Natural Born Citizens: Or How to Beat a Subject to Death with a Stick.

A TD Exclusive by Judah Benjamin

Copyright © 2008 Judah Benjamin. All Rights Reserved.

I have been working on a compendium article and it came out longer than “War and Peace” so I decided to split it up.

This was originally part one and re-iterates my views on the natural-born citizen clause of Article II. I’m repeating myself because it has become quite clear that there are a lot of people reading this blog who haven’t read, or haven’t understood “Divided Loyalties, Part One” and so on. Several people have said in comments that there isn’t a definition of the term natural-born citizen, or alternatively have repeatedly insisted on confusing it with the terms citizen by birth, native citizen, birthright citizen, born citizen, or citizen under the XIVth Amendment. All of these latter terms basically mean the same thing, except citizen under the XIVth Amendment, and none of them are in fact identical with the term natural-born citizen.

This article will concentrate on the admitted fact that Barack Obama was born with dual citizenship.

This article, obviously, has a lot to do with Donofrio’s case against the New Jersey Secretary of State scheduled for Justices’ Conference of the SCOTUS on December 5th. For this reason I shall look at Barack Hussein Obama II (hereinafter referred to as BHO II) and John Sidney McCain III (hereinafter referred to as McCain) from the perspective of the Common Law definition of natural-born citizen. Before I do so I will briefly look at Roger Calero, the SWP Presidential Candidate who is also mentioned in the Donofrio case.

Roger Calero was born in Nicaragua in 1969 and came to the USA in 1985. He has stood for election to the Office of POTUS twice and is admittedly not a natural-born citizen and is therefore Ineligible to hold the Office of POTUS (in fact Calero may not even be a US citizen, but a Green Card holder married to an American). He was on the ballot in nine states in 2004 and five in 2008. There is nothing in law to prevent an Ineligible candidate from running, per se, but it shouldn’t be too much of a stretch to think a Secretary of State, whether it be Nina Wells of New Jersey or anyone else, should ascertain that Calero was born Nicaraguan and therefore refuse to put him on the ballot ab initio. It is quite possible that Justice Thomas has put the Donofrio case to Conference purely because of Calero. Why the New Jersey Court, or Justice Souter, dismissed I cannot imagine. Calero’s presence on the ballot, while probably legal, is an anomaly that should be looked at, especially, in terms of the old Common Law definition of the word Eligible.

The next time you are feeling particularly sure “the fix is in” and that my abiding notion that the main problem with this Election isn’t a gigantic conspiracy but a mass of small conspiracies and cabals and a vast mass of negligence, incompetence, ignorance and just plain a-holeism consider the candidacy of Roger Calero. You might also want to think about Governor Bill Richardson’s candidacy, Richardson is a Mexican-American bipatride and a natural-born Mexican citizen, or national, under the Mexican Constitution. It isn’t just BHO II, not even close.

My next digression involves explaining a view I haven’t made much of previously, in fact I’m not sure I’ve mentioned it at all. I have spent some months researching the whole issue of natural-born citizenship as applied to BHO II and defending the status quo. This has undoubtedly led most people to assume that I, personally, believe that the natural-born citizen clause is absolutely right and inviolate. Well, I’m not sure that’s true, and if I’m not you shouldn’t be sure I am. However, it can only be changed by a Constitutional Amendment and until there is such an Amendment it is the law and it should be enforced. Further, as long as it is the law, a mechanism to police it that works should be put in place and used. I fully understand why the natural-born citizen clause is there, it is a National Security issue, but I can’t see any evidence that a naturalized citizen would be any more likely to betray the Republic than a born one, Bill Ayers and Timothy McVeigh are born citizens (in fact natural-born citizens). A dual citizen on the other hand can’t make certain treaties under International Law so I suspect that even under an Amendment such persons might still be excluded. Granting that, the Constitution is the Supreme Law of the Land and it has not been Amended at this time and cannot be Amended retroactively, so BHO II is ineligible however you choose to look at it.

OK, a final warning before we “get down to the meat and potatoes”, as my father used to say. The following things have absolutely no bearing on the natural-born citizen issue:

1. The dreaded “COLB” forgery argument. It would be imperative that the SCOTUS see the Long Form Vault Certificate of Live Birth, etc, if they decide to hear the case but even if it contains material identical with the “COLB” that would have no impact on his eligibility. His surrogates have already admitted to dual citizenship at birth. Only if the original deviates utterly from anything he has ever said would it matter and if it did BHO II would be guilty of fraudulent misrepresentation, or perjury. The SCOTUS may in fact require to see all of the documents BHO II has concealed if they decide to hear the case.

2. BHO II’s race, religion, or political beliefs. Religious Tests are forbidden under the Constitution, there is no law to prevent someone who is, say, a Marxist from becoming POTUS and there clearly should not be any racial component in the issue. Might I point out here that among his opponents there are plenty of African Americans and the whole BHO II Eligibility question has been driven by Democrats and Independents from the beginning, while we have gathered Republican allies it didn’t start with Republicans.

3. US Immigration Laws, including INA 1952 and INTCA 1994. The issue of natural-born citizenship is not covered by any US Immigration and Naturalization Legislation dated after 1795, the impact of these laws would only eventuate if BHO II was illegitimate. I shall explain later why I don’t think he was. I am not saying BHO II isn’t a US citizen, I’m not saying he has lost his US citizenship, I am not saying he is naturalized and I am most definitely not saying he was born in Mombasa, Protectorate of Zanzibar, British East Africa. Do not bring any of these subjects up in comments about this article, please, because they are not germane in context. Any, or all of the above could be true but they would not impact directly on the issue at hand.

Here we go then, our first set of definitions:

“Native: A natural-born subject or citizen; a citizen by birth; one who owes his domicile or citizenship to the fact of his birth within the country referred to.”, Black’s Law Dictionary, 6th Edition, Springer (1994)

“Natural born citizen. Persons who are born within the jurisdiction of a national government, i.e. in its territorial limits, or those born of citizens temporarily residing abroad.”, Black’s Law Dictionary, 6th Edition, Springer (1994)

Nice, neat and to the point, neither exactly true, nor exactly wrong. I’ll be citing a number of sources to make this point. The second definition is far too simplistic and the first really doesn’t make anything other than unclear.

Under definition 1. BHO II is certainly a native of the USA, assuming he was born in Honolulu. McCain is certainly not one. However, one could be led to think that 1. also makes BHO II a natural-born citizen of the USA and McCain not one. This, as we shall see, is quite probably untrue.

Under definition 2. both BHO II and McCain would appear to be natural-born citizens but 2. contains an enormous error in that many thousands of people have been born within the territorial limits of the USA who were never US Citizens at all and who were most definitely not natural-born citizens and indeed the clause “or those born of citizens temporarily residing abroad.” would give you good reason to suspect that that might be the case. Think about the child of two Russian Diplomats born in The Department of Gynecology and Obstetrics, The Johns Hopkins Hospital, Nelson Building in Baltimore. Such a child would be born within the territorial limits of the USA but would be neither a natural-born citizen of the USA nor even a citizen of the USA. There have been debatable cases too, aplenty.

Let me observe here that if my theory is correct, any and all persons of official standing, Judicial, Legislative or Executive who are aware that BHO II is Ineligible and who have either failed to act in this matter or who have acted to prevent this matter from being brought before the courts are probably guilty of misprision and have certainly come within the ambit of the laws governing misfeasance, wherein “A Common Law Offense whereby a public officer, acting as such, who wilfully neglects to perform his duty and/or wilfully misconducts himself to such a degree as to amount to an abuse of the public’s trust in the office holder, without reasonable excuse or justification”. See: “Modern American Law: A Systematic and Comprehensive Commentary on the Fundamental Principles of American Law and Procedure, Accompanied by Leading Illustrative Cases and Legal Forms”, Eugene Allen Gilmore, William Charles Wermuth, Blackstone Institute, Chicago, (1914) and “Blackstone’s Commentaries Abridged”, William C Sprague, Callaghan and Company, Chicago, (1915) and “Bouvier’s Law Dictionary and Concise Encyclopedia.”, John Bouvier, West Publishing Company (1914). Misfeasance is a Tort and Misprision a High Misdemeanor. My references are, of course, historical but such laws are still on the statute books at both Federal and State level. Justice Souter, in particular, as an accredited senior English lawyer (he is an Honorary Master of the Bench of Grey’s Inn and an Honorary Fellow of Magdalene College, Oxford), is well aware of this. David Hackett Souter also knows full well what it says in Blackstone, unless Oxford University failed to teach him anything in the early 60s, which I do not believe.

I gave these quotations in order to warn the reader not to simply look at any one modern source, no matter how significant it might appear to be.

There are a host of modern articles and opinions on the subject of the natural-born citizen clause. You could read “The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty.”, by Jill Pryor, or “Natural Born in the USA: The Striking Unfairness and Dangerous Ambiguity of the Constitution’s Presidential Eligibility Clause and Why we Need to Fix it.”, by Sarah Helene Duggin and Mary Beth Collins, “Amending the Natural Born Citizen Requirement: Globalization as the Impetus and Obstacle”, by Sarah P Herlihy or “The Pernicious ‘Natural Born’ Clause of the Constitution: Why Immigrants Like Governors Schwarzenegger and Granholm Ought to be Able to Become Presidents”, by John W Dean. You could, as I did, plow through the writings of T Alexander Aleinikoff, Dean of Georgetown University Law School, Washington, former Executive Associate Commissioner of Programs of the INS and General Counsel of the INS. Or you could read articles by Federalist lawyers like “Defining Natural-Born Citizen.”, by P A Madison, or go read the Volokh Conspiracy blog, etc. I’ve read all of these and more and as boring as it is, and if you have the time, I suggest you do too.

If you do read all of this material you will realize that a fairly large group within the American Legal Profession want to see the natural-born citizen clause scrapped and have wanted to see that for many years. This has nothing directly to do with BHO II, he is a product of this and not the cause. You will also see that the Lawyers on both sides must currently be extremely frustrated because this issue needs to be settled before the SCOTUS, can indeed be settled in no other venue, and while McCain is co-operating BHO II is doing everything in his power to prevent the issue from being addressed (at least that’s how it looks to me).

If you read all of this material you will also realize something else. Congress cannot change the meaning of The Constitution by legislation, the Constitution can only be changed by Amendment. Every part of the Constitution has to be understood in terms of the language and law of its own day, The Supreme Court may interpret it but it cannot alter even a comma. Aleinikoff has observed that the Constitution “cannot be changed by any subsequent legislation. Only an Amendment duly achieved under its terms can alter any particular of it.” “The Constitution can only be understood by examining the original meaning and intent of any given provision within it, and the various amendments must be viewed in the same light”. In short, there is no relevance to Article II in any modern legislation, you have to determine who is and who is not a Natural Born Citizen by finding out what the men who framed it meant. T Alexander Aleinikoff is an authority to be respected, especially on matters pertaining to Citizenship and the Constitution, even if one disagrees with him.

I’m not quite persuaded by Madison’s argument because it seems to me that the XIVth Amendment impacts on citizenship generally rather than the more specific concept of natural-born citizenship [but see: "Rights of Citizens and Persons under the Fourteenth Amendment.", Chin-Yung Yen, Columbia University (1905)]. However, since many people do believe that the XIVth is involved directly and since many of the arguments he uses are very pertinent I have included material from his article in my own. I urge you to read his views, it is a well written piece and quite interesting:

http://federalistblog.us/2008/11/natural-born_citizen_defined.html

Donofrio may be taking this view and it may be right, certainly it would have the same effect from BHO II’s standpoint as my exact view, but for slightly different reasons. What Madison does show though, is that those who argue that there is an “Irreconcilable Conflict” between the natural-born citizen clause of Article II and the XIVth Amendment, or that there is some form of “Implied Amendment” of the clause by the XIVth, are talking nonsense. No such conflict exists save in the mind of someone who doesn’t understand, or doesn’t want to understand, the Common Law as it stood in 1787 or 1868. Those opposed to a strict interpretation of either the native-born citizen clause or the XIVth Amendment oppose such a reading on the basis that it is “manifestly unfair” or even “a ridiculous provision” (Aleinikoff). Well I’d say they are right, it is unfair, but so is a ban on Gay Marriage or Medical Marijuana and so is the fact that the Equal Rights Amendment has never been passed. Since when did “fairness” ever have anything to do with whether or not something is currently the law of the land, or the State? I want to see a full Equal Rights Amendment passed, I think it is manifestly unfair that there are people who cannot get Healthcare. If you want to see the law changed then campaign to change it, don’t try to distort, or side step it, screaming “It’s not fair!” like a character in a Peanuts cartoon. It is the business of the Courts to ensure that the principle of “fairness” as embodied in “Natural Justice” is applied. While we do not have any reason to expect the Law of the Land to be “fair” per se, we do have a reasonable expectation that it should be “Just” and “Equitable” and a Constitutional guarantee in the equal protection clause of the XIVth Amendment. The courts should do everything in their power to ensure that this is the case. I will return to this point later.

In essence there is no difference between Madison’s basic argument and mine because he is taking for granted that the lawyers and politicians who drafted the XIVth Amendment had read Blackstone and believed that what he said applied in the USA as strongly as it applied in the UK and its then Empire. I shall quote a number of sources both American and British during this article and I want you to bear in mind that one may cite opinion and precedent from other Common Law jurisdictions in a US Court. These may not be binding but they are of relevance.

If we cannot turn to current Law, such as INA 1952 or INTCA1994, or to such precedent cases as United States vs Wong Kim Ark, Afroyim vs Rusk, etc, etc where can we turn?

Initially we must turn to the Constitution itself. Clearly the Framers did not see themselves as being natural-born citizens. How could they, for to be a United States citizen by birth one would have to have been born subsequent to 1776, ie nobody over the age of nine could be a citizen by birth in 1787? For this reason they inserted the so-called Grandfather Clause. [Please note that this Clause made Alexander Hamilton as Eligible for the Office of POTUS as George Washington.]

Were then all persons born in the United States after 1776 citizens by birth under simple ius soli? Some people contend that this is the case but it is quite clear that this was not an established and certain principle until the passing of the XIVth Amendment in 1868, despite the Equal Rights Act of 1866. Any survey of Legal Texts will confirm this. Even were this to be the case, are the terms natural-born citizen and citizen by birth (or birthright citizen, native citizen, born citizen, or citizen by statute, all synonymous) identical?

The term natural-born citizen is to be found in Article II:

“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.”

In the United States Naturalization Law of March 26, 1790 (1 Stat. 103) it says:

“the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens”.

Prior to that it appears in a letter. On July 25th, 1787, John Jay wrote to George Washington, then Presiding Officer of the Constitutional Convention:

“Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American Army shall not be given to nor devolve on, any but a natural born Citizen.”

John Jay was the First Chief Justice of the United States, among many other things, and it was this letter that caused Clause 5 of Article II to exist. In this letter we can see that the term natural-born citizen was present prior to the writing of the Constitution. I may add for the benefit of those who think that the term citizen was a novelty in 1787 that they should try reading a book on Roman Law, such as, “Studies in Roman Law: with Comparative Views of the Laws of England, France and Scotland” by Lord MacKenzie, Justice of the Court of Session, William Blackwood and Sons (1870). They should then reflect on how many colonists were from Scotland, a Roman Law based Legal Jurisdiction. Having said that, what did Jay mean when he wrote to Washington?

When dealing with any matter of the Common Law as known in the eighteenth and nineteenth century one turns automatically to “Commentaries on the Laws of England”, by Justice Sir William Blackstone. S A Reilly in “Our Legal Heritage”, 5th Edition (2004) said this:

“William Blackstone lectured on law at Oxford University in 1753. As a result, the first professorship of English law was established. His lectures were published in 1769 as the “Commentaries on the Laws of England”. They greatly influenced the American colonists and were the basis of legal education in England and America for years. They were comprehensive and covered real property, crime and punishment, court procedure, contract, corporations, and commercial law.”

In “Abraham Lincoln and the Union”, Nathaniel W Stephenson, Yale University Press (1918), the influence of Blackstone on Lincoln is addressed and de Toqueville cites Blackstone in “Democracy in America”. When it comes to the way people saw the Common Law in the late 18th and 19th centuries, Justice Sir William Blackstone is not an authority he is “The Authority” par excellence.

Blackstone was, of course, English and so rather than natural-born citizen he speaks of natural-born subjects and natural allegiances but he deals with the topic at length. One may find as many passages as one may wish in the Commentaries but we will content ourselves with a few. [See: "Commentaries on the Laws of England, with Additional Notes by George Sharswood, Professor of Law in the University of Pennsylvania", Justice Sir William Blackstone, Childs & Peterson (1860), "Commentaries on the Laws of England, Edited by William Carey Jones, Director of the School of Jurisprudence, University of California", Justice Sir William Blackstone, Bancroft-Whitney Company (1915), or "Commentaries on the Laws of England, by Justice Sir William Blackstone", William Draper Lewis, Dean of the Department of Law of the University of Pennsylvania, Geo T Bisel Co (1922). See also: "A Treatise on the Law of Citizenship in the United States", Prentiss Webster, Matthew Bender Law Book Publisher (1891) and "Allegiance and Citizenship.", George H Yeaman, Fritz Moller (1867)]

“And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once”

Nobody could conceivably see this as anything but a straightforward definition. The natural condition of birth is to have only one allegiance and under normal circumstances in the Common Law that allegiance will be owed to the Jurisdiction in which one is born. It also would tend to suggest that in Blackstone’s opinion dual allegiance/citizenship was, at the least, wrong in principle. However, Blackstone does not confine allegiance by pure ius soli for he also observes:

“Yet the children of the king’s embassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held to be born under the king of England’s allegiance, represented by his father, the embassador.”

and

“To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband’s consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still farther taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain”

In short, Blackstone is giving a sequence of meaning in the Common Law.

1) If you are born in a given Common Law Jurisdiction the Natural Condition is that you owe a sole Allegiance to that Jurisdiction. See: Calvin’s Case (1608)

2) If you are the child of an “embassador” (elsewhere it is stipulated that this includes the children of Military Officers on duty abroad) you owe Natural Allegiance to the Jurisdiction from which the “embassador” comes.

3) If you are born abroad but both of your parents belong to the same Common Law Jurisdiction you also belong to that Jurisdiction as a Natural Condition.

4) If you are born abroad you belong to your father’s Jurisdiction within the Common Law as a Natural Condition.

It does not take a genius to see that (3) is identical to the Law of 1790. The purpose, in terms of intention, of that Law was to point out that the United States recognized the Common Law on Citizenship up to (3) but not necessarily (4).

But of course Blackstone was an English Judge so his opinion could not impact on the USA, right? And there is the XIVth Amendment to consider, right?

Justice Noah Haynes Swayne was around when they wrote the XIVth Amendment and the Equal Rights Act of 1866 and in 1866 he said this:

“All persons born in the Allegiance of the King are Natural- Born Subjects, and all persons born in the Allegiance of the United States are Natural-Born Citizens. Birth and Allegiance go together. Such is the Rule of the Common Law, and it is the Common Law of this country…since as before the Revolution.”

There are people who say Swayne wasn’t talking about the natural-born citizen clause per se and, of course, they are right but his quote was used as definitive in “The Judicial and Statutory Definition of Words and Phrases, collected, edited and compiled by Members of the Editorial Staff of the National Reporter System”, West Publishing Company, St Paul (1904) so it cannot be ignored.

The Congressional Report of June 22nd, 1874 said the “United States have not recognized a double allegiance.” That is a pure and absolute reflection of Blackstone.

Today the US State Department says:

“However, dual nationals owe allegiance to both the United States and the foreign country.”

And:

“The U.S. Government recognizes that dual nationality exists but does not encourage it as a matter of policy because of the problems it may cause. Claims of other countries on dual national U.S. citizens may conflict with U.S. law”

At around the same time the XIVth Amendment was written Lord Mackenzie, a Justice of the Scottish Court of Session, wrote this in “Studies in Roman Law: with Comparative Views of the Laws of England, France and Scotland” William Blackwood and Sons (1870):

“As naturalisation involves the acquisition of a new national character, it ought to be accompanied with the loss of the old. In principle, no one should be a citizen of two nations at the same time, because, in the event of a war arising between them, he would be involved in conflicting duties by a divided allegiance. Yet, with singular inconsistency, some of the states which readily admit foreigners as citizens, strenuously insist on the perpetual allegiance of their own subjects.

Discordant in Britain, as well as in America, allegiance is regarded as a perpetual obligation, or at least one that cannot be renounced or dissolved without the mutual consent of sovereign and subject.”

Sir Alexander Cockburn, Lord Chief Justice of England, wrote “Nationality: Or the Law relating to Subjects and Aliens considered with a view to Future Legislation”, William Ridgway (1869) and I recommend you to read what he has to say.

Madison says this:

“United States Attorney General, George Williams, whom was a U.S. Senator aligned with Radical Republicans during the drafting of the Fourteenth Amendment in 1866, ruled in 1873 the word “jurisdiction” under the Fourteenth Amendment “must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment.” He added, “Political and military rights and duties” do not pertain to anyone else.

Essentially then, “subject to the jurisdiction thereof” means the same jurisdiction the United States exercises over its own citizens, i.e., only citizens of the United States come within its operation since citizens of the United States do not owe allegiance to some other nation at the same time they do the United States. This makes a great deal of sense for the time because there was a great deal of controversy over conflicts arising from double allegiances.”

And, more importantly:

“The adoption of the Fourteenth Amendment obviously affects how we view natural-born citizens because for the first time there is a national rule of who may by birth be a citizen of the United States. Who may be born citizens of the States is conditional upon being born “subject to the jurisdiction” of the United States. The legislative definition of “subject to the jurisdiction thereof” was defined as “Not owing allegiance to anybody else.””

Granted, that to me Madison’s argument appears to be somewhat twisted, it still tends to the same result as mine and harmonizes the natural-born citizen clause and the XIVth Amendment very nicely.

So what am I saying, by giving all of these quotes?

“Natural-born citizen” is a Common Law concept of the type known as “a term of art”. There are innumerable references to it and to its older cognate “natural-born subject”. In essence, a natural-born citizen is an individual born with only one, single, undivided allegiance or loyalty and who is, and has always been, subject to only one legal jurisdiction. There is not, and has never been, any real doubt that this is true and correct. The term itself is not vague, it is in fact, provably, quite precise and anybody who attempts to deny that is fudging the issue because they have an agenda.

Anybody born in territory over which the United States claims legal jurisdiction, at the time of birth, and both of whose parents are United States Citizens is inter alia, and by definition, a natural-born citizen of the USA.

Anybody born abroad of two US Citizen patents is a natural-born citizen, if they are born in a country which does not use ius soli law on birthright, if they are the child of a diplomat, or if the country in which they are born does not for whatever reason assert jurisdiction over them. A secondary condition is that the individual must not have been expatriated by any legal process.

The natural-born citizen cannot have acquired their citizenship by any form of legal action (other than simple registration of birth), it must be acquired by nature, ie the act of birth.

Anyone else inter alia, and by definition, though they be born a Citizen under the XIVth Amendment but of parents of differing allegiance, is not and cannot be a natural-born citizen.

Under USC Title 8, 1448, Section 337 a person who is to be naturalized as a citizen, must take the Oath of Allegiance to the United States of America and renounce allegiance and fidelity to any foreign state, etc. A person can not swear allegiance to the USA and owe allegiance to any political entity other than the USA. Yet under the Constitution and the Common Law a naturalized citizen may not hold the Offices of POTUS and VPOTUS by virtue of defect of allegiance, in that their allegiance is not held by simple birth, and due to “the appearance of Foreign Allegiance”. That this applies also in other Common Law jurisdictions may be determined by reading “The Annotated Constitution of the Australian Commonwealth”, John Quick, LLD & Robert Randolph Garran MA, Angus & Robertson (1901) and by reference to Sue vs Hill. One may also consider the Canadian position on Michaëlle Jean, John Turner, and Stephane Dion.

If a naturalized citizen is Ineligible for the Office of POTUS it follows axiomatically that an individual who has dual allegiance must also be Ineligible. The XIVth Amendment’s equal protection clause can lead to no other conclusion. Neither could any renunciation of that dual allegiance, or automatic lapse of it, be sufficient to change that position, nor could it be pled that no act of volition was involved in the acquisition of that dual allegiance be entertained for inter alia, and by definition, natural-born citizenship itself cannot be acquired by act of will, or by statute.

The so called ‘Grandfather clause” exempted the Founders and Framers themselves from the natural-born requirement. The XIVth Amendment established the basic citizenship rights of former slaves, former CSA citizens, and the many thousands of former Citizens of France, Spain, Mexico, Britain, Russia, Texas and California and their children who lived in territories which had been absorbed by the USA during the 19th century. Nobody living today is covered by these clauses.

Basically this is my position and Donofrio’s in a nutshell. It is sufficiently straightforward and sufficiently well grounded in the Common Law for the Justices of the Supreme Court to Conference on it. They could decide to dismiss, and I think that there is a very high probability that they will, but those who have recently described it using such terms as “batshit insane” or “ill informed, faux-legal, moonbattery” have been proven utterly mistaken in their view by that single fact. The SCOTUS doesn’t Conference for frivolous issues.

Having established what a natural-born citizen is we must now consider how that affects the position of Calero, BHO II, and McCain.

Calero is no problem, he is admitted not to be a natural-born citizen. Logically, he should never have been on the ballot in the first place. “A Compendious Dictionary of the English Language”, Noah Webster, Hudson & Goodwin (1806) might even suggest that, in the English language as used by the Framers, a person who is legally incapable of holding the Office of POTUS is also legally incapable of being a candidate for the Office, simply because they can never legally become, or be elected POTUS.

McCain has produced his Long Form Birth Certificate and other relevant documents. There is, and can be, no doubt that he was not born in the United States. He was not born in the hospital at Coco Solo Naval Base because it had yet to be built at the time of his birth. Even had he been, US Bases abroad are not, in most cases, according to the State Department considered to be US Territory. Nor was he born in the Panama Canal Zone under American Sovereignty. He was born in the City of Colon, in the Republic of Panama. Equally there is no question that both of his parents were US citizens by birth, present in Panama because his father was on Naval Service for the USA and that his grandfather was also on Naval Service there, and was, in fact the Commanding Officer of the US Forces in the area. One is left with the following questions:

1. Is McCain simply covered by the conditions laid down by Blackstone and the Law of 1790?

2. Is McCain a so called “Derivative Citizen” because the Framers required to clarify their meaning by passing the Law of 1790?

3. Was McCain born bipatride because of Panamanian Law?

Most authorities, including Aleinikoff, Tribe and Olson, have concluded that McCain is a citizen by birth under the Common Law and that said citizenship is not derivative but is covered by the “embassador” principle as laid down by Blackstone. There is certainly no question that both of his parents were under US jurisdiction and had no other allegiance of any kind, whatsoever.

The issue of dual citizenship however is more complex. Panama uses ius soli and maintains that anybody born in Panama has birthright citizenship. Under the Panamanian Code McCain would have lost that citizenship, if he ever had it, when he joined the US Navy. So the question can only be resolved by establishing if the Republic of Panama ever claimed jurisdiction over him, or allegiance from him. I do not know the answer and I wouldn’t mind betting that McCain doesn’t either. A court would need to investigate this to reach a sound determination because the Senate Resolution proves absolutely nothing and isn’t worth the paper it is printed on in legal terms. It is in fact an agreement by the Senate that they will ignore the Constitution, the US Code, the Panamanian Code and Constitution and International Law. As I said, BHO II is a symptom and not the disease.

BHO II is a much more straightforward case. Let us assume for the purposes of this article that the information on the so called “COLB” is correct, truthfully we have no evidence that it is not, though equally we have no evidence that it is, and even under Hawaiian State Law such an abstract is regarded as insufficient to fully establish one’s status in law. BHO II’s own surrogates have freely admitted that he was born bipatride under the UK Nationality Act of 1948 and that in virtue of his father he was a United Kingdom and Colonies Citizen and a Subject of the British Crown at birth. That would have been true had he been born on the moon. Assuming that he was born in Hawaii, BHO II was born a US Citizen under ius soli also. No act of volition was required in either event. Thus he was first a Subject of the British Crown and a citizen of the United Kingdom and Colonies and second a citizen of the USA. Had he been born outside the USA under the law as it stood in August of 1961 he could have been a US Citizen only if his mother was unmarried, we shall not discuss that issue here but it does demonstrate the secondary nature of the US citizenship.

I fully endorse what Madison has to say on this point:

“Therefore, we can say with confidence that a natural-born citizen of the United States means those persons born whose father the United States already has an established jurisdiction over, i.e., born to father’s who are themselves citizens of the United States. A person who had been born under a double allegiance cannot be said to be a natural-born citizen of the United States because such status is not recognized (only in fiction of law). A child born to an American mother and alien father could be said to be a citizen of the United States by some affirmative act of law but never entitled to be a natural-born citizen because through laws of nature the child inherits the condition of their father.”

I should point out here that I find the sexist nature of the law on this point really rather offensive and utterly unfair but that I accept that it is the law both nationally and internationally, it is embodied, so far as I can see, in the Hague Convention of 1930.

Under Chapter VI. Section 87, of the Constitution of Kenya Barack Hussein Obama, Sr, became a Kenyan citizen on December 12th 1963. This is a simple legal fact which cannot be denied. BHO II also became a Kenyan citizen on December 12th 1963 under Section 97. of the Kenyan Constitution. Under the same section it would appear that he remained a Kenyan citizen in the view of the Kenyan Government until he was 21 years old, ie August 1982. At that time if he did not take the Kenyan Oath of Allegiance, renounce all other citizenships, and complete various paperwork his Kenyan citizenship automatically lapsed.

This succession of UK & C to Kenyan citizenship and passage of allegiance from the British Crown to the Kenyan Republic is, I think now, the creation of a derivative citizenship, rather in the nature of Washington becoming a US citizen in 1776. However, I’m not absolutely sure. Again it would need to be argued in court.

I shall be looking at more general citizenship issues in the next article, including the Indonesian angle, but this article was on the natural-born issue.

Naturalized Citizens are excluded from Eligibility on the basis that because, through no fault or voluntary action on their part, their Allegiance is not complete or is not held by virtue of birth. This in spite of the fact that they have voluntarily undertaken the Oath of Allegiance. Under Section 1 of the XIVth Amendment:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Explain to me how a Naturalized Citizen can be deprived of the Right to hold the Offices of POTUS and VPOTUS and yet a Dual Citizen may not be deprived of that right without violating this Section of the XIVth Amendment. Governor Schwarzenegger did not ask to be born Austrian, Governor Granholm did not ask to be born Canadian, Governor Richardson did not ask to be born Dual Mexican American and former Senator (he isn’t President Elect yet) BHO II didn’t ask to be born Dual British Colonial American but if the first pair are not Eligible where is a logical argument, or a good legal argument that the second pair are?

Essentially one can only be sure that an individual born of 2 US Citizen Parents in the United States, or its Territories is a natural-born citizen. Anybody else is subject to debate. BHO II is not a natural-born citizen under the law and if one applies the views of John A Bingham:

“every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.”

Bingham was one of the Framers of the XIVth Amendment.

If you believe Blackstone, Swayne, Bingham, Mackenzie, etc, etc it is impossible to conclude that BHO II is a natural-born citizen and it is even possible to conclude that he isn’t a citizen under the Equal Rights Act of 1866 which said:

“All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.”

or Section 1. of the XIVth Amendment:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

It isn’t possible to conclude that he is not a citizen by birth, if the document he has provided reflects accurately what it says on his long Form Certificate of Live Birth. It isn’t possible to conclude he is not a native citizen. It isn’t possible to conclude he doesn’t possess birthright citizenship. However, it isn’t possible to conclude he is a natural-born citizen.

Every serious person who has ever written on this topic has said the same thing that I have said, it needs to go before the Supreme Court.

I have been saying this for months, lawyers in four Common Law jurisdictions agree with my view, although all of them regard the case as a “poisoned chalice”. I’ll repeat what I said at the beginning and end of my first article:

What we are looking at in Senator Barack Hussein Obama, Jr’s, run for the Office of President is, among other things, I suspect, an end run around Article II of the Constitution of the United States. It is a Constitutional Lawyer’s trick to use the XIVth Amendment’s Equal Protection Clause to invalidate Article II.

NATURAL BORN = BORN (AND REMAINING) IN THE (SOLE) ALLEGIANCE OF THE USA, not born on US Soil. This is based on Laws which date back to at least 1337 before that to 1215 and fundamentally to the Norman Conquest of England in 1066, at the least.

BHO II is only a symptom, if it wasn’t him it would be Gov. Richardson or somebody else. People in the law and in Congress wanted to see The Equal Opportunity to Govern Amendment, otherwise known as The Hatch Amendment of 2003, passed, it reads:

“Section 1. A person who is a citizen of the United States, who has been for 20 years a citizen of the United States, and who is otherwise eligible to the Office of President, is not ineligible to that Office by reason of not being a native born citizen of the United States.

Section 2. This article shall not take effect unless it has been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States not later than 7 years from the date of its submission to the States by the Congress.”

and would replace Article II’s natural-born citizen clause. Under this Amendment Schwarzenegger, Granholm, Martinez, etc, etc would be Eligible. I’d probably back it, were it to be passed clean and Bill Clinton favors it heavily, but I’d still have doubts about dual citizenship. What I object to is that the Constitution is being perverted and the law defied to produce the same effect.

Whether you use Article II with Jay’s letter, Blackstone, Swayne, etc and the Law of 1790 to show intention, which is what I believe you should do, or add the XIVth Amendment with the Act of 1866 as Madison does, you get the same result, BHO II is not a natural-born citizen. Neither is Governor Richardson, neither was Governor George Romney and it is possible that Senator McCain isn’t either. I suspect that if he were to be found Ineligible Congress would push for, and get, the Hatch Amendment passed and he would stand again in 2012. At that time I strongly suspect he would lose.

Having said all of this, and granting that Roberts, Alito, Scalia, Thomas and Kennedy are all either Federalists, or inclined towards the Federalist position, it is my belief that Donofrio’s case will probably not be heard because the whole issue is, as one of my legal friends in England called it “a poisoned chalice”. The Justices can follow the Law and risk calumny and civil disorder, or ignore the plain Common Law reading of the Constitution and risk usurpation and civil disorder.

[In the next article I shall look at the other problems surrounding BHO II's citizenship. These have either added an extra twist to any argument that he has natural-born status or bring his actual citizenship by birth into question.]

SEE THESE OTHER EXCLUSIVE ARTICLES ON THE TD BLOG:

It’s Not The Birth Certificate by TexasDarlin (11/21/08)

Four Questions for the Trojan Candidate by Dr. Kate (11/16/08)

Bring Back the Bull Moose! by Judah Benjamin (11/09/08)

Where Do We Go From Here? by Judah Benjamin (11/06/08)

Stampede by Judah Benjamin (11/01/08)

Hawaii Does Not Verify “Smears” COLB (Now GOTV) by TexasDarlin (11/1/08)

One Nation Divisible Under Obama, Not Indivisible Under God by Judah Benjamin (10/30/08)

Can You Say Reconstruction? by Judah Benjamin (10/26/08)

Berg Press Release: Appealing to the U.S. Supreme Ct. by TexasDarlin (10/25/08)

Berg Lawsuit Dismissed by TexasDarlin (10/25/08)

Bombshell!! by Judah Benjamin (10/21/08)

“Obama is Indonesian” (Is Anyone Investigating?) by TexasDarlin (10/19/08)

Okay, SO You Tell ME Where He Was Born by TexasDarlin (10/15/08)

Obama Born in Kenya? (New Information) by TexasDarlin (10/11/08)

Obama is Indonesian, UPDATE by TexasDarlin (9/30/08)

Obama is Indonesian by TexasDarlin (9/30/08)

*Breaking* Obama Admits Dual Citizenship by Judah Benjamin (9/25/08)

The Trojan Candidate by Dr. Kate (9/21/08)

Photo Documents Barry Soetoro: Indonesian Citizen, Muslim Religion by TexasDarlin (8/13/08)

Kenyan Citizenship Report Debunked by TexasDarlin (8/13/08)

Obama’s Dual Citizenship Disaster by TexasDarlin (8/10/08)

The Paper Trail: Obama’s Indonesian Background by Judah Benjamin (7/29/08)

Divided Loyalties: Obama’s Citizenship Problem, Part 2 by Judah Benjamin (7/25/08)

Divided Loyalties: Obama’s Citizenship Problem, Part 1 by Judah Benjamin (7/25/08)