The Constitution itself does not define what an Article II “natural born Citizen” is. Since the founding of the United States to the present, no court of any state or of the United States has decided whether a candidate for or sitting President has satisfied the Article II “natural born Citizen” requirement. The Constitution itself can be looked to for clues as to what the Framers meant by the “natural born Citizen” clause. There also exists ancient Greek and Roman law; civil law; American common law; John Jay’s letter to General Washington; records of constitutional debates on the Constitution, the Fourteenth Amendment, and Congressional Acts; natural law and Vattel’s legal treatise, The Law of Nations (a natural born citizen was one born in the country to parents who were both citizens; English common law allowed for the single circumstance of being born in the country to naturalize the children of a foreigner which meant they were not natural born; a child born in the country to a permanent resident became himself a permanent resident and not a citizen); Supreme Court case law; federal and state statutes; and historical precedent showing who has been President before and after 1779, which all tell us what an Article II “natural born Citizen” is. The political environment in which the Framers lived (transitioning from a monarchy to a Constitutional Republic) also provides further clues to the meaning of the term. Additionally, classical international law universally condemned dual nationality. From these sources, we learn that an Article II “natural born Citizen” is one that is born in the United States to a mother and father who are both United States citizens by birth or naturalization.
How we interpret the meaning of “natural born Citizen” in Article II should be driven by what the Framers intended the term to mean, as informed by what is in the best interest of the United States and the American people. In analyzing the citizenship requirements of Article II as it pertains to being eligible to be President, we are only looking to the citizenship requirement to be President and not to the requirement to be a born citizen of the United States under the Fourteenth Amendment, Congressional Acts, or any other law. The Article II citizenship standard to be President is higher than that to be a born citizen of the United States under these latter provisions and laws. It is for this reason that the Founding Fathers did not use the definition of a “natural born subject” as it existed in English common law as the definition of an Article II “natural born Citizen.” Any reasonable interpretation of Article II’s Presidential eligibility clause should provide the maximum benefit to the United States and the American people whom the President will represent. The American people deserve and under the Constitution are entitled, for their safety and survival and that of the United States, to the maximum degree of protection that they can possibly have from their President.
Requiring that a would-be President is born with no allegiances other than to the United States is in the best interest of the United States and the American people. The Founding Fathers (Jefferson, Hamilton, Madison), along with Theodore Roosevelt, Woodrow Wilson, Louis Brandeis, Franklin D. Roosevelt, and Felix Frankfurter, among others, have all confirmed that undivided political loyalty to the United States should be an absolute condition of citizenship. John Fonte, Dual Allegiance: A Challenge to Immigration Reform and Patriotic Assimilation, November 2005, Center for Immigration Studies. http://www.cis.org/articles/2005/back1205.html.
Being born with sole allegiance to the United States requires that the child be born on United States soil to parents who are both United States citizens at the time of birth. Under such birth circumstances, the child inherits his/her citizenship from the soil of the United States and from both of his/her parents. In another post, I have referred to this joining of citizenships as “unity of citizenship.” If both parents at the time of the child’s birth are also United States citizens by birth or by naturalization, it will not be possible under any law of any other nation (e.g. laws of other nations that through jus sanguinis grant citizenship to the children born abroad to their citizens and that allow those foreign-born children to possess dual citizenship) that the child will inherit by descent from his or her parents any other nationality. Parents who are naturalized United States citizens, through the naturalization process and the oath of allegiance, have manifested their consent to be subject only to the jurisdiction of the United States and thereby cannot pass on to their child any nationality or allegiance other than that of the United States. Such a Constitutional rule assures that the child will have immediate attachment to the United States not only by being born on United States soil but also through his or her United States citizen parents. Such a rule also guarantees that no other nation has any claim to the child’s allegiance. It is that immediate and absolute attachment from birth which is the seed for future affinity and fidelity for the United States alone. That seed will also flourish and instill in the child love for and loyalty to the United States alone and impart in the child the Constitutional values handed down by the Founding Fathers to past, present, and future generations of Americans. These are qualities and values which the American people rightfully expect their President to have. This birth status in a would-be President becomes even more critical given that Article II only requires that he/she be a resident of the United States for only 14 years.
There simply is no benefit to the United States and its people in having a requirement that demands of a President anything less than absolute and sole allegiance to the United States from birth. The Executive, represented by the Office of President, is one of the three branches of Constitutional power under our Constitution. Chief Justice Marshall in the case of, The Exchange v. McFaddon, 11 U.S. 7 Cranch 116 116 (1812), said:
“The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may be either express or implied. In the latter case, it is less determinate, exposed more to the uncertainties of construction; but, if understood, not less obligatory.”
Allowing a person with dual citizenship and allegiance from birth to occupy that powerful position does nothing but weaken American constitutional and national sovereignty which in the words of Justice Marshall is absolute. With a child being born with dual nationalities and therefore dual allegiances (“nationals” include citizens and others who “owe permanent allegiance to the United States.” 8 U.S.C. Sec. 1101(a)(22)) , the United States would not have exclusive and absolute jurisdiction over that child upon his/her birth, the time that the Framers in Article II set to be critical to presidential eligibility. Another nation through jus sanguinis and dual citizenship provisions would also have jurisdiction over that child which would conflict with the jurisdiction and sovereignty of the United States. It is not reasonable to conclude that the United States would consent not to have full and complete jurisdiction over a child who could potentially grow and some day be vested with the executive power over the nation and its military.
The Founding Fathers expected the President and Commander in Chief of the Military to have the maximum attachment to the United States and to be free to the greatest degree possible of foreign influence. There is no reasonable justification for having a Constitutional eligibility requirement to be President that would allow a President from birth to dilute his/her attachment, allegiance, and fidelity to the United States. Given what we know since 1795 about the Founding Fathers’ demanding absolute and sole allegiance and loyalty to the United States from naturalized citizens, it simply is not reasonable to conclude that the Founding Fathers would have written a Presidential eligibility clause that would allow an individual, born with diminished and eroded American national loyalty, to occupy the Office of President.
Dual citizenship and allegiance in a President present a host of problems for him and the nation such as potential conflicts on how a President would conduct foreign affairs, perceive what are the national security interests of the United States, exercise his political loyalty to the United States, and satisfy his military service obligations to his other nation. A sitting President could conceivably have been or be required to satisfy a military obligation to a foreign nation in threatened or actual armed conflict with the United States. Stephen H. Legomsky, Dual Nationality and Military Service: Strategy Number Two, in David A. Martin & Kay Hailbronner (eds.) (2000). There is also the significant question of whether such a President should be given a top level security clearance which the Commander in Chief of the Military must have and which is required for military officers. These conflicts may potentially exist not only in the mind of the office holder himself but also in the minds of other nations and the American public itself, who would not have full confidence in his or her allegiance and loyalty to the United States. With the phenomenon of dual nationality growing rapidly in the United States, it becomes ever more important that Courts established now and not later that our Founding Fathers in Article II established that a Presidential contender cannot be born with dual nationalities and allegiances.
How is America to credibly stress to naturalizing immigrants who since 1795 are supposed to assimilate American Constitutional and political values and transfer their full allegiance, fidelity, and political loyalty solely to the United States if our nation allows a person to be President who was born with dual citizenship, i.e., Barack Obama,?
Finally, sole allegiance to the United States at birth in order to be President is not a very discriminatory requirement and it actually allows the most populous group of Americans to be President. Natural Born Citizens having sole allegiance to the USA make up the overwhelming majority of American citizens. On the other hand, dual citizens are actually a much smaller group and special category of citizens. The founders and framers wanted future Presidents and Commander-in-Chiefs to have sole allegiance to the USA and thus specified in Article II of our Constitution that future Presidents and Commander-in-Chiefs be selected only from the ranks of Natural Born Citizens of the USA, not from the ranks of dual citizens of two or more countries.
Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg NJ 08831
Email: apuzzo [AT] erols.com
TEL: 732-521-1900 ~ FAX: 732-521-3906
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