Eligibility attorney Mario Apuzzo explains why Ted Cruz, like Obama, is NOT a "natural born citizen"

Excerpt from The Constitution, the Rule of Law, and the “Natural Born Citizen” Clause: A Response to Artsy Fartsy Squeeky Fromm Girl Reporter by eligibility attorney Mario Apuzzo:

Squeeky Fromm also comes to the aid of Ted Cruz in her June 25, 2013 article published at http://birtherthinktank.wordpress.com/2013/06/25/with-2020-foresight-the-once-and-future-apuzzo/ .   In this piece, which she passes off as a decision against me rendered by an imaginary judge, she argues, albeit without any historical or legal support, that my definition of a “natural born citizen,” i.e., a child born in the country to parents who were its “citizens” at the time of the child’s birth is wrong.  She maintains that Cruz, who was born in Canada to a non-U.S. “citizen” father and a U.S. “citizen” mother is a “natural born citizen.”

She attempts to dismiss Minor as being irrelevant to the issue of both Obama and Cruz’s eligibility, arguing that Minordid not define or deal with children born inside the United States to alien parents. This is incorrect. Minor told us that at common law with which the Framers were familiar, such children were “aliens or foreigners.” Here is the quote from the Court:  “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.”  We can see from what the Court said that at common law if a child was born in the United States to alien parents, the child was an “alien or foreigner.”  It also follows from this common law rule that at common law (not to be confounded with statutes), any child who was born out of the United States, regardless of whether born to “citizen” parents or alien parents, was also an alien or foreigner.  This common law rule was reflected in Congress’s Naturalization Acts of 1790, 1795, 1802, and 1855 which treated children born in the United States to alien parents as alien born and naturalized at birth children born out of the United States to “citizen” parents or naturalized them after birth if born to alien parents.

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. 

Squeeky Fromm quotes Wong Kim Ark’s comment that the English common law jus soli rule continued “to prevail under the Constitution as originally established.” This statement does not prove that a “natural born citizen” was defined under English common law and not under the law of nations. What this statement means is that through the time of the adoption of the Constitution, the states, which selectively adopted the English common law until abrogated by state legislatures, decided who their citizens were and that they to some undefined degree used the jus soli English common law rule to make that decision. These state citizens became “citizens of the United States” upon the adoption of the Constitution. But then in 1790, Congress passed the Naturalization Act of 1790, followed by that of 1795, 1802, and 1855. After that, the states, to whatever degree they still applied the English common law, could no longer naturalize anyone after birth and their state citizens were no longer recognized as national citizens or what the Constitution called “citizens of the United States.” The only common law rule that Congress did not nor could abrogate was that of the law of nations/American national common law which the Founders, Framers, and Ratifiers used to certainly and uniformly define a “natural born citizen.” And that definition was a child born in a country to parents who were its “citizens” at the time of the child’s birth.

Squeeky Fromm repeats that “citizens at birth” are equivalent to “natural born citizens.”  But like Jack Maskell, she begs the question that all “citizens at birth” are “natural born citizens.” Other than just assuming, like Jack Maskell, that her statement is true, she fails to provide any evidence that her statement is true. 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.”

She argues that Ted Cruz is a “natural born citizen” under 8 U.S.C. Sec. 1401(g).  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.” Despite her statement that Congress never did so, the 1795 Act, with James Madison’s influence, plainly shows from its text that “Congress intended to limit the rights of foreign born citizens at birth to some quanta less than that of a natural born citizen.” Furthermore, Wong Kim Ark informed us that the Fourteenth Amendment “has not touched the acquisition of citizenship by being born abroad of American parents, and has left that subject to be regulated, as it had always been, by Congress in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.” So, Wong Kim Ark told us that children born out of the United States to U.S. “citizen” parents become “citizens at birth” under Congress’s naturalization powers. That means they are naturalized at birth. By her own concession, if they are naturalized, they cannot be “natural born citizens,” regardless of when they obtain their citizenship. . .