The Federalist No. 57
by The Federalist Papers
To the People of the State of New York:
THE third charge against the House of Representatives is, that it will be taken from that class of citizens which will have least sympathy with the mass of the people, and be most likely to aim at an ambitious sacrifice of the many to the aggrandizement of the few.
Of all the objections which have been framed against the federal Constitution, this is perhaps the most extraordinary. Whilst the objection itself is levelled against a pretended oligarchy, the principle of it strikes at the very root of republican government.
The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust. The elective mode of obtaining rulers is the characteristic policy of republican government. The means relied on in this form of government for preventing their degeneracy are numerous and various. The most effectual one, is such a limitation of the term of appointments as will maintain a proper responsibility to the people.
Let me now ask what circumstance there is in the constitution of the House of Representatives that violates the principles of republican government, or favors the elevation of the few on the ruins of the many? Let me ask whether every circumstance is not, on the contrary, strictly conformable to these principles, and scrupulously impartial to the rights and pretensions of every class and description of citizens?
Who are to be the electors of the federal representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune. The electors are to be the great body of the people of the United States. They are to be the same who exercise the right in every State of electing the corresponding branch of the legislature of the State.
Who are to be the objects of popular choice? Every citizen whose merit may recommend him to the esteem and confidence of his country. No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgement or disappoint the inclination of the people.
If we consider the situation of the men on whom the free suffrages of their fellow-citizens may confer the representative trust, we shall find it involving every security which can be devised or desired for their fidelity to their constituents.
In the first place, as they will have been distinguished by the preference of their fellow-citizens, we are to presume that in general they will be somewhat distinguished also by those qualities which entitle them to it, and which promise a sincere and scrupulous regard to the nature of their engagements.
In the second place, they will enter into the public service under circumstances which cannot fail to produce a temporary affection at least to their constituents. There is in every breast a sensibility to marks of honor, of favor, of esteem, and of confidence, which, apart from all considerations of interest, is some pledge for grateful and benevolent returns. Ingratitude is a common topic of declamation against human nature; and it must be confessed that instances of it are but too frequent and flagrant, both in public and in private life. But the universal and extreme indignation which it inspires is itself a proof of the energy and prevalence of the contrary sentiment.
In the third place, those ties which bind the representative to his constituents are strengthened by motives of a more selfish nature. His pride and vanity attach him to a form of government which favors his pretensions and gives him a share in its honors and distinctions. Whatever hopes or projects might be entertained by a few aspiring characters, it must generally happen that a great proportion of the men deriving their advancement from their influence with the people, would have more to hope from a preservation of the favor, than from innovations in the government subversive of the authority of the people.
All these securities, however, would be found very insufficient without the restraint of frequent elections. Hence, in the fourth place, the House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it.
I will add, as a fifth circumstance in the situation of the House of Representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. It creates between them that communion of interests and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny. If it be asked, what is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of the society? I answer: the genius of the whole system; the nature of just and constitutional laws; and above all, the vigilant and manly spirit which actuates the people of America -- a spirit which nourishes freedom, and in return is nourished by it.
If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate any thing but liberty.
Such will be the relation between the House of Representatives and their constituents. Duty, gratitude, interest, ambition itself, are the chords by which they will be bound to fidelity and sympathy with the great mass of the people. It is possible that these may all be insufficient to control the caprice and wickedness of man. But are they not all that government will admit, and that human prudence can devise? Are they not the genuine and the characteristic means by which republican government provides for the liberty and happiness of the people? Are they not the identical means on which every State government in the Union relies for the attainment of these important ends? What then are we to understand by the objection which this paper has combated? What are we to say to the men who profess the most flaming zeal for republican government, yet boldly impeach the fundamental principle of it; who pretend to be champions for the right and the capacity of the people to choose their own rulers, yet maintain that they will prefer those only who will immediately and infallibly betray the trust committed to them?
Were the objection to be read by one who had not seen the mode prescribed by the Constitution for the choice of representatives, he could suppose nothing less than that some unreasonable qualification of property was annexed to the right of suffrage; or that the right of eligibility was limited to persons of particular families or fortunes; or at least that the mode prescribed by the State constitutions was in some respect or other, very grossly departed from. We have seen how far such a supposition would err, as to the two first points. Nor would it, in fact, be less erroneous as to the last. The only difference discoverable between the two cases is, that each representative of the United States will be elected by five or six thousand citizens; whilst in the individual States, the election of a representative is left to about as many hundreds. Will it be pretended that this difference is sufficient to justify an attachment to the State governments, and an abhorrence to the federal government? If this be the point on which the objection turns, it deserves to be examined.
Is it supported by reason? This cannot be said, without maintaining that five or six thousand citizens are less capable of choosing a fit representative, or more liable to be corrupted by an unfit one, than five or six hundred. Reason, on the contrary, assures us, that as in so great a number a fit representative would be most likely to be found, so the choice would be less likely to be diverted from him by the intrigues of the ambitious or the ambitious or the bribes of the rich.
Is the consequence from this doctrine admissible? If we say that five or six hundred citizens are as many as can jointly exercise their right of suffrage, must we not deprive the people of the immediate choice of their public servants, in every instance where the administration of the government does not require as many of them as will amount to one for that number of citizens?
Is the doctrine warranted by facts? It was shown in the last paper, that the real representation in the British House of Commons very little exceeds the proportion of one for every thirty thousand inhabitants. Besides a variety of powerful causes not existing here, and which favor in that country the pretensions of rank and wealth, no person is eligible as a representative of a county, unless he possess real estate of the clear value of six hundred pounds sterling per year; nor of a city or borough, unless he possess a like estate of half that annual value. To this qualification on the part of the county representatives is added another on the part of the county electors, which restrains the right of suffrage to persons having a freehold estate of the annual value of more than twenty pounds sterling, according to the present rate of money. Notwithstanding these unfavorable circumstances, and notwithstanding some very unequal laws in the British code, it cannot be said that the representatives of the nation have elevated the few on the ruins of the many.
But we need not resort to foreign experience on this subject. Our own is explicit and decisive. The districts in New Hampshire in which the senators are chosen immediately by the people, are nearly as large as will be necessary for her representatives in the Congress. Those of Massachusetts are larger than will be necessary for that purpose; and those of New York still more so. In the last State the members of Assembly for the cities and counties of New York and Albany are elected by very nearly as many voters as will be entitled to a representative in the Congress, calculating on the number of sixty-five representatives only. It makes no difference that in these senatorial districts and counties a number of representatives are voted for by each elector at the same time. If the same electors at the same time are capable of choosing four or five representatives, they cannot be incapable of choosing one. Pennsylvania is an additional example. Some of her counties, which elect her State representatives, are almost as large as her districts will be by which her federal representatives will be elected. The city of Philadelphia is supposed to contain between fifty and sixty thousand souls. It will therefore form nearly two districts for the choice of federal representatives. It forms, however, but one county, in which every elector votes for each of its representatives in the State legislature. And what may appear to be still more directly to our purpose, the whole city actually elects a single member for the executive council. This is the case in all the other counties of the State.
Are not these facts the most satisfactory proofs of the fallacy which has been employed against the branch of the federal government under consideration? Has it appeared on trial that the senators of New Hampshire, Massachusetts, and New York, or the executive council of Pennsylvania, or the members of the Assembly in the two last States, have betrayed any peculiar disposition to sacrifice the many to the few, or are in any respect less worthy of their places than the representatives and magistrates appointed in other States by very small divisions of the people?
But there are cases of a stronger complexion than any which I have yet quoted. One branch of the legislature of Connecticut is so constituted that each member of it is elected by the whole State. So is the governor of that State, of Massachusetts, and of this State, and the president of New Hampshire. I leave every man to decide whether the result of any one of these experiments can be said to countenance a suspicion, that a diffusive mode of choosing representatives of the people tends to elevate traitors and to undermine the public liberty.
PUBLIUS
Showing posts with label Amnesty. citizenship. Show all posts
Showing posts with label Amnesty. citizenship. Show all posts
Tuesday, January 11, 2011
Thursday, November 11, 2010
How the Founders Defined “Natural Born Citizen”
By Mario Apuzzo
The question which has gripped our nation is whether Barack Obama is eligible to be President and Commander in Chief. Article II, Section 1, Clause 5 provides that: “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.” The proper question under this clause is not whether Obama is a “Citizen of the United States.” Rather, the correct question is whether Obama is a “natural born Citizen” thereunder.
“It cannot be presumed that any clause in the constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it….” Marbury v. Madison. 5 U.S. 137, 174 (1803). In other words, the “natural born Citizen” clause of Article II must be given independent effect from the “citizen of the United States” clause of Article II itself and of the Fourteenth Amendment. All Presidents must qualify as Article II “natural born Citizens,” not as Fourteenth Amendment “citizens of the United States.” The two clauses have different and distinct meanings or they would not have their own independent life in the Constitution. Article II says “natural born Citizen” and the Fourteenth Amendment says “citizen of the United States.” If being a “citizen of the United States” had the same exact effect as being a “natural born citizen,” then the “natural born Citizen” clause would have no effect. Such a construction is not admissible. If we were not to give special meaning to the words “natural born” and conclude that “natural born Citizen” and “citizen of the United States” mean the same thing, the words “natural born” in the “natural born Citizen” clause of Article II would be superfluous. Our Supreme Court has consistently expressed “a deep reluctance to interpret a statutory provision so as to render superfluous other provisions in the same enactment.” Pennsylvania Department of Public Welfare v. Davenport, 495 U.S. 552, 110 S.Ct. 2126, 2133, 109 L.Ed.2d 588 (1990); International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Uaw v. Johnson Controls, Inc, 499 U.S. 187, 111 S.Ct. 1196, 1204, 113 L.Ed.2d 158 (1991) . Hence, we have to give special meaning to the words “natural born.”
As so many scholars and commentators have asked, what does “natural born Citizen” mean? Why did the Framers distinguish in Article II between a “citizen of the United States” and a “natural born Citizen?” The Founders trusted the occupancy of the Office of President to those born on or inhabiting the soil of or to those who naturalized in the Colonies or new States, all of whom belonged to the original citizen class because, even though they were born subject to a foreign power, they had evidenced their loyalty and attachment to the United States by fighting for the American cause in the Revolution. Also, for those born “natural born subjects” of the British Crown, through the Treaty of Peace of 1783, England absolved its subjects of the natural allegiance that they owed to it. But the Founders knew that there would be other foreigners coming to live in America in the future. The allegiance and loyalty of these future foreigners would not have been tested or even absolved in some manner as had occurred under the Treaty of Peace of 1783. The Founders feared foreign influence infecting the administration of the government. It was the fear of foreign influence invading the Office of Commander in Chief of the military that prompted John Jay, our first U.S. Supreme Court Chief Justice, to write to General George Washington the following letter dated July 25, 1787: “Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen” (underlying in the original). Note that Jay wanted a “strong” check that would prevent a foreigner from becoming the Commander in Chief. Hence, any definition of “natural born Citizen” must provide our nation with the strongest check possible on foreign influence invading the Office of President and Commander in Chief of the Military. The Framers found the definition of “natural born Citizen” that would suit their purpose of protecting the future of and preserving the new nation not in the English common law and William Blackstone but in natural law and the law of nations as commented upon by Emer de Vattel, in his treatise, The Law of Nations, or Principles of the Laws of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, bk. 1, c. 19, sec. 212 (original French in 1758 and first English in 1759). This law became American common law. See my article entitled, ‘The Law of Nations or Principles of Natural Law’ as U.S. Federal Common Law Not English Common Law Define What an Article II Natural Born Citizen Is, found at http://puzo1.blogspot.com/2009/08/law-of-nations-and-not-english-common.html.
As James Brown Scott has correctly stated: "It is therefore to be expected that, when terms of municipal law are found in the Constitution, they are to be understood in the sense in which they were used in Blackstone's Commentaries; and when the law of nations is referred to, that its principles are to be understood in the sense in which Vattel defined them." James Brown Scott, The United States of America: A Study in International Organizations 439 (1920). There is little doubt that citizenship properly falls under the law of nations which became U.S. national law and not under the rules of municipal law. Citizenship has always been recognized as a topic that affects United States relations with other nations. On the question of national citizenship, Lynch v. Clarke, 1 Sand. Ch. 583, 3 N.Y. Leg. Obs. 236, 244 (1844), http://books.google.com/books?id=ERgvAAAAIAAJ&pg=PA251&dq=%22Natural+born+citizen%22#v=onepage&q=%22Natural%20born%20citizen%22&f=false (whose finding that Julia Lynch, born in New York to “alien parents, during their temporary sojourn” there, was a citizen of the United States, was in effect overruled by a 1860 New York state statute which provided at Sec. 5 that “[t]he citizens of the state are: 1. All persons born in this state and domiciled within it, except the children of transient aliens and of alien public ministers and consuls”), stated that how we define citizenship "has an essential bearing in our intercourse with other nations and the privileges conceded by them to our citizens; is therefore, not a matter of mere state concern. It is necessarily a national right and character. It appertains to us, not in respect to the State of New York, but in respect of the United States. . . ." Given that citizenship affects "the behavior of nation states with each other," Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Founders would have looked to the law of nations to define it for the needs of the new nation. Clearly, citizenship is both a national and international matter which affects the relations among nations. The Founders and Framers would have looked to the law of nations to define citizenship in the new nation and not the English common law.
The Founders and Framers relied upon Cicero, Grotius, Pufendorf, Locke, and Emer de Vattel (to name a few) in identifying and describing natural law and the law of nations. But they mostly looked to Emer de Vattel and his treatise, The Law of Nations, or Principles of the Laws of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, bk. 1, c. 19, sec. 212 (original French in 1758 and first English in 1759, and other subsequent French and English editions for not only authority on the meaning of natural law and the law of nations but also in constituting the new Constitutional Republic and in writing the new Constitution. The 1759 (aka 1760) edition was published in London in English. An explanation of the various editions is provided by Colonial Society of Massachusetts, Publications of the Colonial Society of Massachusetts, Volume 20 (A. Matthews ed. 1920). http://books.google.com/books?id=svE7AAAAIAAJ&pg=PA5&dq=benjamin+franklin+vattel&ei=W-yPStrRNaf4ygS12bC3Bw#v=onepage&q=benjamin%20franklin%20vattel&f=false
Vattel clearly distinguished between “citizens” (“citoyens” in French) and “naturals” (“naturels” in French). His title for Section 212 is “Des citoyens et naturels” (“Of citizens and naturals” which the English translators called "Of the citizens and natives"). He referred to the “citoyens” who were translated to “citizens” and “naturels” who were later translated to “natural-born citizens.” The “naturels” were the children of the “citoyens.” He therefore saw that there is a difference between the two types of citizens. He explained that difference thus: “The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or indigenes, are those born in the country of parents who are citizens”. Id. bk. 1, c. 19, sec. 212. In the 1797 English edition, the translator replaced the word “indigenes” with “natural-born citizens.” Hence, it read: “The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” Hence, while the definition of a “natural born citizen” never changed in Vattel’s texts, the term to express it was changed from “indigenes” to “natural-born citizens.” That the French word "naturels" was understood by the founders and framers to mean "natural born" prior to the writing of the Constitution and prior to the second English translation of Vattel's Law of Nations in 1797 is confirmed by the record of the Journal of the Continental Congress is 1781. Thus in 1787 John Jay clearly knew what the term "natural born Citizen" meant when he wrote his letter to George Washington suggesting it be added to the eligibility clause as to who can be President and Commander of our military since John Jay was an ardent supporter of Vattel's concepts and natural law and was an advocate for the Law of Nations as the new common law of the new U.S. federal government. John Jay became the first Chief Justice of the U.S. Supreme Court.
There exists evidence contemporaneous to the Founding that the Founders relied upon concepts of natural law, the law of nations, and Vattel to define national citizenship in the new republic and not English common law and Blackstone. Founder and highly respected historian, David Ramsay, who in 1789 wrote, A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen, defined the original citizens and while not using the term nevertheless provided a Founding period contemporaneous definition of a “natural born Citizen,” as well and in so doing relied upon a definition of an original “citizen” and a “natural born citizen” as given by Vattel and not upon one provided by the English common law or Blackstone (both of which defined a “natural born subject” and not a “natural born Citizen” and did not distinguish between a “subject” and a “natural born subject”). Additionally, Rep. William Smith during the 1789 Congressional hearings on whether he was a “citizen of the United States” of seven years (not to be confused with an Article II “natural born Citizen”) which status he needed under Article I, Section 2, Clause 2 to be eligible to sit as a member of the House of Representatives, cited Vattel and espoused and relied upon his definition of a “citizen” and not upon that provided by the English common law or Blackstone to define citizenship in the United States and as authority to prove that he was a “citizen of the United States” of seven years.
During the Founding, the English common law was selectively adopted only by the states and applied there to resolve local issues such as arising in contracts, inheritance, property, torts, matrimony, criminal procedure, etc. But that common law was not adopted on the national level. National law only included the "Constitution, the Laws of the United States, and Treaties..." Article III, Section 2, Clause 1. We know from Article I, Section 8, Clause 10 that the Framers included "the Law of Nations" as part of "the Laws of the United States." While the Founders and Framers relied heavily upon Emer de Vattel for justification for the revolution and in writing the Constitution, this reference is to the body of law then called the law of nations, not Vattel's treatise called, The Law of Nations," which explains how the law of nations is based on natural law and presented what that law was. The law of nations which was relevant on relations among nations specifically addressed what a "citizen" and "natural born citizen" was. The English common law did selectively make its way into the Constitution by way of the Bill of Rights (the first ten Amendments) which was ratified on December 15, 1791. But the Bill of Rights did not address citizenship or nationality as did the law of nations.
The following United States Supreme Court cases and cases from other courts have confirmed that national citizenship has been defined under American common law which has had its genesis in natural law and the law of nations as explicated by Vattel and not under the English common law or Blackstone: (1) The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (Chief Justice John Marshall, concurring and dissenting for other reasons, cited Vattel and provides his definition of natural born citizens); (2) Shanks v. Dupont, 28 U.S. 242, 245 (1830) (provided the same Vattelian definition without citing Vattel); (3) Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) (Daniels, J., concurring, cited Vattel and The Law of Nations and provided his definition of natural born citizens and took out of Vattel’s definition the reference to “fathers” and “father” and replaced it with “parents” and “person,” respectively); (4) Slaughter-House Cases, 83 U.S. 36, 21 L.Ed. 394, 16 Wall. 36(1872) (in explaining the meaning of the Fourteenth Amendment clause, “subject to the jurisdiction thereof,” said that the clause “was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States”); (5) Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (provided the same Vattelian definition without citing Vattel); (6) Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879) (provided the same Vattelian definition and cites Vattel); (7) Elk v. Wilkins, 112 U.S. 94 (1884) (“the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations” are not citizens under the Fourteenth Amendment because they are not subject to the jurisdiction of the United States); (8) United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (provided the same Vattelian definition and cited Vattel); (9) U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898) (distinguished between a “natural born Citizen” and a “citizen of the United States” and cited Vattel and quoted his definition of “natural born Citizen” as did Minor v. Happersett); (10) and Perkins v. Elg, 307 U.S. 325 (1939) (other than Minor v. Happersett, the only U.S. Supreme Court decision that declared someone a “natural born Citizen.” The person was born in the United States to a citizen father and citizen mother through derivative citizenship).
Further evidence that the English common law and Blackstone did not prevail in the United States to define national citizenship is the cases of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), holding that blacks whether slaves or free did not acquire United States citizenship at birth even though they were born in the United States and Elk v. Wilkins, 112 U.S. 94, 102 (1884), holding that American Indians did not acquire United States citizenship at birth even though they were born in the United States. English common law, with the exception for children of diplomats and invading armies, only required birth within the dominion without any reference to the citizenship status of the parents to grant “natural born subject” status. Yet, under these early decisions of our Supreme Court both Indians and blacks even if born in the United States were denied initial membership in the United States.
There does not exist one U.S. Supreme Court decision that defined national citizenship under English common law as commented upon by Blackstone, except for U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898). This decision defined a Fourteenth Amendment born “citizen of the United States” (not to be conflated with an Article II “natural born Citizen”) under colonial English common law rather than under natural law, the law of nations, and American common law which up to that time the Supreme Court had always relied upon to define national citizenship in the United States. There was no need for Wong Kim Ark to resort to the English common law, for Vattel tells us in Section 215 that if the father [meaning parents because of unity of husband and wife] has [have] “entirely quitted his [their] country in order to settle elsewhere,” i.e., has [have] become a “perpetual inhabitant” of that other country, and has [have] a child in that other country, the father [those parents] will become a member [members] of that other society and his [their] child born in that country will follow his [their] condition and also become a member of that same society. Vattel considered these children to be only “members” of that country which under Section 212 translates to “citizens” and not “natural-born citizens.” He did not say that they become “natural born citizens” of that country. Vattel clearly distinguished between the two, with initial “members” of a society being just “citizens,” not “natural-born citizens.” This dichotomy of citizenship is consistent with the views of Samuel von Pufendorf who divided born citizens into two categories, the original citizens and their descendents. Note that he called the children of the original citizens “Indigenes, or Natives.” He stated: “Citizens are either Originally so; that is, such as are born in the Place, and upon that Account claim their Privileges; Or else, Adscititious; that is, such as come from Foreign Parts. Of the first Sort, are either those who at first were present and concerned in the forming of the said Society, or their Descendants, who we call Indigenes, or Natives. Of the other Sort are those who come from Foreign Parts in order to settle themselves there. As for those who come thither only to make a short Stay, although they are for that Time subject to the Laws of the Place; nevertheless, they are not looked upon as Citizens, but are called Strangers or Sojourners.” The Whole Duty of Man According to the Laws of Nature (William Tooke trans., Ian Hunter & David Saunders, eds., Liberty Fund 2003, Book II, Chapter 6, xiii, 1691).
Given that Wong Kim Ark found that Wong was born in the United States to alien parents who were domiciled in the United States, the Court could have also found that Wong’s parents were “perpetual inhabitants” of the United States and that Wong was born a member of American society (born subject to the jurisdiction of the United States) and thus a born “citizen of the United States” under the Fourteenth Amendment by using Vattel and the law of nations. Under such a scenario, Wong would be treated the same as an original citizen. We can only speculate why Justice Gray did not use natural law, the law of nations, and American common law (meaning Vattel’s rules on citizenship) to declare Wong a “citizen of the United States” like Chief Justice Waite did in Minor to show that Happersett was a “natural-born citizen.” One thing that comes to mind, however, is that if Justice Gray would have relied upon Vattel and American common law rather than English common law to declare Wong a “citizen of the United States,” if the public knew of Arthur's alien birth circumstances, and if someone would have raised the issue, he would have had to acknowledge that President Chester Arthur, the President who appointed him to the Supreme Court in 1881, was not eligible to be Vice-President or President because he was born in the United States to an alien father and mother (his U.S. born mother also became an alien through then merger of citizenship into the alien father) and at most he would have been a born “citizen of the United States” but not an Article II “natural born Citizen.” Apart from the fact that the American electorate and public was not aware back then that Arthur was born to a non-citizen father, application of the English common law further obscured Arthur's ineligibility. In this connection, we should also consider Senate Resolution 511, passed by the Senate on April 30, 2008, to declare Senator John McCain a “natural born Citizen” and the legal analysis of Theodore Olson (former Solicitor General) and Laurence Tribe (Harvard Law School Professor) on which the U.S. Senate relied to come to its conclusion regarding McCain status and which Senator Leahy requested be printed in the Record. Olson and Tribe did not use Vattel’s Section 217’s born abroad to citizen parents while serving “in the armies of the state” as a ground to declare Senator John McCain a “natural born Citizen.” Their using Vattel would have exposed Putative President Obama’s ineligibility to be President the same as Justice Gray using Vattel would have shown President Arthur’s ineligibility for that same office.
It is critical to understand that Wong Kim Ark did not define a “natural born Citizen,” for the Court recognized that Minor v. Happersett had already done that in 1875 and did not object to that definition. Rather, the Court defined a born “citizen of the United States” under the Fourteenth Amendment which only defines initial membership in American society and did not amend Article II, Section 1, Clause 5’s definition of a “natural born Citizen” which is that status reserved to those children born in the United States to a citizen father and citizen mother which makes them second generation United States citizens who are born with unity of citizenship and sole allegiance to the United States and who are therefore eligible to be President. Hence, Wong Kim Ark did not change the definition of an Article II “natural born Citizen.”
In addition to these Supreme Court cases, there exists other cases and historical evidence which show that the Founders and Framers rejected the English common law and Blackstone as a basis for rules of decision for the new federal government and nation. For sake of brevity, that evidence will not be discussed here. The Founders and Framers would not have rejected the English common law and Blackstone at the federal level and then at the same time relied upon those sources to define generally who the people of the new nation were going to be and specifically who among those people could hold the highest offices in government including the office of President and Commander in Chief of the Military.
Minor told us that “At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.” Minor, 169 U.S. at 679-80. So we can see that the legal and political battles over citizenship have not been over the meaning of a “natural born Citizen. Rather, they have been over who can be a “citizen of the United States” or in other words, who can be accepted as an initial member of the political society known as the United States. The battle over who can be an initial member of American society has existed in our history because the United States is the product of conquest (of the American Indians), revolution ( against Great Britain), and immigration (involving not only “white” Europeans but also Asians and others who fell outside that description). This battle has also raged because the institution of slavery involving blacks brought to the colonies from Africa existed at the time of the Founding and up to 1865 when the Civil War ended. Hence, because of this historical development, the United States has found itself populated with people of different races, colors, national origins, religions, and ethnicities. In the early years of the English colonies, even religion was a factor that could prevent one from becoming a citizen. James Kettner, The Development of American Citizenship, 1608-1879 (1978). The problem for defining an Article II “natural born Citizen” is that we have lost sight of the fact that historically our courts and political institutions have struggled to define a “citizen of the United States” or who can be a member of the political society called the United States and not a “natural born Citizen.” It is this struggle that produced the Civil Rights Act of 1866, the Fourteenth Amendment, and other special Congressional acts and treaties allowing American Indians to become citizens at birth.
The Constitution should be honored and enforced in the way that it was written and originally intended by the Framers rather than in a way that pleases political parties or some political majority. Needed changes to it brought about by social evolution should not be made for political expediency by political parties or voting majorities without going through the formal amendment process prescribed by the Constitution itself in Article V. It has always been Emer de Vattel that provided our nation with the definition of an Article II “natural born Citizen’ and not William Blackstone. It is this definition that the Founders and Framers used to define the clause and it is this definition which should be enforced for the national security reasons of it being there if we are to be true to the Constitution and the rule of law.
Obama fails to meet this definition because if he was born in Hawaii, he was born to a British father and a U.S. citizen mother and he himself was born a British citizen under the British Nationality Act of 1948, causing him to be born with allegiance to Great Britain and to the United States. The U.S. State Department has confirmed that Obama was born with dual allegiances. Leventhal cites FactCheck.org to state, "Obama was originally both a U.S. citizen and a citizen of the United Kingdom and Colonies from 1961 to 1963 given that his father was from Kenya, which gained its independence from the British Empire in 1963. Upon independence, Obama became both a U.S. and Kenyan citizen from 1963 to 1982 [should be 1984], and solely a U.S. citizen after that." The entry "The Obama Birth Controversy" was written by Todd Leventhal, the chief of the Counter-Misinformation Team for the U.S. Department of State.
While today our law does not provide for merger of the wife’s citizenship into that of the husband, Obama was still born to an alien father and as a British citizen himself, thereby causing him to lack unity of citizenship and sole allegiance to the United States at birth, necessary conditions to be an Article II “natural born Citizen.” It should be noted that Obama's father was in the United States on a temporary student visa and he returned to Kenya after his studies were complete. Hence, he never had an intention to become domiciled in the United States. On the other hand, Obama's mother was not only a U.S. citizen but also domiciled in the United States. Assuming that Obama’s parents were domiciled in the United States and that he was born in the United States (a fact which he has yet to conclusively prove), which would arguably all make him “subject to the jurisdiction thereof,” he was at most born a “citizen of the United States” under the Fourteenth Amendment and a citizen of Great Britain under the British Nationality Act of 1948. While such dual citizenship creates dual allegiances, under current interpretation of the Fourteenth Amendment’s “subject to the jurisdiction thereof” clause, such dual allegiances would not prevent him from being a born “citizen of the United States.” But they would prevent him from being an Article II “natural born Citizen,” which constitutional status does not produce dual allegiances at birth. Obama is therefore not eligible to be President.
Finally, if Obama was not born in the United States, he would not even be a “citizen of the United States” under the version of Section 301(g) of the Immigration Nationality Act that was in effect in 1961 because his 18-year-old U.S. citizen mother was too young when he was born to pass her U.S. citizenship to him under that law as it existed then.
Mario Apuzzo, Esq.
http://puzo1.blogspot.com/
November 1, 2010
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The question which has gripped our nation is whether Barack Obama is eligible to be President and Commander in Chief. Article II, Section 1, Clause 5 provides that: “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.” The proper question under this clause is not whether Obama is a “Citizen of the United States.” Rather, the correct question is whether Obama is a “natural born Citizen” thereunder.
“It cannot be presumed that any clause in the constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it….” Marbury v. Madison. 5 U.S. 137, 174 (1803). In other words, the “natural born Citizen” clause of Article II must be given independent effect from the “citizen of the United States” clause of Article II itself and of the Fourteenth Amendment. All Presidents must qualify as Article II “natural born Citizens,” not as Fourteenth Amendment “citizens of the United States.” The two clauses have different and distinct meanings or they would not have their own independent life in the Constitution. Article II says “natural born Citizen” and the Fourteenth Amendment says “citizen of the United States.” If being a “citizen of the United States” had the same exact effect as being a “natural born citizen,” then the “natural born Citizen” clause would have no effect. Such a construction is not admissible. If we were not to give special meaning to the words “natural born” and conclude that “natural born Citizen” and “citizen of the United States” mean the same thing, the words “natural born” in the “natural born Citizen” clause of Article II would be superfluous. Our Supreme Court has consistently expressed “a deep reluctance to interpret a statutory provision so as to render superfluous other provisions in the same enactment.” Pennsylvania Department of Public Welfare v. Davenport, 495 U.S. 552, 110 S.Ct. 2126, 2133, 109 L.Ed.2d 588 (1990); International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Uaw v. Johnson Controls, Inc, 499 U.S. 187, 111 S.Ct. 1196, 1204, 113 L.Ed.2d 158 (1991) . Hence, we have to give special meaning to the words “natural born.”
As so many scholars and commentators have asked, what does “natural born Citizen” mean? Why did the Framers distinguish in Article II between a “citizen of the United States” and a “natural born Citizen?” The Founders trusted the occupancy of the Office of President to those born on or inhabiting the soil of or to those who naturalized in the Colonies or new States, all of whom belonged to the original citizen class because, even though they were born subject to a foreign power, they had evidenced their loyalty and attachment to the United States by fighting for the American cause in the Revolution. Also, for those born “natural born subjects” of the British Crown, through the Treaty of Peace of 1783, England absolved its subjects of the natural allegiance that they owed to it. But the Founders knew that there would be other foreigners coming to live in America in the future. The allegiance and loyalty of these future foreigners would not have been tested or even absolved in some manner as had occurred under the Treaty of Peace of 1783. The Founders feared foreign influence infecting the administration of the government. It was the fear of foreign influence invading the Office of Commander in Chief of the military that prompted John Jay, our first U.S. Supreme Court Chief Justice, to write to General George Washington the following letter dated July 25, 1787: “Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen” (underlying in the original). Note that Jay wanted a “strong” check that would prevent a foreigner from becoming the Commander in Chief. Hence, any definition of “natural born Citizen” must provide our nation with the strongest check possible on foreign influence invading the Office of President and Commander in Chief of the Military. The Framers found the definition of “natural born Citizen” that would suit their purpose of protecting the future of and preserving the new nation not in the English common law and William Blackstone but in natural law and the law of nations as commented upon by Emer de Vattel, in his treatise, The Law of Nations, or Principles of the Laws of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, bk. 1, c. 19, sec. 212 (original French in 1758 and first English in 1759). This law became American common law. See my article entitled, ‘The Law of Nations or Principles of Natural Law’ as U.S. Federal Common Law Not English Common Law Define What an Article II Natural Born Citizen Is, found at http://puzo1.blogspot.com/2009/08/law-of-nations-and-not-english-common.html.
As James Brown Scott has correctly stated: "It is therefore to be expected that, when terms of municipal law are found in the Constitution, they are to be understood in the sense in which they were used in Blackstone's Commentaries; and when the law of nations is referred to, that its principles are to be understood in the sense in which Vattel defined them." James Brown Scott, The United States of America: A Study in International Organizations 439 (1920). There is little doubt that citizenship properly falls under the law of nations which became U.S. national law and not under the rules of municipal law. Citizenship has always been recognized as a topic that affects United States relations with other nations. On the question of national citizenship, Lynch v. Clarke, 1 Sand. Ch. 583, 3 N.Y. Leg. Obs. 236, 244 (1844), http://books.google.com/books?id=ERgvAAAAIAAJ&pg=PA251&dq=%22Natural+born+citizen%22#v=onepage&q=%22Natural%20born%20citizen%22&f=false (whose finding that Julia Lynch, born in New York to “alien parents, during their temporary sojourn” there, was a citizen of the United States, was in effect overruled by a 1860 New York state statute which provided at Sec. 5 that “[t]he citizens of the state are: 1. All persons born in this state and domiciled within it, except the children of transient aliens and of alien public ministers and consuls”), stated that how we define citizenship "has an essential bearing in our intercourse with other nations and the privileges conceded by them to our citizens; is therefore, not a matter of mere state concern. It is necessarily a national right and character. It appertains to us, not in respect to the State of New York, but in respect of the United States. . . ." Given that citizenship affects "the behavior of nation states with each other," Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Founders would have looked to the law of nations to define it for the needs of the new nation. Clearly, citizenship is both a national and international matter which affects the relations among nations. The Founders and Framers would have looked to the law of nations to define citizenship in the new nation and not the English common law.
The Founders and Framers relied upon Cicero, Grotius, Pufendorf, Locke, and Emer de Vattel (to name a few) in identifying and describing natural law and the law of nations. But they mostly looked to Emer de Vattel and his treatise, The Law of Nations, or Principles of the Laws of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, bk. 1, c. 19, sec. 212 (original French in 1758 and first English in 1759, and other subsequent French and English editions for not only authority on the meaning of natural law and the law of nations but also in constituting the new Constitutional Republic and in writing the new Constitution. The 1759 (aka 1760) edition was published in London in English. An explanation of the various editions is provided by Colonial Society of Massachusetts, Publications of the Colonial Society of Massachusetts, Volume 20 (A. Matthews ed. 1920). http://books.google.com/books?id=svE7AAAAIAAJ&pg=PA5&dq=benjamin+franklin+vattel&ei=W-yPStrRNaf4ygS12bC3Bw#v=onepage&q=benjamin%20franklin%20vattel&f=false
Vattel clearly distinguished between “citizens” (“citoyens” in French) and “naturals” (“naturels” in French). His title for Section 212 is “Des citoyens et naturels” (“Of citizens and naturals” which the English translators called "Of the citizens and natives"). He referred to the “citoyens” who were translated to “citizens” and “naturels” who were later translated to “natural-born citizens.” The “naturels” were the children of the “citoyens.” He therefore saw that there is a difference between the two types of citizens. He explained that difference thus: “The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or indigenes, are those born in the country of parents who are citizens”. Id. bk. 1, c. 19, sec. 212. In the 1797 English edition, the translator replaced the word “indigenes” with “natural-born citizens.” Hence, it read: “The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” Hence, while the definition of a “natural born citizen” never changed in Vattel’s texts, the term to express it was changed from “indigenes” to “natural-born citizens.” That the French word "naturels" was understood by the founders and framers to mean "natural born" prior to the writing of the Constitution and prior to the second English translation of Vattel's Law of Nations in 1797 is confirmed by the record of the Journal of the Continental Congress is 1781. Thus in 1787 John Jay clearly knew what the term "natural born Citizen" meant when he wrote his letter to George Washington suggesting it be added to the eligibility clause as to who can be President and Commander of our military since John Jay was an ardent supporter of Vattel's concepts and natural law and was an advocate for the Law of Nations as the new common law of the new U.S. federal government. John Jay became the first Chief Justice of the U.S. Supreme Court.
There exists evidence contemporaneous to the Founding that the Founders relied upon concepts of natural law, the law of nations, and Vattel to define national citizenship in the new republic and not English common law and Blackstone. Founder and highly respected historian, David Ramsay, who in 1789 wrote, A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen, defined the original citizens and while not using the term nevertheless provided a Founding period contemporaneous definition of a “natural born Citizen,” as well and in so doing relied upon a definition of an original “citizen” and a “natural born citizen” as given by Vattel and not upon one provided by the English common law or Blackstone (both of which defined a “natural born subject” and not a “natural born Citizen” and did not distinguish between a “subject” and a “natural born subject”). Additionally, Rep. William Smith during the 1789 Congressional hearings on whether he was a “citizen of the United States” of seven years (not to be confused with an Article II “natural born Citizen”) which status he needed under Article I, Section 2, Clause 2 to be eligible to sit as a member of the House of Representatives, cited Vattel and espoused and relied upon his definition of a “citizen” and not upon that provided by the English common law or Blackstone to define citizenship in the United States and as authority to prove that he was a “citizen of the United States” of seven years.
During the Founding, the English common law was selectively adopted only by the states and applied there to resolve local issues such as arising in contracts, inheritance, property, torts, matrimony, criminal procedure, etc. But that common law was not adopted on the national level. National law only included the "Constitution, the Laws of the United States, and Treaties..." Article III, Section 2, Clause 1. We know from Article I, Section 8, Clause 10 that the Framers included "the Law of Nations" as part of "the Laws of the United States." While the Founders and Framers relied heavily upon Emer de Vattel for justification for the revolution and in writing the Constitution, this reference is to the body of law then called the law of nations, not Vattel's treatise called, The Law of Nations," which explains how the law of nations is based on natural law and presented what that law was. The law of nations which was relevant on relations among nations specifically addressed what a "citizen" and "natural born citizen" was. The English common law did selectively make its way into the Constitution by way of the Bill of Rights (the first ten Amendments) which was ratified on December 15, 1791. But the Bill of Rights did not address citizenship or nationality as did the law of nations.
The following United States Supreme Court cases and cases from other courts have confirmed that national citizenship has been defined under American common law which has had its genesis in natural law and the law of nations as explicated by Vattel and not under the English common law or Blackstone: (1) The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (Chief Justice John Marshall, concurring and dissenting for other reasons, cited Vattel and provides his definition of natural born citizens); (2) Shanks v. Dupont, 28 U.S. 242, 245 (1830) (provided the same Vattelian definition without citing Vattel); (3) Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) (Daniels, J., concurring, cited Vattel and The Law of Nations and provided his definition of natural born citizens and took out of Vattel’s definition the reference to “fathers” and “father” and replaced it with “parents” and “person,” respectively); (4) Slaughter-House Cases, 83 U.S. 36, 21 L.Ed. 394, 16 Wall. 36(1872) (in explaining the meaning of the Fourteenth Amendment clause, “subject to the jurisdiction thereof,” said that the clause “was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States”); (5) Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (provided the same Vattelian definition without citing Vattel); (6) Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879) (provided the same Vattelian definition and cites Vattel); (7) Elk v. Wilkins, 112 U.S. 94 (1884) (“the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations” are not citizens under the Fourteenth Amendment because they are not subject to the jurisdiction of the United States); (8) United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (provided the same Vattelian definition and cited Vattel); (9) U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898) (distinguished between a “natural born Citizen” and a “citizen of the United States” and cited Vattel and quoted his definition of “natural born Citizen” as did Minor v. Happersett); (10) and Perkins v. Elg, 307 U.S. 325 (1939) (other than Minor v. Happersett, the only U.S. Supreme Court decision that declared someone a “natural born Citizen.” The person was born in the United States to a citizen father and citizen mother through derivative citizenship).
Further evidence that the English common law and Blackstone did not prevail in the United States to define national citizenship is the cases of Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), holding that blacks whether slaves or free did not acquire United States citizenship at birth even though they were born in the United States and Elk v. Wilkins, 112 U.S. 94, 102 (1884), holding that American Indians did not acquire United States citizenship at birth even though they were born in the United States. English common law, with the exception for children of diplomats and invading armies, only required birth within the dominion without any reference to the citizenship status of the parents to grant “natural born subject” status. Yet, under these early decisions of our Supreme Court both Indians and blacks even if born in the United States were denied initial membership in the United States.
There does not exist one U.S. Supreme Court decision that defined national citizenship under English common law as commented upon by Blackstone, except for U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898). This decision defined a Fourteenth Amendment born “citizen of the United States” (not to be conflated with an Article II “natural born Citizen”) under colonial English common law rather than under natural law, the law of nations, and American common law which up to that time the Supreme Court had always relied upon to define national citizenship in the United States. There was no need for Wong Kim Ark to resort to the English common law, for Vattel tells us in Section 215 that if the father [meaning parents because of unity of husband and wife] has [have] “entirely quitted his [their] country in order to settle elsewhere,” i.e., has [have] become a “perpetual inhabitant” of that other country, and has [have] a child in that other country, the father [those parents] will become a member [members] of that other society and his [their] child born in that country will follow his [their] condition and also become a member of that same society. Vattel considered these children to be only “members” of that country which under Section 212 translates to “citizens” and not “natural-born citizens.” He did not say that they become “natural born citizens” of that country. Vattel clearly distinguished between the two, with initial “members” of a society being just “citizens,” not “natural-born citizens.” This dichotomy of citizenship is consistent with the views of Samuel von Pufendorf who divided born citizens into two categories, the original citizens and their descendents. Note that he called the children of the original citizens “Indigenes, or Natives.” He stated: “Citizens are either Originally so; that is, such as are born in the Place, and upon that Account claim their Privileges; Or else, Adscititious; that is, such as come from Foreign Parts. Of the first Sort, are either those who at first were present and concerned in the forming of the said Society, or their Descendants, who we call Indigenes, or Natives. Of the other Sort are those who come from Foreign Parts in order to settle themselves there. As for those who come thither only to make a short Stay, although they are for that Time subject to the Laws of the Place; nevertheless, they are not looked upon as Citizens, but are called Strangers or Sojourners.” The Whole Duty of Man According to the Laws of Nature (William Tooke trans., Ian Hunter & David Saunders, eds., Liberty Fund 2003, Book II, Chapter 6, xiii, 1691).
Given that Wong Kim Ark found that Wong was born in the United States to alien parents who were domiciled in the United States, the Court could have also found that Wong’s parents were “perpetual inhabitants” of the United States and that Wong was born a member of American society (born subject to the jurisdiction of the United States) and thus a born “citizen of the United States” under the Fourteenth Amendment by using Vattel and the law of nations. Under such a scenario, Wong would be treated the same as an original citizen. We can only speculate why Justice Gray did not use natural law, the law of nations, and American common law (meaning Vattel’s rules on citizenship) to declare Wong a “citizen of the United States” like Chief Justice Waite did in Minor to show that Happersett was a “natural-born citizen.” One thing that comes to mind, however, is that if Justice Gray would have relied upon Vattel and American common law rather than English common law to declare Wong a “citizen of the United States,” if the public knew of Arthur's alien birth circumstances, and if someone would have raised the issue, he would have had to acknowledge that President Chester Arthur, the President who appointed him to the Supreme Court in 1881, was not eligible to be Vice-President or President because he was born in the United States to an alien father and mother (his U.S. born mother also became an alien through then merger of citizenship into the alien father) and at most he would have been a born “citizen of the United States” but not an Article II “natural born Citizen.” Apart from the fact that the American electorate and public was not aware back then that Arthur was born to a non-citizen father, application of the English common law further obscured Arthur's ineligibility. In this connection, we should also consider Senate Resolution 511, passed by the Senate on April 30, 2008, to declare Senator John McCain a “natural born Citizen” and the legal analysis of Theodore Olson (former Solicitor General) and Laurence Tribe (Harvard Law School Professor) on which the U.S. Senate relied to come to its conclusion regarding McCain status and which Senator Leahy requested be printed in the Record. Olson and Tribe did not use Vattel’s Section 217’s born abroad to citizen parents while serving “in the armies of the state” as a ground to declare Senator John McCain a “natural born Citizen.” Their using Vattel would have exposed Putative President Obama’s ineligibility to be President the same as Justice Gray using Vattel would have shown President Arthur’s ineligibility for that same office.
It is critical to understand that Wong Kim Ark did not define a “natural born Citizen,” for the Court recognized that Minor v. Happersett had already done that in 1875 and did not object to that definition. Rather, the Court defined a born “citizen of the United States” under the Fourteenth Amendment which only defines initial membership in American society and did not amend Article II, Section 1, Clause 5’s definition of a “natural born Citizen” which is that status reserved to those children born in the United States to a citizen father and citizen mother which makes them second generation United States citizens who are born with unity of citizenship and sole allegiance to the United States and who are therefore eligible to be President. Hence, Wong Kim Ark did not change the definition of an Article II “natural born Citizen.”
In addition to these Supreme Court cases, there exists other cases and historical evidence which show that the Founders and Framers rejected the English common law and Blackstone as a basis for rules of decision for the new federal government and nation. For sake of brevity, that evidence will not be discussed here. The Founders and Framers would not have rejected the English common law and Blackstone at the federal level and then at the same time relied upon those sources to define generally who the people of the new nation were going to be and specifically who among those people could hold the highest offices in government including the office of President and Commander in Chief of the Military.
Minor told us that “At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.” Minor, 169 U.S. at 679-80. So we can see that the legal and political battles over citizenship have not been over the meaning of a “natural born Citizen. Rather, they have been over who can be a “citizen of the United States” or in other words, who can be accepted as an initial member of the political society known as the United States. The battle over who can be an initial member of American society has existed in our history because the United States is the product of conquest (of the American Indians), revolution ( against Great Britain), and immigration (involving not only “white” Europeans but also Asians and others who fell outside that description). This battle has also raged because the institution of slavery involving blacks brought to the colonies from Africa existed at the time of the Founding and up to 1865 when the Civil War ended. Hence, because of this historical development, the United States has found itself populated with people of different races, colors, national origins, religions, and ethnicities. In the early years of the English colonies, even religion was a factor that could prevent one from becoming a citizen. James Kettner, The Development of American Citizenship, 1608-1879 (1978). The problem for defining an Article II “natural born Citizen” is that we have lost sight of the fact that historically our courts and political institutions have struggled to define a “citizen of the United States” or who can be a member of the political society called the United States and not a “natural born Citizen.” It is this struggle that produced the Civil Rights Act of 1866, the Fourteenth Amendment, and other special Congressional acts and treaties allowing American Indians to become citizens at birth.
The Constitution should be honored and enforced in the way that it was written and originally intended by the Framers rather than in a way that pleases political parties or some political majority. Needed changes to it brought about by social evolution should not be made for political expediency by political parties or voting majorities without going through the formal amendment process prescribed by the Constitution itself in Article V. It has always been Emer de Vattel that provided our nation with the definition of an Article II “natural born Citizen’ and not William Blackstone. It is this definition that the Founders and Framers used to define the clause and it is this definition which should be enforced for the national security reasons of it being there if we are to be true to the Constitution and the rule of law.
Obama fails to meet this definition because if he was born in Hawaii, he was born to a British father and a U.S. citizen mother and he himself was born a British citizen under the British Nationality Act of 1948, causing him to be born with allegiance to Great Britain and to the United States. The U.S. State Department has confirmed that Obama was born with dual allegiances. Leventhal cites FactCheck.org to state, "Obama was originally both a U.S. citizen and a citizen of the United Kingdom and Colonies from 1961 to 1963 given that his father was from Kenya, which gained its independence from the British Empire in 1963. Upon independence, Obama became both a U.S. and Kenyan citizen from 1963 to 1982 [should be 1984], and solely a U.S. citizen after that." The entry "The Obama Birth Controversy" was written by Todd Leventhal, the chief of the Counter-Misinformation Team for the U.S. Department of State.
While today our law does not provide for merger of the wife’s citizenship into that of the husband, Obama was still born to an alien father and as a British citizen himself, thereby causing him to lack unity of citizenship and sole allegiance to the United States at birth, necessary conditions to be an Article II “natural born Citizen.” It should be noted that Obama's father was in the United States on a temporary student visa and he returned to Kenya after his studies were complete. Hence, he never had an intention to become domiciled in the United States. On the other hand, Obama's mother was not only a U.S. citizen but also domiciled in the United States. Assuming that Obama’s parents were domiciled in the United States and that he was born in the United States (a fact which he has yet to conclusively prove), which would arguably all make him “subject to the jurisdiction thereof,” he was at most born a “citizen of the United States” under the Fourteenth Amendment and a citizen of Great Britain under the British Nationality Act of 1948. While such dual citizenship creates dual allegiances, under current interpretation of the Fourteenth Amendment’s “subject to the jurisdiction thereof” clause, such dual allegiances would not prevent him from being a born “citizen of the United States.” But they would prevent him from being an Article II “natural born Citizen,” which constitutional status does not produce dual allegiances at birth. Obama is therefore not eligible to be President.
Finally, if Obama was not born in the United States, he would not even be a “citizen of the United States” under the version of Section 301(g) of the Immigration Nationality Act that was in effect in 1961 because his 18-year-old U.S. citizen mother was too young when he was born to pass her U.S. citizenship to him under that law as it existed then.
Mario Apuzzo, Esq.
http://puzo1.blogspot.com/
November 1, 2010
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Tuesday, August 31, 2010
Tuesday, July 20, 2010
Glenn Beck: Does Presidential Assassination Program Exist?
Glenn Beck: Does Presidential Assassination Program Exist?
A story came out a little while ago that, quite honestly, I can't believe I missed, but someone sent it to me. It's about the "presidential assassination program," where "American citizens are targ...eted for killings far away from any battlefield, based exclusively on unchecked accusations by the executive branch that they're involved in terrorism." There are allegedly "dozens of Americans" on this hit list who "pose a threat" to the United States.
Length: 15:02
http://www.youtube.com/watch?v=ZxTTD8pW9W0
A story came out a little while ago that, quite honestly, I can't believe I missed, but someone sent it to me. It's about the "presidential assassination program," where "American citizens are targ...eted for killings far away from any battlefield, based exclusively on unchecked accusations by the executive branch that they're involved in terrorism." There are allegedly "dozens of Americans" on this hit list who "pose a threat" to the United States.
Length: 15:02
http://www.youtube.com/watch?v=ZxTTD8pW9W0
Thursday, July 8, 2010
Thursday, July 1, 2010
Jillian Bandes: Kagan's Top Ten
Here are the top ten quotes from Solicitor General Elana Kagan as she goes into her fourth day of Senate hearings.
1. "Like all Jews, I was probably at a Chinese restaurant." — Responding to Sen. Lindsey Graham, R-S.C., who asked Kagan was she was doing on Christmas Day of last year, when a an terrorist was caught trying to blow up a plane.
2. "Lets just throw that piece of work in the trash, why don't we?" she said. "That's before I went to law school, and didn't understand much about the way judges should work." — Speaking about her thesis to the Judiciary Committee, which defended both judicial activism and bemoaned the demise of the Communist Party in the United States.
3. "The 'disaster' would be if the statement did not accurately reflect all of what ACOG thought." — Trying to wiggle out of her previous reflection that the it would be a “disaster” if the American College of Obstetricians and Gynecologists could not identify any circumstances under which that partial-birth abortion “would be the only option to save the life or preserve the health of the woman.”
4. “Senator, the military at all times during my deanship had full and good access.”— Speaking on her decision to exclude military recruiters from availing themselves of Harvard’s career services office, and instead force them to work through a student group with limited access to the student body.
5. A "loosey-goosey style of interpretation in which anything goes." — Describing her opinion of a “living” Constitution.
6. “A vapid and hollow charade,” serving “little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government.” — From 1995 Law Review article, expressing her opinions of Supreme Court hearings. Ironically, she ensured her very own hearings embodied that sentiment perfectly.
7. "Sounds like a dumb law. But I think that the question of whether it’s a dumb law is different from whether the question of whether it’s constitutional and I think that courts would be wrong to strike down laws that they think are senseless just because they’re senseless." — Responding to a question from Sen. Tom Coburn (R-Okla.), who asked Kagan if she thought a bill that required Americans to eat three vegetables and three fruits every day would violate the Commerce Clause.
8. “My political views are generally progressive.” — Responding to a question from Sen. Lindsey Graham (R-S.C.), who brought up the fact that a former chief counsel to President Obama characterized Kagan as "largely a progressive in the mold of Obama himself."
9. “I’m not quite sure how I would characterize my politics.” Responding to Sen. Jeff Sessions (R-Ala.)
10. “I wish you wouldn’t [ask].” Responding to Sen. Amy Klobuchar, (D-Minn.), who jokingly asked Kagan to give her opinion on the "the vampire versus the werewolf" in the television series Twilight. Klobuchar’s teenage daughter had seen the midnight showing on the morning before the hearings.
1. "Like all Jews, I was probably at a Chinese restaurant." — Responding to Sen. Lindsey Graham, R-S.C., who asked Kagan was she was doing on Christmas Day of last year, when a an terrorist was caught trying to blow up a plane.
2. "Lets just throw that piece of work in the trash, why don't we?" she said. "That's before I went to law school, and didn't understand much about the way judges should work." — Speaking about her thesis to the Judiciary Committee, which defended both judicial activism and bemoaned the demise of the Communist Party in the United States.
3. "The 'disaster' would be if the statement did not accurately reflect all of what ACOG thought." — Trying to wiggle out of her previous reflection that the it would be a “disaster” if the American College of Obstetricians and Gynecologists could not identify any circumstances under which that partial-birth abortion “would be the only option to save the life or preserve the health of the woman.”
4. “Senator, the military at all times during my deanship had full and good access.”— Speaking on her decision to exclude military recruiters from availing themselves of Harvard’s career services office, and instead force them to work through a student group with limited access to the student body.
5. A "loosey-goosey style of interpretation in which anything goes." — Describing her opinion of a “living” Constitution.
6. “A vapid and hollow charade,” serving “little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government.” — From 1995 Law Review article, expressing her opinions of Supreme Court hearings. Ironically, she ensured her very own hearings embodied that sentiment perfectly.
7. "Sounds like a dumb law. But I think that the question of whether it’s a dumb law is different from whether the question of whether it’s constitutional and I think that courts would be wrong to strike down laws that they think are senseless just because they’re senseless." — Responding to a question from Sen. Tom Coburn (R-Okla.), who asked Kagan if she thought a bill that required Americans to eat three vegetables and three fruits every day would violate the Commerce Clause.
8. “My political views are generally progressive.” — Responding to a question from Sen. Lindsey Graham (R-S.C.), who brought up the fact that a former chief counsel to President Obama characterized Kagan as "largely a progressive in the mold of Obama himself."
9. “I’m not quite sure how I would characterize my politics.” Responding to Sen. Jeff Sessions (R-Ala.)
10. “I wish you wouldn’t [ask].” Responding to Sen. Amy Klobuchar, (D-Minn.), who jokingly asked Kagan to give her opinion on the "the vampire versus the werewolf" in the television series Twilight. Klobuchar’s teenage daughter had seen the midnight showing on the morning before the hearings.
Friday, June 25, 2010
Big Victory for Taxpayers
Americans for Prosperity and Mayor Pat McCrory Team Up To Defeat Expansion Of Welfare For Politicians
Section of Ethics Bill that would raise taxes and fees to fund political campaigns removed from bill after massive grassroots uprising
Taxpayers will save millions of dollars that would have been spent on political campaigns after a grassroots uprising lead by Americans for Prosperity along with Former Charlotte Mayor Pat McCrory caused state senate democratic leaders to pull the controversial “welfare for politicians” section out of the ethics bill.
North Carolina State Director of Americans for Prosperity, Dallas Woodhouse, today praised the grassroots effort of its members and taxpayers across North Carolina for burning up the phone lines at the General Assembly in a successful effort to stop the tax increases and taxpayer funding of political campaigns that was in the bill.
“I want to thank the thousands of people from across North Carolina that have contacted their state senators to oppose the expansion of taxpayer funding of elections and the tax increases that would have funded the scheme,” said Woodhouse. “This is clearly a victory for taxpayers all across North Carolina and it would not have happened without the efforts of our grassroots members and the leadership of Mayor Pat McCrory. Mr. McCrory recorded phone messages to tens of thousands of voters across North Carolina in an effort to educate taxpayers about this bill. We thank him for this successful call to action that has spared taxpayers additional tax increases.
North Carolina State Senate Majority leader Martin Nesbitt (D-Buncome) is quoted in the Raleigh News and Observer as saying the AFP phone project created a “firestorm” at the General Assembly.
State Senator John Snow (D-Murphy) told the Associated Press his office received over 70 phone calls on the issue as well as e-mails from Americans For Prosperity members.
"Public financing is very popular with hard leftists in Raleigh, but when people back home found out about this, they reacted very viscerally and negatively," Woodhouse said.
“We knew our grassroots effort was working because thousands of people are calling and e-mailing their state senator and asking them to not support the part of the ethics bill that would raise taxes to fund political campaigns. While I support efforts to clean up state government and believe we need a strong ethics bill, House Bill 961 would have raised fees and taxes on job creation at the worst possible time,” said McCrory. “It was also a mistake to add this provision at the last minute in the middle of the night to what should be a bi-partisan ethics bill.
Americans for Prosperity® (AFP) is a nationwide organization of citizen leaders committed to advancing every individual's right to economic freedom and opportunity. AFP believes reducing the size and scope of government is the best safeguard to ensuring individual productivity and prosperity for all Americans. AFP educates and engages citizens in support of restraining state and federal government growth, and returning government to its constitutional limits. AFP has more than 1,000,000 members, including members in all 50 states, and 30 state chapters and affiliates. More than 55,000 Americans in all 50 states have made a financial investment in AFP or AFP Foundation. For more information, visit www.americansforprosperity.org
Section of Ethics Bill that would raise taxes and fees to fund political campaigns removed from bill after massive grassroots uprising
Taxpayers will save millions of dollars that would have been spent on political campaigns after a grassroots uprising lead by Americans for Prosperity along with Former Charlotte Mayor Pat McCrory caused state senate democratic leaders to pull the controversial “welfare for politicians” section out of the ethics bill.
North Carolina State Director of Americans for Prosperity, Dallas Woodhouse, today praised the grassroots effort of its members and taxpayers across North Carolina for burning up the phone lines at the General Assembly in a successful effort to stop the tax increases and taxpayer funding of political campaigns that was in the bill.
“I want to thank the thousands of people from across North Carolina that have contacted their state senators to oppose the expansion of taxpayer funding of elections and the tax increases that would have funded the scheme,” said Woodhouse. “This is clearly a victory for taxpayers all across North Carolina and it would not have happened without the efforts of our grassroots members and the leadership of Mayor Pat McCrory. Mr. McCrory recorded phone messages to tens of thousands of voters across North Carolina in an effort to educate taxpayers about this bill. We thank him for this successful call to action that has spared taxpayers additional tax increases.
North Carolina State Senate Majority leader Martin Nesbitt (D-Buncome) is quoted in the Raleigh News and Observer as saying the AFP phone project created a “firestorm” at the General Assembly.
State Senator John Snow (D-Murphy) told the Associated Press his office received over 70 phone calls on the issue as well as e-mails from Americans For Prosperity members.
"Public financing is very popular with hard leftists in Raleigh, but when people back home found out about this, they reacted very viscerally and negatively," Woodhouse said.
“We knew our grassroots effort was working because thousands of people are calling and e-mailing their state senator and asking them to not support the part of the ethics bill that would raise taxes to fund political campaigns. While I support efforts to clean up state government and believe we need a strong ethics bill, House Bill 961 would have raised fees and taxes on job creation at the worst possible time,” said McCrory. “It was also a mistake to add this provision at the last minute in the middle of the night to what should be a bi-partisan ethics bill.
###
Americans for Prosperity® (AFP) is a nationwide organization of citizen leaders committed to advancing every individual's right to economic freedom and opportunity. AFP believes reducing the size and scope of government is the best safeguard to ensuring individual productivity and prosperity for all Americans. AFP educates and engages citizens in support of restraining state and federal government growth, and returning government to its constitutional limits. AFP has more than 1,000,000 members, including members in all 50 states, and 30 state chapters and affiliates. More than 55,000 Americans in all 50 states have made a financial investment in AFP or AFP Foundation. For more information, visit www.americansforprosperity.org
Thursday, June 24, 2010
Obituary-Very Interesting!
United States: Born 1776, Died 2008
It doesn't hurt to read this several times.
Professor Joseph Olson of Hamline University School of Law in St. Paul , Minnesota , points out some interesting facts concerning last November's Presidential election:
•Number of States won by: Obama: 19 McCain: 29
•Square miles of land won by: Obama: 580,000 McCain: 2,427,000
•Population of counties won by: Obama: 127 million McCain: 143 million
•Murder rate per 100,000 residents in counties won by: Obama: 13.2 McCain: 2.1
Professor Olson adds: "In aggregate, the map of the territory McCain won was mostly the land owned by the taxpaying citizens of the country.
Obama territory mostly encompassed those citizens living in low income tenements and living off various forms of government welfare..."
Olson believes the United States is now somewhere between the "complacency and apathy" phase of Professor Tyler's definition of democracy, with some forty percent of the nation's population already having reached the "governmental dependency" phase.
If Congress grants amnesty and citizenship to twenty million criminal invaders called illegals - and they vote - then we can say goodbye to the USA in fewer than five years.
It doesn't hurt to read this several times.
Professor Joseph Olson of Hamline University School of Law in St. Paul , Minnesota , points out some interesting facts concerning last November's Presidential election:
•Number of States won by: Obama: 19 McCain: 29
•Square miles of land won by: Obama: 580,000 McCain: 2,427,000
•Population of counties won by: Obama: 127 million McCain: 143 million
•Murder rate per 100,000 residents in counties won by: Obama: 13.2 McCain: 2.1
Professor Olson adds: "In aggregate, the map of the territory McCain won was mostly the land owned by the taxpaying citizens of the country.
Obama territory mostly encompassed those citizens living in low income tenements and living off various forms of government welfare..."
Olson believes the United States is now somewhere between the "complacency and apathy" phase of Professor Tyler's definition of democracy, with some forty percent of the nation's population already having reached the "governmental dependency" phase.
If Congress grants amnesty and citizenship to twenty million criminal invaders called illegals - and they vote - then we can say goodbye to the USA in fewer than five years.
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