Barack Obama, Marco Rubio, and Bobby Jindal were all not born to U.S. “citizen” parents (“natural born Citizens” or “citizens of the United States” at birth or after birth) at the time of their birth.

Attorney Mario Apuzzo Responds To Fred Thompson's 

Article Defending Marco Rubio's Constitutional Eligibility

By Mario Apuzzo, Esq.

Fred Thompson has written an article in which he argues that Marco Rubio is eligible to be Vice-President. See it at this link. I have left this comment at his blog:

Article 2, Section 1, Clause 5 of the Constitution of the United States: “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.” Did you see that, today only a “natural born Citizen” is eligible to be President. A “citizen of the United States” is not eligible to be President today.

The clear distinction between a “citizen” and a “natural born Citizen” is natural and therefore universal, for a civil society must start with original members (called “citizens” in a republic) who are the creators of that society. Their children, grandchildren, etc. (“Posterity”) then are the “natural-born citizens.” This is what Article II, Section 1, Clause 5 in effect says. The creators of the new republic were “Citizens of the United States” and their “Posterity” (Preamble to the Constitution) were “natural born Citizens.” The Founders and Framers also allowed for new citizens through naturalization. Hence, any naturalized citizen under any Act of Congress becomes a “citizen of the United States,” just like the original “Citizens of the United States.” A reading of the plain text of the Fourteenth Amendment shows that it also only adds to the “citizens of the United States,” simply by persons being born (without requiring “citizen” parents) or naturalized in its jurisdiction. And the children (“Posterity”) born in the United States to those new first generation “citizens of the United States” then become “natural born Citizens,” just like the children of the descendents of the original “Citizens of the United States.”

Minor defined a "natural-born citizen" under the "common-law" with which the Framers were familiar. The definition it gave is a child born in a country to parents who were "citizens" of that country at the time the child was born. Some argue that this definition is not dispositive, because the Court did not say that a child born in the United States to alien parents is not a “natural-born citizen.” This argument is frivolous, for we need to understand what the Court intended by what it said, and not by what it did not say. If I want to define a dog, I include as many of a dog’s attributes, including that a dog by nature is an animal with warm blood. I do not also have to say at the same time that by nature a dog is not an animal with cold blood. There is no indication that this definition is not totally inclusive and exclusive. On the contrary, this has always been the definition of the clause. This definition has never changed.

It is more than clear that Minor had two types of “citizens” in mind, a “citizen” and a “natural-born citizen,” and it cannot be otherwise. In the doubt-free definition of a “natural-born citizen” presented by Minor and to which you also concede, the parents are “citizens” and the children are “natural born citizens.”

So, there was no question for the Minor Court whether children born in the United States to alien parents were or were not “natural-born citizens.” Those children simply did not meet the Founders’ and Framers’ definition of a “natural-born citizen.” So, they were not “natural-born citizens.” The only question was whether those children now fell under the new Fourteenth Amendment which included as “citizens of the United States” children born “within the jurisdiction” of the United States. Minor did not need to answer that question, for Virginia Minor was a "natural-born citizen."

Minor did not itself create this definition but only confirmed it. In fact, Emer de Vattel had already stated this same definition in 1758 as follows:

"The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see, whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for if he is born there of a foreigner, it will be only the place of his birth, and not his country."

Emer de Vattel, The Law of Nations, Section 212 Citizens and natives (London 1797) (1st ed. Neuchatel 1758). Vattel required that for a child to be a “natural-born citizen,” at the time of birth, the child had to be born in the country to “citizen” parents. See also The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (C.J. Marshall concurring) (“The natives or indigenes are those born in the country of parents who are citizens”); Dred Scott v. Sandford, 60 U.S. 393 (1857) (J. Daniels concurring) (“The natives or natural-born citizens are those born in the country of parents who are citizens”).

Minor added that "some authorities" go further. But the Court was referring to whether a child "born in the jurisdiction" to alien parents is a "citizen of the United States" under the Fourteenth Amendment, not whether that child is an Article II "natural born Citizen." After all, the Founders and Framers had only one definition of a "natural born Citizen" in mind and the Court stated that doubt-free definition. That definition came from the law of nations and was confirmed by our First Congress which passed the Naturalization Act of 1790 and subsequent Congresses which passed the acts of 1795, 1802, and 1855 (all treated children born in the United States to alien parents as aliens), and also in 1814 by Founder, Chief Justice Marshall. When the Constitution was adopted, that one definition became the supreme law of the land which can be changed only by constitutional amendment. Minor would also not have referred to the Founders and Framers as "some authorities" and even add that "there have been doubts" about their definition of a "natural born Citizen." In fact, the "natural born Citizen" clause was not even debated during the Constitutional convention, so surely there were no doubts about its definition.

On the contrary, the Court even said that there were no doubts about the definition of a "natural-born citizen" that it gave.

Wong Kim Ark did answer the question left open by Minor and said that those children, born in the United States to domiciled and resident alien parents, are “citizens of the United States” under the Fourteenth Amendment. But Wong Kim Ark twice demonstrated that those children are only “citizens of the United States,” not “natural born Citizens.” Wong Kim Ark recognized that Wong was a Fourteenth Amendment “citizen of the United States,” but not an Article II “natural born Citizen.” Justice Gray told us twice of this distinction. The first time he said: “The child of an alien, 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.' Page 22, note. This paper, without Mr. Binney's name, and with the note in a less complete form, and not containing the passage last cited, was published (perhaps from the first edition) in the American Law Register for February, 1854. 2 Am. Law Reg. 193, 203, 204. ” Wong Kim Ark, at 665-66. Later in his opinion, Justice Gray, in speaking about a child born in the United States to alien parents again said that an alien’s “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.'” Id. at 694. It is critical that when he mentioned it for the second time, his sentence followed the Court’s conclusion which he based on how the English common law held aliens in amity to have sufficient allegiance to the King to make his children born in the King’s dominion “natural born subjects,” that Wong was born “subject to the jurisdiction” of the United States. So twice, Justice Gray told us of the distinction between a child born in the country to aliens and a child born in the country to “citizen” parents. He explained that both are “citizens,” but only the latter is a “natural-born citizen.”

So, Minor confirmed the original definition of a "natural born Citizen" used by the Founders and Framers. That definition is a child born in a country to parents who are “citizens” of that country at the time of the child’s birth. To date, that definition has not been changed, not even by the Fourteenth Amendment (only defines a “citizen of the United States) or U.S. v. Wong Kim Ark (construing the Fourteenth Amendment, only defined a “citizen of the United States”). Any other U.S. “citizen” is a “citizen of the United States” under the Fourteenth Amendment, Act of Congress, or treaty. So, today, a “natural born Citizen” is still a child born in the United States to parents who were “citizens” at the time of the child’s birth. That definition continues to be the supreme law of the land until changed by constitutional amendment.

Barack Obama, Marco Rubio, and Bobby Jindal were all not born to U.S. “citizen” parents (“natural born Citizens” or “citizens of the United States” at birth or after birth) at the time of their birth. Being born to just one U.S. “citizen” parent (Obama’s birth circumstance) is not sufficient because the child inherits through jus sanguinis from the one non-U.S. citizen parent a foreign allegiance and citizenship just as strong as if born to two non-U.S. “citizen” parents. Hence, Obama, Rubio, and Jindal are all not “natural born Citizens.” Rubio and Jindal, being born in the United States and “subject to the jurisdiction thereof,” are “citizens of the United States” under the Fourteenth Amendment. If Obama was born in Hawaii, he too is a “citizen of the United States” under the Fourteenth Amendment. But what this means is that since Obama, Rubio, and Jindal are neither Article II “natural born Citizens” nor “Citizens of the United States, at the time of the Adoption of this Constitution” they are not eligible to be President and Commander in Chief of the Military or Vice-President.

Mario Apuzzo, Esq.
July 31, 2012

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"Mr. Thompson,

I would appreciate it if you would release my comment from moderation."

My second comment is also still in moderation.

Mario Apuzzo, Esq.
July 31, 2012

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I posted my response to Mr. Thompson yesterday which he did not release from moderation. My response contained nothing but my legal argument on the question of whether Marco Rubio and Barack Obama and Bobby Jindal are "natural born citizens." I followed up with an inquiry as to why he did not release my comment from moderation. He also did not release that second comment. Today, I see that my two comments have been totally erased from Mr. Thompson's blog."

Mario Apuzzo, Esq.
August 1, 2012

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Fred Thompson's article can be read here: http://fredthompsonsamerica.com/2012/07/31/is-rubio-eligible