Congressman Nathan Deal (R-Georgia) has recently introduced in the House the Birthright Citizenship Act of 2009. The stated purpose of the bill is to amend section 301 of the Immigration and Nationality Act to clarify those classes of individuals born in the United States who are nationals and citizens of the United States at birth. The bill is included on the OpenCongress.org web site at http://www.opencongress.org/bill/111-h1868/show. The summary of the bill at the site states the following:
“OpenCongress Summary: This bill would eliminate birthright citizenship for children born to undocumented immigrants in the U.S. Current U.S. law automatically recognizes any person born on American soil as natural born citizen. Under the bill, only children with at least one parent who is a U.S. citizen, a legal permanent resident, or an undocumented immigrant serving in the military would be considered citizens.”
This summary contains a very serious error. It states that “Current U.S. law automatically recognizes any person born on American soil as natural born citizen” (emphasis supplied). This is not a correct statement of the law.
Any legal statement referring to citizenship is contained in the Fourteenth Amendment and Congressional Acts. The former refers only to “citizens of the United States and of the State wherein they reside. . .” and the latter only to “citizen.” There is absolutely no mention in the amendment or statutes of a “natural born Citizen.” There also is no Supreme Court decision that says that an Article II “natural born Citizen” is the same as an Article I, II, III, and IV and Fourteenth Amendment “Citizen.”
There is a critical difference between a “natural born Citizen” and a “citizen.” The Constitution itself does not tell us what a “natural born Citizen” is. Hence, we simply cannot just apply the term to a given situation. Rather, we have to construe from the Constitution itself and other extrinsic sources such as historical events, constitutional debates, congressional debates, case law, statutes, and any other relevant information what the Framers meant by the term. The Constitution uses both “natural born Citizen” and “Citizen of the United States.” It uses “Citizen of the United States” in Article II’s grandfather clause, giving such a citizen the right to be President, but only if born prior to the adoption of the Constitution. It even says that a President must be a “natural born Citizen” (implying from birth) and a Senator or Representative need only be a “Citizen of the United States” for 9 and 7 years, respectively (a fortiori showing that he/she could be a naturalized citizen). Basic rules of constitutional construction tell that the terms are not interchangeable. These rules also tell us that in construing the Constitution, special meaning must be given to the words “natural born.” We must give meaning to the Framer’s use of the words “natural born.”’
The Constitution does not state that Congress has the power to determine and define what a “natural born Citizen” is. It is important to note that the Framers did not write in Article II “natural born Citizen of the United States,” but rather just wrote “natural born Citizen.” Why did they omit “of the United States” which they appended to the word “Citizen” when using that term? When the Framers included into Article II “natural born Citizen,” they used the definition of the term as established by the law of nations which the heavily relied upon in drafting the Constitution. The law of nations, which followed the jus sanguinis tradition, was based on natural law that had been accepted by the international community since time immemorial. Hence, a “natural born Citizen” did not need any artificial territorial boundary as part of its definition. Of course, it was understood that such a citizen would belong to the civil society or country called the United States of America. The definition from the law of nations became part of American common law and that definition was that a “natural born citizen” was one that was born in the country to a mother and father who were also citizens of the country. Our U.S. Supreme Court confirmed this definition when it stated: “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.” Minor v. Happersett, 21 Wall. 162 (1874). It is clear from the language used that the Supreme Court borrowed its concept of what a “natural born Citizen was from Vattel. See Vattel, The Law of Nations Sec. 212-33. It is also important to note that the Supreme Court said that the Framers were “familiar” with this principle.
The Framers did not give Congress any power to change this natural law definition, for to do so would have been contrary to natural law and would have given Congress the power to decide who can be President which the Framers did not trust it to have. Rather, the Framers gave Congress in Article I, Section 8 the Constitutional power to make uniform the naturalization laws which means it could determine and define what a “Citizen” is as that term is used in Article I, II, III, and IV. Congress has used this power throughout American history and used it to define who are U.S. nationals and citizens at birth. Other than the 1790 Naturalization Act (which "natural born" language was repealed by the 1795 Naturalization Act-see my post on this blog concerning these two early Acts), Congress never defined a "natural born Citizen" nor can it. Just to mention some of the many more existing examples, in 1866, Congress passed the Act of 1866, Sect. 1992 US Revised, which was designed to allow blacks to be citizens. The law provided: “All persons born in the United States and not subject to any foreign power . . . are declared to be citizens of the United States.” In 1924, Congress also passed a law making all Indians United States citizens. Current citizenship and nationality Congressional statutes may be found at 8 U.S.C. Sec. 1401 and 1409. By making such individuals citizens at birth, Congress simply obviates their need to be naturalized. But Congress’s definitions are driven by the political influences and environment of the day and, as can be seen from the many changes Congress has made to who can be a U.S. “citizen,” can change direction like the wind. Indeed, Congress can naturalize and de-naturalize individuals if perceived to be warranted because of political and military interests as some countries have done in history. http://en.wikipedia.org/wiki/Naturalized_citizen. Hence, these definitions do not and cannot change natural law which is the basis for the meaning “natural born Citizen.” One cannot be made a "natural born Citizen" through legislation. Only a constitutional amendment would suffice to specifically change the meaning of "natural born Citizen" or generally change the requirements to be President of the United States.
H.R. 1868's purpose is to stop the "anchor baby" syndrome. By doing so, it is restricting the open license of current U.S. policy on what is U.S. birthright citizenship. Because of the continuing wrong interpretation given to the U.S. Supreme decision of Court Wong Kim Ark, now even if both parents are illegal aliens and with some rare exceptions (children of ambassadors or of invading military soldiers), their children born on U.S. soil are U.S. citizens (jus soli). The bill, by telling us under what condition the child born on U.S. soil will be considered as being "subject to the jurisdiction of the United States," would require at least one of the parents to be (1) a citizen or national of the U.S.; (2) a Legal Permanent Resident (LPR) who resides in the U.S.; or (3) an alien performing active service in the U.S. armed forces. By adding this additional element (modified jus sanguinis), the bill clarifies that birthright citizenship is not only based on being born on U.S. soil but also on the nationality/military status of at least one of the parents. Through such a law, Congress would also be telling us that “subject to the jurisdiction of the United States” does mean more than the incorrect and ludicrous notion that it means that the child simply needs to be born on U.S. soil. By not requiring both parents to be citizens of the U.S., the bill does not require the United States to have complete and absolute jurisdiction over the child in order for that child to be a “Citizen.” Being completely and absolutely subject to that jurisdiction would make the child an Article II “natural born Citizen,” for such a child has at birth sole and exclusive allegiance to the United States by enjoying unity of citizenship at birth. See my post on this blog on unity of citizenship. Not being completely and absolutely subject to the jurisdiction of the United States (i.e. born with dual or more citizenship) makes the child born on U.S soil only a “Citizen” under the Fourteenth Amendment as it has since been interpreted by our courts.
Hence, the bill is correct in calling any child born under its reach only a “citizen” but as I have explained the bill’s summary is not in calling such a child a “natural born Citizen.” The bill does not require that both parents be United States citizens at the time of the child's birth on U.S. soil which is the correct definition of a "natural born citizen" under the law of nations, which the Founding Fathers relied upon in drafting the constitution and the “natural born Citizen” clause of Article II. Hence, the bill is not declaring these children Article II "natural born Citizens." See my article on the meaning of Article II "natural born citizenship."
In short, under the bill any baby born on U.S. soil who does not have at least one qualifying parent, will not automatically be a U.S. citizen at the time of birth. Hence, the bill would put a stop to those mothers who sneak across the border into the U.S. or enter the U.S. with a visitor visa or some other non-immigrant visa and have a child here. After all, if the woman is pregnant, what is she doing traveling internationally and entering a foreign country (the U.S.A) at a time when she could be giving birth to a child? Are those mothers who enter the U.S. with a visitor or other non-immigrant visa telling the immigration authorities that they are entering the U.S. during a late stage of their pregnancy? Who is paying for that woman's pre- and post-partum health care provided in U.S. hospitals? The bill will also prevent those alien mothers who are already in the U.S. illegally for some time and who have the baby with a non-U.S citizen or non-resident who is also not in any U.S. military service from giving birth to a child in the U.S. and having that child be declared a U.S citizen. Also, those children who are born on U.S. soil to foreign parents acquire under the citizenship laws of their parent’s home country dual or triple allegiances by inheriting their parent’s nationality or citizenship through descent. To some of these children as they grow older, such dual allegiance might mean something to them politically or militarily. Making that class of children a U.S. citizen and giving them the right to vote could someday put in jeopardy U.S. political sovereignty and Constitutional values. If the American people are happy with these choices, then so be it. But they at least have to be informed of these possible consequences so their decision is knowingly, voluntarily, and intelligently made. Additionally, under the current system of birthright citizenship, we hear how the U.S. is cold and vicious because it separates families by removing (formerly called deporting) the illegal parents back to their home countries while allowing their U.S. citizen children to stay in the U.S. with other legal natural or foster families. At least, if one of the parents is here legally and married to the other foreign parent, that legal parent can potentially petition for the foreign parent to become a legal permanent resident and eventually a U.S. citizen and thereby family unity will be achieved.
Thus, the bill summary should be reworded as it is not correct to say the bill is addressing "natural born citizenship." It is addressing statutory "citizenship at birth" which is an entirely different legal term of art. The Congress, when debating this bill, should for posterity's sake be made to state its position in the public record on the question of whether it believes there is a difference between a 14th Amendment born “citizen of the United States” and an Article II "natural born Citizen." This issue is critical to the question of who is eligible to be President under Article II. While Congress's debate and opinion will not be binding on any court of law, at least their opinion and rationale will provide some guidance for the courts and the public.
Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg NJ 08831
Email: apuzzo [AT] erols.com
TEL: 732-521-1900 ~ FAX: 732-521-3906
P.S. Also, please feel free to join the discussions and comments in this forum about the subject of the Natural Born Citizenship clause in Article II of our U.S. Constitution by [Clicking Here].