There are some blogs that are citing the case of United States v. Low Hong, 261 F.73 (5th Cir. 1919), as the latest word on what a “natural born Citizen” is. Their position is that this case proves that a child born in the United States even to alien parents is a “natural born Citizen.” The issue that was before the Fifth Circuit Court of Appeals was whether a petitioner was entitled to be discharged from immigration custody on his habeas corpus petition when he showed that the government was holding him in custody pending a deportation hearing before the Secretary of Labor (who handled immigration matters then) under the Immigration Act, § 17 (Comp. St. 1918, § 4289 1/4ii), and other sections relating to excluding and deporting persons from the country, which is expressly applicable only to aliens. Affirming the judgment of the district court which granted the petition and his release, the Court held that since the government had admitted that the petitioner was a citizen (which the government did not), it could not hold him in immigration custody and had to release him.
Low Hong alleged in his amended habeas petition that he was born in the United States and that he was a citizen thereof. The government did not deny his allegation that he was born in the United States. But it also did not admit that he was a citizen. The government’s position was that there was no factual dispute and that the case dealt with only a legal question as to petitioner’s citizenship which was not properly before the Court on a habeas corpus petition which it said petitioner filed prematurely. The Court ruled that the government did not dispute that petitioner was born in the United States. It therefore also ruled that the government admitted petitioner was a citizen. The Court also ruled that the statute allowing excluding and deporting aliens applied only to aliens. The Court found that the government’s admission that Low Hong was a citizen was also an admission by the government that he could not be held in immigration custody pending a deportation hearing before the Secretary of Labor. The Court said that since the government admitted Low Hong was a citizen, the Secretary of Labor had no jurisdiction or authority to detain him in immigration custody pending his deportation hearing. Low Hong therefore had to be released.
There are two errors with the Low Hong decision. First, the government never admitted that petitioner was a citizen. Rather, it only admitted that he was born in the United States and took the position that the status of his citizenship was “nothing but a question of law” yet to be decided. While the decision does not make any mention of petitioner’s parents, they were probably Chinese aliens who could not naturalize in the United States because of the Chinese Exclusion Act of 1882 (among other things, made Chinese immigrants who were in the United States permanent aliens by prohibiting them from becoming citizens through naturalization) which were not repealed until the 1943 Magnuson Act which permitted Chinese who were already in the United States to naturalize and thereby become United States citizens under the Fourteenth Amendment. We also do not know if petitioner’s parents met the same factual scenario as did the parents of Wong Kim Ark in United States v. Wong Kim Ark, 169 U.S. 649 (1898) (the Court decided the case based only “upon the facts agreed by the parties” and that the “necessary effect” of its decision was to declare “a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States”). Id. 169 U.S. at 705. Hence, the Court on its own took the conceded fact that the petitioner was born in the United States and added that the government also conceded that he was a citizen.
The second error that the Court made is in declaring the petitioner a “natural-born citizen” on the record that it had before it. In Low Hong, the issue was not whether the petitioner was an Article II “natural born Citizen.” Rather, the issue was whether he could be held in immigration detention pending deportation if he was an admitted citizen as the Court perceived the government to have conceded. The Court in dicta then said that “[t]he averments of the amended petition show that the appellee is a natural-born citizen of the United States,” citing United States v. Wong Kim, 169 U.S. 649 (1898). The reference to “natural-born citizen” was dicta because the question of whether Low Hong was a “natural born Citizen” was not before the Court. Without any opportunity for the government to even address the issue, the Court concluded that Low Hong was a citizen because the government did not contest the petitioner’s allegation that he was born in the United States. Low Hong only needed to be a born United States citizen under the Fourteenth Amendment or some Congressional Act to avoid detention and deportation. There was no need for Low Hong to also be declared an Article II “natural born Citizen.”
The Low Hong Court’s citing Wong Kim Ark also does not make the decision a precedent for the meaning of Article II “natural born Citizen.” Wong Kim Ark, also presented with a person born in the United States to alien Chinese parents, did not declare Wong a “natural born citizen” but rather only a “citizen” of the United States under the Fourteenth Amendment. The Wong Kim Ark Court never connected Wong’s citizen status to an Article II “natural born Citizen.” The Court also did not say that there was no difference between a Fourteenth Amendment born citizen and an Article II “natural born Citizen.”
The Low Hong Court did not explain what made Low Hong a “natural born citizen” as opposed to just a plain “citizen” which is what he alleged in his amended habeas petition. Hence, the Court’s gratuitous statement that Low Hong was a “natural-born citizen” was not only not addressed by the parties or analyzed in any way by the Court but also has no basis in law or fact. In Low Hong, the Court did not even perceive citizenship to be in issue. We surely cannot use the decision for any precedent on the meaning of an Article II “natural born Citizen.” Its conclusory statement regarding Low Hong being a “natural- born citizen” is therefore not binding on any court.
The Constitution, Congressional Acts, United States Supreme Court decisions, and the Fourteenth Amendment itself also show that the Low Hong court was wrong in declaring the petitioner a “natural born Citizen.” We cannot reasonably deny that the Constitution makes a distinction between a “citizen” and a “natural born Citizen.” Article II itself, in specifying the eligibility requirements, clearly spells out that there is a difference between a “citizen” and a “natural born Citizen,” for the former was grandfathered eligible to be President up to the time of the adoption of the Constitution and the latter represented the new standard for Presidential eligibility for births after the adoption of the Constitution. The “Citizen” grandfather clause is now obsolete. The Constitution at Article I, III, IV and at Amendment XI, XIV, XV, XIX, XXIV, and XXVI also mentions “Citizen” and not “natural born Citizen.” Hence, the only place that the Constitution refers to a “natural born Citizen” is in Article II, Section 1, clause 5.
Even Congress, throughout our history has distinguished between a “Citizen” and a “natural born Citizen.” See the Naturalization Act of 1790 (children born abroad to citizen parents were deemed “natural born citizens”), 1795 (repealed the 1790 act and deemed the children born abroad to citizen parents just “citizens”), and all such acts that followed to the present (8 U.S.C. Section 1401 to 1409). Except for the Act of 1790, Congress has never legislated on the status of “natural born Citizen.” Some members of Congress have made various attempts to define “natural born Citizen,” but except for Senate Resolution 511 (declared McCain who was born in Panama to military United States citizen parents a “natural born citizen” but which is non-binding), these attempts have all failed. One of these attempts is worth mentioning because it pertains to children born in the United States. After H.J. Res. 88 failed to make it out of committee, Sen. Nickles (OK) along with Landrieu (LA) and Inhofe (OK) brought forward S. 2128 in February 25, 2004, the Natural Born Citizen Act, a bill to define the term “natural born Citizen” as used in Article II of the Constitution of the United States to establish eligibility for the Office of President. Paragraph (1) of the bill repeats the same language that is found in the Fourteenth Amendment that pertains to born citizens and declares those persons “natural born citizens.” This attempt at amending Article II’s “natural born Citizen” clause by declaring that Fourteenth Amendment born citizens are also “natural born citizens” shows that there are members of Congress who recognize that there is a difference between an Article II “natural born Citizen” and a Fourteenth Amendment born “citizen of the United States.”
The meaning of an Article II “natural born Citizen” has been addressed by various United States Supreme Court and other court cases. These cases show that the Framers did not use English common law to define what a “natural born Citizen” was but rather natural law and the law of nations which became federal common law. English common law continued to be used in the several states to provide the law on property, contracts, torts, inheritance, criminal substance and procedure, and other areas, but not the law on federal matters such as national citizenship. In defining a “natural born citizen,” these cases made specific reference to the citizenship of the child’s parents at the time of the child’s birth. Low Hong did not cite any of these cases or even explain why their definition of a “natural born Citizen” should not be followed. These cases have defined a “natural born Citizen” as a child born in the country to citizen parents which is the definition provided by Emer de Vattel in his influential and celebrated treatise, The Law of Nations, Or, Principles of the Law of Nature, bk 1, c. 19, sec. 212 (1758 French edition) (1759 first English translation). These cases are The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (Marshall, C.J., concurring) (“Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says, 'the citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or indigenes, are those born in the country, of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.'”) (emphasis in the original); Dred Scott v. Sandford, 60 U.S. 393 (1857) (which also took out of Vattel’s definition the reference to “fathers” and “father” and replaced it with “parents” and “person,” respectively, when it quoted Vattel thus: “ ‘The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority; they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As society cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights.’” Again: “ ‘I say, to be of the country, it is necessary to be born of a person who is a citizen; for if he be born there of a foreigner, it will be only the place of his birth, and not his country. The inhabitants, as distinguished from citizens, are foreigners who are permitted to settle and stay in the country.’ (Vattel, Book 1, cap. 19, p. 101.)” (emphasis in original); Shanks v. Dupont, 28 U.S. 242, 245 (1830) (same definition without citing Vattel); Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (same definition without citing Vattel); Ex parte Reynolds, 1879, 5 Dill., 394, 402 (same definition and cites Vattel); United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (same definition and cites Vattel); U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) (favorably citing Minor v. Happersett).
The case of Minor v. Happersett, 88 U.S. 162 (1874) deserves special attention. It distinguished between “natives, or “natural born citizens” on the one hand and “citizens” on the other. The United States Supreme Court in Minor said that “[a]t common-law, with the nomenclature of which the framers of the Constitution were familiar,” the “natives, or natural-born citizens” were “all children born in a country of parents who were its citizens…” It added that “[s]ome authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first….” The Court was very specific in defining “natives, or natural born citizens” as requiring not only birth in the country but also citizen parents and in stating that the Framers would have defined the terms as such. In mentioning “some authorities” going further in defining “citizens” (without reference to the citizenship of the child’s parents), the Court surely did not say that the Framers maintained any such position on citizenship. Rather, the Court was referring to “some” commentators who had made such an argument. The Court also did not say that these other “authorities” considered these other children to be “natural born citizens.”
As we can see, these cases adopted the natural law and law of nations definition of a “natural born citizen.” Reliance on this definition would have been expected, for the Framers were heavily influenced by natural law and the law of nations as expounded upon by Cicero, Grotius, Pufendorf, Burlamaqui, and their favorite, Vattel. The law of nations which was based on natural law was received and adopted by the new nation as its federal common law after the Constitution was adopted. Citizenship being a topic that affected the relations among nations, the Founder and Framers would have, as did the United States Supreme Court, looked to the law of nations as the authoritative and binding source for providing any definition of national citizenship. There is no United States Supreme Court case that to this day has changed this original definition of a “natural born Citizen” provided by Vattel and recognized and confirmed by these Supreme Court cases.
Nor did the Fourteenth Amendment change the meaning of an Article II “natural born Citizen.” It did not modify "natural born Citizen" status as originally conceived by the Framers and as confirmed by the above-cited Supreme Court cases. Article II mentions "natural born Citizen" and "Citizen" while the Fourteenth Amendment mentions "Citizen." The Constitution must be read as one whole document and all its words must be given meaning. The framers of the Fourteenth Amendment were well aware of the Constitution using the words “natural born Citizen” and “Citizen.” Hence, when the Fourteenth Amendment says "Citizen," it must be referring to the same "Citizen" found in Article II and in other parts of the Constitution and not to Article II's "natural born Citizen." The words “natural born” must be given a meaning all of their own. Also noteworthy in understanding the amendment is Rep. John Bingham, who in the House on March 9, 1866, in commenting on the Civil Rights Act of 1866 which was the precursor to the Fourteenth Amendment, stated: "[I] find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen. . . . ” John A. Bingham, (R-Ohio) US Congressman, March 9, 1866 Cong. Globe, 39th, 1st Sess., 1291 (1866), Sec. 1992 of U.S. Revised Statutes (1866). Additionally, we cannot simply assume that the Fourteenth Amendment amended Article II. There is simply no such evidence that the Fourteenth Amendment framers did or even intended to amend the meaning of an Article II "natural born Citizen." Amending the Constitution is a very serious and solemn undertaking. We surely cannot have constitutional amendments by assumptions or implications. Rather, Article V of the Constitution must be followed to have any such amendments to the Constitution.
Obama has claimed that he is a “native born citizen.” The above-cited authorities and case law show that under natural law and the law of nations which became federal common law, "native born citizen" meant the same thing as "natural born citizen." But over the years, "native born citizen" took on a different meaning. It was later used to show that under the Fourteenth Amendment someone became a citizen by being born on U.S. soil rather than by being naturalized. Hence, when used in the modern sense, "native born citizen" does not necessarily mean the same thing as a "natural born Citizen." Hence, Obama stating that he is a “native born citizen” does not necessarily mean that he is saying that he is a “natural born Citizen.”
We know that an Article II "Citizen" was grandfathered to be eligible to be President and that the grandfather clause is now obsolete. Hence, today one must be a "natural born Citizen" to be eligible to be President. Being a "Citizen" is not sufficient. A "Citizen" is defined by the Fourteenth Amendment and Congressional Acts. An Article II "natural born Citizen" is defined by federal common law (emanating from natural law and the law of nations) which provides that it is a child born in the country to a citizen mother and father.
Obama fails to meet the “natural born Citizen” eligibility test because when he was born in 1961 (where ever that may be), he was not born to a United States citizen mother and father. At his birth, his mother was a United States citizen. But under the British Nationality Act of 1948, his father, who was born in the British colony of Kenya, was born a Citizen of the United Kingdom and Colonies (CUKC) which by descent made Obama himself a CUKC. Prior to Obama’s birth, Obama’s father neither intended to nor did he become a United States citizen. Being temporarily in the United States only for purpose of study and with the intent to return to Kenya, his father did not intend to nor did he becomes even a legal resident or immigrant to the United States.
Obama may be a plain born “citizen of the United States” under the Fourteenth Amendment (if he was born in Hawaii). But he is not an Article II "natural born Citizen," for upon Obama's birth his father was a British subject and Obama himself by descent was also the same. Hence, Obama was born subject to a foreign power. Obama lacks the birth status of natural sole and absolute allegiance and loyalty to the United States which only the President and Commander in Chief of the Military and Vice President must have at the time of birth. Being born subject to a foreign power, he lacks Unity of Citizenship and Allegiance to the United States from the time of birth which assures that required degree of natural sole and absolute birth allegiance and loyalty to the United States, a trait that is constitutionally indispensable in a President and Commander in Chief of the Military. Like a naturalized citizen who despite taking an oath later in life of sole allegiance to the United States cannot be President because of being born subject to a foreign power, Obama too cannot be President.
Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg, New Jersey 08831
December 1, 2009