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Arizona’s Proposed Interstate Birth Certificate Compact Law as Now Written Is Both Unconstitutional and Contrary to the Best Interests of the United States
Arizona’s Proposed Interstate Birth Certificate Compact Law as Now Written Is Both Unconstitutional and Contrary to the Best Interests of the United States Arizona’s Proposed Interstate Birth Certificate Compact Law as Now Written Is Both Unconstitutional and Contrary to the Best Interests of the United States
 By Mario Apuzzo, Esq. Written: February 24, 2011 Revised: February 25, 2011 Arizona is considering passing a law that, among other things, would allow a child born in the U.S. to one or two alien parents to be recognized as a “natural born Citizen.” Such a law would be passed in error. Apart from the proposed law being unconstitutional for violating the Supremacy Clause and the Pre-emption Doctrine, a law that recognizes an Article II “natural born Citizen” as including a child born in the U.S. to one or two alien  parents would be contrary to what the Founders and Framers designed as a national security safeguard for the Offices of President and Commander in Chief of the Military. In this article, I will address only that part of the proposed law that attempts to define what an Article II “natural born Citizen” is and specifically that part of the law that includes as an Article II “natural born Citizen" a child born in the U.S. to one or two alien  parents. In a follow up article, I will address the other parts of the proposed law that I will show are also unconstitutional. This proposed law is known as SB1308 and is designed to amend Title 36, Chapter 3, by adding what the law calls an interstate compact which concerns U.S. citizenship. The new Article is Article 6, Interstate Birth Certificate Compact 36-361. The proposed law states that the “governor is authorized and directed to enter into a compact on behalf of this state with any of the United States lawfully joined in the compact in a form substantially as follows.”
 
Article I and III of the new law declare that “[a] person who is born subject to the  jurisdiction of the United States is a natural born United States citizen.” Article II says that “[a]s used in this compact, ‘subject to the jurisdiction of the United States’ has the meaning that it bears in section 1 of the fourteenth amendment to the United States Constitution, namely that the person is a child of at least one parent who owes no allegiance to any foreign sovereignty, or a child without citizenship or nationality in any foreign country.” Article II also says that “[f]or the purposes of this compact a person who owes no allegiance to any foreign sovereignty is a United States citizen or national, or an immigrant accorded the privilege of residing permanently in the United States, or a  person without nationality in any foreign country.” The proposed law seeks to define an Article II “natural born Citizen” by tying that definition to the 14th Amendment's “subject to the jurisdiction” clause. It then sets out to define what “subject to the jurisdiction” means. It ties that clause to the child being born to at least one parent who does not have any foreign allegiance. So, the proposed law seeks to tell us what a “natural born Citizen” is by providing us with its own definition of “subject to the jurisdiction” and allegiance. But as we shall see, given how it defines “subject to the jurisdiction” and allegiance, Arizona would allow even a child born to two alien parents to be included as a “natural born Citizen.” I. The Proposed Law Improperly Connects the Meaning of a Natural Born Citizen to the 14th Amendment Arizona has improperly tied the meaning of a “natural born Citizen” to the 14th Amendment. The meaning of a “natural born Citizen” has nothing to do with the 14th Amendment. The Framers wrote the clause in 1787 and the 14th Amendment was passed in 1868. There is no indication in the text of the amendment, its history, or in any court decision that suggests that the amendment changed Article II’s “natural born Citizen” clause. There is a critical difference between a 14th Amendment “citizen of the United States” and an Article II “natural born Citizen.” “Representatives, U.S. Const. Art. I, § 2, cl. 2, and Senators, Art. I, § 3, cl. 3, must be citizens. Congress has the authority "to establish an uniform Rule of Naturalization" by which aliens can become citizen members of our society, Art. I, § 8, cl. 4; the judicial authority of the federal courts extends to suits involving citizens of the United States "and foreign States, Citizens or Subjects," Art. III, § 2, cl. 1, because somehow the parties are "different," a distinction further made by the Eleventh Amendment; the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments are relevant only to "citizens." The President must not only be a citizen but "a natural born Citizen," Art. II, § 1, cl. 5. One might speculate what meaning Art. IV, § 2, cl. 1, has today.” Sugarman v. Dougall, 413 U.S. 634, 651-52 (1973) (Rehnquist, J., dissenting).
 
Anytime Congress uses its naturalization powers, it creates a “citizen of the United States” and not a “natural born Citizen.” That is the reason why although a Congressional act or treaty can declare a person to be an “at birth” “citizen of the United States,” doing so does not mean that that person is a “natural born Citizen.” That person would have to satisfy the conditions of being a “natural born Citizen” without being compelled to rely upon the act or treaty to give him or her at most the status of a “citizen of the United States.” The same reasoning extends to the 14th Amendment, which is nothing more than the constitutionalization of Congress’s Civil Rights Act of 1866 and not the People’s amendment of Article II. So any person who is at most made a “citizen of the United States” by the 14th Amendment and who does not otherwise qualify as a “natural born Citizen’ is a “citizen of the United States” but not a “natural born Citizen.” All the political and legal battles under the Civil Rights Act of 1866 and the Fourteenth Amendment over who has the right to be admitted to membership in America does not change the meaning of an Article II “natural born Citizen,” for these battles have not been about who are “natural born Citizens” under Article II but rather about who are “citizens of the United States” under those laws. There has never been any doubt in our nation as to who the “natural born Citizens” are. As we shall see below, the U.S. Supreme Court has informed us several time throughout our history that a child born in the country to citizen parents is a “natural born Citizen.” This American common law definition of a natural born Citizen,” based on natural law and the law of nations, has to this day never  been changed by the Constitution, Congressional Act, or the U.S. Supreme Court, and continues to prevail as originally written in Article II by the Framers in 1787. II. The Proposed Law Improperly Re-defines the Meaning of “Subject to the Jurisdiction” Article II of the proposed law says that “‘subject to the jurisdiction of the United States’ has the meaning that it bears in section 1 of the Fourteenth Amendment to the United States Constitution, namely that the person is a child of at least one parent who owes no allegiance to any foreign sovereignty, or a child without citizenship or nationality in any foreign country.” But the 14th Amendment’s “subject to the jurisdiction” clause has never been defined in this manner by our federal courts. For example, U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898) found that a child born in the U.S. to parents who were both aliens and who were domiciled and residing in the U.S. and not serving in any foreign diplomatic capacity was born “subject to the jurisdiction” of the United States and therefore a born “citizen of the United States” under the 14th Amendment. Hence, Arizona wants to change the meaning of “subject to the jurisdiction” through an interstate compact. Arizona simply cannot do that, for federal law on the matter is supreme. The Constitution, federal law, and treaties are “the supreme Law of the Land” and therefore trump any conflicting state law. See Constitution Article VI, Clause 2. Such a provision is unconstitutional.

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