at 8:15 pm #

    No one expects the Spanish Inquisition!

  31. avatar
    jtx September 5, 2009 at 8:59 pm #

    brygenon:

    Funny – I guess I missed that in the pleading … could you please point me to the pertinent link???

    As for “hating lying bigots” – why do you hate the Obamatron? Just because he lied to the voting populace and concealed his real background and motives??? You think that’s not “fair”???

  32. avatar
    dunstvangeet September 5, 2009 at 10:37 pm #

    NOBODY expects the Spanish Inquisition!

    Our chief weapon is surprise…surprise and fear…fear and surprise….

    Our two weapons are fear and surprise…and ruthless efficiency….

    Our *three* weapons are fear, surprise, and ruthless efficiency…and an almost fanatical devotion to the Pope….

    Our *four*…no… *Amongst* our weapons…. Amongst our weaponry…are such elements as fear, surprise….

    I’ll come in again.

  33. avatar
    brygenon September 6, 2009 at 12:16 am #

    jtx: Funny – I guess I missed that in the pleading … could you please point me to the pertinent link???

    You can hear it in Kerchner’s own voice on various Internet-radio shows. See Apuzzo’s site for links.

  34. avatar
    Lupin September 6, 2009 at 4:32 am #

    I wouldn’t mind seeing the relevant passages of Vattel’s in the original French.

    I might point out that there are some subtle but important differences in Vattel’s use of the word “naturel” and the modern-day interpretation of the English word “natural”.

    I’m inclined to believe that Vattel used “naturel” as Jean-Jacques Rousseau did, to label a perfect, utopian, pre-human civilization state of grace, sort of like the Garden of Eden, or a blank slate, if you will.

    (Off-topic, the notion of whether Man was born pure in a Heavenly condition, but was immediately tainted by the world whose intrinsic nature if Evil has been the topic of many heresies and debate. Cf original sin, the Cathars, etc, etc.)

    If the entire “natural-born” controversy relies on this and infers things about parentage from the use of that word, they’ve got it completely wrong.

  35. avatar
    Welsh Dragon September 6, 2009 at 4:39 am #

    Do you think Mario whould like to buy a Norwegian Blue?

  36. avatar
    Dr. Conspiracy September 6, 2009 at 7:48 am #

    “Les Naturels ou indigènes font ceux qui font nés dans le pays de Parens Citoyens.”

    De Vattel in French is here:

    http://books.google.com/books?id=K9miAAAAMAAJ

  37. avatar
    Loren September 6, 2009 at 10:22 am #

    That’s an example of a dispute over the definition of “subject to the jurisdiction,” but not the twofer branch of that.

    Disagreements over “subject to the jurisdiction” do go back before Obama, because that was central to arguments over whether the children of illegal immigrants should be U.S. citizens. And there’s been an ongoing argument over ‘anchor babies’ for a decade or longer.

    However, look up the archive.org version of PA Madison’s 2007 post, and what you *won’t* see in his post is any claim that TWO citizen parents are necessary for citizenship. The possibility of the mother being an American citizen, but not the father, isn’t even raised. The automatic naturalization of a wife is mentioned, so there’s an uncurrent in the post that it’s written with two immigrants in mind.

    I’ll be rather surprised if anyone can find a serious advocate for the ‘two citizen parents’ version of the argument prior to early 2008.

  38. avatar
    Lupin September 6, 2009 at 11:54 am #

    Interesting. I read Liv. I, Chap XIX @212 section and the footnote.

    I was incorrect above and Vattel doesn’t use the word “naturel” in the Rousseauist sense, but in the same sense as “enfant naturel” in French means a child born out of wedlock.

    The entire article is about jus sanguini vs jus soli.

    Vattel postulates that in order to be a citizen (he doesn’t use the word “citizen” here but the words “naturel” and “indigene”, meaning “native” but the end result is citizenship), one has to be born in the country of parents (plural) who are already citizens.

    But the use of the plural here is misleading; it’s a “group plural” that doesn’t mean that both parents have to be citizens.

    Vattel further proceeds to clarify (?) by stating that the father must be a citizen for his child to be a citizen. The case of the mother isn’t addressed here at all.

    Footnote 1 at the end of @212 is interesting. In it, Vattel in effect says that “as a general rule”, the child inherits his father’s citizenship, or his mother’s but only if she isn’t married.

    He then goes on to identify several European countries that use “jus sanguinis” (because that’s what it is) to determine citizenship, but recognizes that England uses “jus soli” (ie: a child born on British soil even of foreign parents is or can be a British citizen).

    Vattel is obviously concerned with the definition of citizenship. The next article is about naturalized citizens.

    Please note that the term “naturel” here does not equal “natural-born”; in fact, it is used as a noun, as a synonym of “native” or “citizen”, not as an adjective to qualify degrees of citizenship.

    By his standards, Obama would be a citizen of Kenya (father), not the US (mother), under “jus sanguinis”. But he does acknowledge that citizenship in England can be gained through “jus soli”.

    The point here is that, even though Vattel’s distinction between father and mother would be unconstitutional (and therefore pretty useless in terms of applying it to today’s world), he doesn’t claim there are two types of citizenship under “jus sanguinis”; only one.

    So the whole distinction between “Natural-born” and non-natural-born citizen is based on a misreading of Vattel, possibly due to translation.

  39. avatar
    misha September 6, 2009 at 11:56 am #

    “Do you think Mario whould like to buy a Norwegian Blue?”

    Will it pine for the fjords? Or is it just nailed there?

  40. avatar
    jtx September 6, 2009 at 3:32 pm #

    brygenon:

    So you believe that the definition of “lying bigot” is anyone who does not agree with you??? Very interesting.

    I’m sure your boss must have the same view.

    As for the holocast … that’s not the issue. The issue is the Obama eligibility and no one has ever shown him to be so.

  41. avatar
    jtx September 6, 2009 at 3:33 pm #

    brygenon:

    What I said was “show me where it is in the pleading”. Can’t read, eh???

  42. avatar
    jtx September 6, 2009 at 3:38 pm #

    Lupin:

    It’s interesting that you admit that Obama would be a Kenyan citizen. It it your belief then that such would make him a “natural born citizen” under any reasonable definition of the term?

  43. avatar
    jtx September 6, 2009 at 4:04 pm #

    Lupin:

    I find your determination questionable in that “enfant natural” MIGHT mean born a bastard, but it might just as easily mean a child normally born to wedded parents. I believe it is a more general and encompassing term that you seem to think. I’ve seen nothing to indicate that it was used solely in the context you ascribe to it.

    At the time I think the more common term for an illegitimate child would probably have been “enfant adulterin” – a child of adultery. This phrase is used in several books of the time.

  44. avatar
    jtx September 6, 2009 at 4:06 pm #

    Loren:

    Let’s see what the SCOTUS comes up with, eh??

    You can then be as surprised as you like – and you can continue disbelieving THEM also.

  45. avatar
    Dr. Conspiracy September 6, 2009 at 4:39 pm #

    Thank you for your very excellent comments. I have made a searchable PDF of de Vattel in French, and it’s uploading (slowly) now. The file is huge (150 mb). It should be finished by 6 PM EST. The file name will be:

    http://www.obamaconspiracy.org/wp-content/uploads/2009/09/Le_droit_des_gens.pdf

  46. avatar
    Paul Pieniezny September 6, 2009 at 5:49 pm #

    Enfant naturel = child born out of wedlock. Neither mother nor father are married. Such a child can become legitimate if his/her parents marry afterwards.

    Enfant adultérin = child born “against” wedlock. At his/her conception at least one of the biological parents was married to somebody else. Such a child can never become legitimate.

    In the old days, both categories of children were discriminated against when dividing the inheritance of their parents. An enfant adultérin would get peanuts from his/her mother even if she was not married to somebody else at the time of conception, but the father was. The European Court of Human Rights has declared all such discrimination illegal, with the result that both category names are not longer used very much in France. I you know French: http://www.dictionnaire-juridique.com/definition/enfant-naturel.php

  47. avatar
    BenjiFranklin September 6, 2009 at 6:12 pm #

    Dear Lupin,

    About the translation of Vattel that reads:

    “…..those born in the country of parents who are citizens…..”

    you cautioned:

    “But the use of the plural here is misleading; it’s a “group plural” that doesn’t mean that both parents have to be citizens.”

    That’s an important distinction which deserves some apolitical examples:

    A) If Orly had a sign in her office that announced, “Free toothbrushes for the children of parentS who are Dr. Taitz’s patientS” would that mean only children BOTH of whose parents were Orly’s patients?

    B) Would a Kids Chorus created for the children of parentS who are currently U.S. state governorS, accept only children both of whose parents are currently U.S. state governors?

    C) Would Free-Admittance to the children of parents who are on the volleyball team, be only for kids BOTH of whose parents are on the volleyball team?

    Most of the birthers pleas rest on preferred-outcome determined bias in their parsing of quotations and the presumption that Obama criminality is indicated by ANY charge no matter how specious or totally unrelated.

    (Hyperbolic Example) Orly:” Your Honor, how can the defacto Chicago Thug President Obama be a Natural Born Citizen when the Gods he prays to, The Father, The son, and The Holy Ghost, all share the same 100 Social Security numbers?”

    Hopefully, Judge Carter will set an Angelic Hedge of containment around Orly.

    Benji Franklin

  48. avatar
    brygenon September 6, 2009 at 11:40 pm #

    jtx: What I said was “show me where it is in the pleading”.Can’t read, eh???

    Why did you think it was in his pleading? Can’t tell the truth, aye?

  49. avatar
    Lupin September 7, 2009 at 1:57 am #

    Thank you!

    One precision:

    — under jus sanguinis, Obama would be born with kenyan citizenship, but not necessarily SOLELY kenyan. (Vattel doesn’t rule out dual citizenships.)

    — However, the US is a jus soli country, so in that case Vattel says that, even if the two parents are not US citizens, Obama is still a US citizen. No wiggle room.

    — Finally, there is no such thing as a “natural-born citizen” in Vattel, distinct from a “citizen” — at least in that article. None. Nada. A “naturel” is a “native” is a “citizen”. That’s it. Anyone relying on that distinction is plainly and simply wrong.

  50. avatar
    NBC September 7, 2009 at 2:12 am #

    Thanks. Reading Vattel, it seems that he accepts that the children follow the condition of the father and when the father has chosen a permanent residence in a new country, the children gain the rights of this new country. In other words, while children may acquire the citizenship of their father, they also may acquire the citizenship of the new country and when reaching the age of majority, they can decide.

    Again, Vattel, on closer scrutiny, seems to be not that much different from common law principle and the US. Too bad that detractors have focused on a minor part of Vattel’s reasonings.

  51. avatar
    Lupin September 7, 2009 at 2:34 am #

    To be accurate, detractors have MISUNDERSTOOD (or distorted) Vattel’s reasonings.

  52. avatar
    Dr. Conspiracy September 7, 2009 at 10:17 am #

    From my reading, I would say that Barack Obama was a natural born citizen of the UK and Colonies at his birth (as the US Constitution uses the term “natural born” meaning a citizen at birth); however, he no longer is a citizen of the UK of any kind.

  53. avatar
    Mario Apuzzo September 8, 2009 at 4:04 am #

    Dr. Conspiracy,

    I have answered your question. See my latest article called, “The Natural Born Citizen Clause Requires that Both of the Child’s Parents Be U.S. Citizens At the Time of Birth” at my bog at:

    http://puzo1.blogspot.com/2009/09/natural-born-citizen-clause-requires.html

    I did not post my answer on your blog because it is a bit long. Of course, if you want to cut and paste it to your blog so your readers may see it, you are free to do so. If you do copy it here, I would appreciate it if you would keep it as one piece if possible.

    I have also posted your question on my blog. It appears as the first comment after my new article.

    Mario Apuzzo, Esq.

  54. avatar
    Dr. Conspiracy September 8, 2009 at 7:55 am #

    Thanks, I’ll look forward to reading it.

  55. avatar
    Bob September 8, 2009 at 11:00 am #

    The money paragraph (“Wong is wrong”):

    U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), did not address what an Article II “natural born Citizen” is. Rather, the Supreme Court there gave a new, divergent, and incorrect interpretation of the “subject to the jurisdiction” clause of the Fourteenth Amendment and vetoed the will of the People and their Legislature to declare Wong a U.S. “citizen” under the unique circumstances of that case. While the case did approvingly cite Minor v. Happersett, since the case only dealt with what is a Fourteenth Amendment “citizen,” the case cannot in any event be used to explain what the Founders meant by Article II’s “natural born Citizen” clause. Justice Antonin Scalia, during his address to the 2008 Annual National Lawyers Convention on November 22, 2008, at the Mayflower Hotel, in Washington, D.C., gave three reasons in ascending order (the last being the most compelling) which would serve justification for overturning a prior case: how wrong was it, i.e., was it blatantly and malicious improperly decided ; how well has the public accepted the case; and did the decision cast the Court as a policy maker rather than an interpreter of the law. Given that the Wong Court did not give Congress and the Executive the wide deference that they deserve in exercising its immigration and naturalization powers (Nguyen v. INS, 533 U.S. 53, 121 S.Ct. 2053; 150 L.Ed.2d 115 (2001) and the Scalia factors, the Wong decision is a prime candidate for reversal.

  56. avatar
    Lupin September 8, 2009 at 11:13 am #

    This analysis is incorrect, at lesast as regards Vattel. (I can’t speak about the rest.).

    Vattel, Liv. I, Chap XIX @212 section and the footnote are about jus sanguinis vs. jus soli.

    First, when discussing “naturels”, Vattel postulates that, in order to be a citizen, one has to be born in the country of parents (plural) who are already citizens.

    But the use of the plural here is misleading; it’s a “group plural” that doesn’t mean that both parents have to be citizens.

    For example: a sign stating “Free toothbrushes for the children of parentS [plural] who are Dr. Taitz’s patientS [plural]” does not mean only children whose BOTH parents are Dr. Taitz’s patients get free toothbrushes. One parent is enough. Same here.

    Vattel further proceeds to clarify by stating that the father must be a citizen for his child to be a “naturel”. The case of the mother isn’t addressed at all in the body of the article.

    However, in footnote 1, Vattel clarifies his position by stating that “as a general rule”, the child inherits his father’s citizenship, or his mother’s but only if she isn’t married.

    Because our constitution would treat men and women equally, it is clear than any informed reading of Vattel leads one to conclude that a “naturel” is a citizen with only one parent, not two, who is himself/herself also a citizen.

    Vattel then goes on in the footnote to identify several European countries that use “jus sanguinis” to determine citizenship, but he also recognizes that England uses “jus soli”, and states that a child born on British soil, even of foreign parents, would be a British citizen. Vattel considers it, in effect, a perfectly acceptable alternative.

    As Vattel uses it, the word “naturel” does not equal “natural-born”. It is a noun, which he uses as a synonym of “native”, “indigene or “citizen””. It is not an adjective that would be used to qualify citizenship or introduce distinction between different types of citizens.

    There is no such thing as a “Natural-born citizen” in Vattel; if Vattel has wanted to express such a concept, he would have written “citoyens naturels.” He didn’t because he intended the noun “naturel” to be synonym with, NOT to qualify, the noun “citizen”.

    In other words, a “naturel” is a citizen with one parent who is also a citizen (jus sanguinis) or one born in the country (jus soli). That is what Vattel is saying.

    We’re not addressing here “naturalized citizens” a category dealt with in Vattel’s next article.

    So the whole distinction between “Natural-born” and “Non-natural-born citizen” is based on a misreading of Vattel, possibly due to poor translation.

    In conclusion:

    – under jus sanguinis, Obama would be a “naturel” since, as per Vattel, one of his parents was a US citizen

    – the US being a jus soli country, Obama would still be a “naturel” since Vattel says that, in that instance, even if the two parents are not citizens, the child is a citizen if he is born in the country in question.

    I am a French lawyer (graduated Sorbonne 1978) and I’m sorry to say that your understanding of Vattel relies on an insufficient grasp of the French language or a poor translation.

  57. avatar
    nbc September 8, 2009 at 12:27 pm #

    The term naturels or indigenes also seems to be reserved for the ‘original natives’ of the country. Just like the term Native Americans excludes those born on US soil to US parents whose ancestry is not ‘native’ to America.

  58. avatar
    SFJeff September 8, 2009 at 1:25 pm #

    Bob,
    It is possible that a future Supreme Court would reverse Wong. I think it extremely unlikely based upon Scalia’s own reasoning. But until then, Wong is right. Even if the Supreme Court reverses Wong during this term, this wouldn’t unmake President Obama- because it would be a change of the law.

    An interesting question is whether it would change his eligibility for his second term. Of course this is part 2 of the conservative conspiracy- if you can’t win at the polls change the laws so Obama can’t run again.

  59. avatar
    kimba September 8, 2009 at 1:45 pm #

    Lupin this makes perfect sense! More examples –

    – Children of club members may use the pool between 3 and 5.
    – Children of employees get into the picnic free.
    – Children of maroons have to stay home from school today.

    We use phrases like this all the time and never assume it means both parents must be club members, employees…maroons…

    Thank you for your insights.

  60. avatar
    nbc September 8, 2009 at 1:48 pm #

    You are correct, the Supreme Court would not and cannot make a ruling, especially an advisory one, which would address the eligibility of a sitting president as this is a non-judiciable question. The reason is simple: the constitution has left the issue of qualifying the President clearly to Congress and thus there is no place for the Courts. For the same reason, there cannot be a Quo Warranto against a President.

    It’s called the Constitution.. That the arguments are, in addition to their Constitutional problems, weak at best, is just icing on the cake. Wong and others have clearly established that in the US, anyone born on US soil is a natural born citizen. Logic, reason and the Constitution all demand this.

  61. avatar
    nbc September 8, 2009 at 1:53 pm #

    First, when discussing “naturels”, Vattel postulates that, in order to be a citizen, one has to be born in the country of parents (plural) who are already citizens.

    In fact, what Vattel says is

    Les Naturels ou indigènes font ceux qui font nés dans le pays de Parens Citoyens

    The Natives or Indigenous people are those who are born in the country of parents who are citizens.

    In other words, this defines who are natives or indigenous people, often used to differentiate with those who are immigrants to the Country.

    The term ‘natural born’ is used nowhere, nor is the term native-born. Think of the concept of “Native American”.

  62. avatar
    Welsh Dragon September 8, 2009 at 1:56 pm #

    Mario has quoted the the last paragraph of lupin’s post on his website bit of course he’s left out all the analysis.

  63. avatar
    Greg September 8, 2009 at 2:18 pm #

    Scalia wrote a concurrence in Nguyen v. INS, saying, very briefly, that he didn’t feel the Court had an ability to grant someone citizenship who did not get it in one of the two ways he described in his concurrence in Miller v. Albright. You don’t have to read Miller very far to realize what Scalia’s talking about and also to realize what little hope you have of overturning Wong Kim Ark.

    From Scalia’s concurrence in Miller v. Albright:

    The Constitution “contemplates two sources of citizenship, and two only: birth and naturalization.” United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898).

    Yeah. Scalia’s not going to overturn Wong Kim Ark. (Here’s another clue in case you didn’t have your coffee this morning – citizenship by birth doesn’t have anything to do with naturalization!)

  64. avatar
    Welsh Dragon September 8, 2009 at 2:42 pm #

    It’s not central to Mario’s argument but I was intrigued by:

    “In Footnote 1 at the end of Sec. 212, Vattel stated that “as a general rule” the child inherits his father’s citizenship, or his mother’s but only if she is not married.”

    I’ve checked 4 english and 2 french editions and don’t see any such footnote. I assume Mario realises that most footnotes in the various editions come from the editor not Vattel himself.

  65. avatar
    nbc September 8, 2009 at 2:55 pm #

    You are correct, this is not in the text. In the text, the child follows the condition of his father. To suggest that the child inherits the father’s citizenship however is missing the point as Vattel also argues that when a child is born to a father who has taken domicile in a foreign country, he gains status as a member of said foreign country.

  66. avatar
    BenjiFranklin September 8, 2009 at 3:03 pm #

    Dear Lupin,

    Thanks for your learned insights! I’m honored that you used my example about Orly’s hypothetical toothbrush giveaway to illustrate the slippery ambiguity of grouped plurals. It is just one more layer of the many layers of ambiguity that attend to interpreting what “Natural Born Citizen” in the Constitution was intended to mean.

    The Birthers have several mutually exclusive arguments for what it means, some of which have materially changed during several months spent narrowly parsing obscure historical references in trying to overturn the longstanding overwhelmingly extant interpretation that two citizen parents are not required for NBC.

    They don’t seem to understand that their position could not prevail in a friendly first year law school classroom debate to the degree necessary to dispel the uncertainty left by the founders’ choice of term for Presidential eligibility.
    It requires political or racial hatred to imagine that the ambiguity that persists in interpreting “Natural Born Citizen” would now suddenly be resolved in favor of overturning an elected President.
    Even if there was large scale civil conflict over this issue, SCOTUS has original jurisdiction over matters involving the Presidency, and could sua sponte issue an opinion that the Natural Born Citizen requirement was Void for Vagueness, and leave it to Congress to find a way to define it precisely over a period of time that would be apolitical to living prospective presumptive candidates.

    Amendment might not be necessary in view of the fact that Birthers argue that a variety of post-Constitutional statutes inacted in our country and by several other nations, effectively change the definition of “Natural Born Citizen”, by changing the requirements and specifications whereby the birthers claim Presidential eligibility can be reckoned (especially denied.)

    These include “legal residency” , “legal father”, “marital status”, “legitimacy of birth”, etc. using interpretations that the founders could not have contemplated, and yielding eligibility reckonings that their simple construances would not have countenanced.

    All such changes contribute latent ambiguity to the term’s modern-day usage and argue for voiding any impacted strict interpretation that denies eligibility to a candidate.

    Sincerely,
    BenjiFranklin

  67. avatar
    nbc September 8, 2009 at 3:37 pm #

    Even if there was large scale civil conflict over this issue, SCOTUS has original jurisdiction over matters involving the Presidency, and could sua sponte issue an opinion that the Natural Born Citizen requirement was Void for Vagueness, and leave it to Congress to find a way to define it precisely over a period of time that would be apolitical to living prospective presumptive candidates.

    SCOTUS seems to be reluctant to provide advisory rulings but yes, this would be a possibility. However, I am not sure why SCOTUS would leave the resolution to Congress. The interpretation of Natural Born is a Constitutional issue, although the present lawsuits want something else, namely the removal of a duly elected President, which is a non-judiciable, issue since the Constitution provides how and by whom. Furthermore, the Constitution describes how the President’s qualifications are checked, per Amendment XX, and thus again, the court is powerless.
    In fact, the Court may remain powerless, since per XX Amendment the qualification of a President is in the hands of Congress, which leads me to contradict myself and argue that per Amendment XX, it may be that SCOTUS can require Congress to be more clear in what qualifies a President and what would cause him to fail.

  68. avatar
    Bob September 8, 2009 at 3:50 pm #

    SCOTUS has original jurisdiction over matters involving the Presidency

    Where’s that in Constitution?

    could sua sponte issue an opinion

    Article III would suggest otherwise.

    Natural Born Citizen requirement was Void for Vagueness

    No part of the Constitution has ever been (or will ever be) voided for vagueness.

    (and nbc: who are you quoting?)

  69. avatar
    nbc September 8, 2009 at 4:09 pm #

    I was quoting Benji

  70. avatar
    Greg September 8, 2009 at 4:14 pm #

    This analysis isn’t getting much better.

    1) The founders use “native” and “natural” synonymously? Okay, well, so do judges, and find that children of aliens are native-born citizens. Why is the equivalence of one group okay, but not the other?

    2) How does Miller v. Albright, which said it was okay for children born overseas to citizen mothers to be subjected to fewer hurdles to their citizenship than those born of citizen mothers support the idea that Vattel’s conception of two citizen parents required even for children born here?

    3) Dutch law now? Here’s what Cockburn’s Nationality said about Dutch citizenship law in 1869:

    By the law of Holland, in addition to children of Dutch parents, wheresoever born, any person born of foreign parents, either in the kingdom, or out of it, becomes a Dutch subject, if, either the parents were domiciled within the kingdom at the time of the birth, or the person in question, after attaining the age of twenty-three years, declares his intention of remaining in the country and establishes his domicile there.

    How does this conditional subjectship have anything to do with natural born citizenship?

    4) The problem with the resort to Vattel has never been that Vattel was meaningless, or unimportant. It was that the Founders quoted him on the law of nations which citizenship is not part. Neither of the cases Mario cites (Sosa v. Alvarez-Machain and Gibbons v. Ogden) support the notion that citizenship is something contained in the law of nations. Everything the Supreme Court has written, by contrast, suggests that it is a local phenomenon, and, in fact, the law of nations is universal in concluding that it is local!

    5) We passed laws that directly paralleled British laws from 1350 on, and this supports the notion that we adopted Dutch citizenship laws? Doesn’t it more likely suggest that the Founders knew what natural born meant, and decided not to change it? Those laws from 1350, the ones Mario says “followed the literal terms of British statutes,” reflected an understanding also dating back to approximately 1350 that natural born = born in the country. Did you notice, Mario, that not one of those laws, dealing with children born overseas said, “Hey, we’re using natural born totally differently here!”

    6) The use of Dred Scott points up one of the fatal flaws of Mario’s analysis. Daniel’s concurrence, which Mario quotes favorably, wasn’t asking whether a person born of aliens could be a natural born citizen or would be relegated to a second-class citizenship – which would let that person enjoy all the rights of citizenship, except running for President. And Mario’s engaging in some high-degree intellectual bankruptcy when he pretends that it does. (And when he pretends that this analysis was not overturned.)

    Dred Scott, and Daniel’s concurrence, was about whether African-Americans, born here, could be citizens, period. After citing Vattel, which citation Mario loves, Justice Daniel goes on:

    From the views here expressed, and they seem to be unexceptionable, it must follow that, with the slave, with one devoid of rights or capacities, civil or political, there could be no pact that one thus situated could be no party to or actor in, the association of those possessing free will, power, discretion. He could form no part of the design, no constituent ingredient or portion of a society based upon common, that is, upon equal interests and powers. He could not at the same time be the sovereign and the slave.

    The slave didn’t become a citizen who couldn’t run for President, nor did the ex-slave. The court found, with one of their concurring justices citing Vattel, that black people could not be citizens of the United States.

    That’s what the Fourteenth Amendment was written to rectify.

    To the extent, then, that Vattel was required to find that African Americans were not citizens, it has been expressly overturned by the Fourteenth Amendment. To the extent it wasn’t necessary to the decision, then it is bare dicta, in a case that serves more as a cautionary tale than anything else.

    The fact of the matter is that there are no cases that see the distinction that Mario wants to foist upon the Court – a third, degraded citizen, who is born here but is not eligible for President.

    There are two types of citizens, and two only:

    Natural-born – eligible
    Naturalized – not eligible

    And all the cases he cites, The Venus, Shanks, Dred Scott, Happersett, Wong, etc., are about whether someone is a citizen or not.

    Note how vociferously they argue that cases that clearly imagine being born here is the equivalent of natural-born citizenship are simply dicta since they don’t decide the definition of natural-born citizenship. By contrast, their cases don’t decide the definition of natural-born citizenship and not a one even IMAGINES the distinction they claim is obviously part of the common-law, that those born here to alien parents are citizens, just not able to be President!

  71. avatar
    Paul Pieniezny September 8, 2009 at 5:07 pm #

    Unfortunately, after the French Revolution French law makers started to use the phrase “fran§ais naturels”, which obviously meant something close to “natural-born Frenchmen”. In connection with the Huguenots, a 1790 law gave them back their status of “fran§ais naturels” (this part of the “Huguenot law” was repealed in 1927). However, court cases based on the law also very un-Vattel-like ruled that French Huguenot descent could also be passed on by mothers. The answer to the naturels problem probably lies in French grammar: “naturels used as a substantive means “natives”, as an adjective, it CAN ALSO mean “natural-born”.

    I am also convinced that the translation “born in the country of parents who are already citizens” may be a misinterpretation of the word “parens”. Why does Vattel use père and pères (spelled “péres” in those days) elsewhere? The answer, I think, is that the first sentence of this paragraph is deliberately generalizing things. In French, parents (spelled parens in those days) does not just mean father and mother but also close relatives and family. The word “parents” is a false friend between French and English,translators would say (think of French actuellement and English actually). I prefer thye translation “born in the country, into a family of citizens” – meaning his brother, uncle and grandfather are citizens.

  72. avatar
    ballantine September 8, 2009 at 5:21 pm #

    He’s just making stuff up now. Dutch law? Law of nations became the common law? Uh, one is municipal law and the other international law.

    “Both the Framers and later English translators of Vattel’s treatise replaced the words “natural born Citizen” for the words “natives or indigenes.”

    What motivates someone to make an assertion one has absolutely no evidence to back up.

    “The word “native” was a synonym for the phrase “natural born citizen.”

    Yes, exactly. And you won’t be able to find anyone defining it according to Vattel. In the convention itself, the native birth required was call a discrimination by “place of birth.”

    The citing of cases which have nothing to do with who is a citizen at birth is just silly. I think he is getting worse than Leo.

  73. avatar
    Mario Apuzzo September 8, 2009 at 6:27 pm #

    Hello Dr. Conspiracy & Co.,

    You can complain all you want about me not having evidence. My writings speak for themselves. If you really think about it, it is you who do not have any evidence. It is you who want the “natural born Citizen” clause defined by English common law when not one U.S. Supreme Court case has done so. It is you who want to read something into the 14th Amendment that is not there or ever intended to be there like who can be President. It is you who want to read the “natural born Citizen” clause as though the Framers did not write “natural born.” It is you who want to amend Article II by way of the 14th Amendment when that was neither the purpose or effect of that amendment. It is you who want Lynch, a state court decision about who should inherit some land, to decide national issues about citizenship which impact on who can be President. It is you who want Wong Kim Ark, which decided whether Wong could be a citizen under the 14th Amendment given that he was born in the United States but his mother and father were aliens, to also decide who can be President under Article II. I think it is time that you produce some substance rather then just your clamoring about. It is time that you produce a real argument rather than just throw about little pieces here and there that all together really do not prove anything.

    Mario Apuzzo, Esq.

  74. avatar
    Greg September 8, 2009 at 7:13 pm #

    Oh, honestly, Mario. Quit whining. You do your argument a huge disservice when, instead of addressing the points we make you make bald-faced lies about the state of our evidence.

    I mean, please, in response to your fanciful “evidence” that the founders were familiar with Dutch citizenship law, which you claim was in accord with Vattel, I cited actual evidence that Dutch citizenship law was in no way supportive of your argument, in that it gave a person born of aliens the option of becoming full Dutch citizens before their 23 birthday. That’s Cockburn on Nationality.

    Would you like to wager on which treatise has been cited more often by the Supreme Court?

    Cockburn on Nationality

    OR

    R. Po-chia Hsia & Henk F. K. van Nierop, Calvinism and Religious Toleration in the Dutch Golden Age 161 (2002).

    And, I’ll give you an opportunity to revise and extend your remarks about John Wise’s 1906 Treatise on American Citizenship. I note that you didn’t cite the page number for his reference to Dutch influence on our laws. It starts on page 93. Why don’t you tell us what Wise identifies as the Dutch influences on our citizenship.

    It’s a very simple question. Does Wise say anything, anything at all about how our citizenship laws were influenced by Dutch citizenship laws?

    See, this is how you lie. You cite Wise saying that our laws were influenced by Holland, but then cite a 2002 work saying that Holland had jus sanguinis.

    How does our taking public education from Holland (Wise p. 96) tell us that we also took our citizenship laws from them?

    Most of your other “sources” are similarly flawed. Citing Vattel’s influence in one area for the proposition that he’s universally influential. Citing a narrow holding in one case (Sosa – we adopted a “law of nations”) as a substitute for the more specific holding (“citizenship is part of the law of nations”).

    My favorite thing in this last argument was the citation of American laws that mirrored those passed since 1350 in England while simultaneously arguing that Holland had more influence on our laws than England!

    (Where are the laws that mirror Dutch laws from 1350?)

  75. avatar
    Bob September 8, 2009 at 7:33 pm #

    It is you who want Wong Kim Ark, which decided whether Wong could be a citizen under the 14th Amendment given that he was born in the United States but his mother and father were aliens, to also decide who can be President under Article II.

    If Wong Kim Ark is so irrelevant, then why such the fuss in stating that it ought to be overruled (yet failing to demonstrate any likelihood that that will happen)?

  76. avatar
    Dr. Conspiracy September 8, 2009 at 8:14 pm #

    Mr. Apuzzo says: “My writings speak for themselves.”

    And upon that point, we are in full agreement. Those writings are on http://puzo1.blogspot.com. And also in the Second Amended Complaint in the Kerchner v. Obama suit discussed elsewhere on this blog.

    In one area, I must concede defeat to Mr. Apuzzo. He has 58 followers on Google Friend Connect, while I have only 57 followers on Twitter.

  77. avatar
    misha September 8, 2009 at 9:43 pm #

    Come on, Mario. You are a lawyer, stop misusing your education. I only have a paralegal cert. from Old Domionion University, but even I can comprehend.

    “Every child born in the United States is a natural born United States citizen except for the children of diplomats. As such, President Obama aquired United States citizenship automatically at birth. Therefore, after turning 35 years of age, Mr. Obama was eligible to run for president of the United States.” Senator Lindsey Graham

    Ark is established case law. Anyone born here is a natural born citizen, irrespective of their parents status. The two dissenters in Ark did so, because that meant Wong Kim Ark could become president – and they were horrified at the prospect that a Chinese man could become president. The horror!

    You are not going to have Ark overturned. Let go of it, and get on with your life. Get a hobby.

  78. avatar
    ballantine September 8, 2009 at 10:33 pm #

    Common law lawyers, sent to a convention by states that had adopted the common law, using a term of art under the common law that no one has shown any evidence that anyone connected to Vattel at such time. This really isn’t that hard. You must know by now that all the early scholars defined it by the common law, Rawle, Tucker, Kent, Bouvier, etc. The term was conflated with natural born subject for decades after the revolution. All the early case law defined citizenship in terms of the common law and when NBC was used in was the common law sense. The supreme court said NBC should be defined by the commmon law and it meant the English common law.

    Please show us any person in america prior to Dredd Scott associating the terms natural born or native with Vattel. Show one authority during such that thought citizenship by birth depended upon parentage. And no, The Venus and Shanks are not about who is a citizen by birth and rovide no support for you theory.

    The fact that the first congress mimicked parliament in providing natural born status to children born abroad would seem prettu obvious to most people that they were still following the English rules and that such persons were aliens needing naturalization. This point was made even clearer is 1855 when Congress made clear they needed to prepate for such people for the “better opinion” was that they were aliens under the common law. Guess they didn’t get the memo. I also suggest you read the entire legislative history of the civil rights act and the 14th amendment as the vast majority supports Wong’s interpretation.

  79. avatar
    Greg September 8, 2009 at 10:37 pm #

    In case anyone’s wondering, here is what Wise says we got from the Dutch:

    The Declaration of Independence is more like the Union of Utrecht than the Magna Charta.

    Transfer of real estate by registration of deeds (as opposed to entail and primogeniture)

    Charitable institutions, hospitals and prisons

    Religious toleration

    Public education

    Good stuff all, but not a thing to do with citizenship. If you want to see Wise’s history of American citizenship, you turn to page 4 of his treatise, and you get Great Britain. In his entire history of the development of American citizenship, pages 4-33, he mentions Holland not once. Great Britain, however, is mentioned on almost every page.

  80. avatar
    Greg September 8, 2009 at 10:57 pm #

    From the “Cyclopedia of Political Science” 1883, p. 954:

    The Italian code and the Dutch law of July 29, 1850, take an additional clement into consideration, viz., the domicile of the parents. The child born in the Netherlands is a Netherlander if his parents have resided in the kingdom for three years or if they have resided there eighteen mouths after declaring their intention to establish their domicile there. The acquisition of nationality in this case is definitive: the Dutch law permits no reclamation of the father’s nationality.

    Obviously, the Founders wanted to adopt this view of citizenship, right? Doesn’t matter if the father naturalizes as a citizen of your country, as long as he’s lived there for three years (if he declares an intention to naturalize, we’ll let him slide with only 18 months).

  81. avatar
    Mario Apuzzo September 9, 2009 at 12:33 am #

    Misha,

    If you understood my argument you would know that I do not need to have Wong overturned. That is not to say that I do not believe it is bad law and a clear usurpation of Congressional and Executive powers.

    There is an old Italian saying, the wolf may lose its hairs but not its vice.

    Mario Apuzzo, Esq.

  82. avatar
    Mario Apuzzo September 9, 2009 at 12:37 am #

    see my comment to misha.

  83. avatar
    Greg September 9, 2009 at 12:45 am #

    Speaking of evidence, Mario makes much of a few ambiguous quotes from Senator Trumbull during the debate over the Civil Rights Act of 1866 and the Fourteenth Amendment. He ignores, or does not know about the much more unambiguous statements of Senator Trumbull:

    Mr. TRUMBULL. I should like to inquire of my friend from Pennsylvania, if the children of Chinese now born in this country are not citizens?

    Mr. COWAN. I think not.

    Mr. TRUMBULL. I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens. That is the law, as I understand it, at the present time. Is not the child born in this country of German parents a citizen? I am afraid we have got very few citizens in some of the counties of good old Pennsylvania if the children born of German parents are not citizens.

    Mr. COWAN. The honorable Senator assumes that which is not fact. The children of German parents are citizens; but Germans are not Chinese; Germans are not Australians, nor Hottentots, nor anything of the kind. That is the fallacy of his argument.

    Mr. TRUMBULL. If the Senator from Pennsylvania will show me in the law any distinction made between the children of German parents and the children of Asiatic parents, I might be able to appreciate the point whch he makes; but the law makes no such distinction; and the child of an Asiatic is just as much a citizen as the child of a European.

    ~~~

    Senator Trumbull understood two things. First, that the Civil Rights Act of 1866 would make the children of aliens (Chinese) and undesirables (gypsies) citizens. Second, that the then current law of the land was that the children of aliens (at least white aliens) would become citizens.

  84. avatar
    ballantine September 9, 2009 at 12:55 am #

    Here is Trumbull saying the 14th amendment was declaratory of the English common law.

    “By the terms of the Constitution he must have been a citizen of the United States for nine years before he could take a seat here, and seven years before he could take a seat in the other House ; and, in order to be President of the United States, a person must be a native-born citizen. It is the common law of this country, and of all countries, and it was unnecessary to incorporate it in the Constitution, that a person is a citizen of the country in which he is born….I read from Paschal’s Annotated Consitutuion, note 274: “All persons born in the allegiance of the king are natural born subjects, and all persons born in the allegiance of the United States are natural born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country as well as of England. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are, in theory, born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons.” Sen. Trumbull, Cong. Globe. 1st Session, 42nd Congress, pt. 1, pg. 575 (1872)

  85. avatar
    Bob September 9, 2009 at 1:16 am #

    If you understood my argument you would know that I do not need to have Wong overturned.

    Your argument requires you to argue around Wong Kim Ark‘s unambiguous reliance on English common law (hence why you tend to minimize its importance). The very sources that led the Wong Kim Ark court to conclude that he was a citizen also lead to the conclusion that Obama is a natural born citizen.

    The only possible manner in which your hypothesis could be correct would require SCOTUS to overturn Wong Kim Ark (and create a third form of citizenship [born in the United States but not a natural born citizen] that is not found in the text of the Constitution or case law).

  86. avatar
    Greg September 9, 2009 at 1:29 am #

    Citing from “The History of the 39th Congress”

    Senator Morrill from Maine:

    Sir, he has forgotten the grand principle both of nature and nations, both of law and polities, that birth, gives citizenship of itself. This is the fundamental principle running through all modern polities both in this country and in Europe. Every-where, where the principles of law have been recognized at all, birth by its inherent energy and force gives citizenship. Therefore the founders of this Government made no provision—of course they made none—for the naturalization of natural-born citizens. The Constitution speaks of’ natural-born,’ and speaks of them as citizens in contradistinction from those who are alien to us. Therefore, sir, this amendment, although it is a grand enunciation, although it is a lofty and sublime declaration, has no force or efficiency as an enactment. I hail it and accept it simply as a declaration.

  87. avatar
    Greg September 9, 2009 at 1:33 am #

    Same source

    Mr. Rogers, of New Jersey, followed with an argument against the bill, because it interfered with ” States’ Rights.” Under its provisions, Congress would ” enter the domain of a State and interfere with its internal police, statutes, and domestic regulations.” He said:

    ” This act of legislation’ would destroy the foundations of the Government as they were laid and established by our fathers, who reserved to the States certain privileges and immunities which ought sacredly to be preserved to them.

    If you pass this bill, you will allow the negroes of this country to compete for the high office of President of the United States. Because if they are citizens at all, they come within the meaning and letter of the Constitution of the United States, which allows all natural-born citizens to become candidates for the Presidency, and to exercise the duties of that office if elected.

    The 39th Congress knew what they were doing. Making sure that the Court recognized the folly of excluding certain people born here from the category of “natural born citizens!”

  88. avatar
    Lupin September 9, 2009 at 2:26 am #

    The footnote is in the French version provided to me by Dr. Conspiracy.

    Traditionally for law treatises, it would not originate from the editor, but from the author, or more likely his research assistant(s), then be vetted by the author.

  89. avatar
    Benji Franklin September 9, 2009 at 2:59 am #

    Dear Bob,

    You asked:

    SCOTUS has original jurisdiction over matters involving the Presidency

    Where’s that in the Constitution?

    Article 3 Section 2 (Ministers)

    Benji

  90. avatar
    Paul Pieniezny September 9, 2009 at 5:29 am #

    Dutch nationality law? Would that not suppose the existence of a Dutch nationality? One of the reasons why it will be difficult to find Dutch nationality laws before 1806, is that until then the Dutch Republic was part of the Holy Roman Empire. Of course, the seven provinces had their own particular ways of deciding who was a national. Holland in the 16th Century was largely governed by protestants who had fled from Flanders. Later, in the 18th century , hundreds of thousands of Germans from the Rhineland came to work and live in all seven provinces. German Protestants were called Duytschers, German Roman Catholics wedre called “Moffen” (the name would also be adopted in Belgium and used as an insult during the two world wars). Since Dutchmen agreed that they themselves were of “Duytsche bloed” (of German blood), the hint was that only Roman Catholics were not really citizens – the areas with a large Roman Catholic majority remained territories until the French Revolution. When the Batavian Republic under French pressure gave full citizenship rights to Roman Catholics, this was actually called “Emancipation”.

    The constitution of the Batavian Republic,
    based on the Code civil of Napoleon introduced ius sanguinis. The 1815 constitution and the Civil Code of 1838 used ius solis: every child born on Dutch soil (including the colonies!) of parents who were legal residents, was deemed a Dutch national. Because of the repercussions on the Dutch East Indies (now called Indonesia) and the gradual introduction of democratic elections, the Netherlands were soon faced with a future where Muslim Indonesians would be in the majority and rule the “Dutch Empire”. To stop this, in 1892 a law was voted (coming into force on July 1st, 1893) which replaced ius solis with ius sanguinis a la Vattel (only the father could pass on Netherlandership) and took away Dutch citizenship from all inhabitants of the colonies who were not of continental Dutch descent (at introduction, most Indonesian inhabitants who had at least one male Dutch forefather were declared Dutch, but afterwards Vattel was used) In 1985, the law was again changed to allow people born in the country to become Dutch by registration.

    Of course, when the Dutch on their own volition and not compelled by France went for ius sanguinis and Vattel, Wong Kim Ark had still not been decided. So, from December 12th, 1892 to March 28th, 1898, Apuzzo is technically right. If one believes that law changes in the Netherlands more than a century after US Independence somehow changed the way Americans viewed their own laws. What use is independence then?

    For some this is double Dutch, but it explains a lot:http://books.google.be/books?id=5acfMYYp3hwC&pg=PA32&lpg=PA32&dq=nederlandse+nationaliteit+1838&source=bl&ots=jqp1u9X9fR&sig=_qkFYLpmb7HLe9VZ5mPvIX6_WF0&hl=nl&ei=cPmmSvShJc_UjAem0uTbAQ&sa=X&oi=book_result&ct=result&resnum=4#v=onepage&q=nederlandse%20nationaliteit%201838&f=false

  91. avatar
    Greg September 9, 2009 at 8:33 am #

    Wong didn’t just hold that Mr. Wong was a citizen. Central to its reasoning was the Court’s conclusion that the definitions of citizen, natural born citizen, etc., come from British Common Law as adopted by the American colonies. Also central was the Court’s explicit rejection of the existence of a uniform “law of nations” on the subject of citizenship and its refusal to adopt the “law of nations” to define citizenship or natural born citizens. Finally, it defined the jurisdictional test of the 14th Amendment to simply mean not an ambassador or a Native-American.

    Take any of those away, and the rationale in Wong no longer operates. Leave Wong’s conclusions intact about English Common law and the so-called “law of nations” and the definition of jurisdiction and you cannot prevail.

    It’s sad that you can’t even identify the decisional roadblocks in front of your client.

  92. avatar
    Gordon September 9, 2009 at 9:01 am #

    I’m just purring along skimming Mr. Appuzzo’s suit, Kerchner v Obama and came across this piece in his complaint.

    35. Obama’s campaign posted the electronic image of a “Certification of Live
    Birth” (COLB) online in June 2008 after numerous questions arose regarding his birth
    place and citizenship status, but this document is not the best evidence (ENDNOTE 9)
    and does not sufficiently prove that he was born in Hawaii because at the time of his birth
    Hawaii granted such documents to parents whose children were born outside the United

    Actually at the time of Obama’s birth Hawaii DID NOT, grant COLB’S to children born outside the U.S. That did not come about until I believe 1981.

  93. avatar
    Greg September 9, 2009 at 9:55 am #

    Of course conflating two separate issues.

    this document is not the best evidence

    The “Best Evidence Rule” says that, generally, the original is preferred to a copy. However, Federal Rule of Evidence 1003 says that a copy can suffice. And Hawaiian law states that a certified copy is as good as an original, when it comes to birth certificates.

    Best Evidence is about whether the document comes in.

    does not sufficiently prove that he was born in Hawaii

    Now we get to testing the accuracy of the document. Having decided that it comes in, it is now, according to Hawaiian law, prima facie evidence of the facts contained within it. A government official signed the document under the pains of perjury to say that all the information was the same as that contained in their vital records.

    (Entirely aside from whether a COLB is a birth certificate or not, what on earth do you think the Registrar meant when he signed:

    “I certify that this is a true copy or abstract of the record on file in the Hawaii State Department of Health.”

    Blacks Law dictionary (7th Ed) defines “certified copy” as “A duplicate of an original (usu. official) document, certified as an exact reproduction usu. by the officer responsible for issuing or keeping the original.”

    The COLB, whatever else it is, is a certified copy of all the information it contains.

    It cannot be, in our present state of reality that Obama was born in Kenya and yet the registrar could certify that the COLB was a true and accurate copy or abstract of the information they have on their files!)

    Against this, you’ll need to bring actual evidence, not suppositions, theories, conjecture, or wild-eyed tall-tales, that the information on the COLB is wrong.

    If you could bring in actual forensic examiners to say the document is a forgery, that would be one thing. But, neither the “best evidence” rule, nor the sufficiency of the COLB apply to postings on the internet.

  94. avatar
    Bob September 9, 2009 at 1:25 pm #

    From Apuzzo (on his blog:

    “It is time that Obama and his supporters produce some substance (some documents and some law) rather than just their clamor and ad hominem attacks. It is time that they produce a real legal argument supporting their position rather than just throw about little pieces here and there and argue and win their straw man arguments, which all together really does not amount to anything.”

    Oh, the irony.

  95. avatar
    Gordon September 9, 2009 at 4:33 pm #

    I’m confused, is Mr. Apuzzo a birth certificate birther, meaning he questions the validity of Obama’s Hawaiian BC and Hawaiian birth, or is he a Constitutional, Article two Section one birther. Frankly I have a bit more respect for the latter, but Apuzzo seems to want to have it both ways.

    I must say he structurally writes a much cleaner brief then Orly. Can’t say much for the less than laser content. Come on Mr. Apuzzo, you can’t be a waffle and a pancake.

  96. avatar
    Dr. Conspiracy September 9, 2009 at 5:45 pm #

    If you read Apuzzo’s Second Amended Complaint (there’s a link on the Docket) in Kerchner v. Obama, one would get the impression that he is a “birther”: born in Kenya, and if not adopted in Indonesia. The natural born citizen argument is just a blip in that long document.

    However, visiting here some months ago, Apuzzo insisted in focusing on the real issue, which for him (now) is the natural born citizen argument. So he’s gone from a birther to a twofer. (And frankly I don’t blame him. As the birther position continues to crumble he can always argue that the courts are wrong.)

  97. avatar
    Bob September 9, 2009 at 6:38 pm #

    From Apuzzo (on his blog):

    “It is time that Obama and his supporters produce some substance (some documents and some law) rather than just their clamor and ad hominem attacks. It is time that they produce a real legal argument supporting their position rather than just throw about little pieces here and there and argue and win their straw man arguments, which all together really does not amount to anything.”

    Oh, the irony.

  98. avatar
    nbc September 9, 2009 at 6:53 pm #

    I fully concur. I understand Apuzzo’s problems though, by reducing the arguments to clamor and ad hominem attacks, he can avoid having to deal with their content.
    As to throwing about little pieces here and there, I assume that he must have read his 2nd amended complaint which appears to be a kitchen sink filing.

    Or how did the defendants’ lawyers describe it?

    “judges and adverse parties need not try to fish a gold coin from a bucket of mud”

    The simple legal argument is clear: Natural Born refers to anyone born on US soil, and Wong Kim Ark provides the foundation for such realization.
    The argument has been made, and the fact that by insisting that Vattel’s Law of Nation somehow guided that which countries have historically left to municipal law, Apuzzo is arguing that the states have no right to determine who is and is not a natural born citizen, when in fact, Vattel himself accepts this.
    By confusing the statement about natives/indigenous (those original to the nation) being born to two citizens of the country, to suggest that this applies to the concept of natural-born or native-born citizens, which is a very different concept, Apuzzo has made what I would call a category error.

    Even the early quotes referred Vattel’s quote using ‘the natives and the indigenes’. Only in later versions, an unfortunate translation caused Vattel’s meaning to be distorted.

  99. avatar
    Mario Apuzzo September 10, 2009 at 1:31 am #

    Why don’t you make an argument that is understandable.

  100. avatar
    Mario Apuzzo September 10, 2009 at 1:34 am #

    Gordon,

    In the law you can eat both the waffles and the pancakes, especially is they both taste good.

  101. avatar
    NBC September 10, 2009 at 1:34 am #

    Oh the irony…

  102. avatar
    Mario Apuzzo September 10, 2009 at 1:36 am #

    I see you guys want to run away from the NBC legal argument and retreat to your Pakistan ban stuff again. Nice try.

  103. avatar
    NBC September 10, 2009 at 1:37 am #

    Yes, to some, law is far less interested in facts, and finding the truth…

    Does that not bother you?

  104. avatar
    NBC September 10, 2009 at 1:41 am #

    Nobody is running other than you ignoring the arguments my dear Mario.
    The legal argument is well established that anyone born on US soil is a natural born citizen.
    Even Vattel does not help you out here as he accepts that the child takes the domicile of the father and thus when born on foreign soil, he will become a citizen of said country, if his father is domiciled there.
    Vattel also accepted that municipal law can dictate local variations since citizenship is not an issue of laws of nation but rather left to each country.
    As such, the US chose to follow in the footsteps of English Common Law with respect to natural born.
    Vattel would surely have approved.

  105. avatar
    Dr. Conspiracy September 10, 2009 at 7:48 am #

    I’m working out in my head a short critique of your NBC arguments that will be titled “Mathematics v The Law” in which I contrast legal argument with mathematical argument and use the results to point out where your argument is deficient. I don’t want to get too technical here, but when I was in grad school my professors would say of an argument like yours: “you skipped a step”.

    The travel ban to Pakistan in the Kerchner complaint is your ticking time bomb, not mine.

  106. avatar
    Gordon September 10, 2009 at 8:39 am #

    I doubt if it bothers Mr. Apuzzo, he is a lawyer consequently his main objective is to win. I think that all he will end up with is some lovely parting gifts.

  107. avatar
    Gordon September 10, 2009 at 8:53 am #

    “The travel ban to Pakistan in the Kerchner complaint is your ticking time bomb, not mine.”

    Doc I can’t believe Mr. Apuzzo alluded to the travel ban. Since the two of you seem to have a friendly rivalry, why don’t you recommend someone to help him with his research. Like I said before, less than laser sharp content. Mr. Apuzzo needs to do another amendment and stick with the NBC angle. The tangled conspiracy of shadowy figures spiriting young Barack around the globe in order to hide his true identity sounds like a great novel. In real life it’s unraveling faster than a cheap sweater.

  108. avatar
    jolly roger 88805 September 10, 2009 at 6:49 pm #

    “Actually at the time of Obama’s birth Hawaii DID NOT, grant COLB’S to children born outside the U.S. That did not come about until I believe 1981.”

    Interesting those types of COLB’s were being done for
    “Sun Yat Sen the Father of Modern Communist China! IT IS REAL! Dated March 14, 1904

    AND Obama’s own sister,Maya Soetoro-Ng born in Indonesian has a Hawawii COLB.

  109. avatar
    Bob September 10, 2009 at 7:01 pm #

    “Sun Yat Sen the Father of Modern Communist China! IT IS REAL! Dated March 14, 1904

    Sun Yat Sen had a Certificate of Hawaiian Birth.

    AND Obama’s own sister,Maya Soetoro-Ng born in Indonesian has a Hawawii COLB.

    No, she doesn’t; another birfer lie.

  110. avatar
    Greg September 10, 2009 at 7:01 pm #

    The son of sam murdered someone. Does that mean you murdered someone?

    The fact that someone could have committed birth certificate fraud doesn’t mean that Obama’s parents did. It doesn’t even call into question the validity of Obama’s birth certificate.

    And, where, exactly, is your proof that his sister has a Hawaiian COLB? I’ve seen this claim bandied about, but never once have I seen proof. And does it say she was born in Hawaii, or Indonesia?

  111. avatar
    Greg September 10, 2009 at 7:34 pm #

    Vattel has been cited 189 times by the Supreme Court. However, he has been cited only 39 times in cases that also include the word “citizenship.”

    Of those 39 times, he was only cited 6 times by courts discussing how citizenship comes about.

    In only two of those cases does the winning side quote Vattel’s definition of natural born citizen:

    The Venus, 12 US 253 (1814) – Chief Justice Marshall’s concurrence discusses Vattel’s definition of citizenship.

    Scott v. Sandford (Dred Scott ) 60 US 393 (1856) – Daniel’s concurrence discusses Vattel’s definition of citizenship.

    About the former, let me send you to the nativeborncitizen blog. So, we’ve got a concurrence in a case that was much more concerned about domicil than citizenship and a concurrence in a case that was a key factor in the Civil War and the overturning of which was an explicit goal of the 14th Amendment.

    Vattel’s citizenship definition was cited in dissent in:

    Inglis v. Trustees of Sailor’s Snug Harbor, 28 US 99 (1830)

    Fong Yue Ting v. United States, 149 US 698 (1893) – sort of, since it talks about the greater rights of domiciliaries.

    US v. Wong Kim Ark, 169 US 649 (1898)

    Miller v. Albright, 523 US 420 (1998)

    The search (Blackstone & comment!) turns up 534 citations.

    (Blackstone & comment! & citizenship) = 88

  112. avatar
    dunstvangeet September 10, 2009 at 7:38 pm #

    By the way, a concurring opinion is also not the opinion of the court.

    The United States Supreme Court has never used de Vattel to define any aspect of citizenship. They’ve used English Common Law plenty.

  113. avatar
    Greg September 10, 2009 at 7:55 pm #

    Technically, a concurring opinion can sometimes present the only binding rule of law out of a badly fractured decision. Apparently, the Supreme Court has a rule for this situation:

    “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds,’ ” Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977) (citing Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 2923 n. 15, 49 L.Ed.2d 859 (1976))

    Triplett Grille v. City of Akron

  114. avatar
    kimba September 10, 2009 at 8:01 pm #

    “The travel ban to Pakistan in the Kerchner complaint is your ticking time bomb, not mine.”

    *snort* you owe me a screen cleaning Doc!!!

  115. avatar
    Dr. Conspiracy September 10, 2009 at 8:05 pm #

    My reading of Hawaiian law says that Maya Soetoro-Ng could not have a Hawaiian birth certificate because her parents did not meet the residency requirements:

    §338-17.8 (a) Upon application of an adult or the legal parents of a minor child, the director of health shall issue a birth certificate for such adult or minor, provided that proof has been submitted to the director of health that the legal parents of such individual while living without the Territory or State of Hawaii had declared the Territory or State of Hawaii as their legal residence for at least one year immediately preceding the birth or adoption of such child.

    This sister birth certificate factoid was invented early on to provide Obama with a base document upon which to forge the COLB.

  116. avatar
    Dr. Conspiracy September 10, 2009 at 8:13 pm #

    The Sun Yat-Sen Certificate of Hawaiian birth was not intentionally issued to a person born out of the state. It was obtained through three fraudulently sworn affidavits that he was born in Hawaii.

    Evidence: http://www.obamaconspiracy.org/2009/01/hawaiian-birth-certificate-its-a-fake/

    Jolly Roger, of course, has no rational reason for believing that Obama’s half sister has a Hawaiian birth certificate. No one has ever published a shred of proof for such a claim, not even shown it to be possible.

  117. avatar
    Dr. Conspiracy September 10, 2009 at 8:23 pm #

    It looks like I need to buy a case of them.

  118. avatar
    Greg September 10, 2009 at 8:30 pm #

    I just looked at the second amended complaint today. There are a number of gems like that. My personal favorite is 47:

    47. Obama’s half sister, Maya Soetoro Ng, and Obama have made conflicting
    statements concerning in which Hawaiian hospital he was born. She says he was born in
    Kapiolani Hospital in Hawaii but Senator Obama in his biography posted on Wikipedia
    says he was born
    in Queens Hospital in Hawaii.

    Not understanding Wikipedia = Fail!

  119. avatar
    Greg September 10, 2009 at 8:32 pm #

    Remember that physical residence and legal residence are two different things. It’s conceivable (but doubtful) that Ann Dunham retained her Hawaiian legal residence even though she lived abroad.

  120. avatar
    Dr. Conspiracy September 10, 2009 at 10:25 pm #

    One would have to look specifically at the laws of Hawaii. I found this, that suggests that Ann Dunham, not being in the Armed Forces, nor a student, would have lost her legal residence.

    http://honolulu.hawaii.edu/admissions/residency.html

    Resident status, once acquired, will be lost by future voluntary action of the resident inconsistent with such status. However, Hawaii residency will not be lost solely because of absence from the State while a member of the United States Armed Forces, while engaged in navigation, or while a student at any institution of learning.

    Not filing an Hawaiian income tax return would be one such action.

    It appears the best source for the requirements is a law review article,which I haven’t found online:

    The New Resident: Hawaii’s Second-Class Citizen. 5 HBJ 77

  121. avatar
    Dr. Conspiracy September 10, 2009 at 10:29 pm #

    But this is totally backwards from the usual birther mantra: Maya (actually a student reporter interviewing here) is the one that said Queens. Kapi’olani is what the US Wikipedia says (although the Italian version did say Queens at one time–not last time I looked).

  122. avatar
    nBc September 10, 2009 at 11:10 pm #

    That was not a COLB but a certificate of Hawaiian Birth. Very different

    jolly roger 88805: Interesting those types of COLB’s were being done for
    “Sun Yat Sen the Father of Modern Communist China! IT IS REAL! Dated March 14, 1904

  123. avatar
    Welsh Dragon September 11, 2009 at 4:43 am #

    And of course it was the ‘indigines’ translation.

  124. avatar
    Welsh Dragon September 11, 2009 at 4:47 am #

    Great research Greg! Those numbers are now permanently imprinted on my brain.

  125. avatar
    Welsh Dragon September 11, 2009 at 4:51 am #

    And Sun Yat Sen wasn’t a communist.

  126. avatar
    dunstvangeet September 11, 2009 at 11:32 am #

    That’s when everybody submits their own opinion, and nobody signs onto another opinion, Greg. Or when every opinion has the exact same number of justices signing onto it.

    A one-justice concurring opinion would not be considered the opinion of the court, unless every other opinion from the majority side had only one justice signed onto it.

    The example I use is the following:

    Let’s say there’s an case that’s deciding the citizenship status of a person who fits both the de Vattel and Blackstone definitions. It’s a 9-0 decision, declaring her a citizen. 8 Justices, sign onto an opinion citing Blackstone, and declare her a citizen because she was born on American Soil. One justice writes a concurring opinion that cites de Vattel, and declares her a citizen because of her parentage. Now, would that mean that the Supreme Court ruled that she’s a citizen because of de Vattel?

  127. avatar
    Greg September 11, 2009 at 12:12 pm #

    It needn’t be a 9 opinion case, any case which generates a less than 5-vote majority operates under the rule described above.

    But Dred Scott did, in fact, generate 9 opinions. Whether the Daniel opinion was ever considered persuasive or even considered is, as they say, “beyond the scope” of this comment. Dred Scott has more than 4,000 citations in Lexis (90% of them being journal or scholarly works), there are entire books written about it. Picking three of the more recent cases that cite it, the case is used as a cautionary tale to Justices – this way lies destruction.

    The case very nearly destroyed the nation (or, perhaps, did destroy the nation), and any reliance on any of the non-dissenting opinions, whether majority, plurality or concurring would be ill-advised. Nothing stops the birthers, though.

  128. avatar
    Mario Apuzzo September 11, 2009 at 10:26 pm #

    Dr. Conspiracy,

    I know that you and your supporters on this blog espouse the theory that the Framers used English common law to define what an Article II “natural born Citizen’ is. In support of your thesis, you cite various cases and many other authorities. For some strange reason, I do not think I ever saw you or any of your colleagues cite Calvin’s Case, 77 Eng. Rep. 377 (Exchequer Chamber 1608).

    I know that you know that “Coke’s decision in Clavin’s Case dominated English law for several centuries.” James Kettner, The Development of American Citizenship, 1608-1870, at 7 (1978). Since Coke’s decision focused on what is a “natural born subject” under English common law, dominated English law for so many centuries, and would have been know to the Founders, I expect that that you would have cited and analysed it to support your English common law argument. Can you please explain why you have not used Calvin’s Case to support your position. If you have presented Calvin’s Case in your arguments and I just missed it, you have my apologies.

    Mario Apuzzo, Esq.

  129. avatar
    Bob September 11, 2009 at 10:36 pm #

    A quick search reveals many citations to Calvin’s Case on this site.

  130. avatar
    Greg September 11, 2009 at 11:25 pm #

    I’ve been working on a mock “merits brief,” which relies on Calvin’s case for a good portion of it.

    Given that the founders cite Calvin’s case extensively in their arguments for why they shouldn’t be bound by the acts of Parliament, and hang their arguments, in part, on the reciprocal duties bound up in citizenship, duties that arise from the “natural allegiance” in a born citizen, it’s much more likely that they looked to Calvin’s case for their philosophical basis of citizenship than Vattel. It seems clear from the research Kettner did that the Founders, if they rejected any part of English Common law, rejected the perpetual allegiance, but spoke approvingly of the rest of Lord Coke’s analysis, and relied heavily on parts of it.

    I suggest also Polly Price’s article, Natural Law and Calvin’s Case 9 Yale L J 73 (1997) and Charles Mullett’s “Coke and the American Revolution,” Economica, XII, 462 (1932).

    Here’s the case itself.

  131. avatar
    Gordon September 12, 2009 at 2:33 am #

    I don’t know what Mario would do in front of a real judge. You guys have him forked before he makes the move.

  132. avatar
    Dr. Conspiracy September 12, 2009 at 9:35 am #

    I have read Kettner’s discussion of Calvin’s case (1608), and am aware that it was foundational for the English common law understanding of citizenship for 300 years. I haven’t “analyzed it”. I have let US court decisions apply it and have repeated its citation from US v Wonk Kim Ark:

    [An alien parent’s] 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 Coke, 6a, ’strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’

    any number of times, including on my Great Mother of All Natural Born Citizen Quotation Pages.

    In English common law, as you know if you have read Kettner, there are recognized four classes of persons within the state: natural born citizens, naturalized citizens, denizens, and aliens. Further, I hope that you will have gleaned that naturalization in England acts retroactively to birth. This is one of the reasons that the series of cases that followed Calvin where so complicated.

    The essential difference, one springing from our peculiar history as a people who broke away from another country, between American ideas and Lord Coke, is our insistence that one may renounce citizenship in one country and take it up in another. Coke’s view was “once a Brit, always a Brit” a view that seems to have been taken up by the Nobama tribe of late.

  133. avatar
    kimba September 12, 2009 at 10:00 am #

    The Nobama tribe takes up any theory someone can convince them might disqualify Obama.

    It’s the “throw a bunch of stuff against the wall and see if something sticks.” method.

  134. avatar
    Dr. Conspiracy September 12, 2009 at 10:21 am #

    Kettner has an interesting chapter on the debate of whether the Americans (pre 1776) were subject to Parliament. We’ve talked about citizenship by blood and citizenship by soil, but there is a third: citizenship by conquest. Among the British arguments made was the British North America was a land won by conquest (from the Indians) and by this did the British rule in the territory.

  135. avatar
    Dr. Conspiracy September 12, 2009 at 11:41 am #

    Arghhh! I think I see where this is going…

    …attempting to associate the King with a “father figure” and then trying to say that when transferring “subject” to “citizen” one must also transfer the concept of the allegiance of the subject to the allegiance to the father (in absence of a king). However, an honest analysis of Calvin’s case points out the the dual nature of allegiance, both the the king (as a person) and to the crown (as an institution). When the King dies, citizenship does not die with him. I hope Apuzzo’s question here is not an indication that he is going to launch into an analysis of Calvin’s Case along the lines I mention here and so further damage the state of public education in the United States.

  136. avatar
    Greg September 12, 2009 at 11:49 am #

    I’ve been asked by partners to re-write settled legal doctrine to win a case. “Work from first principles,” they’ll say.

    So, I can see where Mario’s coming from. And, then, when you’ve committed to the fight, you start to see the little bits and pieces of the law that fit the story you’re trying to create. The law is messy. Different judges will write sloppily. A couple of competing theories will get mentioned in important cases but not decided.

    The nobama side has a narrative hook, too, that gives it some persuasive force despite the lack of legal support. The Founders feared foreign influence, so it would have made sense to bar the children of aliens. You can see this on Donofrio’s site, with his article from the “Undead Revolution,” or whatever they’re called, about George Washington’s complaints about foreigners in his army.

    Our side, though, has a narrative hook that hasn’t come through as strongly. As much as the founders disliked and distrusted foreigners, they also were big believers in the Lockean social contract. They played up the reciprocal duties of Calvin’s Case and viewed birth as the entrance into that contract and the formation of those reciprocal duties. They also distrusted nobility. They were quite explicit that they wanted no ruling class privileged simply by their blood. Thus, a jus soli system reinforces that. Citizenship is not inheritable, each person born into the nation-state is born into it anew, and either gets his citizenship by his birth, or by the operation of law.

    Jus soli fit with that rejection of nobility. No one (white) was denied citizenship based on their blood. It reaffirmed the transformative nature of America.

    Contrast that theme with the way jus sanguinis was used to deny citizenship to the out-groups in ways that we all now recognize as un-American:

    Elk v. Wilkins – denying citizenship to Native Americans

    Minor v. Happersett – denying the vote to women

    Scott v. Sandford (Dred Scott) – denying citizenship to African Americans

    Wong Kim Ark – attempts to deny citizenship to the children of Asians.

    Personally, the reason why I find this argument so interesting (is it the “dualers”?), much more so than the birthers, is that it is these competing themes coming through so clearly in a case that is not that much removed from actual controversies in our society. Mario and his compatriots may have zero chance of unseating Obama, but there are real lawyers out there arguing that children born in the US to illegal aliens are not US citizens. (The difference being that none of those real lawyers has ever intimated that both parents have to be US citizens and none of them cling to the super-citizen idea.) So, the research done into the meaning of citizenship, and the Founders understanding of how our society worked (and the changes wrought by the 14th Amendment, called by Garrett Epps the “Second Founding”) can contribute to actual legal arguments in our society.

  137. avatar
    Greg September 12, 2009 at 12:28 pm #

    I think, from what I’ve seen on Mario’s site, that he is deliberately misreading the case:

    The Founders also understood what “natural allegiance” was. They knew that “liegance, and faith and truth, which are her members and parts, are qualities of the mind and soul of man, and cannot be circumscribed within the predicament of ubi.” (p. 76). Calvin’s Case (1608) (7 Coke, 1, 6 James I.) They understood that an English “natural born subject” residing out of the kingdom or jurisdiction of the king still owed allegiance to the king of England. Id. Hence, they understood that “natural allegiance” or “allegiance by birth” does not depend upon locality or place; that it is purely mental in its nature, and cannot, therefore, be confined within any certain boundaries. . .” Ludham, 26 N.Y. at 363. They understood that natural allegiance or allegiance by birth did not depend upon boundaries or place but rather upon parentage. Id. at 364. The Founders understood that “as long as the parents continue to owe allegiance to the crown of England, so long will their children, by the rules of the common law, whether born within or without the kingdom, owe similar allegiance, and be entitled to the corresponding rights of citizenship.” Id. at 365. Finally, the Founders also understood that even though a child may be born on U.S. soil, if he was born of a British father, the Crown of England owed that child the same protection that it owed the father. Id. at 370-71.

    Of course, this is a misreading of the meaning of Calvin’s case. And, it misreads Ludlam as well. Ludlam found that citizenship could pass by jus sanguinis but didn’t disturb the settled law that children of aliens born here are citizens:

    If we assume that the laws of Peru are similar to ours on the subject of citizenship, there is no doubt that Maximo Ludlam would be in that country regarded as a citizen of Peru. 1 .Sandf. Ch. 583. This would involve him, according to the rules which I find established, in a double allegiance to this country and Peru; and it cannot be denied that inconveniences might result from such a condition. The case, however, is not new, and I am not aware that any practical inconvenience has ever resulted to persons occupying such positions; their immunity in this respect resulting mainly, it may be presumed, from the liberality of civilized governments towards persons thus situated. * * * Practically the person so situated secures all the rights of citizenship, or at least the right of inheritance, in two countries, and discharges the duties of allegiance in only one.

  138. avatar
    Bob September 12, 2009 at 12:29 pm #

    Coke’s view was “once a Brit, always a Brit”

    Which, of course, is no longer true. Look at the KIA of 1963, for example; “once a Brit, always a Brit…unless you were (or your father was) born in Kenya.”

  139. avatar
    Dr. Conspiracy September 12, 2009 at 2:01 pm #

    I wouldn’t say that Minor v. Happersett denied the vote to women based on a jus sanguinis view of citizenship. The court did not find that her citizenship was defective, just that not all citizens were of necessity equally entitled to vote.

  140. avatar
    Greg September 12, 2009 at 2:26 pm #

    You’re right, of course. You should be humming the song, “One of These Things is not like the others” right about now.

    The Court determined that, of course, women can be citizens, but that the right to vote is not a right tied up with citizenship. Women were given the right to vote by Constitutional Amendment, but the original law wouldn’t survive today’s 14th Amendment scrutiny because of its gender-based discrimination. I wonder if the conclusion that the right to vote is not a right of citizenship would also survive. It certainly seems at odds with common sense. It is also a view of citizenship that was used to deny rights to an out-group.

    Minor is in the birthers’ quiver because of the language that there were no doubts that children of citizens were natural born citizens. Of course, they’ll howl to the rooftops that anything mentioning natural born citizens in Wong is dicta. Of course, they have to ignore the fact that Wong’s reasoning was based on the fact that natural born subject under English common law was the same as natural born citizen in American Common law. By contrast, talking about natural born citizenship with respect to women’s citizenship is truly dicta. They also ignore the fact that it hurts their reliance on Elk. Substantially the same Court heard Elk and Minor. If Elk had settled the issue that children of foreigners couldn’t be citizens, then Minor wouldn’t have said that there remained doubt about children of foreigners.

  141. avatar
    Welsh Dragon September 12, 2009 at 3:53 pm #

    Very well thought out piece Greg. I particularly like your analysis of the narrative hook the Nobamas have from the Founding Fathers. This distrust of foreigners and foreign influence was undoubtedly there.
    Although my alter ego pointed out that some of the George Washington quotations used by the Undead Revolution were dubious or demonstrably false the distrust and jealously was undoubtedly real and there are numerous references to it in original untainted sources.(But not in the intemperate language beloved of the “Know Nothings” and Undead Revolution.)
    But there is another side of the coin in the original sources also contain many cases of respect, admiration and friendship for the foreign officers serving with them.(not just Lafayette.) Further evidence of this can be seen in the inclusion of foreign officers in the Order of Cinncinnati.The wisest of the founders were also that clear how much the success of the revolution was due to the “foreign influence” of France. (A recurring image keeps popping into my head of the Continental Congress meeting under the portrait of Louis XVI) But somehow this part of the narrative doesn’t come through.
    P.S. My alter ego is now banned at Undead Revolution as a “Foreign Influence” (from Amsterdam apparently)

  142. avatar
    dunstvangeet September 12, 2009 at 4:08 pm #

    Also, Elk v. Wilkins actually was based upon the fact that the Native American Reservation was not truly Sovereign soil of the United States, since Native American Tribes are semi-autonomous nations in of themselves.

    It was more of a Jus Soli decision, based upon the fact that he was born inside the territory of an Native American Reservation.

    I wouldn’t call that a Jus Sanguinis view of the constitution either.

  143. avatar
    Mario Apuzzo September 12, 2009 at 6:22 pm #

    I see that you are still trying to cloak the “natural born Citizen” issue with a racial mantle. Can you please explain to me how race has anything to do with determining whether Obama is a “natural born Citizen” under the soil + 2 U.S. parent formula.

    I think you are a bit mistaken characterizing my “natural born Citizen” a “super-citizen.” First, the Founders required that for only the Office of the President one had to be a “natural born Citizen.” Second, “natural born Citizens” are the most numerous of the citizens in America. Can you please clarify you comment.

  144. avatar
    Mario Apuzzo September 12, 2009 at 6:34 pm #

    I can understand why the Ludlam court did not see any dual allegiance problems for Maximo. After all, he was not the President of the United States let alone its Commander in Chief of the Military.

  145. avatar
    Mario Apuzzo September 12, 2009 at 6:38 pm #

    Greg,

    I have never misread so many law cases in all of my years of law practice as I have while dealing with the issue of Obama’s eligibility to be President.

  146. avatar
    Dr. Conspiracy September 12, 2009 at 7:01 pm #

    I know you didn’t mean to say that.

  147. avatar
    dunstvangeet September 12, 2009 at 7:06 pm #

    Mario, the reason we’re calling it a super-citizen, is that this definition did not come about until this election cycle. This is the first time we’ve ever heard this definition of requiring 2 parents.

    You’re fundamentally saying that there’s different levels of citizens. You’re saying that some people are more of a citizen than others, even if they’re born in this country. You’re saying that the values of Americans aren’t passed on by nurture, but are part of the nature, passed on upon blood. That’s fundamental argument in your jus sanguinus argument.

    I’ve always believed that the United States is more of a nurture thing. You’re saying that because someone was not born to American Parents (2 American Parents, no less), they’re less American than people who were born to American Parents.

    Furthermore…

    Just wondering. What’s your take on the child of rape born to an American Citizen. Should it have to be proven that the rapist that raped his mother was an American Citizen for him to be eligible for the Presidency, and a Natural Born Citizen? That’s ultimately what you’re saying with the 2-parent rule is children of rape are ineligible for the Presidency unless they can prove that their mother’s rapist was raped by a citizen, and not a foreigner. Because the influence of foreign blood is something that we shouldn’t have in the Presidency.

    These are the situations you have to bring up under your definition.

    Furthermore, I’ve never heard this charge leveled against a white man, though many white men who didn’t fit your prestine definition of Natural Born Citizen both ran, and occupied the office of the Presidency and Vice Presidency. The only time I’ve heard this leveled against a white man is when they’re trying to say, “That doesn’t apply, because he lied!” when they realize that the situation has already been addressed by history.

  148. avatar
    Dr. Conspiracy September 12, 2009 at 7:15 pm #

    I have in all my reading, found no historical concept of a citizen who is neither natural born, nor naturalized, not even in de Vattel.

    Perhaps it is not the best language to call the natural born citizen a “super citizen”. Better to call the hypothetical of a non-natural born, non-naturalized citizen a “second class citizen”.

    If you were true to de Vattel, you would drop this three-citizen-type charade, and call a spade a spade (in the pre-racial sense). You and de Vattel must call Obama a naturalized citizen (if you admit that Obama is a citizen at all).

  149. avatar
    Bob September 12, 2009 at 8:22 pm #

    Can you please explain to me how race has anything to do with determining whether Obama is a “natural born Citizen” under the soil + 2 U.S. parent formula.

    Blut und Boden.

    [You folks can’t add images to comments, but I thought this one in the article referenced by Bob had such an impact that I would add it here. Doc C.]

  150. avatar
    Bob September 12, 2009 at 8:23 pm #

    I have never misread so many law cases in all of my years of law practice as I have while dealing with the issue of Obama’s eligibility to be President.

    Oh, the irony.

  151. avatar
    nbc September 12, 2009 at 9:35 pm #

    Even the UK abandoned that view in the late 19th Century and allowed its subjects/citizens to denounce it. So the once a brit always a brit is a flawed concept at best. In fact, in addition to losing one’s British status through renouncing it, one could also lose it through treaty or act of parliament. That’s exactly what the Kenya Independence Act is all about.

  152. avatar
    Greg September 12, 2009 at 10:55 pm #

    Since the first drunk driving law wasn’t passed until 1910, I can’t imagine there’s much call to read 400 year old British cases in your practice, Mario.

    Anyway, the proof is in the pudding. Read the part of Ludlam I put in bold, Mario. Does that not say that if Peru’s laws were like ours that someone born there would be a citizen?

  153. avatar
    Greg September 12, 2009 at 11:21 pm #

    Mario, what does race have to do with denying women the vote? If you read what I wrote more closely, you’ll find that I didn’t say that the insistence on super jus sanguinis was racist, I said that jus sanguinis has reflected an exclusionary impulse in our history. Dred Scott, for example, denied the very humanity of African Americans, with one of the concurring opinions saying that African Americans could never be citizens (much less natural born citizens) because citizenship descended jus sanguinis and African Americans had not been citizens at the founding.

    A war was fought, in large part, over that case and the 14th Amendment was passed to overturn that case. Yet it finds its way into your articles with nary an explanation for why we should accept any part of the decision.

    The “natural born” movement may not be racist, but you cannot deny it is exclusionary. I think this exclusionary trend is against the better nature of America. I think if you get past page 5 of Kettner’s book, you’ll find that America was viewed by the Founders as a transformative place – a nation sui generis on the planet.

  154. avatar
    Mario Apuzzo September 13, 2009 at 2:42 am #

    Greg: Since the first drunk driving law wasn’t passed until 1910, I can’t imagine there’s much call to read 400 year old British cases in your practice, Mario. Anyway, the proof is in the pudding. Read the part of Ludlam I put in bold, Mario. Does that not say that if Peru’s laws were like ours that someone born there would be a citizen?

    And may I inquire of you what makes your profile such a perfect match with those 400 year old British cases?

  155. avatar
    Mario Apuzzo September 13, 2009 at 2:49 am #

    Greg: Mario, what does race have to do with denying women the vote? If you read what I wrote more closely, you’ll find that I didn’t say that the insistence on super jus sanguinis was racist, I said that jus sanguinis has reflected an exclusionary impulse in our history. Dred Scott, for example, denied the very humanity of African Americans, with one of the concurring opinions saying that African Americans could never be citizens (much less natural born citizens) because citizenship descended jus sanguinis and African Americans had not been citizens at the founding. A war was fought, in large part, over that case and the 14th Amendment was passed to overturn that case. Yet it finds its way into your articles with nary an explanation for why we should accept any part of the decision. The “natural born” movement may not be racist, but you cannot deny it is exclusionary. I think this exclusionary trend is against the better nature of America. I think if you get past page 5 of Kettner’s book, you’ll find that America was viewed by the Founders as a transformative place – a nation sui generis on the planet.

    You just can not resist spinning Obama’s eligibility issue into something racial. Your whole point is irrelevant. One can be just as racist with jus soli as with jus sanguinis. Please stop making your saintly arguments and argue the real issues. Is pandering the race issue all that you have left?

  156. avatar
    Greg September 13, 2009 at 8:16 am #

    So, you think denying women the vote was racial?

    You’re welcome to think that all I have is the “race card,” but I’d point out you still haven’t answered my question about Ludlam. Does it NOT say that if Peru’s citizenship laws were like OURS that anyone born there would be considered a citizen?

  157. avatar
    Greg September 13, 2009 at 8:18 am #

    I don’t have any special profile. But, I don’t point to my long legal experience as some sort of defense when someone accuses me of misreading one of those ancient cases. I answer their argument.

  158. avatar
    Mario Apuzzo September 14, 2009 at 2:46 am #

    I would not wonder about myself if the pro-Obama commentators on this blog said that I only misread one of those ancient English cases. But what I have noticed is that these commentators have said that I have misread every case that I cite or comment upon in support of my “natural born Citizen” argument. Do you not agree that there is a difference there?

  159. avatar
    nbc September 14, 2009 at 2:48 am #

    It seems that you have a propensity of misreading cases. When one has to reach a conclusion, that kind of blindness may not be too uncommon.

  160. avatar
    Greg September 14, 2009 at 7:48 am #

    You’re attempting to change more than 200 years of settled American law, and more than 600 years of settled Anglo-American common law. And you’re trying to do it while relying on arguments that were explicitly made and rejected by the Court in Wong Kim Ark.

    Justice Gray spent many pages discussing how Elk, Minor and Slaughterhouse don’t mean that children born to foreigners aren’t citizens. So, to the extent that you repeat those discredited arguments, you have to expect some push-back. Justice Gray in Wong, and the judge in Lynch v. Clarke spend, between them, almost 100 pages describing how our citizenship jurisprudence descends directly from British Common Law, so when you argue that, no, we adopted Swiss, or Dutch thinking, you’re going to get some push-back – and, given the 100 pages of source-material, that push-back is going to be well-supported!

    And, again, I say the proof is in the pudding. You still haven’t addressed my point about Ludlam. The court there recognized that our system of laws granted citizenship by birth! I put that part in bold.

  161. avatar
    Mario Apuzzo September 15, 2009 at 2:26 am #

    Very simple, we have “citizens” and then we have “natural born citizens.” It all reconciles very nicely with Wong

  162. avatar
    NBC September 15, 2009 at 2:48 am #

    Sure, citizens do not include naturalized. Other than that, Wong clearly shows that natural born is what remains once naturalized citizens have been taken out of the equation.

    What’s so hard to understand here?
    Are you perhaps reading the dissenting opinion?

    Mario Apuzzo: Very simple, we have “citizens” and then we have “natural born citizens.” It all reconciles very nicely with Wong

  163. avatar
    Greg September 15, 2009 at 5:48 am #

    If you’re talking about the distinction between citizen (naturalized AND natural-born) and natural born (non-naturalized citizens) then that’s acceptable. If, however, you think there’s some set of citizens who are born here, get their citizenship by birth, but cannot run for Presidency, then, that may reconcile, Mario, but it is a distinction that would be foreign to the Founders. There isn’t any evidence that anyone before Wong thought that someone could be born here, become a citizen by birth, but not be eligible for the Presidency.

  164. avatar
    Dr. Conspiracy September 15, 2009 at 11:05 am #

    Mr Apuzzo says: Very simple, we have “citizens” and then we have “natural born citizens.” It all reconciles very nicely with Wong

    No, you are slightly mistaken. We have “natural born citizens” and “naturalized citizens.”

    If you doubt he, let me quote one your favorite cases, Minor v. Happersett:

    Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides that

    “No person except a natural-born citizen or a citizen of the United States at the time of the adoption of the Constitution shall be eligible to the office of President,”

    and that Congress shall have power “to establish a uniform rule of naturalization.” Thus, new citizens may be born or they may be created by naturalization.

    While the judge in Minor had doubts about who exactly was a citizen at birth, he obviously had no doubt that who ever those citizens at birth were, they were the ones talked about by the Constitution as eligible for president. Every authority, whether court case or law or Swiss jurist or the Constitution itself say the same thing, and no one, not a single one, not even your vaunted Emerich de Vattel himself, has ever said that there were citizens other those natural born and those naturalized.

    Again, your only chance is to overturn 100 years of settled law in US v Wong, and make Barack Obama into a non-citizen. I’m sure you have a lot more mileage to get out of this disinformation campaign to smear Barack Obama, but your legal hopes are dead. In the birth certificate industry, we call it a “fetal death”.

  165. avatar
    Joe Horn September 22, 2009 at 12:37 pm #

    Wow, I can only assume that you are all very nervous the way you misread the law. All you Obambots can relax. No Judge is going to open up this Pandora’s Box. Best left to the political areana.

  166. avatar
    Black Lion September 22, 2009 at 12:43 pm #

    Misread the law? Can you point out to all of us how we “misread” the law? You can’t make such a statement without at least supporting your claim. No Judge is going to open this “Pandora’s Box” because of a little pesky thing known as the US Constitution.

  167. avatar
    Dr. Conspiracy September 22, 2009 at 1:40 pm #

    Nervous? No.

    Frustrated? Certainly.