By: Mario Apuzzo, Esq.
Published: February 14, 2011
Revised: February 16, 2011
Revised: February 16, 2011
A famous Holmesian dictum provides that "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.). There have been 43 Americans that have served as President (not including Barack Obama). Ten were born before 1787. Until Martin Van Buren (who was born in 1782 or six years after the signing of the Declaration of Independence) became President in 1837 (making him the 8th president), all the Presidents had been born before 1776 to parents who, undoubtedly, at the time considered themselves to be loyal subjects of one of the British Kings. The president following Van Buren, William H. Harrison (the 9th president), was also born before 1776 to parents who were British “natural born subjects.” All Presidents born before July 4, 1776, were born British “natural born subjects.” Those early presidents were naturalized to become “Citizens of the United States” through the Declaration of Independence and by adhering to the American Revolution. These presidents included Washington, Adams, Jefferson, Madison, Monroe, Adams, Jackson, and Harrison. Article II, Section 1, Clause 5, allowing anyone who was a “Citizen of the United States” at the time of the adoption of the Constitution to be eligible to be President, grandfathered these presidents to be eligible. All presidents born after 1787, except for Chester Arthur and Barack Obama, met the “natural born Citizen” criteria, i.e., born on U.S. soil to a mother and father who were themselves U.S. citizens at the time of the President’s birth. Neither Arthur nor Obama were “natural born Citizens” at the time of birth. Arthur was born to an alien father who also made his U.S. citizen mother an alien. Obama was born to a non-U.S. citizen father who never became a U.S. citizen and, being here only on a temporary student visa, was never even an immigrant. There have been 46 Americans that have served as Vice-President (not including Mr. Biden). Ten were born before 1787. All Vice-Presidents born after 1787, except for Chester Arthur, met the “natural born Citizen” criteria. Fourteen Vice Presidents have gone on to be President.
Some believe that John Tyler was our first "natural born Citizen" President. They believe that a President had to be born after the adoption of the Constitution in 1787 in order to be a “natural born Citizen.” Since Tyler was born in 1790 in Virginia, they conclude that he was the first President to be a “natural born Citizen.” I do not agree with this approach to determining who our first "natural born Citizen" President was.
The citizens made the Constitution and their government. The Constitution and government did not make the citizens. The citizens had the unalienable rights to life, liberty, and the pursuit of happiness granted to them by nature and their Creator and not by the Constitution or government. On July 4, 1776, our first Americans declared independence from Great Britain and created the new American community of free and independent states. July 4, 1776 is therefore the critical date which established American citizenship. The Articles of Confederation and Perpetual Union, the first constitution of the United States, which went into use in 1777 and which were formally ratified on March 1, 1781, officially recognized the nation as the "United States of America." Hence, all those who helped create the new nation became its members and therefore its citizens. These were the first "Citizens of the United States," which Article II, Section 1, Clause 5 grandfathered to be eligible to be President provided they were born before the adoption of the Constitution.
Hence, anyone born after July 4, 1776 in the U.S. to parents who became "Citizens of the United States" as a result of the Declaration of Independence and by adhering to the American Revolution was born in the country to U.S. citizen parents and therefore a "natural born Citizen." The First Congress in the Naturalization Act of 1790 even extended the “natural born Citizen” status to persons born abroad to U.S. citizen parents. The Third Congress, through the Naturalization Act of 1795, repealed the 1790 Act and declared such children born abroad to U.S. citizen parents to be considered as “citizens of the United States” and not “natural born Citizens.”
The first President to be born after July 4, 1776 in the U.S. to parents who became "Citizens of the United States" on July 4, 1776 was Martin Van Buren, who was born in 1782 in New York. He was therefore the first President to be a "natural born Citizen." Tyler was the second President to be born under these birth circumstances which makes him the second President to be a "natural born Citizen."
Let us now examine how President James Buchanan, who had an Irish father, Woodrow Wilson, who had an English mother, and Herbert Hoover, who had a Canadian mother, were “natural born Citizens.” As we have seen, President Thomas Jefferson, whose mother was born in England, and Andrew Jackson, whose parents were both born in Ireland, were grandfathered to be eligible to be President. Chester Arthur, not being either grandfathered or a “natural born Citizen,” will be treated separately.
When determining whether a child born in the U.S. is an Article II “natural born Citizen,” the question is not whether the parents of the child are foreign born. Rather, the question is whether they are “citizens of the United States” at the time of the child’s birth in the United States. In Minor v. Happersett, 88 U.S. 162, 167-68 (1875), our U.S. Supreme Court, providing the same definition of a “natural born citizen” as did Emer de Vattel in his The Law of Nations, Section 212 (1758), but without citing Vattel, and not in any way referring to the English common law, stated:
"The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. 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. Some 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. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens."
Id., 169 U.S. at 679-80. So as we can see, the Supreme Court told us that a “natural born citizen” is a child born in the country to citizen parents. See also, U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898) (distinguished between a “natural born Citizen” and a “citizen of the United States” and cited Vattel and quoted his definition of “natural born Citizen” as did Minor v. Happersett but relied on the English common law to define a born “citizen of the United States” under the 14th Amendment).
The status of being “citizens of the United States” can be acquired by the parents by either being “natural born Citizens” or by becoming “citizens of the United States” by naturalization under an Act of Congress or treaty or if born in the U.S. under the 14th Amendment. The case of Perkins v Elg 307 U. S. 325 (1939) makes the point and shows how a child born in the U.S. to naturalized parents was declared a “natural born Citizen.” The central question in the Perkins case dealt with whether the Elg child lost her U.S. birth citizenship status because of the acts of her parents and not because of anything she elected to do or some treaty or Act of Congress. But the case is also important in understanding the meaning of a “natural born Citizen.”
Under out naturalization laws, citizenship can be derived from a close relation to a family member. Historically, a number of U.S. laws have provided for the automatic naturalization of children or wives (not husbands) of naturalized U.S. citizens. In some periods of our history, these laws provided that married women derived citizenship from their husband and had no control over their status. Under the Act of 10 February 1855, a woman automatically became an American upon marrying a U.S. citizen or following the naturalization of her foreign husband. Kelly v. Owen, 74 U.S. 7 Wall. 496 (1868). The 1922 Married Women's Act (or the Cable Act) finally severed the link between naturalization and marital status for most women.
Marie Elg's parents emigrated from Sweden to the U.S. in 1906. In that same year, Mr. Elg naturalized and became a U.S. citizen. Under the then existing naturalization laws (Act of 10 February 1855), his wife automatically became a U.S. citizen through the U.S. naturalization of her husband. Hence, when Marie Elg was born in the U.S. in 1907 both her mother and father were U.S. citizens. Marie Elg was therefore a child born in the United States to U.S. citizen parents. The Court found that “[o]n her birth in New York, the plaintiff became a citizen of the United States. Civil Rights Act of 1866, 14 Stat. 27; Fourteenth Amendment, § 1; United States v. Wong Kim Ark, 169 U. S. 649.” Additionally, the lower court found Elg to be a “natural born Citizen.” The U.S. Supreme Court affirmed this finding. The Court therefore gave a child born to naturalized “citizens of the United States” the right to run for President. The U.S. Supreme Court in Elg therefore once again affirmed the American common law definition of a “natural born Citizen” which is a child born in the country to citizen parents, a definition that was confirmed during the Founding by Emer de Vattel in his The Law of Nations, Section 212 (1758). On the other hand, no U.S. Supreme Court decision has found a child born to one or two alien parents to be an Article II “natural born Citizen.”
So as we can see, a “natural born Citizen” can be produced by being born in the U.S. to naturalized parents who are “citizens of the United States.” Also, under our old naturalization laws, once a woman married a U.S. citizen, she herself automatically became a U.S. citizen derivatively from her husband. These laws apply to show that three of the six Presidents listed were “natural born Citizens.” Jefferson was not a “natural born Citizen” but, adhering to the revolution, was a “citizen of the United States.” Under Article II, Section 1, Clause 5, he was grandfathered to be eligible to be President. Jackson, also became a “citizen of the United States” by adhering to the revolution and also grandfathered to be eligible to be President. Buchanan’s father naturalized to become a “citizen of the United States” prior to his son’s birth. Wilson’s mother became a “citizen of the United States” when she married her husband who was a “citizen of the United States.” Hoover’s mother became a “citizen of the United States” when she married her husband who was a “citizen of the United States." So except for Jefferson and Jackson who were grandfathered, all these presidents were born in the U.S. to parents who were at the time of their birth “citizens of the United States.” They were all “natural born Citizens.”
The only exception to all this, apart from Barack Obama, is Chester Arthur. Chester Arthur (1881-1885), was born on October 5, 1829 in Fairfield, Vermont. His father, William Arthur, when eighteen years of age, emigrated from Co. Antrim, Ireland. His father did not become a naturalized U.S. citizen until 14 years after Chester Arthur’s birth. Chester Arthur’s mother, Malvina Stone, was born April 29, 1802 in Berkshire, Franklin, Vermont. Hence, Chester Arthur was born to a father who was not a U.S. citizen at the time of his birth. Because the citizenship of the wife merged into that of the husband, this made Arthur born to an alien mother and father. He was therefore born with dual citizenship of the United Kingdom and the United States. It is believed that Chester Arthur lied numerous times about his past to hide the fact that when he was born his father was not a U.S. citizen and to therefore obfuscate his ineligibility to hold Vice-Presidential and Presidential office. What is most telling is that Chester Arthur also burned all personal records just prior to his death. Chester Arthur was challenged during his Vice Presidential bid on the ground that he was not born in the United States. No one challenged Chester Arthur on the ground that even if he were born in the United States, he was still not an Article II “natural born Citizen” because of his father’s foreign citizenship at the time of his birth which also made his mother an alien. Hence, the Chester Arthur example is not and cannot be treated as any precedent since the nation was not aware of the truth about his father’s and mother’s non-U.S. citizenship status at the time of his birth. Gregory J. Dehler, Chester Alan Arthur: The Life of a Gilded Age Politician and President, Published by Nova Science Publishers, Incorporated, 2006, ISBN 1600210791, 9781600210792, 192 pages; http://naturalborncitizen.wordpress.com/2008/12/06/urgent-historical-breakthrough-proof-chester-arthur-concealed-he-was-a-british-subject-at-birth/. Also see the research done by attorney Leo Donofrio on the Chester Arthur issue which can be found at http://naturalborncitizen.wordpress.com/2008/12/06/urgent-historical-breakthrough-proof-chester-arthur-concealed-he-was-a-british-subject-at-birth/.
The Founders and Framers wrote the Constitution in a way that best provided for the protection of our unalienable rights to life, liberty, and the pursuit of happiness. They sought to do that by giving us a constitutional republic and providing for the survival and preservation of that republic. In the governmental scheme that they gave us, they provided for the Office of President and Commander in Chief, a singular and all-powerful office involving the concentration of both civilian and military power into one person. Because of such concentration of power in one individual, the Framers recognized that such offices also presented great risk to the republic and its people. They therefore gave us the “natural born Citizen” clause as one basis for eligibility to such offices. Through the “natural born Citizen” clause, they instructed us that such power must fall into the hands of a person who can be trusted with it to the greatest degree possible and that such guarantee is of much greater importance to the survival and preservation of the constitutional republic than the fleeting politics and personal favor of having one person necessarily occupy that office. What is profound is that the Founders and Framers put their trust in “Nature and Nature’s God” and not in political and legal institutions to accomplish that end.
For more information and research on the meaning of an Article II “natural born Citizen,” please see the many essays at this blog, http://puzo1.blogspot.com/.
Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg, NJ 08831
© 2011 Mario Apuzzo, Esq.
All Rights Reserved
P.S. A copy of this report may be downloaded at SCRIBD.com at this link:
P.P.S. Cross link to a report by CDR Charles Kerchner (Ret) on the citizenship status of all 44 presidents: