Saturday, January 21, 2012
The McClellan/Obama Citizenship Debate and the Natural Born Citizen Clause
By Mario Apuzzo, Esq.
January 21, 2012
|George B. McClellan|
Dr. Conspiracy likes to give the appearance of being an unbiased scholar in pursuit of the truth regarding whether putative President Barack Obama is a “natural born Citizen.” He has also created an internet persona of being a champion of civil rights. He has even gone as far as to take the unabashed position that most people who question Obama’s “natural born Citizen” status are racists. To date, he has made no apologies for his outlandish position.
At his blog, http://www.obamaconspiracy.org/2012/01/mcclellans-citizenship/ , Dr. Conspiracy has posted a story published in The Boston Globe on November 9, 1903, entitled “McClellan’s Citizenship. Question of Eligibility for Presidency.” The story can be read at http://www.obamaconspiracy.org/wp-content/uploads/2012/01/McClellan.pdf . The story is about whether George B. McClellan, then newly-elected Mayor of New York City, but who was born in Europe to U.S. citizen parents (his father was Civil War General McClellan), was a “natural born Citizen” and therefore eligible to be President. By looking at his picture posted by Dr. Conspiracy, Colonel McClellan was surely white, but yet American citizens raised the question of whether he was a “natural born Citizen.” Note that Dr. Conspiracy does not tell us that even though McClellan was white (and so was John McCain and George Romney who were also challenged), he was challenged by presumably other whites on his eligibility to be President. So I guess that it is after all possible to challenge a political candidate on his eligibility for a particular office without being motivated by race.
One lawyer at the end of the article, Edmund A. Whitman of the law firm Elder & Whitman, even said that the issue of whether McClellan was a “natural born Citizen” was “too trivial to bother discussing.” I guess they also had Obots in 1903.
Also, Dr. Conspiracy touts the opinion of the Boston lawyers who in the article maintained that McClellan was a “natural born Citizen” and that there was no mention by them of the need for a “natural born Citizen” to be born to citizen parents.
First, McClellan was born to U.S. citizen parents. So I do not understand why Dr. Conspiracy would expect the citizenship of McClellan’s parents to be an issue.
Second, the issue was whether one has to be “native born” in order to be a “natural born Citizen.” The way the lawyers treated that issue, it meant whether being born in the United States was a necessary element of being a “natural born Citizen.” That someone satisfies a necessary element of a definition does not equate to having satisfied all necessary elements of the definition.
Third, most of the lawyers who concluded that McClellan was a “natural born Citizen” said he was so because under the Constitution there are only “natural born Citizens” and naturalized citizens, and since McClellan was not a naturalized citizen, he must necessarily be a “natural born Citizen.” Yet, Dr. Conspiracy makes no mention of the fact that none of those lawyers even cited and quote from let alone addressed United States v. Wong Kim Ark, 169 U.S. 649 (1898), which clearly stated just five years earlier that, with citizenship not descending from parents but only given by statute to the children born out of the United States to citizen parents, children born out of the United States to U.S. citizen parents are naturalized “at birth.” Additionally, U.S. v. Wong Kim Ark 169 U.S. 649 (1898) and Rogers v. Bellei, 401 U.S. 815 (1971), both considered persons born abroad to U.S. citizen parents to be naturalized “at birth.” The dissenting opinion of Justice Black in Rogers v. Bellei, 401 U.S. 815, 839-44 (1971), further elucidates the point of one being naturalized “at birth.” There he stated:
A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.” 169 U. S., at 702-703.
The Court in Wong Kim Ark thus stated a broad and comprehensive definition of naturalization. As shown in Wong Kim Ark, naturalization when used in its constitutional sense is a generic term describing and including within its meaning all those modes of acquiring American citizenship other than birth in this country. All means of obtaining American citizenship which are dependent upon a congressional enactment are forms of naturalization. This inclusive definition has been adopted in several opinions of this Court besides United States v. Wong Kim Ark, supra. Thus in Minor v. Happersett, 21 Wall. 162, 167 (1875), the Court said: “Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. . . . [N]ew citizens may be born or they may be created by naturalization.” And in Elk v. Wilkins, 112 U. S. 94 (1884), the Court took the position that the Fourteenth Amendment “contemplates two sources of citizenship, and two sources only: birth and naturalization. . . . Persons not . . . subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.” 112 U. S., at 101-102.
Moreover, this concept of naturalization is the only one permitted by this Court’s consistent adoption of the view that the Fourteenth Amendment was intended to supply a comprehensive definition of American citizenship. In an opinion written shortly after the Fourteenth Amendment was ratified, the Court stated that one of the primary purposes of the Citizenship Clause was “to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States, and also citizenship of a State.” Slaughter-House Cases, 16 Wall. 36, 73 (1873). In his study, The Adoption of the Fourteenth Amendment, Professor Flack similarly concluded that the Citizenship Clause “put beyond doubt and cavil in the original law, who were citizens of the United States.” H. Flack, The Adoption of the Fourteenth Amendment 89 (1908). And in Afroyim both majority and dissenting Justices appear to have agreed on the basic proposition that the scope of the Citizenship Clause, whatever its effect, did reach all citizens. The opinion of the Court in Afroyim described the Citizenship Clause as “calculated completely to control the status of citizenship.” 387 U. S., at 262. And the dissenting Justices agreed with this proposition to the extent of holding that the Citizenship Clause was a “declaration of the classes of individuals to whom citizenship initially attaches.” Id., at 292.
Id. at 840-44.
So, according to Wong Kim Ark, McClellan would have been a naturalized citizen. It would then follow a fortiori from Wong Kim Ark that being a naturalized citizen, he could not be a “natural born Citizen.” But we do not see any mention of any of that by those lawyers or Dr. Conspiracy. I do not know any of the political affiliations of any of the Boston lawyers interviewed for the story nor do I have the desire to go looking it up. But I guess it must have been politics as usual also in 1903.
But the disqualifying effect of being naturalized “at birth” not only disqualified McClellan, but also disqualifies Obama. Because Obama was not born to citizen parents, assuming he was born in Hawaii, he has to rely on the Fourteenth Amendment or 8 U.S.C. Sec. 1401(a) to be a “citizen of the United States.” First, that amendment and statute do not provide anyone with the status of a “natural born Citizen,” which status is only obtained by satisfying the American “common-law” definition of the clause as confirmed by Minor v. Happersett, 88 U.S. 162, 167-68 (1875), which, after analyzing American citizenship at length, held:
“The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural- born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [88 U.S. 162, 168] parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.”
Id. at 168. As we see, only a child born “in a country of parents who were its citizens themselves” can be a “natural-born citizen.” So like Lord Coke in Calvin’s Case (1608), who naturalized Calvin “at birth” to be an English “natural born subject,” Wong Kim Ark in effect naturalized Wong “at birth” to be a Fourteenth Amendment “citizen of the United States.”
Second, because Obama needs either the Fourteenth Amendment or statute to remove the alienage with which he was born by being born to a non-U.S. citizen father, he is in effect at best a naturalized citizen “at birth,” who automatically becomes a “citizen of the United States” and needs no further naturalization after birth. But the Founders and Framers, as they revealed through the Naturalization Acts of 1790, 1795, and 1802, meant a “natural born Citizen” to be a child whose first breath of life was as a person in allegiance and citizenship only to the United States and to no other country. In other words, to be a “natural born Citizen” it was not sufficient that one was a citizen of the United States “at birth.” Rather, what was needed was that “at birth” one was only a “citizen of the United States” and of no other nation. Because of the possibility of jus sanguinis (citizenship inherited from one’s parents) and jus soli (citizenship acquired from the territory on which one is born) providing allegiance and citizenship to a child at the moment of birth, they adopted the “natural born citizen” standard for future presidents which was a child born in the country to citizen parents. This means that a “natural born Citizen” is a child who is born in the United States or its jurisdictional equivalent to a father and mother who are both either a “natural born Citizen” or a “citizen of the United States.”
Obama has conceded that his father was a citizen of Great Britain at the time Obama was born. Hence, even assuming that Obama was born in Hawaii, he was not born to a father who was either a “natural born Citizen” or a “citizen of the United States.” He was not born as a child whose first breath of life was as a person in allegiance and citizenship only to the United States and to no other country. Obama may be a Fourteenth Amendment “naturalized born Citizen,” but he is not and cannot be an Article II “natural born Citizen.” As for McClellan, it does not matter for him any more, but there may be more like him who come in the future.
Mario Apuzzo, Esq.
January 21, 2012