kerchner v obama appeal - ltr to court dated 4-2-10 - re. david ramsay on natural born citizenship

8/9/2019 Kerchner v Obama Appeal - Ltr to Court Dated 4-2-10 - Re. David Ramsay on Natural Born Citizenship

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LAW OFFICES OF

MARIO APUZZO

185 Gatzmer Avenue

Jamesburg, New Jersey 08831

(732) 521-1900

FAX (732) 521-3906

Email [email protected]

April 1, 2010

Honorable Marcia M. Waldron, Clerk

United States Court of Appeals

For the Third Circuit Courthouse

21400 United States Courthouse

601 Market Street

Philadelphia, PA 19106-1760

Re: Charles F. Kerchner Jr. et al v. Barack Hussein Obama II,

et al

Case No. 09-4209

Dear Ms. Waldron:

We supplement the Opening Brief (pp. 17-29) and Reply Brief (pp. 6-

14) regarding defining Article II natural born Citizen with David

Ramsays , A Dissertation on the Manners of Acquiring the Character and

Privileges of a Citizen (1789) (attached), important in defining a natural

born Citizen. David Ramsay (April 2, 1749 to May 8, 1815) was an

American physician and historian from South Carolina and a delegate from

that state to the Continental Congress in 1782-1783 and 1785-1786. He was

one of the American Revolutions first major historians. Ramsay was a

major intellectual figure in the early republic, known and respected in

Case: 09-4209 Document: 003110086303 Page: 1 Date Filed: 04/02/2010
mailto:[email protected]:[email protected]


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America and abroad for his medical and historical writings, especially for

The History of the American Revolution (1789) Arthur H. Shaffer,

Between Two Worlds: David Ramsay and the Politics of Slavery, J.S.Hist.,

Vol. L, No. 2 (May 1984).

In his 1789 article, Ramsay first explained who the original citizens

were and then defined the natural born citizens as the children born in the

country to citizen parents. He said concerning the children born after the

declaration of independence, [c]itizenship is the inheritance of the children

of those who have taken part in the late revolution; but this is confined

exclusively to the children of those who were themselves citizens. Id. at

6. He added that citizenship by inheritance belongs to none but the

children of those Americans, who, having survived the declaration of

independence, acquired that adventitious character in their own right, and

transmitted it to their offspring. Id. at 7. He continued that citizenship

as a natural right, belongs to none but those who have been born of citizens

since the 4th

of July, 1776. Id. at 6. Ramsay did not follow the English

common law but rather natural law, the law of nations, and Vattel. See also

George D. Collins, Are Persons Within the United States Ipso Facto Citizens

Thereof? Am.L.Rev. (1866-1906), Sept./Oct. 1884 (same) (attached);

Alexander Porter Morse, A Treatise on Citizenship (1881) (same);



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Alexander Porter Morse, Natural-Born Citizen of the United States:

Eligibility for the Office of President, Alb.L.J. Vol. 66 (1904-1905) (same)

(attached).

Dated: April 1, 2010 s/Mario Apuzzo

Mario Apuzzo, Esq.

185 Gatzmer Avenue

Jamesburg, New Jersey 08831

(732) 521-1900

FAX (732) 521-3906

Attorney for Plaintiffs-Appellants



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2208fi^I Rcnrsay,ovld, 1749-1815.A Diserfqtion n theMonnersf A"qriring theChqrqcterondhivil"g.r of o Citizen.m.p.' 1799. pp.AAScopy.



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DISSERTATIONON THE

MANNER OF ACqUTRINGTHB

CHARACTER ANDPRIVILEGEgOF A

CITIZENrv

L

Nft,.)

OF THEITBD STATEJ,*r^ , r(

'I'" r'r-11'r" t't ' i *'' js.

PRINTBN ; Ti{E YEAR MDCCLXXXI,Y.



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DISSERTATION,8fc,-r g E llnitcdStatcsreenewnation, r political ociety,, formed r firft by tlredeclararionf independence,our of thcfeBritiJblabjctts n Antica, whoweie hrownout of_ oyal prore&ionby a& of parliarnenr,pafed inDcccmber,77S.

A citizenof theUnitedStatcsr eans member f thisnewnarion. The principlechanged y the revolution,peoplewasalfochangedronThe diffcrences immenG. Subjedts derival rom thclatinwordsnub mdjacio,andmeansnewho s,ndar hepower f another but a citizen sanuit of a rnafs f frecpeople,who,colledtively,olfeGovereignty.Subjedtsookup o a mafterthat nonehave eredita,ryigtcitizen f a free tatecontainand theconftitution, smucasanother. In theeyeof reitical condition f citizensnoblemen.Dukesandearlsare the creaturesf kings,3nd.Tay bemadeb1 fery at plc.afurebur citizens of&frin theirownrightoriginal ovcreignty.

There s alfo a greatdiffcrcnce etween itizens,andinhabirantsr refidents.Any perfonivingwithin a coilnrry r ftare, s an inha.birantof it, or relidentn it.

Tlrc



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t + lThe precifc iffe'encq eybc hus tatecl:The citizen fa free tate s fo unitcd o it as to poffcfs n ndiviciual'sproportion f thecommonclvcreigntybut hewho is noi'noiehanan nhabitant,r refidenf,iasno arther onnec-tionwith he tate n whichhe refides,han uchasgives

lrirn ccuiityor hisperfon ndproltrty, agreeablyo fixedl;trvs,withoutanyparticipationn irs governrnent.d modern, avebcenealousThc ncwconftitudonarries'e notonlyprefent irizcnftipfenators,but antecr:dentttit

theUnitcd tatcs,s herctbrcThe following ppearo berheonlymodcs f acquiringtihis iftinguilhing rivilcgc.rft. By beingpartieso theoriginal ompat,hedecla.r;rtion f indcpendcnce.2d, By taking an oathof fidclity o fomc one of thettnitcdStatu,agrecablyo aw.3d, By tacitconfentndacquiefcence.4th. By birthor inheritance,5th. By edoption.Of each f thclb n thcirorder.t(t. By thedeclarationfcllaimedo thewc.rrld,hat hof theunited olonies, ered tlrat the latecolonies ere," tor the fupporcof thisted together, y pletfgingo

rnes,nd acred onour." Bytlriscventful eclaration,,a nationwasborn n a dry,tI\ early hreemillions f geoplcwhohadbcen ubjedts, e-cilmecitizens. 'l heir forrir,

s this wasdoncby thc repre-fcntativee



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t5 lfentativesf rhepeople f thanclon their behalf,all wlconqrefs ith power,acquirerto this olemn t. Thefcoriersof theUnitcd tttct Citiin thiswaybyabfenteesromStrchwerenot thrownout of Br:iti/b rotcfiion y there-ftrainingadtof parliament,nd hereforeondnuoditiJbfubjetlsiunder freoblig.tions, nd in quiet poffettionftheirBritilhallegianca-And, fecondly, uch ouldnot bcpartieso theconftirution f congrclt. The members fthat bodywerenot heirdeputiesrr agents, nd hcreforecouldnot bind hem,or a& for thenr.zd. To cementhepeoplether,oaths f fideliryo thefteredoonafier hedeclaratiora certain ge. By thefe aths,a compa&wat cftablilhedbetweenhe tateand he individualsand hofewho ooktheir itizenlhipy their owndo thedutyof citizens,hey,rcprivilegesndprote&ion fl, wereordercdo drparq asbcingperfonsnfriendlyo the evolution.

3d. As thewardrewnear clofe, he admirriftrationfoaths eingeGnecelfary,asthen,andnow s,dailyacquirfcence. Minorswhoweren(the declarationf independcfidcliry o the tates rthc im

, cvery reemansat ibcny or, andhis allegiance.Thofcn tlreallegianccnderwhichrome, y tacitconfenc,i:hert'ubjcCtsr citizens, s hecat'emay be. In rhismanncr,youngmenare. owdailyacquiringirizenlhip,ithout heintervenuonf an oath. Il



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t 61It is to treobfcrveC,hatrcguire idzenlhp in this wco he evolurions indifpenfacomrnencementf theirLirir.

P n: to.acqu.ielcgn, or confenro a governmenr,cfore ehas ivedundert, as o become cirizen hereot' y tacitconfcna.- Citisenftip,when cquiredn thiswayby anabfcnteetthe imeof the declaracionf independence,an hereforeonlybedatedrom he ime n which heclaimant f thathighprivilege ecamerefitlentnder he ndcpendento-vcrnmentf rhc trteof whichheclaimso bea cicizen.

4th. None an laim itizenashavcbeenborn lincethefbr thisobviouseafon nomid notexiftat the imeof hisitancef thechildrenf rholblatc evolurion bur this isidren lf hofewhowgrehem-fclves itizens.Tholbwhodiedbcfbrehe evoluti}h, ouldleave o political hrra&ero theirchildren,bqt thar offubjedtsr.hich hev henrfelvesoffeficC.f theyhad ived,noonecouldbe certrinwherhcrheywouldhave dhercdto the-king.oro congrel's. heir :hildrcn,herefore,ayclaimby inhcriranceherighrsof Britift tabjcB,t,bucnotcif ncrican citizens,5th. Perfons orn n anycountrymeyhave cquirediri-zenfhip y adoption, r naturalization,greeablyo aw.Thecitizenlhip f I'uch nuftbedated romthe imeoftheiradoprion.From hefc bfcrvations,he ollowinghferencesefult.Citizenftips anadventitioushara&ero every duJtntlrclJnited iatu and here ilsa certain eriotln the ivesof fuchperfons, henhey eafcdo be ubjefts, ndbegrnto be.citizens.Thecitizen{hipf nomanration f independence,nd,nonebut thotbwho havebE4thof |ub, t776.



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t T lThisaceountsor theufcof

e repreGntativeseven esrs3rcfidentmuft bc a citizen fors nrpofiible,or indepeadence'sdeclaredlhereforeheworder to comprehendmebeforethedeclaradonf independence.By the fameparagraph,hediftin&ionbetwecn citizensnd a relident s conftitutionallyecognizedfor tho' it isncccffary, hat rhe prelidenrmuft havebcen 3fourreenyearse rcfdantr" t is fufficientor him to havebecomedtizcn c3at thedmeof the adoptionf the conftiturion."By this t ir acknowledged,hatonemaybc much ongerrcfidcntwithin heUnitld Statcs,hana citizen f the ims.The precilion f this paragraph,n refpc&o angurgc,sworthyof obfcrvation.t isnot aid,hat heprefident ufthavcbeen refidentin, t an nhabiranrf theUnitcd$tatu,for fourtcenyears, The word ufcd is uitbin, which,ascxplainedby Do&or Jobn[on,means,3 in the compafsofr"-----" the nclofure f." Thefentence,herefore, henanalyfcd, eans othingmore han bar he prefidenr ufthavebcen rc0dens irhin he initr of theUnitcdEtatcsorfourtecn ears.Though he tatcshavenotexiftedas taresor fourteenyeani leh theirgeographicaloundaries,r limits, havcexiftedrom hc 6rft Gtdement f lmrica, Bur o proceedwith inferences.From the premifes lready ftabliihed,rmaybe arthcrnferred,hatcitizcnftip, y nheriunce, e-longs o nonebut thc childrcnof thofc mricaw, who,

having urvivedhc declarationf independence,cquiredthat adventitioushara&ern rheirown ight,and ranfmir-ted t to theiroffspring. Thechildren f ihofcwhodierJ e-fore he evolution, hoareno,th_atrivilcgcn theirownrigafti ihat s,byjoiningheir orCitizenhip, cquiredy tacirconfcnr,sexclufivelyon-6ncdto thecafcsof pcrfonswho havcrelidedwitliin hcUnitcd



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RE PERSONS BORN WITHIN THE UNITED STATES IPSO FACTO CITIZENS TEORGE D COLLINShe American Law Review (1866-1906); Sep/Oct 1884; 18, American Periodicals Series Onlineg. 831Document: 003110086305 Page: 1 Date


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Document: 003110086305 Page: 2 Date


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eproduced with permission of the copyright owner. Further reproduction prohibited without permission.



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NATURAL-BORN CITIZEN OF THE UNITED STATES: ELIGIBILITY FOR THE

OFFICEOF PRESIDENT

By ALEXANDER PORTER MORSE (ALBANY LAW JOURNAL VOL. 66 (1904-1905))

As a wide-spread interest attaches to the discussion of the meaning and scope of the

constitutional provision in respect to eligibility for the office of president of the United

States, I submit some views in this relation which may be opportune.

The question is often asked: Are children of citizens of the United States born at sea or in

foreign territory, other than the offspring of American ambassadors or ministers

plenipotentiary, natural-born citizens of the United States, within the purview of the

constitutional provision? After some consideration of the history of the times, of the

relation of the provision to the subject-matter and of the acts of congress relating to

citizenship, it seems clear to the undersigned that such persons are natural-born, that is,

citizens by origin; and that, if otherwise qualified, they are eligible to the office of

president. In respect to the citizenship of children of American parentage, wherever born,

the principle of ius sanguinis seems to be the American principle; that is to say, the law of

hereditary, rather than territorial allegiance, is recognized, which is modern, as

distinguished from the ancient, and at one time, common-law principle of jus soli. If the

provision was as sometimes inaccurately cited, namely, that the president must be a

native-born citizen, there might be no question as to its meaning. But the framers

generally used precise language; and the etymology actually employed makes the

meaning definite. Its correspondent in English law, natural-born subject, appears in

constitutional history and parliamentary enactments; and there it includes all children

born out of the kings allegiance whose fathers were natural-born subjects; and the

children of such children (i. e., children whose grandfathers by the fathers side were

natural-born subjects), though their mothers were aliens, are now deemed to be natural-

born subjects themselves to all intents and purposes, unless their said ancestors were

attainted or banished beyond sea for high treason, or were at the birth of such children in

the service of a prince at enmity with Great Britain. At the time of the adoption of the

Constitution, immigration was anticipated and provisions for naturalization would

immediately follow the establishment of the government. Those resident in the United



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States at the time the Constitution was adopted were made citizens. Thereafter the

president must be taken from the natural-born citizens. If it was intended that anybody

who was a citizen by birth should be eligible, it would only have been necessary to say,

no person, except a native-born citizen; but the framers thought it wise, in view of the

probable influx of European immigration, to provide that the president should at least be

the child of citizens owing allegiance to the United States at the time of his birth. It may

be observed in passing that the current phrase native-born citizen is well understood;

but it is pleonasm and should be discarded; and the correct designation, native citizen

should be substituted in all constitutional and statutory enactments, in judicial decisions

and in legal discussions where accuracy and precise language are essential to

intelligent discussion.

The earliest act of congress to establish a uniform rule of naturalization (March 26, 1790)

contained the following clause: And the children of citizens of the United States that

may be born at sea or out of the United States, shall be considered as natural-born

citizens. The draft of this act has been credited to Mr. Jefferson, although his authorship

has been questioned; and his reputed relationship to it may be ascribed to the fact that he

was the author of the original naturalization acts in the Constitution of Virginia, and was

an ardent supporter of a wise system of naturalization laws before and after he became

President. But whoever drew the act followed closely the various parliamentary statutes

of Great Britain; and its language in this relation indicates that the first congress

entertained and declared the opinion that children of American parentage, wherever born,

were within the constitutional designation, natural-born citizens. The act is declaratory;

but the reason that such children are natural born remains; that is, their American

citizenship is naturalthe result of parentageand is not artificial or acquired by

compliance with legislative requirements. The second act of naturalization (January 29,

1795), which was reported and probably drawn by Mr. Madison, chairman of a select

House committee, enacted That the children of persons duly naturalized dwelling within

the United States, and being under the age of twenty-one years at the time of such

naturalization, and the children of citizens of the United States born out of the limits and

jurisdiction of the United States shall be considered as citizens of the United States. As



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carried forward in the Revised Statutes, the provision reads: All children heretofore born

or hereafter born out of the limits and jurisdiction of the United States, whose fathers

were or may be at the time of their birth citizens thereof are declared to be citizens of the

United States; but the rights of citizenship shall not descend to children whose fathers

never resided in the United States. This provision, as its terms express, is declaratory; it

is not the statute that constitutes children of American parentage citizens; it is the fact of

American descent, the jus sanguinis, that makes them citizens at the moment of birtha

fact which, for sufficient and convenient reasons, the legislative power of the State

recognizes and announces to the world.

If there was ambiguity, the rights and privileges of children of American parents

dependent upon constitutional guarantee would demand recognition; and constitutional

guaranties in favor of such persons might not be restricted or denied by congress.

To return to the constitutional requirement in respect to eligibility for the office of

president, let us inquire what was the obvious purpose and intent of the limitation?

Plainly, it was inserted in order to exclude aliens by birth and blood from that high

office, upon considerations which naturally had much weight at the time of the adoption

of the Constitution. It was scarcely intended to bar the children of American parentage,

whether born at sea or in foreign territory. Where it was said in the old books that an

alien is one born out of the kings or States dominions or allegiance, this must be of the

limits understood with some restrictions. A forced or restricted construction of the

constitutional phrase under consideration would be out of harmony with modern

conceptions of political status, and might produce startling results. It remains to be

decided whether a child of domiciled Chinese parents, born in the United States, is

eligible, if otherwise qualified, to the office of president and to all the privileges of the

Constitution. And it would be a strange conclusion, in another aspect, if the child of

American parents, born in China, should be denied correspondent rights and privileges in

the United States.



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A natural-born citizen has been defined as one whose citizenship is established by the

jurisdiction which the United States already has over the parents of the child, not what is

thereafter acquired by choice of residence in this country.

Our conclusion is that the child of citizens of the United States, wherever born, is a

natural-born citizen of the United States, within the constitutional requirement; and, as

such, if possessed of the other qualifications, would be eligible for the office of president

of the United States.

WASHINGTON, D.C., March, 19o4


kerchner v obama appeal - ltr to court dated 4-2-10 - re. david ramsay on natural born citizenship

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