Case: 09-4209 Document: 003110086303 Page: 1 Date Filed: 04/02/2010

LAW OFFICES OF
MARIO APUZZO
185 Gatzmer Avenue
Jamesburg, New Jersey 08831
(732) 521-1900
FAX (732) 521-3906
Email apuzzo@erols.com
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

Ramsay’s , 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 Revolution’s first major historians. Ramsay “was a

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

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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);

Case: 09-4209 Document: 003110086303 Page: 3 Date Filed: 04/02/2010

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
Case: 09-4209 Document: 003110086304 Page: 1 Date Filed: 04/02/2010

2208fi^
I Rcnrsay,
DovldI, 1749-1815.
A Diserfqtionon the Monnersof A"qriring the Chqrqcter
ond hivil"g.r of o Citizen.
m.p.' 1799. I pp.
AAScopy.
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DI S S E RTA TI O N
ON THE

MANNER O F A C q U TR IN G

THB

CH AR AC T ER A N DP R I V I L E G E g

OF A

CITIZE N
OF THE

rv N ITBD STATE s.
'I'" *''
ft,.) , r( r'r-11'r!" t't t' j
L J,*r^ i

P R INTBN ; Ti{E YEAR M DCCLXXXI , Y.

 Case: 09-4209 Document: 003110086304 Page: 3 Date Filed: 04/02/2010

DISSERTATION,8fc,

-r g E llnitcd Statcs
aree newnation,or politicalfociety,
, formedar firft by tlre declararion of independence,
our of thcfe BritiJblabjctts in Antica, who weiethrown
out of _royal prore&ionby a& of parliarnenr,pafed in
Dcccmber, r77S.
A citizenof theUnitedStatcsr meansa memberof this
newnarion. The principlec
changedby the revolution,
peoplewasalfochanged fron
The diffcrence is immenG. Subjedtis derivalfrom thc
latinwordsn fub mdjacio,andmeans onewho is,ndarthe
powerof another; but a citizenis anuit of a rnafsof frec
people,who, colledtively, polfeGfovereignty.
Subjedts lookup to a mafter
that nonehaveheredita,ry rigt
citizenof a freeftatecontain
and the conftitution,asmuc
asanother. In theeyeof rei
tical conditionof citizensi
noblemen.Dukes andearlsare the creatures of kings,
3nd.Tay be madeb1 tfery at plc.afure : bur citizenspof&fr
in theirown right originalfovcreignty.
There is alfo a greatdiffcrcncebetweencitizens, and
inhabirants or refidents.
Any perfonliving within a coilnrryor ftare,is an inha.
birantof it, or relidentin it.

Tlrc
Case: 09-4209 Document: 003110086304 Page: 4 Date Filed: 04/02/2010
t + l
The precifcdiffe'encqmeybc thusftatecl:The citizenof
a freeftateis fo unitcdto it as to poffcfsan indiviciual's
proportionof thecommonfclvcreignty i but he who is no
i'noiethanan inhabitant, or refidenf,fiasno fartherconnec-
tion with the ltate in whichhe refides,thanfuchasgives
lrirnfccuiityfor hisperfonandproltrty, agreeably to fixed
l;trvs,withoutanyparticipation in irs governrnent.
d modern,havebcenjealous
Thc ncwconftitudon carries
'e not onlyprefentcirizcnftip
cttit
fenators,but antecr:dent

theUnitcdStatcs, is therctbrcw
The followingeppear to be rheonly modcsof acquiring
tihisdiftinguilhingprivilcgc.
rft. By beingpartiesto theoriginalcompa€t,thedecla.
r;rtionof indcpendcnce.
2d, By taking an oathof fidclity to fomc one of the
ttnitcdStatu,agrecably ro law.
3d, By tacitconfent andacquiefcence.
4th. By birthor inheritance,
5th. By edoption. Of eachof thclbin thcirorder.
t(t. By the declaration of
cllaimed to the wc.rrld,
that th
of theunitedcolonies, werer
were
d tlrat the latecolonies
," tor the fupporcof this
ted together,by pletfgingto
rnes,andfacredhonour." By
n,
tlriscventfuldeclaration, a nationwas born in a dry,t
I\ earlythreemillionsof geoplcwhohadbcenfubjedts,be-
cilme citizens. 'l heir forrir,

s this wasdoncby thc repre-

fcntativee
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t5l
fentativesof rhepeopleof th
anclon their behalf,all wl
conqrefs with power,acquirer
to thisfolemna€t. Thefcori
ersof theUnitcdStttct Citi
in thiswayby abfentees from,
Strchwerenot thrownout of Br:iti/bprotcfiionby the re-
ftrainingadt of parliament, andtherefore condnuod hitiJb
-And, and in quiet poffettion
fubjetlsiundertfre oblig.tions, of
theirBritilh allegianca
r fecondly,Suchcouldnot bc
partiesto the conftirutionof congrclt. The membersof
that bodywerenot theirdeputiesr or agents,andthcrefore
couldnot bindthem,or a& for thenr.
zd. To cementthe people
ther,oathsof fideliryto the(
fteredfoonafierthedeclaratior
a certainage. By thefeoaths,a compa&wat cftablilhed
between the ftateandthe individuals i andthofewhotook
theircitizenlhiphy their own
do thedutyof citizens,they,
rc privilegesandprote&ionof
l, wereordercdto drparq as
bcingperfonsunfriendlyto therevolution.
3d. As thewardrewneara clofe,the admirriftration of
oathsbeingleGnecelfary, was
then,andnowis, dailyacquir
fcence. Minorswhoweren(
the declaration of independc
fidcliryto theftatesar thc tim

, cveryfreeman is at libcnyro
r, andhis allegiance.Thofc
n tlreallegianccunderwhich
rome,by tacitconfenc,
'be. ei:her
t'ubjcCts
or citizens,asthecat'emay In rhismanncr,
youngmenare.nowdailyacquiring cirizenlhip,withoutrhe
intervenuonof an oath. Il
 t 61
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It is to treobfcrveC, that i
rcguirecidzenlh ip in this w
corherevolurion is indifpenfa
comrnencement of theirLirir.
P n: to.acqu.ielcg in, or confenrro a governmenr, bcforehe
haslivedunderit, asro become a cirizenthereot'by tacit
confcna.
- Citisenftip,whenacquired in thiswayby an abfcntee at
the timeof the declaracion of independence, cantherefore
onlybedatedfromthetimein whichtheclaimantof that
highprivilegebecame a refitlent underthe indcpendent go-
vcrnmentof rhcftrte of whichheclaimsto be a cicizen.
4th. Nonecanclaimcitizen
ashavcbeenborn lince the,
fbr thisobviousreafon : no m
id not exiftat the timeof his
itanceof thechildren of rholb
latcrevolurion l bur this is
idren<lfthofewhowgrethem-
fclvescitizens.Tholbwhodiedbcfbretherevoluti}h,could
leaveno politicalchrra&erto theirchildren,bqt thar of
fubjedtsr. whichthevrhenrfelves poffeficC.If theyhadlived,
no onecouldbe certrinwherhcrtheywouldhaveadhercd
to the-king.or to congrel's.Their ,:hildrcn, therefore,may
claimby inhcrirance the righrsof Britift tabjcB,t,bucnot
cif lncrican citizens,
5th. Perfons bornin anycountrymeyhaveacquired ciri-
zenfhipby adoption,or naturalization, agreeably to law.
The citizenlhipof I'uchrnuftbe datedfrom the timeof
theiradoprion.
Fromthefcobfcrvations, thefollowingihferences refult.
Citizenftipis an adventitious chara&er to everyaduJtin
tlrclJnited Eiatui andtherewilsa certainperiotlin thelives
of fuchperfons, whentheyceafcd to be fubjefts,andbegrn
to be.citizens.
The citizen{hip of noman(
rationof independence, and,
nonebut thotbwho havebE
4thof |ub, t776.
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t Tl
This aceounts
for theufcof

e repreGntatives fevenlesrs3
rcfidentmuft bc a citizen for
s inrpofiible,for indepeadence
'sdeclaredlthereforetheword
er to comprehend dmebefore
the declaradon of independence.
By the fameparagraph,the diftin&ionbetwecna citizen
snd a relidentis conftitutionally recognized i for tho' it is
ncccffary,that rhe prelidenrmuft havebcen(3fourreen
yearse rcfdantr"it is fufficientfor him to havebecomea
dtizcn c3at the dmeof the adoption of the conftiturion."
By thisit ir acknowledged, thatonemaybc muchlongera
rcfidcntwithintheUnitld Statcs, thana citizenof thelims.
The precilionof this paragraph, in refpc&to langurgc,is
worthyof obfcrvation.ft isnot faid,thattheprefident muft
havcbeena refidentin,ot aninhabiranr of theUnitcd$tatu,
for fourtcenyears, The word ufcd is uitbin, which, as
cxplainedby Do&or Jobn[on,means,.3 in the compafs
ofr"-----" the inclofureof." The fentence, therefore,when
analyfcd,means nothingmorethantbarthe prefidenrmuft
havebcena rc0denswirhin thelinitr of theUnitcdEtatcs for
fourtecnyears.
Though the ftatcshavenot exiftedasftaresfor fourteen
yeanii leh theirgeographical boundaries, or limits, havc
exiftedfrom thc 6rft Gtdementof lmrica, Bur to proceed
with inferences.From the premifes alreadyeftabliihed,ir
maybe farthcrinferred,thatcitizcnftip,by inheriunce,be-
longsto nonebut thc childrcnof thofclmricaw, who,
havingfurvivedthc declaration of independence, acquired
that adventitious chara&er in rheirownright, andtranfmir-
ted it to theiroffspring. The childrenof ihofcwhodierJbe-
foretherevolution, whoareno,
th_atprivilcgcin theirown rig
afti ihatis,byjoiningtheircor
Citizenhip,acquiredby tacirconfcnr,is exclufively con-
6ncd to the cafcsof pcrfonswho havc relidedwitliinthc
Unitcd
Case: 09-4209 Document: 003110086304 Page: 8 Date Filed: 04/02/2010
181
Unitcdstatcsfince the declararionof independencer ancl
couldnot havecommenced prior to their dclualrclitlence
undertheirncwanrlindependent goyernmenrc.
Fromthewholeit is plain,
a native.whowasabfcntfror

Dangenous confeguences r
that birth andrelidence,bcfc

lf thislhouldbc eftablilhec
libertiesandindepndencGr rn
citizens. All 'nachildrenh

turers,who havecontributed
mentof our liberries:for thc
beforctherevolurion,whoare
mighr,on tharprinciple,6l
Inaia, comeherernd-fcll rhei
of cidzcns,fromrhecircumftr

manyotherconfeluences, in-
nmcrccof thefettetes,would
lerouspofidon,thatbirrh and
brc thc revolution,conferred
Edentgothcir rerurnafter thas
evcnrhadmhenplace.

h'I JV I . t ,
 ARE PERSONS BORN WITHIN THE UNITED STATES IPSO FACTO CITIZENS THERE
GEORGE D COLLINS
The American Law Review (1866-1906); Sep/Oct 1884; 18, American Periodicals Series Online
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NATURAL-BORN CITIZEN OF THE UNITED STATES: ELIGIBILITY FOR THE

OFFICE OF 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 king’s allegiance whose fathers were natural-born subjects; and the
children of such children (i. e., children whose grandfathers by the father’s 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 natural—the result of parentage—and 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 birth—a
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 king’s or State’s 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