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Old 02-24-2010, 10:47 AM
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In Elk v. Wilkins, 112 U.S. 94 (1884), the Supreme Court specifically addressed what is meant by “subject to the jurisdiction thereof,” and held: "The persons declared to be citizens are 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof.' The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired." Only if the child’s both parents were citizens at the time of birth could the child be “completely subject to their [U.S.] political jurisdiction and owing them direct and immediate allegiance.

U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), did not address what an Article II “natural born Citizen” is. Rather, the Supreme Court there gave a new, divergent, and incorrect interpretation of the “subject to the jurisdiction” clause of the Fourteenth Amendment and vetoed the will of the People and their Legislature to declare Wong a U.S. “citizen” under the unique circumstances of that case. While the case did approvingly cite Minor v. Happersett, since the case only dealt with what is a Fourteenth Amendment “citizen,” the case cannot in any event be used to explain what the Founders meant by Article II’s “natural born Citizen” clause. Justice Antonin Scalia, during his address to the 2008 Annual National Lawyers Convention on November 22, 2008, at the Mayflower Hotel, in Washington, D.C., gave three reasons in ascending order (the last being the most compelling) which would serve justification for overturning a prior case: how wrong was it, i.e., was it blatantly and malicious improperly decided ; how well has the public accepted the case; and did the decision cast the Court as a policy maker rather than an interpreter of the law. Given that the Wong Court did not give Congress and the Executive the wide deference that they deserve in exercising its immigration and naturalization powers (Nguyen v. INS, 533 U.S. 53, 121 S.Ct. 2053; 150 L.Ed.2d 115 (2001) and the Scalia factors, the Wong decision is a prime candidate for reversal.

We have seen that the citizenship status of the parents of a child determines whether that child is born a “natural born Citizen.” Why should we want the child’s parents to be citizens? Alexander Hamilton explained what happens to a person when he or she becomes a citizen of the country: "But there is a wide difference between closing the door altogether and throwing it entirely open; between a postponement of fourteen years, and an immediate admission to all the rights of citizenship. Some reasonable term ought to be allowed to enable aliens to get rid of foreign and acquire American attachments; to learn the principles and imbibe the spirit of our government; and to admit of a probability at least, of their feeling a real interest in our affairs. A residence of not less than five years ought to be required. " Alexander Hamilton, The Works of Alexander Hamilton, (Federal Edition), vol. 8 > EXAMINATION OF JEFFERSON’S MESSAGE TO CONGRESS OF DECEMBER 7, 1801 1 > paragraph 827. Additionally, the development in the formative years of a child’s minority of a relationship between citizen parents and their child is essential to the child’s ties and allegiance to the United States. Nguyen v. INS, 533 U.S. 53, 121 S.Ct. 2053; 150 L.Ed.2d 115 (2001) (addressing the importance of the tie between a child and his U.S. citizen father before the child’s 18th birthday as a crucial ingredient in the child attaching and owing allegiance to the United States and that the U.S. government has a “profound” important interest and objective in promoting that link; showing that a child must meet all statutory preconditions [would also mean constitutional requirements] no matter how much one may deem them to be unfair or onerous in order to be bestowed U.S. citizenship). But we have seen that United States Supreme Court case law, the early 1790 and 1795 Naturalization Acts, legislative history of the Civil Rights Act of the 1866, and the Fourteenth Amendment all conclusively show that Vattel was understood to say that both parents had to be citizens in order for a child to be a “natural born Citizen.” The Founders, our Supreme Court, Congress, and framers of the Fourteenth Amendment all adopted Vattel’s law of nations definition and two-parent requirement and made it part of Article II, United States citizenship federal common law, the Civil Rights Act of 1866, and the Fourteenth Amendment, respectively. It also would not make sense to allow just one U.S. citizen parent to be sufficient, for each parent has just as much influence as the other on his or her child.

The purpose of Article II’s “natural born Citizen” clause is to exclude foreign influence from the Office of President and Commander in Chief. It “cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interposes a barrier against those corrupt interferences of foreign governments . . .” Joseph Story, Commentaries on the Constitution 3:Sec 1472-73 (1833). Remember that Vattel said that if a child is born on a nation's soil to a non-citizen father (meaning parents), that place "will be only the place of his birth, and not his country." Article II’s “natural born Citizen” clause looks only to the moment of birth and not thereafter. This interpretation is consistent with Jay’s underlining the word “born” in his 1787 letter to General (later President) Washington. In other words, to meet that special Presidential eligibility requirement, one must be born a “natural born Citizen” and cannot acquire that status later in life. Under the British Nationality Act 1948, when Obama was born in 1961 his father was a British subject/citizen and Obama himself was a British subject/citizen by descent from his father. Under the British Nationality Act 1981, today Obama can still be a British Overseas Citizen (BOC). See my April 7, 2009 article on this topic at this blog entitled, Obama, the President of the U.S., Is Currently Also a British Citizen. Hence, when Obama was born he failed to meet the two-U.S.-citizen-parent test which caused him to be born subject to a foreign power. See my article at this blog entitled, Being Born Subject to a Foreign Power, Obama Cannot be President and Military Commander. It is inescapable that Obama is not and cannot be an Article II “natural born Citizen” and is therefore not eligible to be President and Commander in Chief of the Military.

Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg, NJ 08831
9-8-09
Amended on 12-20-09