A friendly alien Frenchman with his alien wife located in England and their son born there had an allegiance or tie to the King which was strong enough under English common law to make the alien parents “subjects” of the King and their son a “natural born subject” of the King. Assuming those alien parents to be in the United States and their child to be born here before Wong Kim Ark, under American “common-law” and Congressional Acts, as confirmed in 1875 by the unanimous U.S. Supreme Court in Minor that allegiance and tie was not strong enough to make the alien parents “citizens of the United States” or to make the son a “natural born Citizen.” Minor (Minor v. Happersett) even stated that “there have been doubts” whether that child was even a “citizen” (let alone a “natural-born citizen”).
Our citizenship laws changed with the Fourteenth Amendment and its interpretation and application by U.S. v. Wong Kim Ark (1898). While the U.S. domiciled and resident parents under American “common-law” and Congressional Acts were still not “citizens of the United States,” under the Fourteenth Amendment their son became a “citizen of the United States” from the moment of birth, for the parents and their son at the moment of his birth were held to be “subject to the jurisdiction” of the United States through their being physically present on U.S. territory and thereby being obligated to obey the laws of the United States. So, while under Wong Kim Ark the son became a “citizen of the United States” from the moment of birth, with his parents not being “citizens,” he did not become a “natural born Citizen,” which status Minor explained was reserved only to the children born in the United States to parents who were not only aliens but U.S. “citizens” at the time of the child’s birth.
Article II, Section 1, Clause 5 uses the clause, “natural born Citizen,” not “born Citizen.” Wong Kim Ark had to decide whether Wong was a Fourteenth Amendment "citizen of the United States" from the moment of birth or what may be called a “born Citizen,” not whether he was a "natural born Citizen," which according to Minor is not defined by our Constitution. Minor looked to American "common-law" to define an Article II "natural born Citizen." Wong Kim Ark looked to the English common law to define a Fourteenth Amendment "citizen of the United States" from the moment of birth (“born Citizen”).
Obama’s supporters have failed to demonstrate any contradiction in the evidence and argument that I have presented here, i.e., that a “natural born Citizen” is a child born in the United States to parents who were both U.S. “citizens” at the time of the child’s birth. On the contrary, they are the ones who have failed to provide any real historical and legal evidence to support their position that a “natural born Citizen” is any child born a “citizen of the United States,” which is not even the correct standard under Article II, Section 1, Clause 5. They put forth an unsubstantiated historical and legal position and hold it together with personal attacks and other fallacious reasoning.
Today for presidential eligibility purposes, Article II still requires a "natural born Citizen" and rejects a "citizen of the United States" as the proper constitutional standard for a would-be president to meet in order to be eligible for that office. In this connection, the Fourteenth Amendment only produces a "citizen of the United States," which the plain text of Article II shows is insufficient to be eligible to be President. What this means is that one who is neither a “natural born Citizen” nor a “Citizen of the United States, at the time of the Adoption of this Constitution, shall [not] be eligible to the Office of President.” Article II, Section 1, Clause 5.
The Founders and Framers were subject from birth to the natural allegiance of Great Britain. Having been naturalized by the Declaration of Independence and by adhering to the American Revolution, they became “Citizens of the United States,” but not “natural born Citizens.” They therefore grandfathered themselves to be eligible to be President. But the grandfather clause has long expired and now one has to be a “natural born Citizen” to be eligible to be President.
As we have seen, the Founders and Framers inserted the "natural born Citizen" clause in Article II, Section 1, Clause 5 as part of presidential eligibility for the nation's safety and preservation. Hence, the "natural born Citizen" clause has a very specific constitutional meaning in the context of presidential eligibility. The historical record and U.S. Supreme Court case law convincingly demonstrate that that meaning is a child born in the United States to parents who were U.S. "citizens" at the time of the child's birth. That meaning does not and should not without constitutional amendment be changed based on the allegation that we should not prevent "good" people from becoming President. If our nation desires to amend the clause so that more people may be eligible for President, then let the people change the clause through national debate and by prescribed constitutional amendment. But until that is done, and to be guided by the wisdom of the Founders and Framers who gave us the clause for the purpose of self-preservation, the clause should be enforced the way the Founders and Framers so intended it to be.
Even if Obama were born in Hawaii, he is still not eligible to be President. A “natural born Citizen” is a child born in the U.S. or its jurisdictional equivalent to a U.S. citizen father and mother. Emerich de Vattel, The Law of Nations, Sec. 212-217 (1758); Minor v. Happersett (1875); U.S. v. Wong Kim Ark (1898) (to name just a few sources). It is reported that Obama was born to Stanley Ann Dunham and Barack H. Obama. While his mother was a U.S. “citizen,” under the British Nationality Act 1948, Obama Sr. was a British citizen and never a U.S. domiciliary or legal permanent resident let alone a U.S. citizen. Under that same British Act, Obama himself was also born a British citizen by descent from his father. Under such birth circumstances, before the Fourteenth Amendment was adopted, Minor informed that under the “common-law” with which the Framers were familiar, Obama would have been an “alien or foreigner.” Minor also explained that “there have been doubts” whether Obama would even have been a “citizen of the United States” (let alone a “natural born Citizen”).
Barack Obama, being born to a non-U.S. “citizen” father, if born in Hawaii, is only a Fourteenth Amendment “citizen of the United States” from the time of his birth in 1961, but not an Article II “natural born Citizen.” It simply is not humanly possible for Obama to be a “Citizen of the United States, at the time of the Adoption of this Constitution” which was 1787. Under Article II, he must therefore be a “natural born Citizen” if he wants to be eligible to be President. But under the well-settled definition of a “natural born Citizen” as confirmed by both Minor and Wong Kim Ark, Obama is not a “natural born Citizen.” Hence, being neither a “natural born Citizen” nor a “Citizen of the United States, at the time of the Adoption of this Constitution,” Obama is not constitutionally eligible under Article II to be President and Commander in Chief of the Military.
Should we as a nation be concerned that Obama is not a “natural born Citizen?” First, the “natural born Citizen” clause is part of the supreme law of the land which can be changed only by constitutional amendment. Second, The Founders and Framers understood that a nation’s first duty is self-preservation and survival. The Founders and Framers had personally witnessed the power and influence of oppression from abroad. They inserted the “natural born Citizen” clause into presidential eligibility to assure that the nation’s civil and military leader would be forever freed from such influence and be attached from birth to the new American republican ideals and values of life, liberty, and property. Indeed, the “natural-born citizen” clause was designed to assure that the President and Commander in Chief of the Military would be born and presumably be raised by his or her parents with unwavering allegiance only to the United States.
I will now leave you with a story from ancient Roman history which specifically speaks about the love and loyalty that a military general, a “natural born citizen” of Rome, had for his country and how it affected his ability to command his armies in time of war.
"But if you are irreconcilable to her [his country] grant this honor and favor to me, from whom you have received benefits not of the least value which none else can claim, and such are of the greatest consideration and esteem, and with which you have acquired everything else you are possessed of, I mean, your body, and your mind: These are debts you owe to me, which no place, no time can over deprive me of; neither can the favors of the Volsci, or of all the rest of mankind, however extensive, so far prevail, as efface, and surpass, the rights of nature; but you will be ever mine; and you will owe to me, preferably to all others, the favor of life, and you will oblige me in everything I desire, without alleging any excuse: For this is a right, which the law of nature has prescribed to all, who partake of sense, and reason. Confiding in this law, Marcius, my son, I beg of you not to make war upon your country; and, if you offer violence, I oppose you: Either, therefore, first, sacrifice with your own hand to the Furies your mother, who opposes you, and, then, begin the war against your county; or, trembling at the crime of parricide, yield to your mother, and grant, my son, this favor willingly. Supported and assisted by this law, which no time has ever repealed, I do not think fit, Marcius, to be alone deprived by you of the honors I am entitled to under it. But, to omit this law, remember the good offices you have received from me, and consider how many, and how great they are: You were left an orphan by your father, and an infant, when I took you under my care; for your sake, I continued a widow, and underwent the trouble of bringing you up, showing myself not only a mother to you but also a father, a nurse, a  sister, and everything, that is most endearing.”
Id. at 361-63. Veturia eventually convinces Marcius to spare his country. He tells his mother, “You have saved your country, but ruined me your pious, and affectionate son.” But Marcius is then killed by angry Volsci for not completing the capture of Rome.
Mario Apuzzo, Esq.
October 28, 2012
Copyright © 2012
Mario Apuzzo, Esq.
All Rights Reserved
P.S. There have been numerous cases that have ruled on one issue or another in a case somehow involving Obama’s eligibility to be President. Most of these cases have been dismissed for lack of standing, jurisdiction, ripeness, mootness, political question, or for some other procedural problem.
Also, note that “tesibria”, as virtually all other Obama supporters, mislead the public regarding Kerchner v. Obama which I filed in 2009 in the Federal Court in New Jersey. First, the case was dismissed for lack of standing which she does not note. This means that the court never reached the issue of what is a “natural born Citizen.” Second, she notes that the Third Circuit “taxed costs,” like that is supposed to be an indication of something sinister, and issued a show cause order for defense litigation damages (she calls them “sanctions”), but fails to note that the court discharged the order without assessing any such damages.