Attorney Mario Apuzzo Responds to Ehancock on “Natural Born Citizen”

Posted by By GeorgeM at 30 August, at 23 : 37 PM Print

It’s fun to watch Mario smack down Obots. This site is not a place for endless debates with them, but sometimes, we have to set the record straight. If you want their views, go to their sites, or MSM.

 from Mario ….

Looks like ehancock still does not know what she is talking about, is still trying to prove me wrong, and now fails again as she has continuously failed in the past.  Here are my responses to ehancock. Her statements are quoted and my responses follow: 

 

1.  “Looks like Mario does not understand what the Wong Kim Ark Supreme Court decision said. It said:

 

“It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.

 

III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.’  That ruling was six to two, one not voting. So SIX Supreme Court justices stated that the meaning of Natural Born came from the common law (hence not from Vattel). And the ruling also says that the meaning of Natural Born under the common law referred to the PLACE of birth, not to the parents.”

 

Response:  It might be true that the English “common law” rule of jus soli prevailed in colonialAmerica, and that it continued to prevail after the Declaration of Independence, and up to the time of “Constitution as originally established,” which was the Articles of Confederation, but it did not survive our second Constitution adopted in 1787.  That second Constitution did not use “natural born subject,” which was the clause used by the English common law, but rather “natural born Citizen,” which was the term used by the law of nations as explained by Emer de Vattel and which became part of our national law. 

 

I have explained that several U.S. Supreme Court and lower court cases specifically cited and quoted or paraphrased Vattel and his Section 212 definition of a “natural-born citizen.”  Cases that cited and quoted Vattel for the definition of a “natural born Citizen” are The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (C.J. Marshall concurring) (cited and quoted Vattel’s Section 212 definition of a “natural-born citizen”); Dred Scott v. Sandford, 60 U.S. 393 (1857) (J. Daniels concurring) (cited and quoted Vattel’s Section 212 definition of a “natural-born citizen”); Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879) (cited and quoted Vattel’s Section 212 definition of a “natural-born citizen”); and United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (cited and quoted Vattel’s Section 212 definition of a “natural-born citizen”).  Cases that paraphrased his definition are Inglis v. Sailors’ Snug Harbor, 28 U.S. 99 (1830) (a child inherits the citizenship of his parents); Shanks v. Dupont, 28 U.S. 242, 245 (1830) (a child inherits the citizenship of his parents); Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (said that the Founders and Framers were familiar with the “common-law” definition of a “natural-born citizen;” the American “common-law” definition that the Court gave was a paraphrase of Vattel’s Section 212 definition of a “natural-born citizen” and not that of the English common law’s definition of a “natural born subject”) and U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898) (cited and quoted Minor and its Vattel paraphrased American “common-law” definition of a “natural-born citizen” and distinguished between an Article II “natural born citizen” and a Fourteenth Amendment “citizen of the United States” at birth). 

 

Wong Kim Ark recognized that Wong was a Fourteenth Amendment “citizen of the United States,” but not an Article II “natural born Citizen.”  Justice Gray told us twice of this distinction.  The first time he said:  “The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’ Page 22, note. This paper, without Mr. Binney’s name, and with the note in a less complete form, and not containing the passage last cited, was published (perhaps from the first edition) in the American Law Register for February, 1854. 2 Am. Law Reg. 193, 203, 204. ” Wong Kim Ark, at 665-66.  Later in his opinion, Justice Gray, in speaking about a child born in the United States to alien parents again said that an alien’s “child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’” Id. at 694.  It is critical that when he mentioned it for the second time, his sentence followed the Court’s conclusion which he based on how the colonial English common law held aliens in amity to have sufficient allegiance to the King to make his children born in the King’s dominion “natural born subjects,” that Wong was born “subject to the jurisdiction” of the United States. So twice, Justice Gray told us of the distinction between a child born in the country to aliens and a child born in the country to “citizen” parents.  He explained that both are “citizens,” but only the latter is a “natural-born citizen.”

 

Also, ehancock takes “natural born Citizen,” a word of art, an idiom, a unitary clause, and attempts to define it only by the words “natural born,” which words she borrows from Wong Kim Ark.  In her vain attempt to get us to believe that Wong Kim Ark defined the “natural born Citizen” clause, she uses just the words “natural born” rather than the full clause, “natural born Citizen.”  First, “natural born Citizen,” being a word of art, an idiom, a unitary clause, cannot be defined by its parts.  Second, ehancock does not tell us that the references to “natural born” in Wong Kim Ark were to when it referred to an English “natural born subject” and used that clause and its definition as an aid in defining a Fourteenth Amendment “citizen of the United States” at birth and not an Article II “natural born Citizen.”  Wong Kim Ark, only having to define a Fourteenth Amendment “citizen of the United States,” did not define a “natural born Citizen.”  Rather, Wong Kim Ark accepted the Minor definition of “natural born Citizen” and did not define that clause differently than how Minor defined it. 

 

These cases, along with Congress’s statutes and other historical evidence, show that ehancock and other Obama’s supporters are wrong when they say that the English common law provided the Founders and Framers with the definition of an Article II “natural born Citizen.”  On the contrary, this evidence demonstrates that it was, indeed, Vattel who provided the Founders and Framers with the definition of a “natural born Citizen.”  Indeed, this historical and case law evidence conclusively demonstrates that the definition of a “natural born Citizen” can be traced to Vattel’s Section 212 and was handed down from there to the Founders and Framers when they wrote the Constitution and continued to be confirmed in case law of our U.S. Supreme Court and lower court down to even the 1898 seminal case on citizenship, Wong Kim Ark.

 

2.  “That is why Edwin Meese, who know [sic] a lot more about Constitutional law than Apuzzo, has this in his book:

 

‘Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, those persons born within theUnited Statesare “natural born citizens” and eligible to be President. Much less certain, however, is whether children born abroad ofUnited Statescitizens are ‘natural born citizens’ eligible to serve as President …’—- Edwin Meese, et al, THE HERITAGE GUIDE TO THE CONSTITUTION (2005) [Edwin Meese was Ronald Reagan’s attorney general, and the Heritage Foundation is a well-known Conservative organization.]”

 

Hancock continues to cite Edwin Meese for the argument that any child born in theUnited Stateswho is a “citizen of theUnited States” is also necessarily a “natural born Citizen.”  First, I already explained that it is not Edwin Meese that made this statement.   Rather, it was James C. Ho that made it.  Ho’s statement was just printed in Mr. Meese’s book in which he only acted as editor.  See my previous comment to srmstrausss for how Ho erroneously treated this subject.  Second, Mr. Ho provides no sources or authority for his statement.  Third, Mr. Ho is simply wrong.  There is no such thing as a “longstanding English common-law principle of jus soli” that the Founders and Framers adopted for theUnited Statesin the post-1787 Constitution period.  That is pure poppycock.  There exists much historical and legal evidence which shows that the Founders and Framers did not adopt such a rule for citizenship in theUnited Statesafter the 1787 Constitution was adopted.   

 

The Founders and Framers needed a citizenship status for presidential eligibility.  They needed a standard that would have satisfied their desire to keep out of the Office of President and Commander of the Military both monarchial and foreign influence.  That standard had to be not only fixed and exclusive, but also best provide for sole allegiance and attachment to theUnited Statesfrom the moment of birth.  The historical record shows that the Founders and Framers would not have looked to the English common law to define terms in the Constitution.  “Natural born subject” had an imprecise and ambiguous definition under English common law and statutes.  It included both “natural born subjects” made by natural law and naturalized subjects made by municipal law.  A “natural born subject” was a creature of monarchial rule which they rejected for a republican form of government.  The English “natural born subject” also suffered from birth with conflicting and dual allegiances.  They therefore would not have adopted that definition for their “natural born Citizen.” 

 

Rather, the Founders and Framers adopted the “Laws of Nature and of Nature’s God” (the Declaration of Independence, Preamble) to guide them generally and to provide them with the definition of a “natural born Citizen.”  Indeed, not only did they explicitly include “the Laws of Nations” in Article I, Section 8, Clause 10, but they also adopted the precise definition of a “natural born Citizen” provided by natural law and the law of nations which had only one well-defined meaning. 

 

Being guided by natural law and the law of nations and specifically by Emer de Vattel and his The Law of Nations, Section 212 et seq., the Founders and Framers in Article II made a clear distinction between a “natural born Citizen” and a “Citizen of the United States.”  They, unlike Mr. Ho, did not conflate or confound the two classes of citizens.  Only the former, defined as those who were born in the country to citizen parents, were made eligible to be President for births occurring after the adoption of the Constitution.  The Founders and Framers considered only those who were born owing no allegiance to any foreign power or nation as “natural born Citizens.”  And only those who were born in the country to citizen parents could have this special birth circumstance.  These citizens received that status under natural law and needed no law to be so recognized.   Since the Founders and Framers were providing for presidential eligibility, they would have relied upon one and only one no-doubt definition of “natural born Citizen.”   The definition confirmed by Vattel left no doubts as to who was a “natural born Citizen” and would therefore have satisfied the Founders’ and Framers’ presidential eligibility needs. Minor v. Happersett (1875) confirmed the no-doubt definition of a “natural-born citizen,” which it stated was a child born in the country to citizen parents. 

 

See No. 1 above for decisions by our courts, including the U.S. Supreme Court, recognizing Vattel as the source of the definition of a “natural born Citizen.” But we do not need to rely upon Vattel and the law of nations to show what the Founders and Framers intended when they included the “natural born Citizen” clause in Article II and that they rejected the English common law as their guide in defining that phrase.  The most direct evidence that shows that the Founders and Framers did not adopt the English common law jus soli for U.S. citizenship are the First and Third Congresses who in the Naturalization Acts of 1790 and 1795 treated children born in the United States to alien parents as aliens.  The Framers gave Congress the power to naturalize persons.  This is only a naturalization power.  Consequently, this power did not include the power to make anyone a “natural born Citizen.”  Hence, Congress can make “citizens of theUnited States,” but it cannot make “natural born Citizens.”   The 1790 and 1795 Naturalization Acts clearly abrogated any vestiges of the English common law as a source of the rules of decision for determiningU.S.citizenship.  These early Congressional Acts, which also mirrored Thomas Jefferson’s 1799 citizenship statutes for Virginia, passed by many members of Congress who were intimately involved with the Founding and drafting of the Constitution, are solid evidence of what the Founders and Framers intended when they wrote “natural born Citizen” into the Constitution.  Under these Acts, a child born in theUnited Statesto alien parents was treated as an alien.  Hence, in the eyes of the Framers, such a child could surely not be a “natural born Citizen.”  Since the only scenario not covered by these Acts is one wherein a child is born in the United States to citizen parents, that child is the Founders’ and Framers’ Article II “natural born Citizen.”  

 

The critical distinction between a “natural born Citizen” and a “citizen of theUnited States” is further proven by the fact that Congress, except for the retroactive 1790 Act which it repealed in 1795, never used the phrase “natural born Citizen” in any of its Acts or treaties. 

 

It is also telling that given that the Fourteenth Amendment did not require birth to citizen parents, the framers chose to call those born citizens only “citizens of theUnited States” and not “natural born Citizens” and equated them to naturalized citizens.  

  

So, under our constitutional framework, as confirmed by the text and structure of the Constitution, natural law and the law of nations, our early Congresses, and several U.S. Supreme Court cases, anyone who does not meet the original American “common law” definition of a “natural born Citizen,” i.e., born in the country to citizen parents, and who is otherwise a “citizen” only by virtue of the Fourteenth Amendment (which was the constitutionalization of an Act of Congress known as the Civil Rights Act of 1866), Act of Congress, or treaty is not a “natural born Citizen,” but rather only a “citizen of the United States.”  Under Article II, Section 1, Clause 5, a “natural born Citizen” is eligible to be President, but a “Citizen of theUnited States” is not. Hence, anyone who is a “citizen of theUnited States” but not also a “natural born Citizen” is not eligible to be President.  

 

3.  “That is also why a constitutional scholar in 1803, had this in his book:

‘Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by their birth-right, became entitled to all the privileges of citizens; the second, were entitled to none, but such as were held out and given by the laws of the respective states prior to their emigration. …’  St. George Tucker, BLACKSTONE’S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND THE COMMONWEALTH OF VIRGINIA. (1803)

As you can see, the quotation refers ONLY to the place of birth, not to the parents. Natural Born Citizens were ‘those born within the state.’”

 

Ehancock’s quote of St. George Tucker is not accurate and misleading.  She, along with others who surf the net in defense of Obama, leaves out the first part of the quote which shows that Tucker did not himself make that statement, but rather was only repeating what someone else said. Here is the full quote:  

 

“A very respectable political writer makes the following pertinent remarks upon this subject.  ‘Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by their birth-right, became entitled to all the privileges of citizens; the second, were entitled to none, but such as were held out and given by the laws of the respective states prior to their emigration.’”

 

So, as we can see, it was a “respectable political writer” who made that statement, not Tucker.  Tucker did not state that he agreed with what that “respectable political writer” believed.  Tucker only quoted him.  If we read the whole presentation by Tucker, he does not state that he agrees with this writer on citizenship.  Also, this quote only addresses citizenship before the Constitution was adopted.  The Constitution recognizes this “citizen” as an Article I “Citizen.”  If we read what Tucker wrote on the subject, we will see that the first “Citizens” were only treated as or deemed to be “natural born Citizens” because they, with at least 35 years of age and 14 years of residency within the United States, had the right to be elected President.  They were not actually “natural born Citizens.” Tucker wrote:  “Persons naturalized before the adoption of the constitution, it is presumed, have all the capacities of natural born citizens. See C. U. S. Art. 1, 2.”  In fact, the Framers had to grandfather the first Article I “Citizens” to be eligible to be President.  But for those born after the Constitution was adopted, along with the minimum of 35 years of age and 14 years of residency within the United States, only the true “natural born Citizens” could be eligible to be elected President, i.e., only those children who were born in the country to “citizen” parents.  Also, and on the contrary, Tucker believed that the “civil right” to be elected President belonged only to the children of “citizens.”  See http://puzo1.blogspot.com/2012/03/putative-president-barack-obamas.html.  Hence, for Tucker, only a child born to “citizen” parents could be a “natural born Citizen.” 

 

4.  “And that is why a Constitutional scholar had this in his book in 1829:

‘Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.’—William Rawle, A VIEW OF THE CONSTITUTION OF THEUNITED STATES OF AMERICA. 2d ed. (1829).” 

 

First, St. George Tucker, like founder, historian, and doctor David Ramsay, did not agree with Rawle, not only on expatriation (Rawle parroted the English common law and said that Americans did not have the right to expatriate) but also on defining a “natural born Citizen.”  Tucker is much more authoritative than Rawle.

 

Second,  Rawle provided absolutely no authority that supports his position that a child born in theUnited Statesto alien parents can be a “natural born Citizen.”   Rawle is not a self-executing authority on any given point.  He can become an authority on a given point if and only if he explains how he arrives at his conclusion.  He has to show how he arrived at his “natural born Citizen” definition which he does not.  Rawle stands all alone on what he said.  Missing from ehancock’s argument is any reference to any other founder that supports Rawle’s theory of defining an Article II “natural born Citizen” under the English “common law.”  We should not simply accept his net opinion on the meaning of a “natural born Citizen” given that there is no contemporaneous historical evidence showing that he was correct.  On the contrary, I have many authorities from the founding period, acts of our early Congresses, and U.S. Supreme Court and lower court cases which show that a “natural born Citizen” is a child born in the country to “citizen” parents.  All these authorities and case law show Vattel, Ramsay, and Tucker were correct and Rawle was wrong. 

 

Third, the unanimous U.S. Supreme Court in Minor (9 Justices) said that under the “common-law” with which the Framers were familiar when they drafted the Constitution, any child born in the United States to non-U.S. “citizen” parents was an “alien or foreigner.”  It also said that “there have been doubts” whether the position that “some authorities” took regarding who was a “citizen,” i.e., that a child “born within the jurisdiction,” regardless of the citizenship of his or her parents, was a “citizen.”  Clearly, our U.S. Supreme Court did not agree with Rawle and would place him within these “authorities” whose position the Court informed had been doubtful.  

 

Fourth, our U.S. Supreme Court (with a strong dissent by Chief Justice Fuller and Justice Harlan) in Wong Kim Ark was willing to make a child “born within the jurisdiction” a “citizen,” but the Court only held that that child was a “citizen of the United States” at birth under the Fourteenth Amendment, not a “natural born Citizen” under Article II. So, not even the Wong Kim Ark decision helps Rawle.    

 

5.  “ALL of them use the meaning of Natural Born that came from the common law. None of them used a meaning based on Vattel.”  This is wrong.  See my point No. 1 to 4 above.   

 

6.  “And, BTW, the Minor vs Happersett Supreme Court case did not either, but to make it simple, the fact is that the Wong Kim Ark case was AFTER the Minor vs Happersett case, and hence would have overturned the Minor vs Happersett decision if it had actually been a decision on the matter—and it wasn’t.”  Wong Kim Ark neither amended Minor’s definition of a “natural born Citizen” nor overturned Minor.  On the contrary, Wong Kim Ark cited Minor as a case about citizenship and even cited and quoted Minor and provided its definition of a “natural born citizen.” 

 

Mario Apuzzo, Esq.

August 27, 2012

 

 

 

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