Barack Obama: The De Facto President of the United States-
Maybe a Born Citizen But Not A “Natural Born Citizen”
By Mario Apuzzo, Esq.
January 21, 2013
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| The U.S. Constitution |
Barack Obama eligibility supporters maintain that he is an Article II
“natural born Citizen” and therefore eligible to be President. But to do
so, they have blended together, through ignorance or intent, “citizen,”
“born citizen,” and “natural born Citizen,” and denied that there is a
critical constitutional distinction between these phrases. These
supporters and enablers, who I call the citizen/born citizen/natural
born citizen conflationists, in constitutionally supporting Barack Obama
to be president, have allowed our Constitution, the rule of law, and
our nation to be violated. Allow me to explain.
In order to understand the meaning of an Article II “natural born
Citizen,” we have to understand the constitutional distinction between a
“citizen,” “born citizen,” and “natural born Citizen.” The first
constitutional distinction is between “citizen” and “natural born
Citizen.” In Article II, Section 1, Clause 5 the Framers provided in
pertinent part: “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.” Here, we see the Framers
distinguished between a “natural born Citizen” and a “Citizen of the
United States.” There is no other type of “citizen” mentioned. So, our
Constitution, Acts of Congress, and treaties, call “citizens,” or
members of the United States, either “natural born Citizens” or
“citizens of the United States.” As we shall see, the former are defined
by American common law (the definition being based on natural law and
the law of nations) and the latter by the Fourteenth Amendment (the
definition being in part based on colonial English common law),
Congressional Acts, or treaties. From this we can see that a “citizen”
is either a “natural born Citizen” or a “citizen of the United States.”
Because of the requirement of having to be born in the country to
citizen parents, a “natural born Citizen” will necessarily also qualify
under these sources as a “citizen of the United States.”
Article II refers to a “natural born Citizen,” but does not define it.
In fact, the definition of a “natural born Citizen” is not found
anywhere in the original or amended Constitution or any Act of Congress.
Rather, it is found in the common law upon which the Founders and
Framers relied at the time of the adoption and ratification of the
Constitution. Under this common law, the three constituent elements of
being a “natural-born citizen” are time (at the moment of birth), birth
place (in the country), and birth parents (U.S. citizen parents), what I
will call birth time, birth country, and birth parents.
See Minor v. Happersett,
88 U.S. 162, 167-68 (1875) (the unanimous U.S. Supreme Court explained
that the definition of a “natural-born citizen” is not found in the
Constitution and confirmed that “[a]t 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”);
United States v. Wong Kim Ark, 169 U.S. 649, 679-80 (1898) (the majority and dissent agreed on the
Minor
definition of a “natural-born citizen,” but they disagreed as to the
definition of a Fourteenth Amendment “citizen of the United States” at
birth). Given this settled common law definition of a “natural born
Citizen,” these elements are both necessary and sufficient to make a
“natural born Citizen.” In the definition, the parents have to have as a
minimum the status of a “citizen” (“born citizen” or “natural born
Citizen” is not necessary) in order to produce a “natural born Citizen.”
Note that
Minor said that at common law, if one was not a
“natural-born citizen,” one was an alien or foreigner. This means that
if these persons qualified, the Fourteenth Amendment, Act of Congress,
or treaty could make them a “citizen of the United States.”
These historical and legal developments inform that at common law there
is a critical distinction between a “citizen” and a “natural born
citizen.” In fact, natural law and the law of nations have always
recognized this distinction.
See Emer de Vattel,
The Law of Nations,
Section 212 (London 1797) (1st ed. Neuchatel 1758) (“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.”
http://www.lonang.com/exlibris/vattel/vatt-119.htm
). At common law, if one was a “citizen” but not a “natural born
citizen,” then, except for the original “citizens” who became such by
the Declaration of Independence and by adhering to the American
Revolution, one had to have been alien born and become a “citizen” by
naturalization statute. Natural law and the law of nations, along with
both English and American common law, have also always recognized that a
child gains allegiance and citizenship by either being born on the soil
of a country (jus soli) or by being born to parents of that country
(jus sanguinis). The Founders and Framers accepted the distinction
between a “citizen” and a “natural born Citizen” and understood that
birth country and birth parents produce in the child allegiance from the
moment of birth. Because they expected the President and Commander in
Chief of the Military to have absolute allegiance from birth only to the
United States, they applied the distinction to the Office of President.
In fact, they used it when they made the “natural born Citizen” clause a
requirement of eligibility for the Office of President (the XII
Amendment extends it to the Office of Vice-President) and for no other
office, requiring, for those to born after the adoption of the
Constitution and who would aspire to be President and Commander in Chief
of the Military, that they be not only a “citizen,” but a “natural born
Citizen.” (The grandfather clause of Article II, Section 1, Clause 5
allowed “Citizens of the United States” to be eligible to be President,
provided they had that status “at the time of Adoption of this
Constitution.”) The English did not nor did they have to demand such
allegiance from their would-be Kings, for their Kings did not have to
qualify from among the people. Rather, they lay their claim to the
throne by royal blood. Rejecting as a requisite to be President royal
blood, the Founders and Framers instead settled with the natural
elements of birth time, birth country, and birth parents, and made their
distinction between a “citizen” who was also a “natural born Citizen”
and a “citizen” who was not. And it was the combination of these three
elements at the time of birth which assured them that all means of
inheriting allegiance and citizenship (birth country and birth parents)
were united at the moment of birth to produce in the child absolute
allegiance only to the United States.
The next constitutional distinction is between “born citizen” and
“natural born Citizen.” These same Obama eligibility supporters add the
word “born” to the word “citizen” and want us to accept that combination
as the definition of a “natural born Citizen.” But those who assert
that a “natural born Citizen” is just any “born citizen” commit two
errors: a textual error of missing the point (or by refusing to see the
point) that the clause is “natural born Citizen,” not “born citizen” and
a definitional error of not understanding (or refusing to accept) that
“born citizen” is neither a definition nor a description of the clause
“natural born Citizen.”
First, regarding the textual error, as I have already explained in other
articles such as Logic and Defining the “Natural Born Citizen” Clause,
at
http://puzo1.blogspot.com/2012/11/logic-and-defining-natural-born-citizen.html
, we cannot define a clause by merely repeating parts of the clause
itself. For example, if we wanted to know what the definition of a
“natural born German Shepherd” is, we would not accept as a correct
definition the answer that it is a “born German Shepherd.” To argue that
a “natural born German Shepherd” is a “born German Shepherd” is
tautological, for it only repeats part of the form of the clause and
does not define the clause. Such an argument does nothing more than to
state the obvious that a “natural born German Shepherd” is a “born
German Shepherd.” Likewise, a “natural born Citizen,” is, of course, a
“born citizen,” but saying so does not define the clause.
Second, in this “born German Shepherd” definition example, a rational
person should also want to know what happened to the qualifier “natural”
and its meaning. Does not that word tell us something about under what
conditions the “born German shepherd” must come into existence?
Likewise, those rational persons who want to know the meaning of a
“natural born Citizen” should want to know what happened to the
qualifier “natural,” and whether that qualifier also requires that
certain conditions be met in order to have a “natural born Citizen.”
Actually, these persons would be correct in raising such questions.
Given the meaning of a “natural born Citizen,” with its three
constituent elements of birth time, birth country, and birth parents, we
know that the word “natural” when combined with “born citizen” demands
that all three elements be satisfied in order to have a “natural born
Citizen.” We might be willing to include others as “born citizens” and
Congress has the naturalization powers to do so and has done so
throughout our history. But that we are willing to tolerate by the
application of some law certain persons as “born citizens” does not,
given the applicable common law definition of the clause and its
requirements, make them “natural born Citizens”
Regarding the definitional error, the clauses “natural born Citizen” and
“born Citizen” are conclusions, birth statuses that do not provide
sufficient factual information as to how one arrives at the conclusions
or statuses themselves. Rather, to know if one satisfies the status of
being a “natural born Citizen,” one must start with the definition of a
“natural born Citizen,” identifying its constituent elements. If one
satisfies those elements, then one is a “natural born Citizen.” And to
know if one satisfies the status of being a “born citizen,” one must
also start with the available definitions, however many there are and
whether provided by the Fourteenth Amendment or Congressional Acts, of a
“born citizen,” identifying their constituent elements. If one
satisfies those elements, then one is a “born citizen.” But obviously,
we are defining two different clauses which necessarily contain
different definitions and requirements. The clause does not tell us how
one arrives at being a “born citizen,” which process must be equivalent
to the process by which one arrives at being a “natural born Citizen” if
the two clauses are to mean the same thing. Hence, to simply use other
legal mechanisms of citizenship which produce a “born citizen” and
proclaim that they too produce a “natural born Citizen,” simply because
they, like “natural born Citizens,” are “born citizens,” is to err. It
is to err because being a “born citizen” is only a necessary consequent
(a conclusion or status) of being a “natural born Citizen” and by
itself, because it is based on a different definition, represents a
different class of citizen, one produced by the Fourteenth Amendment or
Congressional Act and not by American common law.
There is only one process or means by which one can be a “natural born
Citizen,” i.e., by satisfying the necessary and sufficient conditions of
birth time (at the moment of birth), birth country (born in the United
States), and birth parents (born to U.S. citizen parents). Simply
stated, any “born citizen” who does not satisfy these three conditions,
while still being a “born citizen” under some legal mechanism (e.g.,
under the Fourteenth Amendment or Congressional Act), is not a “natural
born Citizen” under American common law which is the natural law/law of
nations-based law that provides the constitutional definition of the
clause.
Minor v. Happersett confirms all this and
United States v. Wong Kim Ark changes none of it.
Barack Obama maintains that he was born in Hawaii. With a dispute
involving whether his birth certificate, social security number, and
military draft registration are authentic still continuing and not
having been definitively resolved through any legal process, we have yet
to see conclusive legal proof of his place of birth. But even assuming
for sake of argument that he was born in Hawaii, he is still not an
Article II “natural born Citizen.” We have seen that the three elements
of being a “natural born Citizen” are birth time, birth country, and
birth parents.
Minor;
Wong Kim Ark. If Obama was born in
Hawaii, he satisfies the birth country requirement. But while Obama was
born to a U.S. “citizen” mother, his father never became nor did he
strive to become a U.S. “citizen.” Rather, his father was born in the
English colony of Kenya, was born a British citizen, and remained such
until his death. Hence, Obama was not born to a U.S. “citizen” father.
He therefore fails to satisfy the elements of being born to citizen
parents at the moment of birth. This means that he can be a “born
citizen” under the Fourteenth Amendment or Congressional Act, which
provide a more relaxed allegiance standard , but he cannot be a “natural
born Citizen” under Article II, which provides a more exacting
allegiance standard for would-be Presidents and Commanders of the
Military. This also means that because he is neither “a natural born
Citizen” nor “a Citizen of the United States, at the time of the
Adoption of this Constitution,” he is not eligible to be President.
On January 20, 2013, Barack Obama was again sworn in as the President of
the United States. But because he is not an Article II “natural born
Citizen,” he is at best a de facto President of the United States, not a
constitutionally legitimate one.
Mario Apuzzo, Esq.
January 21, 2013
http://puzo1.blogspot.com
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Copyright © 2013
Mario Apuzzo, Esq.
All Rights Reserved