Mario Apuzzo Esq has written extensively on the Natural Born Citizen requirement for presidential eligibility, and I have posted previously that I generally agree with him and applaud his research. However, I also have posted disagreement with his conclusion that both parents must be US citizens. I have based my disagreement primarily on the fact that requiring both parents to be of the same citizenship means that some individuals will not be NBC of any country, a result that does not seem to be at all viable for a natural law concept. Though I have not studied this issue to the degree Mr Apuzzo has, I did read his article on this subject and you can see my added highlights and comments here, refuting his conclusions point-by-point to the extent we differ: http://lawnews.tv/wp-content/uploads/2015/07/Apuzzo-on-Natural-Born-Citizen-Both-Parents.pdf
As a practical matter, we both agree that Cruz, Rubio, and Jindal are all NOT eligible for the presidency. I also agree with Mr Apuzzo that Santorum IS eligible for the presidency. However, I disagree with his underlying analysis regardless of what later court cases say as they are not on point and even if they were cannot vary the Constitution or the essential requirement under natural law that every individual must be NBC of one and only one country, a mandatory requirement if the clause is to be interpreted in a way consistent with its obvious purpose of ensuring sole allegiance.
In case my added comments are not visible in your pdf viewer, here is a summary taken from an email i sent to Mr. Apuzzo:
You seem to have correctly stated the Court’s view.
I’m just pointing out the logical inconsistency in taking a natural law concept and defining it in a way that leaves some without a country.
We agree completely as to result and I agree with much of your response; however, you do not at all respond to my contention that it is possible (and I think much more reasonable) to read Vattel as requiring only one parent (specifically, the father) as US citizen.
The most thorough research I’ve written on this consists of “post it” comments I added electronically to your article in Adobe. I just realized those comments might not be visible without Adobe so here are some of my comments:
Vattel writes (very generally): “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.”
My comment: Not talking about single family here, but society–parents is plural because natives is plural. If Vattel was referring to one family, he would have written “both parents.”
[The plural form may also have something to do with French grammar. Also, I just noticed that in my responses I failed to point out an error in your article in which you state that English translators of Vattel’s treatise replaced the words”natural born Citizen” for the words “natives or indigenes.” In fact, the phrase is not singular, whether “natural born citizens” or the original French (“Les naturels, ou indigenes”), and this fact supports my comment.]
Vattel writes: in order to be of the country, it is necessary that a person be born of a father who is a citizen
My comment: Vattel cannot be any clearer on this point.
You write: If he required only one parent such as the father, he would have said “of fathers who are citizens” and not “of parents who are citizens.”
My comment: Fathers are “parents” are they not?
You write: He did later refer to “fathers,” but only because wives automatically acquired the citizenship of their husbands the same way children did.
My comment: This point merely strengthens case that NBC inherited via father only. Don’t understand Apuzzo’s conclusion that reference to “fathers” was “only” because of automatic nature of wives’ citizenship. That fact only indicates to me their citizenship is irrelevant for NBC status, especially if “automatically acquired … the same way children did.”
You write: if Vattel meant to focus only on “fathers,” he would have used “fathers” throughout his definition and never mentioned “parents” when he first defined “natural born Citizen,” for there would not have been any need to use the word “parents” when “fathers” would have sufficed.
My comment: But he DID use “fathers” later in the paragraph. If he were writing about blue cars, but initially referred to them as merely cars, does that render ineffective a further specification appearing later in the same paragraph? No, of course not.
You write: noteworthy that Vattel had no problem allowing the child to inherit the citizenship of the mother when the mother was not married to the child’s father.
My comment: This is merely a necessary exception from the general rule.
You write: Vattel in effect really focused on the citizenship of both the child’s father and mother in defining a “natural born Citizen,” Vattel’s definition of a “natural born Citizen” does not violate the equal protection guarantee embedded in the Fifth Amendment’s Due Process Clause.
My comment: This conclusory statement, based on faulty logic, is certainly not a “given” but interestingly, does reveal the apparent (no pun intended) reason for Apuzzo’s results-driven analysis: concern over the Equal Protection Clause. Yet as a natural law concept, why should EP have any bearing? How can Congress, or the People for that matter, change a reference to blue cars to a reference to pink/blue pinstriped cars? Is EP at all relevant for presidential eligibility? Even if it is, is EP analysis even a real threat here? Women as a class are not harmed any more than the parents whose children have NO NBC country under the “both parents” analysis. Really, the only person harmed is the kid that cannot run, and that kid may be male or female under both methods.
I could go on with other comments but don’t have time to reproduce all those here—just wanted to provide a few in case you could not read the comments in the linked document. I will attach here in both word and pdf. Nowhere does Vattel expressly say that “both parents” are required to be citizens and for that notion, juridically, you rely on none other than the infamous Dred Scott case, one of two greatest instances of Supreme Court folly.
Mr Apuzzo’s original article is located here.