- Arizona’s Proposed Interstate Birth Certificate Compact Law Is Both Unconstitutional and Contrary to the Best Interests of the United States -
February 24, 2011
Arizona is considering passing a law that, among other things, would allow a child born in the U.S. to one or two alien parents to be recognized as a “natural born Citizen.” Such a law would be passed in error. Apart from the proposed law being unconstitutional for violating the Supremacy Clause and the Pre-emption Doctrine, a law that recognizes an Article II “natural born Citizen” as including a child born in the U.S. to one or two alien parents would be
contrary to what the Founders and Framers designed as a national security safeguard for the Offices of President and Commander in Chief of the Military. In this article, I will address only that part of the proposed law that attempts to define what an Article II “natural born Citizen” is and specifically that part of the law that includes as an Article II “natural born Citizen" a child born in the U.S. to one or two alien parents. In a follow up article, I will address the other parts of the proposed law that I will show are also unconstitutional.
This proposed law is known as SB 1308 and is designed to amend Title 36, Chapter 3, by adding what the law calls an interstate compact which concerns U.S. citizenship. The new Article is Article 6, Interstate Birth Certificate Compact 36-361. The proposed law states that the “governor is authorized and directed to enter into a compact on behalf of this state with any of the United States lawfully joined in the compact in a form substantially as follows.”
Article I and III of the new law declare that “[a] person who is born subject to the jurisdiction of the United States is a natural born United States citizen.”
Article II says that “[a]s used in this compact, ‘subject to the jurisdiction of the United States’ has the meaning that it bears in section 1 of the fourteenth amendment to the United States Constitution, namely that the person is a child of at least one parent who owes no allegiance to any foreign sovereignty, or a child without citizenship or nationality in any foreign country.”
Article II also says that “[f]or the purposes of this compact a person who owes no allegiance to any foreign sovereignty is a United States citizen or national, or an immigrant accorded the privilege of residing permanently in the United States, or a person without nationality in any foreign country.”
The proposed law seeks to define an Article II “natural born Citizen” by tying that definition to the 14th Amendment's “subject to the jurisdiction” clause. It then sets out to define what “subject to the jurisdiction” means. It ties that clause to the child being born to at least one parent who does not have any foreign allegiance. So, the proposed law seeks to tell us what a “natural born Citizen” is by providing us with its own definition of “subject to the jurisdiction” and allegiance. But as we shall see, given how it defines “subject to the jurisdiction” and allegiance, Arizona would allow even a child born to two alien parents to be included as a “natural born Citizen.”
I. The Proposed Law Improperly Connects the Meaning of a Natural Born Citizen to the 14th Amendment
Arizona has improperly tied the meaning of a “natural born Citizen” to the 14th Amendment. The meaning of a “natural born Citizen” has nothing to do with the 14th Amendment. The Framers wrote the clause in 1787 and the 14th Amendment was passed in 1868. There is no indication in the text of the amendment, its history, or in any court decision that suggests that the amendment changed Article II’s “natural born Citizen” clause.
There is a critical difference between a 14th Amendment “citizen of the United States” and an Article II “natural born Citizen.” “Representatives, U.S. Const. Art. I, § 2, cl. 2, and Senators, Art. I, § 3, cl. 3, must be citizens. Congress has the authority "to establish an uniform Rule of Naturalization" by which aliens can become citizen members of our society, Art. I, § 8, cl. 4; the judicial authority of the federal courts extends to suits involving citizens of the United States "and foreign States, Citizens or Subjects," Art. III, § 2, cl. 1, because somehow the parties are "different," a distinction further made by the Eleventh Amendment; the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments are relevant only to "citizens." The President must not only be a citizen but "a natural born Citizen," Art. II, § 1, cl. 5. One might speculate what meaning Art. IV, § 2, cl. 1, has today.” Sugarman v. Dougall, 413 U.S. 634, 651-52 (1973) (Rehnquist, J., dissenting).
Anytime Congress uses its naturalization powers, it creates a “citizen of the United States” and not a “natural born Citizen.” That is the reason why although a Congressional act or treaty can declare a person to be an “at birth” “citizen of the United States,” doing so does not mean that that person is a “natural born Citizen.” That person would have to satisfy the conditions of being a “natural born Citizen” without being compelled to rely upon the act or treaty to give him or her at most the status of a “citizen of the United States.” The same reasoning extends to the 14th Amendment, which is nothing more than the constitutionalization of Congress’s Civil Rights Act of 1866 and not the People’s amendment of Article II. So any person who is at most made a “citizen of the United States” by the 14th Amendment and who does not otherwise qualify as a “natural born Citizen’ is a “citizen of the United States” but not a “natural born Citizen.”
All the political and legal battles under the Civil Rights Act of 1866 and the Fourteenth Amendment over who has the right to be admitted to membership in America does not change the meaning of an Article II “natural born Citizen,” for these battles have not been about who are “natural born Citizens” under Article II but rather about who are “citizens of the United States” under those laws. There has never been any doubt in our nation as to who the “natural born Citizens” are. As we shall see below, the U.S. Supreme Court has informed us several time throughout our history that a child born in the country to citizen parents is a “natural born Citizen.” This American common law definition of a “natural born Citizen,” based on natural law and the law of nations, has to this day never been changed by the Constitution, Congressional Act, or the U.S. Supreme Court, and continues to prevail as originally written in Article II by the Framers in 1787.
II. The Proposed Law Improperly Re-defines the Meaning of “Subject to the Jurisdiction”
Article II of the proposed law says that “‘subject to the jurisdiction of the United States’ has the meaning that it bears in section 1 of the Fourteenth Amendment to the United States Constitution, namely that the person is a child of at least one parent who owes no allegiance to any foreign sovereignty, or a child without citizenship or nationality in any foreign country.”
But the 14th Amendment’s “subject to the jurisdiction” clause has never been defined in this manner by our federal courts. For example, U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898) found that a child born in the U.S. to parents who were both aliens and who were domiciled and residing in the U.S. and not serving in any foreign diplomatic capacity was born “subject to the jurisdiction” of the United States and therefore a born “citizen of the United States” under the 14th Amendment. Hence, Arizona wants to change the meaning of “subject to the jurisdiction” through an interstate compact. Arizona simply cannot do that, for federal law on the matter is supreme. The Constitution, federal law, and treaties are “the supreme Law of the Land” and therefore trump any conflicting state law. See Constitution Article VI, Clause 2. Such a provision is unconstitutional.
"Subject to the jurisdiction thereof" means "not subject to any foreign power." Civil Rights Act of 1866. Hence, it is tied to allegiance. Simply being born on the territory and being subject to U.S. laws is not sufficient, for virtually every child born on U.S. soil satisfies that condition by simply being born on the soil (except for children of ambassadors, invading armies, and American Indians as originally believed). Rather, more is needed. While traditionally, citizenship of the child's parents was needed, Wong Kim Ark changed the law and used domicile and residence of the alien parents as the sufficient link to declare U.S.-born Wong Kim Ark to be a 14th Amendment born "citizen of the United States," not to be confused with an Article II "natural born Citizen." Wong's parents were in the U.S. legally, i.e., with the consent of the U.S. But as far as an Article II "natural born Citizen" is concerned, the natural law/law of nations/common law definition of that term was never changed and prevails today. That definition is a child born in the country to U.S. citizen parents.
III. The Proposed Law Improperly Defines Not Owing Any Allegiance to Any Foreign Sovereignty
Article II of the proposed law also says that “[f]or the purposes of this compact a person who owes no allegiance to any foreign sovereignty is a United States citizen or national, or an immigrant accorded the privilege of residing permanently in the United States, or a person without nationality in any foreign country.”
This provision is designed to allow a child born in the U.S. to be born to different types of parents so that he or she can still be considered a “natural born Citizen.” First, this provision is contradictory. The law would allow a child born in the U.S. to one alien parent to be not only a “citizen of the United States” but also a “natural born Citizen.” If a child is born to an alien parent, then that child acquires through jus sanguinis an allegiance and citizenship in the alien parent’s nation. But this provision says that a person who owes no allegiance to any foreign sovereignty is a United States citizen or national. So first the new law allows not only a “citizen of the United States” but also a “natural born Citizen” to have dual allegiance by being born to an alien parent but then it tells us that a person who owes no allegiance to any foreign sovereignty is a United States citizen of national. These provisions are contradictory.
Second, dual citizenship is not prohibited in the U.S. Hence, under the 14th Amendment or Act of Congress, a “citizen of the United States” could be a person who holds allegiance to not only the U.S., but also to some foreign nation. A prime example is Wong Kim Ark to whom the Court gave U.S. citizenship but at the same time recognized that he also had allegiance to and citizenship with China, the nation of his parents. But yet this provision assumes that a “citizen of the United States” does not have any foreign allegiance.
Third, Article II also says that “an immigrant accorded the privilege of residing permanently in the United States” owes no allegiance to any foreign sovereignty. This is simply not our citizenship and naturalization law. A person who is an immigrant and has the privilege to permanently reside in the United States is a permanent legal resident (LPR) or what is commonly known as a “green card” holder. This person has not yet been naturalized and is therefore not a “citizen of the United States” under the 14th Amendment. This person is an alien under our citizenship and naturalization laws. It is therefore not possible that this person would not owe allegiance to some foreign sovereignty.
Fourth, this provision also says that “a person without nationality in any foreign country” also has no allegiance to any foreign sovereignty. But the fact that someone may have no nationality in any foreign country does not mean that that person has no allegiance to some foreign sovereignty. Simply stated, allegiance and nationality are not the same things. Loss of nationality is a very complex matter and cannot be equated with loss of allegiance without any in depth analysis of all the legal ramifications involved.
IV. The Proposed Law Improperly Allows a Child Born to One or Two Alien Parents to Be Included As an Article II “Natural Born Citizen”
As we have seen, Article II of the proposed law provides that a “natural born Citizen” is a child born in the U.S. to “at least one parent who owes no allegiance to any foreign sovereignty, or a child without citizenship or nationality in any foreign country.” As can be seen, the new law defines a legal permanent resident (LPR) as having no foreign allegiance. Hence, under Arizona’s proposed law, the child’s parents could both be non-U.S. citizens or one could be a non-U.S. citizen and the child would be included as a “natural born Citizen.” We have also seen that a legal permanent resident is still considered an alien under our law. The proposed law also includes as a “natural born Citizen” “a child without citizenship or nationality in any foreign country,” without any reference to the allegiance and citizenship of that child’s parents. Hence, Arizona would therefore include as a “natural born Citizen” a child born in the U.S. to one or two alien parents. But such a definition of a “natural born Citizen” is in error.
Why do we need that the child be born to two U.S. citizen parents? Arizona’s proposed law would defeat the whole purpose of the Framers using the natural law definition of a “natural born Citizen” as the standard to be met by any would-be President and Commander in Chief. There is good reason why the Framers relied upon natural law to provide the definition of a “natural born Citizen.” Under natural law which when applied to nations become the law of nations, a “natural born Citizen” is defined as “those born in the country, of parents who are citizens.” Emer de Vattel, The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758). Vattel explains that it is “our extraction, not the place of birth, that gives us rights.” Id. at Section 216. We can see that under natural law and the law of nations, it is the condition of the parents that is critical to making a “natural born Citizen.” Hence, when applying the natural law definition of “natural born citizen,” we have to look only to the citizenship of the parents of the child at the moment of birth. But nations pass positive laws regarding citizenship which impact on the allegiance and citizenship of individuals born in and out of their territory. Hence, we also have to look to the place of birth when nations pass such positive laws concerning the citizenship status of its citizens born either in or out of its national boundaries. Vattel explains that those laws must be followed when a sovereign nations passes such laws. Id. at Section 215.
Under natural law and the law of nations and how the Framers juxtaposed “natural born Citizen” with “citizen of the United States” in Article I and II of the Constitution, a “natural born Citizen” includes all those born with no foreign allegiance and excludes all those born with foreign allegiance. The purpose of having the natural law national character of “natural born citizen” is to show that a person is born with natural allegiance to only one nation. It was because the “natural born Citizen” status gives a person such a natural character from birth that the Founders and Framers chose that natural law status as having to be the one to be held by a would-be President and Commander in Chief of the Military from the moment of birth. Indeed, it was this national character that for them best kept foreign influence out of the Offices of President and Commander in Chief.
A child born in the U.S. to alien parents inherits at birth a foreign natural allegiance from one foreign parent as he or she does from two foreign parents. This occurs under the doctrine of jus sanguinis (inheriting citizenship from one’s parents or other ascendants). With one foreign parent, he or she acquires positive law allegiance to the U.S. from being born on its territory and natural allegiance to the foreign nation of his or her parent by being born to them. With two foreign parents, he or she acquires positive law allegiance to the U.S. and natural allegiance to the two foreign nations of his or her parents. If the child is born out of the United States, he or she will acquire positive law foreign allegiance from the foreign territory on which he or she may be born. The point is that unless the child is born to two U.S. citizen parents in the U.S. which cuts off any possibility that either natural law foreign allegiance, inherited from alien parents, or positive law foreign allegiance, acquired from birth on foreign soil, will attach to the child, he or she will acquire either a natural foreign allegiance or a positive law foreign allegiance. Any one of these conditions under the natural law definition of a “natural born Citizen,” prevents that child from being considered a “natural born Citizen.”
No U.S. Court has ever ruled that a person born on U.S. soil to one or two alien parents is an Article II “natural born Citizen.” On the contrary, the only definition of a "natural born Citizen" ever found in any U.S. Supreme Court case is a child born in the U.S. to citizen parents. As authority for this definition, there exists the following cases: The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (Chief Justice John Marshall, concurring and dissenting for other reasons, cites and quoted from Emer de Vattel, Section 212 of The Law of Nations); Inglis v. Trustee of Sailor's Snug Harbor, 29 U.S. 99 (1830); Dred Scott v. Sandford, 60 U.S. 393 (1857) (Daniels, J., concurring); Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (gives the same Vattelian definition); Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879) (not a Supreme Court case but persuasive); Ludlam v. Ludlam, 26 N.Y. 356 (1883) (not a U.S. Supreme Court case but persuasive); United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (not a U.S. Supreme Court case but persuasive); and U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898) (cites and quotes Minor’s Vattelian/American common law definition of a “natural-born citizen”) and Perkins v. Elg, 307 U.S. 325 (1939) (confirmed that a child born in the U.S. to citizen parents, even if those parents are naturalized U.S. citizens, is a “natural born Citizen”); contra the state case of Ankeny v. Governor of the State of Indiana, 916 N.E.2d 678 (Ind. Ct.App. 2009) (declared that “persons born within the borders of the United States are ‘natural born Citizens’ for Article II, Section 1 purposes, regardless of the citizenship of their parents.” But the court never even raised the issue that there was no proof before the court that Obama was "born within the borders of the United States." In fact, the Ankeny court, while dismissing the plaintiffs' case, never ruled that Obama was "born within the borders of the United States." Nor did it rule that he was a "natural born Citizen." Ankeny mistakenly concluded that the 14th Amendment case of Wong Kim Ark ruled Wong Kim Ark to be a “natural born Citizen” rather than a born “citizen of the United States.” In so ruling, the Ankeny court also incorrectly equated a British "natural born subject" with a U.S. "natural born Citizen" and incorrectly relied upon Wong Kim Ark).
Wong Kim Ark created a new category of a born 14th Amendment “citizen of the United States,” one born in the U.S. to alien parents. It did not in any way amend what an Article II “natural born Citizen” has always been since the Founding. There is plenty of language in the decision which shows that children born in the U.S. to alien parents were “citizens of the United States” while children born to U.S. citizen parents were “natural born Citizens.”
There exists no U.S. Supreme Court decision in which any Justice ever said that a "natural born Citizen" is a child born in the U.S. to one or two alien parents. When defining the clause, they said born in the U.S. to citizen parents. In Minor v. Happersett, the whole Court gave us that definition of a “natural born Citizen” which the whole court also confirmed in U.S. v. Wong Kim Ark.
Also, except for the Naturalization Act of 1790, which was passed by the First Congress and which was repealed by the Third Congress in 1795, the same is true of Congress by process of elimination, i.e., in all its naturalization acts, Congress has never had to tell us that a child born in the U.S. to two citizen parents is a “citizen of the United States.” Since such child is not included in any Act of Congress as needing to be declared a “citizen of the United States,” such child must be a “natural born Citizen.”
It is also important to understand that Arizona would allow aliens to rear the child who it declares to be a “natural born Citizen.” Aliens become “citizens of the United States” through naturalization which has a very important purpose in the U.S.
“The process of naturalization was specifically designed by Congress to require a foreign national to demonstrate that he or she is familiar with the history, traditions, and institutions of our society in a way that a native-born citizen would learn from formal education and basic social contact. Congress specifically provided that an alien seeking citizenship status must demonstrate ‘an understanding of the English language’ and ‘a knowledge and understanding of the fundamentals of the history, and of the principles and form of government, of the United States.’ 8 U. S. C. § 1423. The purpose was to make the alien establish that he or she understood, and could be integrated into, our social system.
‘Through the system of citizenship classes sponsored by the Immigration and Naturalization Service and the local school system, the alien is aided in preparing himself for citizenship, and every effort is made to give him fundamental and uniform knowledge of our political and social structure. In order that he may intelligently use this fundamental and uniform knowledge and so that he may be a complete and thoroughly integrated member of our American society, the committee [House Judiciary Committee] feels that he should have a basic knowledge of the common language of the country and be able to read, write, and speak it with reasonable facility.’ H. R. Rep. No. 1365, 82d Cong., 2d Sess., 78 (1952) (emphasis added).
See also 8 U. S. C. § 1424, which precludes aliens who manifest certain opposition to our society or form of government from being naturalized. An alien must demonstrate ‘good moral character,’ 8 U. S. C. § 1427 (a)(3), which was intended by Congress to mean a broad "attach[ment] to the principles of the Constitution of the United States, and [disposition] to the good order and happiness of the United States." H. R. Rep. No. 1365, supra, at 80. See also 8 CFR § 332b (1973), detailing the cooperation between the Immigration and Naturalization Service and local schools conducting citizenship education for applicants for naturalization. The above is sufficient to demonstrate, I believe, that Congress provided that aliens seeking citizenship status prove what citizens by birth are, as a class, presumed to understand: a basic familiarity with our social and political mores and institutions. The naturalized citizen has demonstrated both the willingness and ability to integrate into our social system as a whole, not just into our ‘political community,’ as the Court apparently uses the term. He proved that he has become ‘like’ a native-born citizen in ways that aliens, as a class, could be presumed not to be. The Court simply ignores the purpose of the process of assimilation into and dedication to our society that Congress prescribed to make aliens ‘like’ citizens.
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But the justification of efficient government is an even more convincing rationale. Native-born citizens can be expected to be familiar with the social and political institutions of our society; with the society and political mores that affect how we react and interact with other citizens. Naturalized citizens have also demonstrated their willingness to adjust to our patterns of living and attitudes, and have demonstrated a basic understanding of our institutions, system of government, history, and traditions. It is not irrational to assume that aliens as a class are not familiar with how we as individuals treat others and how we expect ‘government’ to treat us. An alien who grew up in a country in which political mores do not reject bribery or self-dealing to the same extent that our culture does; in which an imperious bureaucracy historically adopted a complacent or contemptuous attitude toward those it was supposed to serve; in which fewer if any checks existed on administrative abuses; in which ‘low-level’ civil servants serve at the will of their superiors -- could rationally be thought not to be able to deal with the public and with citizen civil servants with the same rapport that one familiar with our political and social mores would, or to approach his duties with the attitude that such positions exist for service, not personal sinecures of either the civil servant or his or her superior.” Sugarman v. Dougall, 413 U.S. 634, 659-62 (1973) (Rehnquist, J., dissenting).
So, naturalization is a process that serves to integrate an alien into American society. It is reasonable to conclude that a naturalized parent would pass to his or her children those values, attitudes, and knowledge acquired during this integration process. By allowing a “natural born Citizen” to be a child born to and reared by aliens, the Arizona law would remove the requirement that the child’s parents be “citizens of the United States” by birth or by naturalization. By not requiring that both of the child’s parents be citizens at the moment of birth, the proposed law would allow a child born to and reared by aliens to be eligible to be President.
For more information on why the “natural born Citizen” clause requires that both of the child’s parents be U.S. citizens at the time of birth, see my essay published on September 8, 2009, entitled, The Natural Born Citizen Clause of Our U.S. Constitution Requires that Both of the Child’s Parents Be U.S. Citizens At the Time of Birth , accessed at
http://puzo1.blogspot.com/2009/09/natural-born-citizen-clause-requires.html
The Arizona proposed law, in how it defines a “natural born Citizen,” also contradicts Arizona HB 2544, which provides that a candidate for President show by competent evidence that he or she “has not held dual or multiple citizenship and that the candidate’s allegiance is solely to the United States of America.” Clearly, if a child is born to one or two alien parents, under the doctrine of jus soli citizenship, that child will be born with dual or multiple citizenships and not have sole allegiance to the United States.
Article VI provides in pertinent part: “B. This compact shall not take effect until the United States Congress has given its consent pursuant to Article I, Section 10, Clause 3 of the United States Constitution.” I do not see any way that the Congress would ever give its consent to any such proposed law which I will explain in a follow up article also contains many other unconstitutional provisions.
As we have seen, Arizona’s proposed law would completely change the American common law definition of an Article II “natural born Citizen.” In doing so, it would allow foreign influence to make its way into the offices of President and Commander in Chief and thereby dilute the safeguards for the survival and preservation of the nation that the Founders and Framers gave us through the “natural born Citizen” clause. This proposed law is therefore
detrimental to the national security and best interests of the United States in how it attempts to re-define an Article II “natural born Citizen.” This proposed law is not only unconstitutional but also ill conceived as to its merits. It should be allowed to suffer a quick death.
Mario Apuzzo, Esq.
February 24, 2011
http://puzo1.blogspot.com/
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Mario Apuzzo, Esq.
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For information and research on the meaning of an Article II “natural born Citizen,” please see the many essays at this blog, http://puzo1.blogspot.com/.
Attorney Mario Apuzzo: All presidents born after 1787, except for Chester Arthur and Barack Obama, met the “natural born Citizen” criteria. -Details here.
Commander Charles Kerchner: List of U.S. Presidents - Eligibility under Article II Grandfather Clause (GFC) or Natural Born Citizen (NBC) Clause or Seated due to Election Fraud -Details here.
Visit the Birther Vault for the long list of evidence against Hawaii officials and all of the people questioning Obama's eligibility; [http://obamareleaseyourrecords.blogspot.com/2010/08/video-ltc-terry-lakins-attorney-on-cnn.html].
