This is Part II of my response to Mario Apuzzo, Esq. and his latest critique of me, the Artsy-Fartsy Girl Reporter:
The Constitution, the Rule of Law, and the “Natural Born Citizen” Clause: A Response to Artsy Fartsy Squeeky Fromm Girl Reporter
Artsy Fartsy Squeeky Fromm Girl Reporter (“Squeeky Fromm”) continues in vain to try to persuade the public that she has refuted my position that an Article II “natural born Citizen” is a child born in the country to parents who were its “citizens” at the time of the child’s birth.
In Part I of my response, I covered the syllogistic aspects of Apuzzo’s argument, and the inapplicability of logical syllogisms to the question of whether or not a citizen at birth is the legal equivalent of a natural born citizen. This article will deal with Apuzzo’s alleged substantive arguments found in Section III of his post, which includes, but is not limited to the Minor v. Happersett, Wong Kim Ark, and Rhodes v. U.S. cases, his interpretation of the 14th Amendment, and the writings of Emer de Vattel. Because of length, I will probably have to write a separate post to cover his claims in Section IV of his argument.
For a brief history, this whole episode began when Apuzzo weighed in with his opinion that Ted Cruz is not a natural born citizen. My substantive counter-attack was written in the form of a hypothetical judicial opinion rendered 7 years hence, in the year 2020, occasioned by Apuzzo challenging Cruz for the Republican nomination. Doing things in this fashion forced me to think about the specific legal nature of the Birther challenge. And have no fear, if Cruz runs, there will be Birther challenges, and to obtain legal standing, Birthers will file to be placed on the ballot.
This method also forced me to go ahead and craft a judicial response. This was necessary because current case law does not directly provide an answer as to whether or not Cruz is a natural born citizen. However, the case law does give a pretty good indication how a court will rule. In addition to Ted Cruz, Jack Maskell also believes this, writing:
[T]he weight of scholarly legal and historical opinion appears to support the notion that ‘natural born citizen’ means one who is entitled under the Constitution or laws of the United States to U.S. citizenship ‘at birth’ or ‘by birth,’ including any child born ‘in’ the United States (other than to foreign diplomats serving their country), the children of United States citizens born abroad of one citizen parent who has met U.S. residency requirements.
Sooo, I am in good company. A copy of Maskell’s Congressional Research Memo may be found above, in the header under “Natural Born Citizenship.”
Now, here was my original substantive response, the hypothetical Order, in pdf form, which I will recap a little:
My GUESS, as to the form of the Birther challenge was:
1. Sen. Ted Cruz is not a natural born citizen as required by the U.S. Constitution because he does not have two citizen parents.
2. Sen. Ted Cruz is not a natural born citizen as required by the U.S. Constitution because he was born in Canada, outside the boundaries of the United States, thus necessitating naturalization to make him a citizen.
I dealt with the first objection in the same way as the various courts who have heard the issue have dealt with it, that is, with a good whopping strong dose of Wong Kim Ark. There is no need to repeat it here since it is in the Order above. The second argument is more difficult, because the courts haven’t directly ruled on this point. My arguments were:
1. From, 8 USC § 1401(g), only one parent is required for someone born outside the country t0 be a citizen at birth, so that if a citizen-at-birth is legally equivalent to a natural born citizen, it clearly doesn’t take two citizen parents;
2. From Wong Kim Ark (WKA), a nation has the right to make it’s own citizenship laws;
3. From WKA, the Court recognized, without objection, that in the Naturalization Act of 1790, Congress provided that Americans born abroad were natural born citizens;
4. From WKA, Congress was recognized to have broad authority to bestow citizenship on those born abroad;
5. From Book 1, The Law of Nations, § 214. Naturalization, Emer de Vattel recognized that countries may grant citizenship to those born abroad in varying degrees;
6. Apart from any judicial recognition or notice, The 1st United States Congress itself, in The Naturalization Act of 1790, believed it possessed the authority to grant natural born citizenship status to certain children born outside the United States;
7. The USCIS does not believe that granting the status of citizen-at-birth, is the same as naturalization, to wit:
Note: You may already be a U.S. citizen and not need to apply for naturalization if your biological or adoptive parent(s) became a U.S. citizen before you reached the age of 18. For more information, visit our Citizenship Through Parents page;
8. [A]s a matter of statutory construction, Congress is presumed to act with awareness of relevant judicial decisions, and knowledgeable about existing law pertinent to the legislation it enacts; and
9. With No. 8 in mind, through the provisions of 8 USC § 1401(a), numerous classes of persons are listed who are citizens at birth. The first of these is:
a) a person born in the United States, and subject to the jurisdiction thereof;
Therefore, when Congress lumped all other citizens-at-birth into the same class with these persons, it must be presumed
i. To have known that these persons were natural born citizens through the provisions of the 1th Amendment, and judicial holdings such as WKA; and
ii. By so including them, without restriction or limitation, therefore intended the other described classes were also natural born citizens.
Here is a link to 8 USC § 1401 et.seq.
All of the above are factors which I believe will mitigate in favor of Crus being found a natural born citizen. I put them in list form here to better compare them with Apuzzo’s reasoning. Rather than recognize that Cruz’s status as a natural born citizen is a question more subject to statutory construction, Congressional intent, and previous cases on natural born citizenship, he continues to thump hard and fast on the same definitions he has utilized to dispute Obama’s eligibility. Here is his first bad step:
She [Squeeky] attempts to dismiss Minor as being irrelevant to the issue of both Obama and Cruz’s eligibility, arguing that Minor did not define or deal with children born inside the United States to alien parents. This is incorrect.
Duh! And how does Minor have anything significant to do with a person born in Canada and made a citizen at birth by statute??? Minor was an 1875 female voting rights case out of Missouri. The Minor Court didn’t even find it necessary to deal with doubts about the children of aliens and foreigners born inside the country, much less those born outside the country. Supposedly, Apuzzo finds Minor relevant because he wants to establish that common law does not cover people born outside the country. Well, why not use Wong Kim Ark (1898)??? Not only is it a later case, it contains much more information about naturalization than Minor.
If his over emphasis on Minor was a bad step, his next argument is like falling off a mountain top, and tumbling about 2 miles down the hill, wrapped up in a big snow ball:
She states that the clause “natural born citizen” “was discussed at length in U.S. v. Wong Kim Ark.” This is false. Wong Kim Ark discussed at length the English common law and an English “natural born subject.” The English common law defined neither a “citizen” nor a “natural born citizen.” Justice Swayne in United States v. Rhodes, 27 F. Cas. 785 (Cir.Ct. D. Ky. 1866) (No. 16,151), told us that neither a “citizen” nor a “natural born citizen” were defined by the English common law. The court said that “British jurisprudence, whence so much of our own is drawn, throws little light upon the subject. . . . Blackstone and Tomlin contain nothing upon the subject. ” Id. at 788. So, Wong Kim Ark, which spent much time on analyzing the English common law, could not have been analyzing the meaning of a “natural born citizen” which clause was not even found in that law.
Huh??? Is Apuzzo trying to be tricky, or is he really confused? Of course English common law did not cover natural born CITIZENS. It covered natural born SUBJECTS. Which the WKA Court, and others before it, found to be similar concepts. The entire “II Section” of WKA was about natural born subjects, followed by Section III which set forth the American version, natural born citizens:
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.
And, Mr. Justice Swayne, in the Rhodes case mentioned above by Apuzzo:
In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said:
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, as well as of England. . . . We find no warrant for the opinion [p663] that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.
1 Abbott (U.S.) 28, 40, 41
So, in those two brief excerpts, you get a definition of natural born citizen, good until the passage of the 14th Amendment in 1868. Namely, someone born in the country, under its allegiance, meaning neither a diplomat, or hostile invader. WKA took it a step further, and held in Section V, that the 14th Amendment was just an affirmation of this principle:
The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions [three exceptions omitted] The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;” and his 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.”
How does Apuzzo read this?
Hence, that the Fourteenth Amendment or a Congressional Act might declare someone born either in the United States or out of it to be a “citizen at birth” does not prove that that person is a “natural born citizen.”
Uh, Mario, the WKA Court just said that it did. The Courts who have addressed the two-citizen parents think it does. That “the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions [three exceptions omitted]” and “those children are natural born. And those exceptions are diplomats, hostile invaders, and wild Indians NOT. . . children without two citizen parents.
If natural born citizenship did actually require two citizen parents, then WKA should be the case where that alleged requirement would show up. But WKA goes far beyond that and flatly comes right out and states that the citizenship of the parents is irrelevant for children born here. The Birther refusal to recognize this simple fact is what guaranteed every loss they have experienced in court, and will continue to guarantee future losses.
Apuzzo does not stop there. Here is his next brush with reality:
Here, she makes the absurd argument that Cruz is a “natural born citizen” by way of a naturalization act of Congress. Using her logic, the “natural born citizen” clause would have no meaning or limits if Congress could simply naturalize anyone at birth which Squeeky Fromm then considers to be a “natural born citizen.” She looks to the Naturalization Act of 1790 for support. Regarding whether children born out of the United States to U.S. “citizen” parents are “natural-born citizens,” the Naturalization Act of 1790 does not help Squeeky Fromm because the 1795 Act, with the work of James Madison, repealed it and replaced “natural born citizen” with “citizen of the United States.
But isn’t that the issue at question??? Whether or not Congress can decree a natural born citizen out of someone born overseas to American parent(s)? What Apuzzo does once again is to just argue his conclusion. He doesn’t argue to a conclusion. He just jumps straight to a conclusion. He argues that when Congress did not include the natural born citizen language in its 1795 enactment, it did so because they did not intend for them to be considered natural born citizens. Maybe. Or maybe it just seemed obvious to the 1795 Congress that those foreign born children to whom they were extending citizenship, were being granted the full spectrum of American rights, including the right to become President. The Constitution itself contemplates the eligibility of a 35 year old President who has only spent 14 years of his life inside the United States, and the remaining 21 years in a foreign land.
What Apuzzo completely fails to do is present any kind of respectable case that Congress is prohibited from extending natural born citizenship status to children born of American citizens when they are outside the country. I presented 8 or 9 indicia which I think stand for the proposition that Congress has that power, and has exercised it.
That is how non-Birther legal minds work. Examine the law and history, and then reach a conclusion. Birther minds work differently. Pick a conclusion, then ignore anything which conflicts with that conclusion. Here is another exercise in that vein:
Squeeky Fromm also fails to understand this fundamental truth–that one becomes at once a “citizen at birth” and does not need naturalization does not mean that one was not naturalized. See Calvin’s Case (1608) which was decided in England in 1608. That case proves that being a “citizen at birth” can entail having been naturalized at birth which necessarily excludes one from being a true “natural born citizen.
I am not sure what point Apuzzo is trying to make here. Calvin was declared a natural born subject by common law, not naturalization statutes. In one sense of the word, all people everywhere are naturalized, that is, made a citizen by some statute or law. I don’t think that it is the soil itself which reaches up and coats a baby. If it did, it must be some pretty smart dirt that can tell the difference whether or not a child is the offspring of a diplomat or hostile invader.
More to the point, it is law itself that naturalizes. In some countries, it is by parentage, other countries by place of birth, and quite often some combination of both. There is no immutable Law of the Universe which dictates that American law must be that anyone born here, with the two exceptions, is a natural born citizen and eligible for the Presidency. Neither does the study of physics indicate there is a Vattel Particle which requires two citizen parents lest matter and anti-matter collide and blow us all to smithereens. What each country has is its own laws and legal concepts regarding membership in that country.
Our country sets forth a membership standard which is most usually met by simple birth inside the country. We also have a form of junior membership called naturalization. And these junior members have freedom of the grounds everywhere except the White House. Our laws also provide membership benefits to those born of our citizen(s) who are overseas at the time. There is not much which indicates that particular membership is of the junior kind, and as detailed above, many indicia that just the opposite is true. Mario Apuzzo has not yet set forth anything substantial to rebut those arguments.