Friday, March 13, 2015

A Response to Neil Katyal and Paul Clement on the Meaning of a Natural Born Citizen

A Response to Neil Katyal and Paul Clement on the Meaning of a Natural Born Citizen

By Mario Apuzzo, Esq.
March 13, 2015

I read the March 11, 2015 article entitled, “On the Meaning of a ‘Natural Born Citizen,” written by Neal Katyal and Paul Clement, found at 128 Harv.L.Rev.F 161, and accessed at http://harvardlawreview.org/2015/03/on-the-meaning-of-natural-born-citizen/ .  The first sentence of the article says:  “We have both had the privilege of heading the Office of the Solicitor General.”  The article repeats the existing talking points offered in support of the constitutional eligibility of Senator Ted Cruz (all born citizens are natural born citizens) and offers nothing new.  Mr. Cruz was born in Canada to a U.S. citizen mother and a non-U.S. citizen (Cuban) father.  I have written a recent article in which I conclude that Mr. Cruz is not a natural born citizen and therefore not eligible to be President because he does not satisfy the one and only common law definition of a natural born citizen confirmed by the unanimous U.S. Supreme Court in Minor v. Happersett, 88 U.S. 162 (1875), which is a child born in a country to parents who were its citizens at the time of the child’s birth.  The article is entitled, “What Do President Obama and Senator Cruz Have In Common? They Are Both Not Natural Born Citizens," accessed at http://puzo1.blogspot.com/2015/02/what-do-president-obama-and-senator.html .  Katyal and Clement maintain that any child who becomes a citizen at birth, regardless of where born or by what means, is a natural born citizen.  They add that since Mr. Cruz became a citizen from the moment of birth and did not need any naturalization after birth he is a natural born citizen.  But there is no historical and legal evidence which demonstrates that this is how the Framers defined a natural born citizen and the authors surely have not presented that evidence even if it did exist. 

The authors’ argument suffers from the fallacy of bald assertion.  They provide no convincing evidence for their position on who is included as an Article II natural born citizen.  They do not examine what was the source of the Framers' definition of an Article II natural born citizen, let alone what was the definition of a natural born citizen when the Framers drafted and adopted the Constitution and when it was eventually ratified.  They ignore so much of the historical and legal record in coming to their bald conclusions. For a discussion of this historical and legal evidence, see the numerous articles that I have written and posted at my blog, http://puzo1.blogspot.com .

They gloss over what the Framers' purpose was for requiring the President and Commander in Chief of the Military to be a natural born citizen.  They do not engage in any real discussion on what the Framers were trying to achieve through the clause. They dismiss all debate on the subject of foreign influence by flatly stating without any evidence:  "The Framers did not fear such machinations from those who were U.S. citizens from birth just because of the happenstance of a foreign birthplace."

The authors cite to the Naturalization Act of 1790 and ignore the fact that the Naturalization Act of 1795, with the lead of then-Rep. James Madison and with the approval of President George Washington, repealed it and specifically changed "shall be considered as natural born citizens" to "shall be considered as citizens of the United States."  This is even more a blatant omission given that they argue that the English naturalization statutes referred to persons born out of the King's dominion to British subject parents as "natural born subjects."  They fail to address this critical change made by our early Congress, critical because Article II, Section 1, Clause 5 provides that a “Citizen” of the United States was eligible to be President only if born before the adoption of the Constitution and that thereafter only a “natural born Citizen” was so eligible.  Hence, Congress referring to one as a citizen rather than a natural born citizen, given the presidential eligibility requirements of Article II, was a serious thing.  They do not discuss what the language of the 1790 Act, "shall be considered as," meant.  They fail to address the issue that this was naturalization language and nothing more.  They fail to discuss whether Congress even had the constitutional power to make anyone born out of the United States a natural born citizen, if that was Congress’s intent in the first place.

They assert without demonstrating that the English common law supports their position.  But they totally ignore that under the English common law, only persons born in the King's dominion and under his jurisdiction were natural born subjects and that those born out of the dominion and therefore out of his jurisdiction became subjects only through a naturalization Act of Parliament.

They cite to Blackstone's Commentaries on the Laws of England, but they do not cite to Emer de Vattel and his The Laws of Nations (1758) (1797) or Minor, two leading sources that inform on U.S. citizenship.  Both Vattel and Minor defined a natural born citizen as a child born in a country to parents who were its citizens.  What is incredible is that they cite U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) to demonstrate that British statutes called children born out of the King's dominion to subject parents "natural born."  But they fail to tell the reader that Wong Kim Ark considered children born out of the United States to U.S. citizen parents to be naturalized by acts of Congress. In fact, they give virtually no discussion of the Wong Kim Ark case because they know that the case said that under the English common law, only children born in the King’s dominion and under his jurisdiction were natural born subjects and that any child born  out of that dominion needed an act of Parliament to naturalize him or her.  They also fail to discuss the U.S. Supreme Court case of Rogers v. Bellei, 401 U.S. 815 (1971), in which both majority and dissent said the same as Wong Kim Ark which was that children born out of the United States to U.S. citizen parents become citizens of the United States only through the grace of Congress who made them citizens through a naturalization Act without which those children would be aliens.   It simply defies logic and good reason to conclude that a person who would not be a citizen at all without a naturalization act of Congress is a natural born citizen.

Katyal and Clement argue that John Jay had children born out of the United States while he was on diplomatic assignment and that he would not have disqualified his own children from being natural born citizens.  This is a really baseless point since Jay's children would have been born out of the United States to parents who were serving the national defense of the United States and therefore reputed born in the United States.  Likewise, they present the John McCain situation as proof for their position.  But they fail to realize that John McCain was born in Panama to U.S. citizen parents who were serving the national defense of the United States which makes him reputed born in the United States to U.S. citizen parents and therefore a natural born citizen under the one and only common law definition of a natural born citizen as confirmed by unanimous U.S. Supreme Court in Minor.  See Vattel, Section 217 (children born out of the country to citizen parents serving in the armies of the state are reputed born in the country).  They give the examples of Senator Barry Goldwater and Governor George Romney who they say were eligible to serve as President although neither was born within a state. The argument is meritless, for they were both born to U.S. citizen parents in U.S. sovereign territory subject to no foreign power and hence were born in part of the country known as the United States, all of which made them natural born citizens under the common law definition of a natural born citizen.

The authors conclude without demonstrating:  "Despite the happenstance of a birth across the border, there is no question that Senator Cruz has been a citizen from birth and is thus a “natural born Citizen” within the meaning of the Constitution."  They simply make this conclusion without having shown how their position is valid given the historical and legal record.

The authors also show contempt to the constitutional requirement that the President has to be a natural born citizen and for any person who dare raise any such issue.  For example, they say: "simply because he was delivered at a hospital abroad," rather than saying that he was born in a foreign nation; "born in a Canadian hospital," rather than saying that he was born in Canada;  "[d]espite the happenstance of a birth across the border;"  they call arguments with which they do not agree "spurious;" and they consider objections to candidate's eligibility as "specious objections to candidates eligibility," as if no one ever made any valid argument.

In short, Katyal and Clement’s article lacks any critical research and reasoning and is nothing more than an attempt to convince the reader that Senator Cruz is a natural born citizen because they said so and the reader has to believe that because they were former heads of the Office of Solicitor General of the United States.

Mario Apuzzo, Esq.
March 13, 2015

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Copyright © 2015
Mario Apuzzo, Esq.
All Rights Reserved





Friday, February 20, 2015

What Do President Obama and Senator Cruz Have In Common? They Are Both Not Natural Born Citizens



What Do President Obama and Senator Cruz Have In Common?  They Are Both Not Natural Born 
                                                                  Citizens

                                                         By Mario Apuzzo, Esq. 
                                                             February 20, 2015




Article II, Section 1, Clause 5 provides:

No person except a natural-born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office, who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.” 

This constitutional provision raises two questions:  who are the “citizens” of the United States?; and who are the “natural born citizens” of the United States?  Let us examine these questions.   

Members of nations that are politically constituted as republics are called citizens. 

Citizens can be either citizens from the moment of birth or after birth.

Persons who are citizens from the moment of birth are automatically made so by either their birth circumstances alone or by some law that grants them that birth status without which they would not be so recognized.  In the United States, the former are the “natural born citizens” of the United States and the latter are “citizens” of the United States “at birth.”   Those who are made citizens after birth are also made so by circumstances or by some law without which they would also not be citizens.  In the United States, these citizens are commonly called “naturalized” citizens of the United States, meaning they did not acquire their citizenship automatically at the moment of their birth, but rather after birth through circumstances (the original citizens of the United States who acquired that status by adhering to the American Revolution) or formal naturalization process.   

Thomas Jefferson in The Declaration of Independence wrote about “the Laws of Nature and of Nature’s God” entitling the American people to “the separate but equal Station” “among the Powers of the Earth.”  To understand why he would have used these words which also leads us to an understanding of what a natural born citizen is, consider this passage regarding what Aristotle, the Stoics, Christian teaching, and modern thought said about natural law or natural right:

Aristotle  

It is in accordance with the general character of Aristotle’s philosophy that his teaching regarding natural right is much closer to the ordinary understanding of justice than is Plato’s [see Aristotle]. In his Rhetoric he speaks of “the law according to nature” as the unchangeable law common to all men, but it is not entirely certain that he takes that law to be more than something generally admitted and hence useful in forensic rhetoric. At least two of his three examples of natural law do not agree with what he himself regarded as naturally right (Rhetoric 1373b4-18). In the Nicomachean Ethics (1134bl8-1135a5) he speaks not, indeed, of natural law but of natural right. Natural right is that right which has everywhere the same power and does not owe its validity to human enactment. Aristotle does not give a single explicit example; but he seems to imply that such things as helping fellow citizens who are victims of misfortune resulting from the performance of a civic duty, and worshiping the gods by sacrifices, belong to natural right. If this interpretation is correct, natural right is that right which must be recognized by any political society if it is to last and which for this reason is everywhere in force. Natural right thus understood delineates the minimum conditions of political life, so much so that sound positive right occupies a higher rank than natural right. Natural right in this sense is indifferent to the difference among regimes, whereas positive right is relative to the type of regime—positive right is democratic, oligarchic, etc. (cf. Politics 1280a8-22). “Yet,” Aristotle concludes his laconic statement on natural right, “one regime alone is by nature the best everywhere.” This regime, “the most divine regime,” is a certain kind of kingship, the only regime that does not require any positive right (Politics 1284a4-15; 1288al5-29). The flooring and the ceiling, the minimum condition and the maximum possibility of political society, are natural and do not in any way depend on (positive) law.

Stoicism

Natural law becomes a philosophic theme for the first time in Stoicism. It there becomes the theme not primarily of moral or political philosophy but of physics (the science of the universe). The natural (or divine or eternal) law is identified with God, the highest god (fire, ether, or air), or his reason, i.e., with the ordering principle that pervades and thus governs the whole by molding eternal matter. Rational beings can know that law and knowingly comply with it insofar as it applies to their conduct. In this application natural law directs man toward his perfection, the perfection of a rational and social animal; it is “the guide of life and the teacher of the duties” (Cicero, On the Nature of the Gods I, 40); it is the dictate of reason regarding human life. Thus the virtuous life as choice worthy for its own sake comes to be understood as compliance with natural law—with a law, and hence as a life of obedience.

Inversely, the content of natural law is the whole of virtue. The virtuous life as the Stoics understood it is, however, not identical with the life of moral virtue (as distinguished from the life of contemplation), for one of the four cardinal virtues is wisdom that is above all theoretical wisdom; the virtuous man is the wise man or the philosopher. One is tempted to say that the Stoics treat the study of philosophy as if it were a moral virtue, i.e., as something which could be demanded from most men. Justice, another of the four virtues, consists primarily in doing what is by nature right. The foundation of right is man’s natural inclination to love his fellow men, not merely his fellow citizens: there is a natural society comprising all men (as well as all gods). The inclination toward the universal society is perfectly compatible with the equally natural inclination toward political society, which is of necessity a particular society. The unchangeable and universally valid natural law—a part of which determines natural right, i.e., that with which justice, in contradistinction to wisdom, courage, and temperance, is concerned—is the ground of all positive law; positive laws contradicting natural law are not valid.

It is sometimes asserted that the Stoics differ from Plato and Aristotle by being egalitarians. Differing from Aristotle (but not from Plato), they denied that there are slaves by nature; but this does not prove that according to them all men are by nature equal in the decisive respect, i.e., as regards the possibility of becoming wise or virtuous (Cicero, On the Ends of the Good and Bad Things iv, 56). The peculiarity of the Stoics, in contradistinction to Plato and Aristotle, that explains why the Stoics were the first philosophers to assert unambiguously the existence of natural law would seem to be the fact that they teach in a much less ambiguous way than Plato, to say nothing of Aristotle, the existence of a divine providence that supplies divine sanctions for the compliance or noncompliance with the requirements of virtue. (Cf. Cicero, Laws II, 15-17; Republic III, 33-34.)

The Stoic natural law teaching is the basic stratum of the natural law tradition. It affected Roman law to some extent. With important modifications it became an ingredient of the Christian doctrine.

Christian teaching

The Christian natural law teaching reached its theoretical perfection in the work of Thomas Aquinas [see Aquinas]. It goes without saying that in the Christian version, Stoic corporealism (“materialism”) is abandoned. While natural law retains its status as rational, it is treated within the context of Christian (revealed) theology. The precise context within which Thomas treats natural law is that of the principles of human action; these principles are intrinsic (the virtues or vices) or extrinsic; the extrinsic principle moving men toward the good is God, who instructs men by law and assists them by his grace. Natural law is clearly distinguished from the eternal law—God himself or the principle of his governance of all creatures —on the one hand, and the divine law, i.e., the positive law contained in the Bible, on the other. The eternal law is the ground of the natural law, and natural law must be supplemented by the divine law if man is to reach eternal felicity and if no evil is to remain unpunished. All creatures participate in the eternal law insofar as they possess, by virtue of divine providence, inclinations toward their proper acts and ends. Rational beings participate in divine providence in a more excellent manner because they can exercise some providence for themselves; they can know the ends toward which they are by nature inclined as good and direct themselves toward them. Man is by nature inclined toward a variety of ends which possess a natural order; they ascend from self-preservation and procreation via life in society toward knowledge of God. Natural law directs men’s action toward those ends by commands and prohibitions.

Differently stated, as a rational being man is by nature inclined toward acting according to reason; acting according to reason is acting virtuously; natural law prescribes, therefore, the acts of virtue. Man by nature possesses knowledge of the first principles of natural law, which are universally valid or unchangeable. Owing to the contingent character of human actions, however, those conclusions from the principles which are somewhat remote possess neither the evidence nor the universality of the principles themselves; this fact alone would require that natural law be supplemented by human law. A human law that disagrees with natural law does not have the force of law (Summa theologica I, 2, 90 ff.). All moral precepts of the Old Testament (as distinguished from its ceremonial and judicial precepts) can be reduced to the Decalogue; they belong to the natural law. This is true in the strictest sense of the precepts of the Second Table of the Decalogue, i.e., the seven commandments which order men’s relations among themselves (Exodus 20.12-17). The precepts in question are intelligible as self-evident even to the people and are at the same time valid without exception; compliance with them does not require the habit of virtue (Summa theologica I, 2, 100).

A sufficient sanction is supplied by divine punishment for transgressions of the natural law, but it is not entirely clear whether human reason can establish the fact of such punishment; Thomas surely rejects the Gnostic assertion that God does not punish and the assertion of certain Islamic Aristotelians that the only divine punishment is the loss of eternal felicity. He does say that sin is considered by the theologians chiefly insofar as it is an offense against God, whereas the moral philosophers consider sin chiefly insofar as it is opposed to reason. These thoughts could lead to the view of some later writers that natural law strictly understood is natural reason itself, i.e., natural law does not command and forbid but only “indicates”; natural law thus understood would be possible even if there were no God (cf. Suárez, Tractatus de legibus ac de Deo legislatore n, 6, sec. 3; Grotius,De jure belli ac pads, Prolegomena, sec. 11; Hobbes, Leviathan, chapter 15-end; Locke, Treatises of Civil Government n, sec. 6; Leibniz, Théodicée, sec. 183).

Thomas treats natural right (as distinguished from natural law) in his discussion of justice as a special virtue (Summa theologica n, 2, 57). Therein he is confronted with the task of reconciling with the Aristotelian teaching the Roman law distinction between ius naturale and ius gentium, according to which natural right deals only with things common to all animals (like procreation and the raising of offspring), whereas the ius gentium is particularly human. The Roman law distinction might seem to reflect early conventionalist teaching (cf. Democritus, fr. 278). Thomas’ reconciliation apparently paved the way for the conception of “the state of nature” as a status antedating human society. (Cf. Suárez, Tractatus II, 18, sec. 4.)

The Thomistic natural law teaching, which is the classic form of natural law teaching, was already contested in the Middle Ages on various grounds. According to Duns Scotus, only the commandment to love God—or, rather, the prohibition against hating God—belongs to natural law in the strictest sense. According to Marsilius of Padua, natural right as Aristotle meant it is that part of positive right which is recognized and observed everywhere (divine worship, honoring of parents, raising of offspring, etc.); it can only metaphorically be called natural right [See Marsilius of Padua]. The dictates of right reason regarding the things to be done (i.e., natural law in the Thomistic sense), on the other hand, are not as such universally valid because they are not universally known and observed.

Modern developments

Natural law acquired its greatest visible power in modern times: in both the American and the French revolutions, solemn state papers appealed to natural law. The change in effectiveness was connected with a substantive change; modern natural law differs essentially from premodern natural law. Premodern natural law continued to be powerful; but it was adapted to modern natural law, with varying degrees of awareness of what was involved in that adaptation. The most striking characteristics of modern natural law are these: (1) Natural law is treated independently, i.e., no longer in the context of theology or of positive law. Special chairs for natural law were established in some Protestant countries; treatises on natural law took on the form of codes of natural law. The independent treatment of natural law was made possible by the belief that natural law can be treated “geometrically,” i.e., that the conclusions possess the same certainty as the principles. (2) Natural law became more and more natural public law; Hobbes’s doctrine of sovereignty, Locke’s doctrine of “no taxation without representation,” and Rousseau’s doctrine of the general will are not simply political but legal doctrines. They belong to natural public law; they do not declare what the best political order is, which by its nature is not realizable except under very favorable conditions, but they state the conditions of legitimacy which obtain regardless of place and time. (3) Natural law by itself is supposed to be at home in the state of nature, i.e., a state antedating civil society. (4) In the modern development “natural law” is replaced by “the rights of man”; the emphasis shifts from man’s duties to his rights. (5) Whereas premodern natural law was on the whole “conservative,” modern natural law is essentially “revolutionary.” The radical difference between modern and premodern natural law appears most clearly if one studies the still remembered great modern natural law teachers rather than the university professors who as a rule rest satisfied with compromises.

The principles informing modern natural law were established by two thinkers who were not themselves natural law teachers, Machiavelli and Descartes. According to Machiavelli, the traditional political doctrines take their bearings by how men should live and thus culminate in the description of imaginary commonwealths (“Utopias”), which are useless in practice; one ought to start from how men do live. Descartes begins his revolution with the universal doubt, which leads to the discovery of the Ego and its “ideas” as the absolute basis of knowledge and to a mathematical-mechanical account of the universe as a mere object of man’s knowledge and exploitation.

Modern natural law as originated by Hobbes did not start, as traditional natural law did, from the hierarchic order of man’s natural ends, but rather from the lowest of those ends (self-preservation) that could be thought to be more effective than the higher ends [See Hobbes]. (A civil society ultimately based on nothing but the right of self preservation would not be Utopian.) Man is still asserted to be the rational animal, but his natural sociality is denied. Man is not by nature ordered toward society, but he orders himself toward it prompted by mere calculation. This view in itself is very old, but now it is animated by the concern for a natural-right basis of civil society. The desire for self-preservation has the character of a passion rather than of a natural inclination; the fact that it is the most powerful passion makes it the sufficient basis of all rights and duties. Natural law, which dictates men’s duties, is derived from the natural right of self-preservation. The right is absolute, while all duties are conditional. Since men are equal with regard to the desire for self-preservation as well as with regard to the power of killing others, all men are by nature equal. There is no natural hierarchy of men, so that the sovereign to whom all must submit for the sake of peace and ultimately of the self-preservation of each is understood as a “person,” i.e., as the representative or agent, of each; the primacy of the individual—of any individual—and of his natural right remain intact (cf. Leviathan, chapter 21).

The doctrine of Locke may be described as the peak of modern natural law [See Locke]. At first glance it appears to be a compromise between the traditional and the Hobbesian doctrines. Agreeing with Hobbes, Locke denies that the natural law is imprinted in the minds of men, that it can be known from the consent of mankind, and that it can be known from men’s natural inclination. His deduction of natural law is generally admitted to be confusing—not to say confused—which does not prove, however, that Locke himself was confused. It seems to be safest to understand his doctrine as a profound modification of the Hobbesian doctrine.

It is certain that, unlike Hobbes, Locke sees the crucially important consequence of the natural right of self-preservation in the natural right of property, i.e., of acquiring property, a natural right that within civil society becomes the natural right of unlimited acquisition. Property is rightfully acquired primarily by labor; in civil society, however, labor ceases to be the title to property while remaining the source of all value. Locke’s natural law doctrine is the original form of capitalist theory.

Rousseau too starts from the Hobbesian premise [See Rousseau]. Hobbes asserted that the natural right to judge the means of self-preservation is the necessary consequence of the right of self-preservation itself and belongs, as does the fundamental right, equally to all men, wise or foolish. But Rousseau demands that the natural right to judge the means of self-preservation be preserved as an institution within civil society. Every person subject to the laws must as a natural right have a say in the making of the laws by being a member of the sovereign, i.e., of the legislative assembly. The corrective to folly is to be found above all in the character of the laws in general, both in origin and in content: all subject to the laws determine what all must or may not do. The justice or rationality of the laws is thereby guaranteed in the only way compatible with the freedom and equality of all. In the society established in accordance with natural right, there is no longer a need or a possibility of appealing from positive law to natural right, because the members or rulers of that society are not supposed to be just men.

Rousseau further differed from Hobbes by realizing that if man is by nature asocial, he is by nature arational; questioning the traditional view that man is the rational animal, he found the peculiarity of man in his perfectibility or, more generally stated, his malleability. This led to the conclusions that the human race is what we wish to make it and that human nature cannot supply us with guidance as to how man and human society ought to be.

Kant drew the decisive conclusion from Rousseau’s epoch-making innovations: the Ought cannot be derived from the Is, from human nature; the moral law is neither a natural law nor a derivative of natural law [See Kant]. The criterion of the moral law is its form alone, the form of rationality, i.e., the form of universality.

At about the same time that Kant, sympathizing with the French Revolution, radicalized the most radical form of modern natural right and thus transformed natural right and natural law into a law and a right which are rational but no longer natural, Burke, opposing the French Revolution and its theoretical basis, which is a certain version of modern natural right, returned to premodern natural law [See Burke]. In doing so, he made thematic the conservatism which was implicit to some extent in premodern natural law. Therewith he profoundly modified the premodern teaching and prepared decisively the transition from the natural “rights of man” to the prescriptive “rights of Englishmen,” from natural law to “the historical school.”

Leo Strauss, "Natural Law.International Encyclopedia of the Social Sciences. 1968. Encyclopedia.com. 20 Feb. 2015, at http://www.encyclopedia.com/topic/natural_law.aspx

In this explanation we can see the power, whether real or imagined, ascribed to natural law as the common law of all men, as the source for providing the minimum and maximum human conditions, in contradistinction to positive law which was established by societies in order to satisfy their own particular needs that may pertain only to that society. We can see how natural law evolved into that philosophy to be adopted by man to guarantee his or her “natural right of self-preservation.” 
  
With these principles of natural law in mind, let us now examine what birth circumstances make one a natural born citizen.  In other words, under natural law what means or mechanism makes one a natural born citizen?  The long-time settled definition of a natural born citizen, based on common or universal consent of nations, is a child born in a country to parents who were its citizens at the time of the child’s birth.  Emer de Vattel, The Law of Nations, Section 211 to 217 (1758) (1797).  Vattel explains that the law of nations is the law of nature applied to the affairs of nations.  Under that law of nations, he defines the “citizens” as “the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages.”  Section 212.  He also explains that the virtue of love of country, which is necessary for the preservation, survival, and perpetuation of that country, is naturally given to our “native country” by its “natives, or natural-born citizens, [who] are those born in the country of parents who are citizens.”  Section 211 to 212.  (In Section 122, he also explains the duty that one has to defend one’s adopted country “with his utmost efforts.”) 

America had recently fought an independence war with Great Britain, which divided the loyalties of its own people.  So, the Framers knew firsthand how critical undivided loyalty and allegiance were to the future survival of their cause for liberty and the preservation of the new republic.  The Framers commanded that Presidents and Commanders of the Military born after the adoption of the Constitution be natural born citizens to assure that they would be born with those circumstances which would best assure that they would develop the virtue of love of country and thereby be free of monarchical and foreign influence in whatever form it may present itself.  The historical record demonstrates that, with the Office of President being a singular and all-powerful office both civilly and militarily, the Framers took extra measures to keep monarchical and foreign influence out of the Office of President.  Rather than relying upon Congress to elect the President, they gave that power to the Electoral College.  Unlike allowing “citizens” to serve in Congress, they required future Presidents to be “natural born citizens.”  They looked to the natural born citizen clause to assure that the President would in the future protect and preserve the constitutional Republic which they had built.  They sought to achieve this end by requiring that those future Presidents and Commanders be born with unity of citizenship and allegiance to the United States.  They looked upon the natural born citizen clause as a means to accomplish their end. 

Regardless of whether or not their value judgment is correct or how the modern world thinks about natural law, the Founding generation incorporated the universally binding natural law and law of nations definition of a natural born citizen into American common law and the Framers relied upon that common law when they drafted and adopted the Constitution.  Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (“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”); U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898) (cited and quoted Minor’s definition of a natural born citizen and its source as coming from the common law and held that a child born in the United States to alien parents, who were neither foreign ambassadors nor military invaders, was under principles laid down by colonial English common law born subject to the jurisdiction of the United States and therefore a “citizen” of the United States by virtue of the Fourteenth Amendment [not to be confused with an Article II natural born citizen]).  As we can see from this definition, a natural born citizen is a citizen from the moment of birth by virtue of his or her birth (a citizen “by birth”) and nothing more, by the force of being born in the country of which both of his or her parents were member citizens at the time of his or her birth.  A natural born citizen needs no law in order to gain that status at birth, for he or she gains that birth status strictly by the circumstances of his or her birth, just like a natural or biological child of certain parents gains that status simply by being born to those parents as opposed to an adopted child of certain parents who gains that status by being adopted by those parents by the grace of a particular law.  As applied to the United States, a natural born citizen of the United States is a child born or reputed born in the United States to parents who were both U.S. citizens at the time of the child’s birth.   Having been incorporated into the Constitution, this definition of a natural born citizen is the law of the land until amended by constitutional amendment or re-interpreted by a U.S. Supreme Court decision.  

A simpler way to look at the meaning of an Article II natural born citizen is to consider that under the law of nations, only a child who was born in a country to parents who were citizens of that country were "true" natural born citizens. This law of nations definition was incorporated into American common law. 

All other citizens who may be so made "at birth" under the positive laws of a nation may be citizens "at birth," and even considered by some as natural born citizens, but they are not "true" natural born citizens. In this connection, consider the Naturalization Act of 1790 which said that children born out of the United States to U.S. citizen parents "shall be considered as natural born citizens," which the Naturalization Act of 1795 changed to "shall be considered as citizens of the United States." Notice how the First Congress said that those citizens "at birth" shall be considered as natural born citizens, but since they were not true natural born citizens, the Third Congress said that they shall be considered only as citizens of the United States. Consider further that with the Naturalization Act of 1802, as interpreted, Congress treated those same children (born out of the United States to U.S. citizen parents who in 1790 were considered as natural born citizens and in 1795 were considered as citizens of the United States “at birth”) as aliens and in need of naturalization after birth. Surely, if those same children were true natural born citizens, neither Congress nor those who interpreted its naturalization act would have conclude that they were aliens. 

In this same connection, today the Fourteenth Amendment and naturalization Acts of Congress make children born in the United States and subject to the jurisdiction thereof “citizens” of the United States “at birth.” Other naturalization Acts of Congress make children born out of the United States to U.S. citizen parents also “citizens” of the United States “at birth.” Of these children, those who do not meet the original common law definition of a true natural born citizen, are “citizens” of the United States “at birth.” Some consider them to be natural born citizens, like the British, under colonial English common law and statutes, considered all children born as or made “subjects,” “natural-born subjects.” But they are not true natural born citizens under the more demanding and strict American common law and hence constitutional requirement. 

Since the Framers used the original American common law definition of a natural born citizen which came from the law of nations, which definition became incorporated into the Constitution as part of the supreme law of the land, only a "true" natural born citizen may be President and Commander in Chief of the Military. And that true natural born citizen is only that child who is born or reputed born in the United States to parents who were both U.S. citizens at the time of the child's birth. 

Senator Ted Cruz was not born in the country of which both his parents where citizens at the time of his birth.  He was born in Canada to a U.S. citizen mother and a non-U.S. citizen (Cuban) father.  He cannot be a natural born citizen of the United States because he was not born in the United States and also because he was born to a non-U.S. citizen father.  Rather, Senator Cruz’s birth circumstances qualify him under Canadian law to be a citizen at birth of Canada and under a naturalization Act of Congress as a “citizen” of the United States “at birth.”  He may also qualify as a citizen at birth under Cuban law through birth to a Cuban citizen.  These laws are positive internal or municipal laws of these nations and not universally binding upon nations as the natural law of nations. Under 8 U.S.C. 1401(g), a naturalization Act of Congress, Senator Ted Cruz is a “citizen” of the United States “at birth.”  He is made a citizen at birth not only by his birth circumstances, but rather because this naturalization Act of Congress makes him a citizen of the United States at birth.  Hence, he is a citizen only because Congress allows him to be one through one of its naturalization Acts of Congress, which it can change at any time it pleases.  (In the past, and specifically under the Naturalization Act of 1802, as interpreted, Congress has even denied altogether the status of a citizen of the United States to children born out of the United States to U.S. citizen parents.)  Additionally, the Constitution gives to Congress in matters of citizenship only the power to naturalize which does not include the power to make anyone a natural born citizen.  Congress has recognized this limitation on its power and therefor in its statute calls persons it is naturalizing from the moment of birth only “citizens” of the United States “at birth” and not natural born citizens of the United States. Consider that the First Congress in the Naturalization Act of 1790 said that children born out of the United States to U.S. citizen parents “shall be considered as natural born citizens” which the Third Congress changed in the Naturalization Act of 1795 to “shall be considered as citizens of the United States.”  Hence, at best under the very text of the statute, Senator Cruz is a “citizen” of the United States “at birth,” not a natural born citizen of the United States.  
  
Senator Ted Cruz is a “citizen” of the United States “at birth” by virtue of his birth circumstances and a naturalization act of Congress (a positive law), not by virtue of his birth circumstances alone.  At best, he is also a “citizen” of the United States “at birth” by the very text of the statute.  He is a “citizen” at birth of the United States, Canada, and maybe Cuba also.  But he is not an Article II natural born citizen which could not under U.S. law possibly allow one to be simultaneously a citizen at birth of other nations.  Renouncing his birthright Canadian citizenship as he has recently done does not nor can it retroactively change the birth circumstances with which he was born.   

Similarly, de facto President Barack Obama, was not born in the country of which both his parents where citizens at the time of his birth.  He was presumably born in the United States to a U.S. citizen mother, but to a non-U.S. citizen father (his father was a Citizen of the United Kingdom and Colonies (CUKC) under the British Nationality Act 1948 which converted to a citizen of Kenya upon Kenya’s independence from Great Britain in 1963).  Not being born to a U.S. citizen father, he does not satisfy the common law definition of a natural born citizen.  He is, however, presumably a “citizen” of the United States “at birth,” by virtue of his birth circumstances, and the Fourteenth Amendment or 8 U.S.C. Section 1401(a) (laws which provide that “[a]ll persons born . . . in the United States and subject to the jurisdiction thereof, are citizens of the United States. . . ”), not by virtue of his birth circumstances alone or some law that constitutionally declares textually that he is a natural born citizen.  He is therefore also not an Article II natural born citizen. 

So, what do Mr. Obama and Mr. Cruz have in common?  They are both not born with unity of citizenship and allegiance to the United States and therefore not Article II natural born citizens.    Being neither a “natural born Citizen, [n]or a “Citizen of the United States, at the time of the Adoption of this Constitution,” neither Obama nor Cruz are constitutionally eligible under Article II to be President and Commander in Chief of the Military.
To review my examination of the numerous historical and legal sources that support my position on the meaning of a natural born citizen, see the many articles and comments that I have published at my blog, www.puzo1.blogspot.com
Mario Apuzzo, Esq.
February 20, 2015
http://puzo1.blogspot.com
####

Copyright © 2015
Mario Apuzzo, Esq.

All Rights Reserved   

Wednesday, January 28, 2015

Rick Santorum Is An Article II Natural Born Citizen and Eligible to Be President









Rick Santorum Is An Article II Natural Born Citizen and Eligible to Be President

By Mario Apuzzo, Esq.
January 28, 2015


  










Rick Santorum will be a presidential candidate in 2016.  As we know, the President and Commander in Chief of the Military must be, among other things (at least 35 years old and a resident in the United States at least 14 years), an Article II “natural born Citizen” in order to be eligible for that Office.  There has been some chatter that Rick Santorum is not a natural born citizen and therefore not eligible to be President.  My research shows the contrary, i.e., that Rick Santorum is a natural born citizen and therefore eligible to be President and Commander in Chief of the Military. 

The one and only definition of a natural born citizen the Framers used when they adopted the Constitution is the universal one which is a child born in a country to parents who were its citizens at the time of the child's birth, meaning, when applied to the United States, a child born in the United States to parents who were both U.S. citizens at the time of the child's birth. See Emer de Vattel, The Law of Nations, Section 212 (1758) (1797) ) (“The natives, or natural-born citizens, are those born in the country, of parents who are citizens”); Minor v. Happersett (1875) (“‘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  [902]  natural-born citizens, as distinguished from aliens or foreigners”); U.S. v. Wong Kim Ark (1898) (distinguished a "natural born citizen" as so originally defined by the common law at the time of the adoption of the Constitution per Minor from a "citizen" at birth under the Fourteenth Amendment which was ratified 81 years after the adoption of the Constitution).  Does Rick Santorum meet the Framers’ common law definition of an Article II natural born citizen”  My research shows that he does. 

Rick Santorum was born on May 10, 1958 in Virginia.  "Rick Santorum is the middle of the three children of Aldo Santorum (1923–2011), a clinical psychologist who immigrated to the United States at age seven from Riva del Garda, Italy, and Catherine (Dughi) Santorum (b. 1918), an administrative nurse who is of Italian and Irish ancestry.[8]  Santorum was born in Winchester, Virginia, and grew up in Berkeley County, West Virginia, and Butler County, Pennsylvania.”  (footnotes omitted). http://en.wikipedia.org/wiki/Rick_Santorum . Aldo Santorum (Rick Santorum’s father, who was born on January 9, 1923 in Italy) was the son of Pietro Santorum (Rick Santorum’s grandfather).  Pietro, an Italian citizen, came to America on November 20, 1923, and naturalized to become a citizen of the United States on April 14, 1930.  See the research done by Commander Charles F. Kerchner at https://www.scribd.com/doc/86126538/Pietro-Santorum-Naturalization-Records-filed-1930-at-Somerset-County-PA-Courthouse  When Pietro became a citizen of the United States, Aldo was a minor and still living in Italy.  Aldo got derivative U.S. citizenship through his father, Pietro, when Aldo arrived in the United States on August 23, 1930 when he was age 7.  

Aldo Santorum automatically become a citizen on August 23, 1930 through the naturalization of his father which had already occurred on April 14, 1930.  This type of citizenship is called derivative citizenship.  But since he was neither born in the United States nor naturalized in the formal sense after his birth, he did not have any evidence that he was a U.S. citizen.  So, on April 17, 1961, he filed for a Certificate of Citizenship, not to obtain citizenship which he already had since 1930, but only to obtain evidence of that citizenship.  His application and related documents have also been obtained by Mr. Kerchner and can be viewed here: http://www.scribd.com/doc/108907280/100-Proof-Rick-Santorum-Born-a-Dual-Citizen-Not-a-Natural-Born-Citizen-Father-perfected-naturalization-3-yrs-after-Rick-was-born-FOIA-Response-R .  These documents show that Aldo served in the U.S. military from 1944 to 1946. The Immigration and Naturalization Officer who reviewed his application recommended that his Certificate of Citizenship be granted, concluding:

"[T]he applicant did derive or acquire United States citizenship on August 23, 1930 through on which date he was a lawful permanent resident of the United States and under the age of 21 years, his father having been naturalized on April 14, 1930, his mother being an alien. and that he has not been expatriated since that time."

Rick was not yet born when Pietro and Aldo became U.S. citizens in 1930.  Aldo married Catherine (Dughi) Santorum, who was a  U.S. citizen.   Hence, when Rick Santorum was born on May 10, 1958, to Aldo and Catherine, both his parents were U.S. citizens. 

We have seen that both de facto President Barack Obama and Senator Ted Cruz, both not born in the United States to parents who were both U.S. citizens at the time of their son’s birth, do not satisfy the constitutional common law definition of a natural born citizen.  See my many articles on this issue at my blog, http://puzo1.blogspot.com .  On the other hand, my research shows that when Rick Santorum was born in Virginia in 1958, he was born to a father and mother who were both citizens of the United States.  Those birth circumstances make Rick Santorum an Article II natural born citizen and eligible to be President and Commander in Chief of the Military.   

Mario Apuzzo, Esq.
January 28, 2015
http://puzo1.blogspot.com
####

Copyright © 2015
Mario Apuzzo, Esq.
All Rights Reserved 
 


Sunday, January 25, 2015

Attorney Mario Apuzzo on Moretti Underground Radio—Is Senator Ted Cruz a Natural Born Citizen?


Attorney Mario Apuzzo on Moretti Underground Radio—Is Senator Ted Cruz a Natural Born Citizen?


January 25, 2015
By Mario Apuzzo, Esq.

On Monday, January 26, 2015, at 9:00 PM Eastern Standard Time, I will be a guest of Hosts Jo Anne Moretti and Scott Farrarello on the radio show, Moretti Underground, broadcast on the PRN Radio Network – Patriot Radio.  The topic of discussion will be whether Senator Ted Cruz is an Article II natural born citizen.  Based on my research, it is my opinion that Senator Cruz, like de facto President Barack Obama, is not an Article II natural born citizen and therefore not eligible to be President and Commander in Chief of the Military.  During the show, I will be discussing my research and opinion which I have drawn from that research. 
 
I hope that you can join Jo Anne, Scott, and me and call in with your questions. 

You can also access the custom web site chatroom at www.PRNRadioNetwork.com


The show can be accessed at http://www.blogtalkradio.com/prnradionetwork .  The call in telephone number is (714) 888-7404.  

Mario Apuzzo, Esq.
January 25, 2015
http://puzo1.blogspot.com
####


Copyright © 2015
Mario Apuzzo, Esq.
All Rights Reserved 
     

Friday, July 19, 2013

The Constitution, the Rule of Law, and the “Natural Born Citizen” Clause: A Response to Artsy Fartsy Squeeky Fromm Girl Reporter







The Constitution, the Rule of Law, and the “Natural Born Citizen” Clause:  A Response to Artsy Fartsy Squeeky Fromm Girl Reporter

By Mario Apuzzo, Esq.
July 19, 2013











Artsy Fartsy Squeeky Fromm Girl Reporter (“Squeeky Fromm”) continues in vain to try to persuade the public that she has refuted my position that an Article II “natural born Citizen” is a child born in the country to parents who were its “citizens” at the time of the child’s birth. 

I.                 
   
Squeeky Fromm has taken a stab at my Jack Maskell article, The Fallacies of Congressional Legislative Attorney Jack Maskell’s Definition of a “Natural Born Citizen,”  accessed at http://puzo1.blogspot.com/2013/06/the-fallacies-of-congressional.htmlYou can read her response here. http://birtherthinktank.wordpress.com/2013/06/08/he-says-apuzzo-i-say-a-pazzo/

She says that I have misread
Minor v. Happersett, 88 U.S. 162 (1875), because the Court said that “new citizens may be born or they may be created by naturalization.” I say, so what in light of the fact that the Court also said: “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.”  Id. at 167-68.  Hence, the Court said that at common law, if one was not born in the country to citizen parents, one was an “alien or foreigner.” This is the same exact treatment that Congress gave to children born in the United States to alien parents in its Naturalization Acts of 1790, 1795, 1802, and 1855. In these acts, Congress treated children born in the United States to alien parents as alien born and in need of naturalization.  So Squeeky Fromm has proven nothing other than to show that she does not understand what she reads.

Then Squeeky Fromm turns to my logical analysis of the Maskell fallacious argument. In the first part of her attempt at logic, it is quite clear that she has totally missed my point about Maskell’s first argument being invalid. I showed that Maskell’s first argument as having this invalid logical form (“natural born Citizen”=NBC; “citizen at birth”=CAB):

All NBCs are CABs.
All X’s are CABs.
Therefore, all X’s are NBC.

To show the invalidity of this argument, I wrote:

All poodles are dogs.
Bubbles is a dog.
Therefore, Bubbles is a poodle.

Squeeky Fromm says that this argument is not valid and faults me for presenting it. She misstates my presentation, even attempting to prove me wrong by showing through some other irrelevant logical argument why this argument is not valid. I said that this is the argument presented by Maskell.  But I said that this is Maskell’s argument and that it is not valid because it violates the rule of the undistributed middle and is also fallacious for affirming the consequent. So, what is ironic is that Squeeky Fromm attacks me, in her twisted and incorrect way, for the argument when what she is really doing is attacking Jack Maskell.

Then Squeeky Fromm takes a shot at the second part of my analysis of the Maskell argument.  I recast his argument as follows to make the argument valid: 

All CAB’s are NBCs.
All X’s are CAB’s.
Therefore, all X’s are NBCs.

In my article, I explained that I took Maskell’s invalid argument (above) and made it valid through this logical form. I did this to show where Maskell’s informal fallacy is hidden. I showed how this argument is logically valid, but unsound because its major premise, All CAB’s are NBCs, is false. I explained that Maskell has not presented any evidence to prove the truth of this major premise. I presented U.S. Supreme Court case law which addressed the meaning of a “natural-born citizen” and this case law does not support Maskell’s thesis that all “citizens at birth” are “natural-born citizens.” See below for a summary of these cases.  And even though Squeeky Fromm comes to Maskell’s aid, she also does not present any evidence to show that Maskell’s major premise, as reconstructed by me, would be true. What she does in place of presenting any evidence that the major premise is true is just to say that the premise does not strike her “as being facially incorrect, invalid, or untrue.” From this statement we can see that Squeeky Fromm has very little understanding of informal logic and fallacies. An informal fallacy has the exact facial appeal that she relies upon. But when its underlying truth is tested, it fails.

I have demonstrated how Maskell has not proven that his major premise is true. I have also presented evidence that shows that his major premise is false. I have therefore unmasked the informal fallacy of the Maskell major premise, i.e., that all “citizens at birth” are “natural born Citizens.” Yet, Squeeky Fromm says that I have proven nothing. On the contrary, she is the one who just says a lot of mixed up nothing, demonstrates how incapable she is of understanding case law, and proves how ignorant she is when it comes to logic.
II.                 
In her June 12, 2013 “Distributed Muddle” article, accessed at http://birtherthinktank.wordpress.com/2013/06/12/mario-apuzzo-esq-s-distributed-muddle/ ,
Squeeky Fromm tries to persuade that she successfully addressed my criticisms of Congressional Attorney Jack Maskell’s thesis (his major premise) that all born citizens are “natural born citizens.”  From her article we can see that she is starting to understand the world of logic a little better. But she does not admit the blunder that she made with the first part of my logical presentation in which I expose why to argue, that since all “natural born Citizen” are “citizens at birth,” and since Barack Obama is a “citizen at birth,” he is a “natural born Citizen,” is logically invalid.  We have to recognize this argument and show that it is invalid because it is one of the means by which Maskell arrives at his conclusion that Obama is a “natural born citizen.”   

Second, Squeeky Fromm, underplays the second part of my logical analysis where I show, by converting Maskell’s invalid argument into a valid argument, that Maskell’s second argument is unsound because the major premises is false.  Maskell’s second argument can only be all “citizens at birth” are “natural born citizens,” and since Obama is a “citizen at birth,” he is a “natural born citizen.”  Maskell’s major premise in this argument would be all “citizens at birth” are “natural born Citizens.” Squeeky Fromm fails to understand the importance of the maneuver of taking someone’s invalid argument and making valid. It is done to show that if the argument is to succeed, then its premises must be true. And it is here that I have shown that Maskell’s major premise is false and therefore also his conclusion that Obama is a “natural born citizen.”    

Squeeky Fromm just blows this point off by simply saying that there is just a disagreement between Maskell and me on the definition of a “natural born Citizen.” Now is that not just genius for Squeeky Fromm to figure out. I have challenged both Maskell and Squeeky Fromm to provide evidence that Maskell’s major premise is true. We do not hear from Maskell nor do we expect to.  And from Squeeky Fromm, who loves to make herself heard on a daily basis, she simply says that
United States v. Wong Kim Ark, 169 U.S. 649 (1898) trumps Minor. So there you have the strength of their argument which is supposed to prove that Maskell’s major premise is true. We know that Minor defined a “natural-born citizen” as a child born in the country to parents who were its citizens at the time of the child’s birth. And we also know that Wong Kim Ark, interpreting the meaning of the Fourteenth Amendment and its “subject to the jurisdiction” clause, and ultimately defining a “citizen of the United States” at birth under that amendment, did not alter Minor’s definition of a “natural-born citizen,” and even distinguished a “natural-born citizen” from a “citizen of the United States” at birth under that amendment.  Squeeky Fromm is just making stuff up given that she has nothing else to present to us which would show that the Maskell major premises is true. 

So, Maskell’s first argument, that since Obama is a “citizen at birth” he is a “natural born Citizen” is not valid. And his second argument which necessarily contains the major premise, all “citizens at birth” are “natural born Citizens,” has no historical and legal support. Hence, Maskell’s argument, no matter which one we choose as to what is a “natural born Citizen” and whether Obama meets that definition, is false. 

III.              

Squeeky Fromm also comes to the aid of Ted Cruz in her June 25, 2013 article published at http://birtherthinktank.wordpress.com/2013/06/25/with-2020-foresight-the-once-and-future-apuzzo/ In this piece, which she passes off as a decision against me rendered by an imaginary judge, she argues, albeit without any historical or legal support, that my definition of a “natural born citizen,” i.e., a child born in the country to parents who were its “citizens” at the time of the child’s birth is wrong.  She maintains that Cruz, who was born in Canada to a non-U.S. “citizen” father and a U.S. “citizen” mother is a “natural born citizen.” 

She attempts to dismiss Minor as being irrelevant to the issue of both Obama and Cruz’s eligibility, arguing that Minor did not define or deal with children born inside the United States to alien parents. This is incorrect. Minor told us that at common law with which the Framers were familiar, such children were “aliens or foreigners.” Here is the quote from the Court:  “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.”  We can see from what the Court said that at common law if a child was born in the United States to alien parents, the child was an “alien or foreigner.”  It also follows from this common law rule that at common law (not to be confounded with statutes), any child who was born out of the United States, regardless of whether born to “citizen” parents or alien parents, was also an alien or foreigner.  This common law rule was reflected in Congress’s Naturalization Acts of 1790, 1795, 1802, and 1855 which treated children born in the United States to alien parents as alien born and naturalized at birth children born out of the United States to “citizen” parents or naturalized them after birth if born to alien parents.  

She states that the clause “natural born citizen” “was discussed at length in U.S. v. Wong Kim Ark.” This is false. Wong Kim Ark discussed at length the English common law and an English “natural born subject.” The English common law defined neither a “citizen” nor a “natural born citizen.”  Justice Swayne in United States v. Rhodes, 27 F. Cas. 785 (Cir.Ct. D. Ky. 1866) (No. 16,151), told us that neither a “citizen” nor a “natural born citizen” were defined by the English common law. The court said that “British jurisprudence, whence so much of our own is drawn, throws little light upon the subject.  . . . Blackstone and Tomlin contain nothing upon the subject. ”  Id. at 788.  So, Wong Kim Ark, which spent much time on analyzing the English common law, could not have been analyzing the meaning of a “natural born citizen” which clause was not even found in that law. 

Squeeky Fromm quotes Wong Kim Ark’s comment that the English common law jus soli rule continued “to prevail under the Constitution as originally established.” This statement does not prove that a “natural born citizen” was defined under English common law and not under the law of nations. What this statement means is that through the time of the adoption of the Constitution, the states, which selectively adopted the English common law until abrogated by state legislatures, decided who their citizens were and that they to some undefined degree used the jus soli English common law rule to make that decision. These state citizens became “citizens of the United States” upon the adoption of the Constitution. But then in 1790, Congress passed the Naturalization Act of 1790, followed by that of 1795, 1802, and 1855. After that, the states, to whatever degree they still applied the English common law, could no longer naturalize anyone after birth and their state citizens were no longer recognized as national citizens or what the Constitution called “citizens of the United States.” The only common law rule that Congress did not nor could abrogate was that of the law of nations/American national common law which the Founders, Framers, and Ratifiers used to certainly and uniformly define a “natural born citizen.” And that definition was a child born in a country to parents who were its “citizens” at the time of the child’s birth.

Squeeky Fromm repeats that “citizens at birth” are equivalent to “natural born citizens.”  But like Jack Maskell, she begs the question that all “citizens at birth” are “natural born citizens.” Other than just assuming, like Jack Maskell, that her statement is true, she fails to provide any evidence that her statement is true. Hence, that the Fourteenth Amendment or a Congressional Act might declare someone born either in the United States or out of it to be a “citizen at birth” does not prove that that person is a “natural born citizen.”

She argues that Ted Cruz is a “natural born citizen” under 8 U.S.C. Sec. 1401(g).  Here, she makes the absurd argument that Cruz is a “natural born citizen” by way of a naturalization act of Congress.  Using her logic, the “natural born citizen” clause would have no meaning or limits if Congress could simply naturalize anyone at birth which Squeeky Fromm then considers to be a “natural born citizen.”  She looks to the Naturalization Act of 1790 for support. Regarding whether children born out of the United States to U.S. “citizen” parents are “natural-born citizens,” the Naturalization Act of 1790 does not help Squeeky Fromm because the 1795 Act, with the work of James Madison, repealed it and replaced “natural born citizen” with “citizen of the United States.” Despite her statement that Congress never did so, the 1795 Act, with James Madison’s influence, plainly shows from its text that “Congress intended to limit the rights of foreign born citizens at birth to some quanta less than that of a natural born citizen.” Furthermore, Wong Kim Ark informed us that the Fourteenth Amendment “has not touched the acquisition of citizenship by being born abroad of American parents, and has left that subject to be regulated, as it had always been, by Congress in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.” So, Wong Kim Ark told us that children born out of the United States to U.S. “citizen” parents become “citizens at birth” under Congress’s naturalization powers. That means they are naturalized at birth. By her own concession, if they are naturalized, they cannot be “natural born citizens,” regardless of when they obtain their citizenship.

Squeeky Fromm puts forth a straw man argument, arguing that it is an injustice that the children born abroad to our military should be denied the status of “natural born citizens.”  But she misstates my position on that issue.  I have always argued, under Vattel’s Section 217, a child born out of the United States to U.S. “citizen” parents serving the defense of the United States (“the armies of the state”) is reputed born in the United States and therefore a “natural born citizen.” This rule makes John McCain, who was born to U.S. “citizen” parents serving the U.S. national defense, a “natural born citizen” regardless of where in Panama he may have been born.

Squeeky Fromm argues that my position that if Congress makes one a “citizen” at birth, then Congress naturalized that person to be a “citizen” at birth is absurd because Congress in 8 U.S.C. Sec. 1401(a) passed a statute which also acts upon the “natural born citizens.”  But that Congress may choose to pass a statute acting upon “natural born citizens” does not make those persons naturalized citizens.  Those persons are “natural born citizen” and they do not lose that status because Congress may pass a naturalization statute which also acts upon them. 

Squeeky Fromm engages in an invalid logical argument, arguing: All "natural born citizens" are "citizens at birth," and since Ted Cruz is a "citizen at birth," he is a "natural born Citizen." As I have shown above, this argument violates the rule of the undistributed middle. It is also fallacious for affirming the consequent. As I have already explained, Jack Maskell commits the same logical errors.  She also commits logical error when she argues: All “natural born citizens are not naturalized citizens. Since Ted Cruz is not a naturalized citizen, he is a “natural born citizen.” She does not understand that we cannot arrive at an affirmative conclusion by way of one or two negative premises. 

Squeeky Fromm argues that “natural born citizens” are not naturalized citizens. Citizens “may be born or they may be created by naturalization.”  She adds that Cruz is a “born citizen” and not a naturalized citizen. She concludes that since he is “born a citizen” and not naturalized, he must be a “natural born citizen.”  Her argument fails because she does not account for how “born citizens” are made. “Born citizens” may be made by American national common law, by the Fourteenth Amendment, or by Acts of Congress. Per Minor, only the ones made by American national common law are “natural-born citizens.” Those made by the Fourteenth Amendment and Acts of Congress are “citizens of the United States” at birth. So, as we can see, just being a “born citizen” or “citizen at birth” does not automatically make one a “natural born citizen.”

Squeeky Fromm’s argument that since parentage is irrelevant for “citizens at birth” under the Fourteenth Amendment, therefore it must also be irrelevant for “natural born citizens” fails for at least two reasons. First, as I have shown above, there are different types of “citizens at birth,” and that parentage might not be relevant to one type does not mean it is not relevant to another type (which is the “natural born citizen” type). 


Squeeky Fromm begs the question that the Fourteenth Amendment defines a “natural born citizen.” She may say it, but she does not prove it. Actually, the Fourteenth Amendment is a red herring when it comes to defining a “natural born citizen.”  Why do I say that the Fourteenth Amendment is a red herring when it comes to defining an Article II “natural born Citizen?”  People like Squeeky Fromm love to use the Fourteenth Amendment as support in the “natural born Citizen” debate.  The amendment provides them with a moral argument for their definition of a “natural born Citizen” which has a great appeal with the American public.   That moral appeal is based on the history and purpose of the amendment.  We cannot forget that Congress passed the amendment as part of its Reconstruction after the Civil War.  It was to guarantee, among various things, the freed slaves citizenship through birth in the United States.  The amendment was designed to put an end for good to the Dred Scott decision, which had denied freed blacks the right to U.S. citizenship.  The amendment made sure that no state could abridge the privileges and immunities enjoyed by “citizens of the United States.”  The amendment also introduced the concept of due process as the protector of life, liberty, and property from abusive state action (the Fifth Amendment prohibits the federal government from depriving one of due process), and obligated the states to extend equal protection of the laws to any person present within its jurisdiction.  The Amendment came to be used as a primary tool to combat racism and discrimination, not only against blacks, but all people who suffered such illegal activities at the hands of any state.  So the amendment is not only connected to citizenship, but it is also supposed to protect our freedom and secure many rights of the individual.  With all that, the amendment packs a strong emotional punch.  So, people like Squeeky Fromm have found a great friend in the Fourteenth Amendment in their attempt to convince people that the amendment defines a “natural born citizen.” 

The problem for Squeeky Fromm is that while the amendment defines two classes of citizenship, federal and state, and has done great things for protecting life, liberty, and property, and the civil rights of all persons present on American territory, it has nothing to do with defining a “natural born Citizen.”  But that surely does not stop Squeeky Fromm from using the amendment when it comes to providing us with a definition of a “natural born Citizen.”  After all, how could she pass it up after all it has done for the betterment of American society?  So people like Squeeky Fromm will continue to tell the public how could anyone dare believe that a “natural born citizen” is not defined by that amendment which does so much to protect our American way of life. 

But the simple truth is that Squeeky Fromm conflates and confounds a “citizen” under the amendment with an Article II “natural born citizen.”  Anyone who will just stop and read the amendment can readily see that it does not even mention the clause “natural born Citizen.”  Rather, it mentions “citizen of the United States,” which citizenship status Article II, Section 1, Clause 5 tells us is no longer sufficient for one to be eligible to be President today.  If one also looks further into the amendment, one will learn that it neither repealed nor amended Article II’s “natural born Citizen” clause and therefore left that clause to be defined as it had always been defined under American national common law.  And that definition is, as confirmed by the unanimous U.S. Supreme Court in Minor and the majority and dissent in Wong Kim Ark, a child born in the country to parents who were its “citizens” at the time of the child’s birth. 

Squeeky Fromm argues that there is no sign of Emer de Vattel post Wong Kim Ark and therefore Vattel is dead. This is false. Minor’s definition of a “natural-born citizen,” being a paraphrase of Vattel’s
The Law of Nations (London 1797) (1st ed. Neuchatel 1758), comes from Vattel. Wong Kim Ark did not disturb that definition nor did it have to in order to find that Wong was a “citizen of the United States” at birth under the Fourteenth Amendment. Nor has any other decision of the U.S. Supreme Court. Hence, Vattel still lives and reigns after Wong Kim Ark and even to the present.

Squeeky Fromm also fails to understand this fundamental truth--that one becomes at once a “citizen at birth” and does not need naturalization does not mean that one was not naturalized. See Calvin’s Case (1608) which was decided in England in 1608. That case proves that being a “citizen at birth” can entail having been naturalized at birth which necessarily excludes one from being a true “natural born citizen.” Calvin was born to Scottish parents in the country of Scotland, after 1603, the year in which the English throne under the Tudor dynasty descended to the Stuart King, James VI of Scotland, making him James I, King of both England and Scotland. Since Calvin was born after 1603, he was considered a postnati. The English Parliament for political and social reasons refused to naturalize the Scottish Calvin as an English “natural born subject” by statute. Since Parliament would not naturalize him by statute, it was decided by the King’s men that they would get the courts to do so by common law (judge made law). Lord Coke found that under natural law Calvin at birth, having been born in the King’s dominion (Scotland), owed natural allegiance to James as King of England and Scotland, by owing that allegiance to the natural body (as distinguished from his political body and the laws of England that came with it) of the King who reigned over both kingdoms. So because Calvin owed natural allegiance to the natural body of the King and that natural King also ruled over England, Lord Coke found that Calvin also owed allegiance to the King as King of England. So it did not matter that Calvin at birth was not bound by the laws of England. What mattered was that by natural law he was bound by natural allegiance to the King who also ruled over England. Lord Coke then, from the single circumstance of Calvin being born in the King’s dominion, naturalized Calvin at birth vis-a'-vis England and ruled that he was a “natural born subject” of England. Calvin’s Scottish parents (the antenati) were eventually naturalized by statute as English subjects. Calvin’s case proves the fundamental rule that gaining subject status at birth under the English common law rather than a statute does not prove that one is a “natural born citizen,” for that status was gained through judicial naturalization at birth  See also Emer de Vattel, The Law of Nations, Section 214 Naturalisation (1758) (correctly understanding Calvin’s Case said: “Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalises the children of a foreigner”); Wong Kim Ark (said that persons who are born abroad to U.S “citizen” parents and who are U.S. citizens at birth are nevertheless so naturalized by Congressional Acts; Rogers v. Bellei, 401 U.S. 815(1971) (considers persons born abroad to U.S. citizen parents who are citizens at birth to be naturalized at birth; J. Black dissenting in Bellei also said: "All means of obtaining American citizenship which are dependent on congressional enactment are forms of naturalization"). 

IV.         
     
On July 14, 2013, Squeeky Fromm took another jab at my Jack Maskell refutation.  She says: 
“You see the same thing when Mario Apuzzo, Esq. tries to cobble Logical Syllogisms into his Birther legal theories when such techniques are totally inappropriate in situations where the major premises themselves which [sic] are at issue. (See Note 1, below.)

Note 1. For an example of Apuzzo’s sashay into Putative Pedantics, see:http://birtherthinktank.wordpress.com/2013/06/12/mario-apuzzo-esq-s-distributed-muddle/ .”
Squeeky Fromm read my article entitled , The Fallacies of Congressional Legislative Attorney Jack Maskell’s Definition of a “Natural Born Citizen,”  accessed at http://puzo1.blogspot.com/2013/06/the-fallacies-of-congressional.htmlShe learned something about logic from my article.  Now she attempts to use that little bit that she learned to sound authoritative and show that she won the argument.  

I clearly stated the two possible sources for Jack Maskell’s erroneous conclusion that Barack Obama is a “natural born citizen.”   

The first source rests on invalid logical argument.  We can all agree on the statement that all “natural born citizens” are born citizens.  From this truism, Maskell wants us to believe that since Barack Obama is a born citizen, he is also a “natural born citizen.”  This is a logically invalid argument.  It is as invalid as arguing that all poodles are dogs, and since Bubbles is a dog, Bubbles is a poodle.  The fallacy is clear to see once identified.  The problem with these fallacious arguments is in recognizing them when someone is trying to give us a snow job. 

The second source is based on unsound logical argument.  An argument can be logically valid but unsound (false).  This occurs when the argument is valid as to its form, but upon investigation, one learns that either the major or minor premise is false which produces a false conclusion.  In my article, I took Maskell’s invalid argument and made it into a valid one by presenting it in a valid logical form.  Thus I produced: 

All born citizens are “natural born citizens.”    
Obama is a born citizen.
Therefore, Obama is a “natural born citizen.” 

I demonstrated that while this argument is valid as to its form, it is unsound because the major premise, All born citizens are “natural born citizens,” is false.  It is false because the Founders, Framers, and Ratifiers wrote “natural born citizen,” not “born citizen.”  It is false because just being born a citizen has never been the test for being a “natural born citizen.”  The expression born citizen does not tell us how one becomes a born citizen.  It does not tell us who shall be said to be a born citizen.  It does not tell us what the facts and circumstances are which the definition of a “natural born citizen” states are necessary and sufficient to make one a born citizen and therefore a “natural born citizen.”  No U.S. Supreme Court has ever defined a “natural born citizen” by saying that anyone who is a born citizen is a “natural born citizen.”  There simply is no U.S. Supreme Court case that supports such a proposition.  Congress has never defined a “natural born citizen” as simply anyone who is born a citizen.  In other words, neither Jack Maskell nor anyone else has presented historical and legal evidence which demonstrates that all born citizens are “natural born citizens.”  On the contrary, I have shown that there has only ever been one definition of a “natural born citizen” and that is a child born in the country to parents who were its “citizens” at the time of the child’s birth.  This definition is, indeed, a real definition, for it provides those facts and circumstance which must be met in order for one to be a “natural born citizen.” 

Squeeky Fromm also tells us that no one ever heard of Emer de Vattel and that he is a non-figure when it comes to defining a “natural born citizen.”  She adds: 

“1. Most of us have some memory of high school civics class, and no memory whatsoever of anybody called Emer de Vattel. The Birthers try to supplant our non-existent memory with false memories of Vattel and his alleged two citizen parents theory of natural born citizenship. There are actually some people who now claim to remember being taught about Vattel in this light, and absolutely NO TEXTBOOKS which support that memory.”

Apart from all the extant historical evidence which proves Squeeky Fromm to be wrong about the definition of a “natural born citizen” and Vattel’s connection to that definition, there are numerous cases which show her to be wrong.  See: 

1.         Emer de Vattel, The Law of Nations, Section 212 Citizens and natives (London 1797) (1st ed. Neuchatel 1758):  “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.’” 

2.         The Venus, 12 U.S. 8 Cranch 253, 289 (1814) (C.J. Marshall concurring):  “Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says ‘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 [having equivalent meaning to "natural-born citizens”] are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.’”  

3.         Inglis v. Sailors’ Snug Harbor, 28 U.S. 99 (1830): 

“II. The second general question is, whether John Inglis, the demandant, was or was not capable of taking lands in the state of New York by descent.

This question is presented under several aspects, for the purpose of meeting what at present from the evidence appears a little uncertain, as to the time of the birth of John Inglis. This question as here presented, does not call upon the court for an opinion upon the broad doctrine of allegiance and the right of expatriation, under a settled and unchanged state of society and government. But to decide what are the rights of the individuals composing that society, and living under the protection of that government, when a revolution occurs; a dismemberment takes place; new governments are formed; and new relations between the government and the people are established.”

After stating that the English common law broad allegiance no longer applied to the new America after the Revolution, it held:  


“2. If born [in New York] after the 4th of July 1776, and before the 15th of September of the same year, when the British took possession of New York, his infancy incapacitated him from making any election for himself, and his election and character followed that of his father, subject to the right of disaffirmance in a reasonable time after the termination of his minority; which never having been done, he remains a British subject, and disabled from inheriting the land in question.” 

Inglis v. Sailors’ Snug Harbor, 28 U.S. 99, 120-27, 3 Pet. 99. (1830). Rejecting the English common law jus soli rule and the rule of perpetual allegiance that may have prevailed in a state unless abrogated by statute and used for deciding questions of inheritance of lands located within a state’s jurisdiction, which rules were adopted by Justice Johnson and Justice Story in their concurring opinions, and rather adopting the national jus sanguinis rule of the law of nations, the Court held that if the child was born in New York when it was a new state to alien parents, the child followed the condition of his alien father, which could have been cast off at the age of majority, and never having been done the son was therefore neither a “natural born Citizen” nor a “citizen of the United States,” but rather alien born.  So, even though the child was born in New York after the Revolution, the U.S. Supreme Court, regardless of what the common or statutory law of New York might have been on the subject of allegiance, still ruled that the child was alien born, because the father was an alien at the time of the child’s birth. 

4.        Shanks v. Dupont, 28 U.S. 242, 245 (1830):  As we saw above, in Inglis, Justice Story was in the minority on the question of whether the demandant was a citizen of the State of New York and thus a U.S. citizen.  Relying upon the English common law jus soli rule, he had ruled that if born in New York after July 4, 1776, but before the 15th of September of the same year, when the British took possession of New York, he was a U.S. citizen even though his father was a British subject.  But in Shanks, which was decided after Inglis, he accepted that the American Revolution changed the rules of allegiance in the new America and changed his position on allegiance and U.S. citizenship.  Here he started by saying: 


“After the elaborate opinions expressed in the case of Inglis vs. The Trustees of the Sailor’s Snug Harbour, ante p. 99, upon the question of alienage, growing out of the American Revolution; it is unnecessary to do more in delivering the opinion of the court in the present case, than to state, in a brief manner, the grounds on which our decision is founded.”

Justice Story, adopting the Inglis majority position which rejected the jus soli (citizenship through place of birth) of the English common law and accepted the jus sanguinis (citizenship inherited from parents) of the law of nations, then went on to explain: 

“If she was not of age, then she might well be deemed under the circumstances of this case to hold the citizenship of her father, for children born in a country, continuing while under age in the family of the father, partake of his national character as a citizen of that country.” Justice Johnson, dissenting for other reasons, said that Ann Scott (married Ann Shanks) “was a native born citizen of South Carolina, daughter of a native born citizen of North Carolina,” and that her being a citizen of South Carolina at the moment of her birth was established by the “leading maxim[] of common law,” “proles sequitur sortem paternam,” which means “the offspring follows the condition of the father.” Black’s Law Dictionary 1091 (5th ed. 1979).

5.         Barry v. Mercein, 46 U. S. 103 (1847):  Argument of counsel for John A. Barry, a British “natural born subject:”

“4.  The plaintiff in error being of legeance to the crown of England, his child, though born in the United States during his father’s temporary residence therein – twenty-two months and twenty days – not withstanding its mother be an American citizen, is not a citizen of the United States. It is incapacitate by its infancy from making any present election, follows the legeance of its father, partus sequitur patrem, and is a British subject. The father being domiciled and resident within the dominions of Her Britannic Majesty, such is also the proper and rightful domicil of his wife and child, and he has a legal right to remove them thither. The child being detained from the father, its natural guardian and protector, without authority of law, and writ of habeas corpus ad subjiciendum is his appropriate legal remedy for its restoration to him from its present illegal detention and restraint. Constitution United States, art. 3, sec. 2; Judiciary Act, 1789, sec. 11; Inglis v. Trustees Sailor’s Snug Harbor, 3 Peters, 99; 7 Anne, cap. 5; 4 Geo. III. cap. 21; Warrender v. Warrender, 2 Clar. & Fin. Ap. Ca. 523; Story’s Confl. Laws, 30, 36, 43, 74, 160; Shelford on Marriage, Ferg. Rep. 397, 398.” 

6.         Dred Scott v. Sandford, 60 U.S. 393, 476-77 (1857) (J. Daniel concurring):  The decision only dealt with the question of whether Dred Scott was a “citizen of the United States.”  Nevertheless, Justice Daniel, concurring, defined a “natural born citizen.” While as repugnant as slavery was and still is, no court or amendment has over turned the meaning of “natural-born citizen” from Dred Scott as described by Justice Daniel nor has there ever been a need to do so.  The main point is that in deciding what a "citizen" was in 1856, both the majority and dissent went back to 1787 to examine what the Framers and the people of that time considered a "citizen" to be.  The Court said that the Constitution must be understood now as it was understood at the time it was written.  The judges did not disagree that one had to look back to the Founders.  What they disagreed on is what the public opinion was at that time as to whether a freed slave was a “citizen.”  In this regard, we know that the Court’s holding that freed slaves were not “citizens of the United States” was overruled by the Civil Rights Act of 1866 and the Thirteenth (ratified in 1865) and Fourteenth (ratified in 1868) Amendment, none of which repealed or amended Article II’s “natural born Citizen” clause. 

As to the “natural born Citizen” clause, Justice Daniel said: 
           
“The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages.  The natives, or natural-born citizens, are those born in the country, of parents who are citizens.  As society cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights.”  Again:  I say, to be of the country, it is necessary to be born of a person who is a citizen; for if he be born there of a foreigner, it will be only the place of his birth, and not his country.” 

(quoting and citing Emer de Vattel, The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758)).  It should be noted that Justice Daniel took out of Vattel’s definition the reference to “fathers” and “father” and replaced it with “parents” and “person,” respectively.  It is true that it was only Justice Daniel in his concurrence that defined a “natural born Citizen” the way he did.  But on more than one occasion, the United States Supreme Court has defined what a "natural born Citizen" is.  Justice Daniel’s definition of a “natural born Citizen” was first confirmed by Chief Justice John Marshall in The Venus (1814) and later confirmed by the unanimous Court in Minor and both the majority and dissent in Wong Kim Ark.  To this day, that definition has never been changed.    


7.         Minor v. Happersett, 88 U.S. 162, 168-170 (1875):  The unanimous U.S. Supreme Court explained:  “The Constitution does not, in words, say who shall be natural-born citizens."  Hence, the Court said that neither the original Constitution nor the Fourteenth Amendment (ratified in 1868) defined a "natural born citizen." In fact, there is nothing in the text of or debates on the Fourteenth Amendment which in any way suggests that it amended Article II and its "natural born citizen" clause.  The Court said that the Amendment did not add to the privileges and immunities enjoyed by the people prior to the adoption of that Amendment.  We know that these privileges and immunities enjoyed as a citizen of a state had been protected from state deprivation by Article IV and privileges and immunities enjoyed as a citizen of the United States were now also protected from state abridgement by the Fourteenth Amendment.  Hence, the Amendment could not have granted the privilege and right of being elected to the Office of President to persons who did not have that privilege and right prior to its adoption. 
 

The Court then further explained that since the Constitution did not provide the meaning of a "natural born citizen,"    

"[r]esort must be had elsewhere to ascertain that.  At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners.  Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [p168] parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. ”

Id. at 167-68. 

Hence, a child born in a country to parents who were its “citizens” was not only a “citizen” like them, but also a “natural-born citizen,” which maybe his or her parents were not.  Under that same common law, all the rest of the people were "aliens or foreigners," who the Court later explained could become "citizens of the United States" by satisfying naturalization Acts of Congress or maybe the Fourteenth Amendment.  The Court also sua sponte  stated that "some authorities" went further and included as "citizens"  children "born within the jurisdiction" to alien parents.  The Court said that while "there have been doubts" about whether such children born  in the United States to alien parents were "citizens," there never had been any doubts that children born in the country to citizens parents, who the Court called "natural-born citizens," were "citizens."  So the Court basically said that with the "natural born citizens," there were no doubts that they were "citizens."  But with non-"natural born citizens," such as children born in the United States to alien parents, who could look to no other law other than the Fourteenth Amendment to gain U.S. citizenship status, there could be doubts about whether they were even just "citizens." So, exactly from where did the citizenship doubts to which the Court was referring come? They surely did not come from the English common law which based on birthright, naturalized at birth as "natural-born subjects" children born in the King's dominion to alien parents.  So the Court could not have been looking to the English common law for its definition of a "natural born citizen," for that law provided no doubt as to the "natural-born subject" status of children born in the King's dominion to alien parents.  Also, the Court's doubts could not have come from the common law to which the Court said the Framers looked for their definition of a "natural born citizen," for under that common law there was no doubt that such children were not "natural born citizens."  Rather, those doubts came from the new Fourteenth Amendment and its ambiguous "subject to the jurisdiction thereof" clause, which the U.S. Supreme Court in The Slaughterhouse Cases (1873) (virtually the same Court as the Minor Court) said excluded from U.S. citizenship children born in the United States to alien parents.  So these Fourteenth Amendment potential citizens could not be "natural born citizens" under Minor's formulation, for there was no doubt that they did not meet its common law definition of the clause. They also could not even just be "citizens of the United States" under the English common law, for that law had no application in national U.S. citizenship.  The doubts were whether they could be plain "citizens of the United States" under the Fourteenth Amendment. With Virginia Minor being born in the country to "citizen" parents and thus a "natural born citizen," which without any doubt made her a "citizen" and therefore qualified to receive the privileges and immunities available under Article IV and the protection of the Fourteenth Amendment (which the Court eventually held did not include the right to vote), Minor said that it was not necessary to resolve the question that it raised about Fourteenth Amendment citizenship.   U.S. v. Wong Kim Ark (1898) eventually resolved this question.  See my discussion below on Wong Kim Ark. 

 
8.         Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879):  The Circuit Court of the Western District of Arkansas explained:

“[W]hen the question arises as to what people a person belongs, what rule is to govern in the solution of the problem?

There is no statute law on the subject. We find that the question before the country at one time, as to who was a white person and who was a member of the African race, was solved by legislative or       constitutional enactments defining the nationality of persons according to the quantum of white or African blood in the veins of the persons.

These laws were all enactments of the states, and had reference to the African race alone. The United States never had any statute law on the subject (and has not now) with regard to persons who are not subject to its jurisdiction. Now, in this case, as the 38th article of the treaty only permits an American citizen, or a white person, to expatriate himself -- to throw off his allegiance to the government of the United States -- and place himself beyond the jurisdiction of its courts by marriage to a Choctaw and residence in their country, we must somewhere find a rule to define who is a Choctaw, in [**15]  a case where there is mixed parentage. Does the quantum of Indian blood in the veins of the party determine the fact as to whether such party is of the white or Indian race? If so, how much Indian blood does it take to make an Indian, or how much white blood to make a person a member of the body politic known as American citizens? Where do we find any rule on the subject which makes the quantum of blood the standard of nationality? Certainly not from the statute law of the United States; nor is it to be found in the common law. In the case of United States v. Sanders [Case No. 16,220], the court held that the quantum of Indian blood in the veins did not determine the condition of the offspring of a union between a white person and an Indian; but further held that the condition of the mother did determine the question. And the court referred to the common law as authority for the position that the condition of the mother fixed the status of the offspring. The court is sustained in the first position by the common law, and also in the last position, if applied to the offspring of a connection between a freeman and a slave, upon the principle handed down from the Roman civil law,  [**16]  that the owner of a female animal is entitled to all her brood, according to the maxim partus sequitur ventrem. But by the common law this rule is reversed with regard to the offspring of free persons. Their offspring follows the condition of the father, and the rule partus sequitur patrem prevails in determining their status. 1 Bouv. Inst., 198, § 502; 31 Barb. 486; 2 Bouv. Law Dict. 147; Shanks v. Dupont, 3 Pet. [28 U.S.] 242. This is the universal maxim of the common law with regard to freemen -- as old as the common law, or even as the Roman civil law, and as well settled as the rule partus sequitur ventrem -- the one being a rule fixing the status of freemen; the other being a rule defining the ownership of property -- the one applicable to different political communities or states, whose citizens are in the enjoyment of the civil rights possessed by people in a state of freedom; the other defining the condition of the offspring which had been tainted by the bondage of the mother.
No other rules than the ones above enumerated ever did prevail in this or any other civilized country. In the case of Ludlam v. Ludlam, 31 Barb. 486, the court says: "The universal maxim of [**17]  the common law being partus sequitur patrem, it is sufficient for the application of this doctrine that the father should be a subject lawfully, and without breach of his allegiance beyond sea, no matter what may be the condition of the mother."

The law of nations, which becomes, when applicable to an existing condition of affairs in a country, a part of the common law of that country, declares the same rule. Vattel, in his Law of Nations (page 101), says: "As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, these children naturally follow the condition of their fathers and succeed to their rights. * * * The country of the father is, therefore, that of the children, and these become true citizens merely by their tacit consent." Again, on page 102, Vattel says: "By the law of nature alone, children follow the condition of their fathers and enter into all their rights." This law of nature, as far as it has become a part of the common law, in the absence of any positive enactment on the subject, must be the rule in this case.”

Id. at 585, 18 Alb.Law J. 14-17 (cited with approval in United States v. Ward, 42 F.320; 1890 U.S. App. LEXIS 1586; 14 Sawy. 472 (C.C. S.D.Cal 1890) and Keith v. United States, 8 Okla. 446, 448, 58 P. 507 (1899)).   

9.         Ludlam v. Ludlam, 26 N.Y. 356 (1883):  “Vattel says: ‘ Society not being able to subsist and perpetuate itself, but by the children of its citizens, those children naturally follow the condition of their fathers and succeed to all their rights.’ B. 1, ch. 19, § 212.” 

10.       United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890):  “By the common law this rule [partus sequitur ventrem] is reversed with regard to the offspring of free persons. Their offspring follows the condition of the father, and the rule partus sequitur patrem prevails in determining their status. 1 Bouv. Inst., 198, § 502; 31 Barb. 486; 2 Bouv. Law Dict. 147; Shanks v. Dupont, 3 Pet. [28 U.S.] 242. This is the universal maxim of the common law with regard to freemen -- as old as the common law, or even as the Roman civil law, and as well settled as the rule partus sequitur ventrem -- the one being a rule fixing the status of freemen; the other being a rule defining the ownership of property -- the one applicable to different political communities or states, whose citizens are in the enjoyment of the civil rights possessed by people in a state of freedom; the other defining the condition of the offspring which had been tainted by the bondage of the mother.

No other rules than the ones above enumerated ever did prevail in this or any other civilized country. In the case of Ludlam v. Ludlam, 31 Barb. 486, the court says: ‘The universal maxim of the common law being partus sequitur patrem, it is sufficient for the application of this doctrine that the father should be a subject lawfully, and without breach of his allegiance beyond sea, no matter what may be the condition of the mother.’

The law of nations, which becomes, when applicable to an existing condition of affairs in a country, a part of the common law of that country, declares the same rule. Vattel, in his Law of Nations (page 101), says: ‘As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, these children naturally follow the condition of their fathers and succeed to their rights. * * * The country of the father is, therefore, that of the children, and these become true citizens merely by their tacit consent.’ Again, on page 102, Vattel says: ‘By the law of nature alone, children follow the condition of their fathers and enter into all their rights.’ This law of nature, as far as it has become a part of the common law, in the absence of any positive enactment on the subject, must be the rule in this case.”   

11.       United States v. Wong Kim Ark, 169 U.S. 649, 679-80 (1898):  Confirmed Minor’s “natural-born citizen” definition when it said: “'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” (citing and quoting Minor), and not being limited by the definition of a “natural-born citizen” when defining who a “citizen” was under the Fourteenth Amendment, held that a child born in the United States to domiciled and resident alien parents was a “citizen” under the Fourteenth Amendment.   

Wong Kim Ark eventually resolved Minor's open question, holding that a child born in the United States to permanently domiciled and resident alien parents was a "citizen of the United States" from the moment of birth by virtue of the Fourteenth Amendment.  It is critically constitutionally important to understand that the Court held Wong to be a "citizen" under the Fourteenth Amendment.  It did not hold that he was a "natural born citizen" under the common law with which the Framers were familiar when they drafted the Constitution and which according to Minor provided the definition of a "natural born citizen."   

People like Squeeky Fromm also use Wong Kim Ark to tell us about how the decision so well met the needs of our nation of immigrants who have come to our shores thirsting for freedom and opportunity, mixing that noble goal into the definition of a “natural born citizen.”  The simple response to this “feel good” argument is that immigrants coming to America are looking to become “citizens,” not “natural born citizens,” which is a status that their children can enjoy like the children of the Founders, Framers, and Ratifiers enjoyed.  Hence, this appeal to tradition is nothing but a fallacious argument applied to the definition of a “natural born citizen.”      

Despite Squeeky Fromm’s lack of memory of who Emer de Vattel was, all these decisions from our U.S. Supreme Court and these lower courts confirmed Vattel’s Section 212 definition of the “natural-born citizens” as “those born in the country, of parents who are citizens.”  This is the only definition of the clause that has ever existed and which has been recognized by our U.S. Supreme Court.  The conditions of being born in the country to “citizen” parents are both necessary and sufficient conditions of being a “natural born Citizen.”  The definition of a “natural born Citizen” therefore excludes anyone who is either not born in the country (or its jurisdictional equivalent) or not born to parents (both parents) who are its “citizens” at the time of the child’s birth or both. 

Squeeky Fromm takes the second part of my article, the one related to an unsound argument, and presents herself as some authority on the matter.  She presents a statement suggesting that I, the one who raised and discussed the issue in the first place, do not recognize the issue concerning the truth of the major premise.  I clearly not only recognized the issue, I created it as part of my logical analysis.  I also demonstrated, as can be seen above, how there is no truth to the Jack Maskell thesis that all born citizens are “natural born citizens.”   I did all that so that the public can see how Jack Maskell ultimately is wrong in his argument.
  
V.                 

Squeeky Fromm’s most recent foray is bringing Trayvon Martin into the “natural born citizen” debate. In her article, The George Zimmerman Verdict and Birtherism, at http://birtherthinktank.wordpress.com/2013/07/16/the-george-zimmerman-verdict-and-birtherism/ , she argues that Birthers are like “Trayvonites.”   She argues that the Zimmerman verdict was correct because the rule of law and the right to self-defense required it, but that Trayvon Martin’s supporters refuse to see the light.  What Squeeky Fromm fails to understand is that the Constitutionalists (whom she calls the “Birthers”) have taken the position that they have because of the Constitution and the rule of law.  What is ironic is that a commenter on her blog, “Joel Lawler,” has attacked her as being a racist for her pro-Zimmerman position.  He has told her to “take a deep look into your own sad racist soul.”  She defends her position, saying that the evidence and law require it.   So here we see Squeeky Fromm arguing that such decisions must be decided by the Constitution and the rule of law and not by other extraneous factors such as emotion, anger, prejudice, or revenge.  But she does not grant the “Birthers” the same right to argue that Obama is not a “natural born Citizen.”  We can only conclude from Squeeky Fromm’s inconsistent positions that the Constitution and the rule of law count for her only when it is politically expedient that they do so.    

So, Squeeky Fromm has failed to discredit my Jack Maskell refutation in her several articles (the links are above).  She continues to embarrass herself with her own artistic muddle.  She understands what the Constitution and the rule of law mean, but she applies them selectively and only for political expediency.     

In referring to the topic of her gaslighting article ( http://birtherthinktank.wordpress.com/2013/07/14/are-the-birthers-gaslighting-themselves/ ) blogger ppsimmons, this is what Squeeky Fromm ironically said to one of her sycophants: 

"Hi FrankB!!!

Thank you!!! Somebody had to de-construct him. Why do these guys try to put on airs like they know what they are talking about??? All they do is make trouble for themselves.” 

Too bad that Artsy Fartsy Squeeky Fromm Girl Reporter does not follow her own advice. 

Mario Apuzzo, Esq.
July 19, 2013
Updated March 8, 2014
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Mario Apuzzo, Esq.
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