A Common Sense Definition of a “Citizen” and a “Natural Born Citizen”
By: Mario Apuzzo, Esq.September 1, 2011
The Framers of the Constitution called all those who made up the citizenry of the new Constitutional Republic “Citizens of the United States.” We know this from reading the following constitutional Articles: Article I, Section 2, Clause 2 provides that, in addition to being at least 25 years old and when elected to be an “Inhabitant” of the State in which he shall be chosen, a Representative must be a “Citizen of the United States” for 7 years. Article I, Section 3, Clause 3 provides that, in addition to being at least 30 years old and when elected to be an “Inhabitant” of the State in which he shall be chosen, a Representative must be a “Citizen of the United States” for 9 years. The Framers provided in Article I, Section 2 and Section 3 the eligibility requirements for then and future Representatives and Senators, respectively, which were, among other things, that each had to be at least a “Citizen of the United States” for 7 and 9 years, respectively. We also know from Article I, Section 2 and Section 3 that a “Citizen of the United States” is a naturalized citizen, for those sections speak of the person being eligible for the offices of Representative and Senator if he or she is a “Citizen of the United States” for 7 and 9 years, respectively. Clearly, such requirements do not mandate U.S. citizenship from the moment of birth.
Regarding presidential eligibility, Article II, Section 1, Clause 5 provides: “No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a resident within the United States.” So, these clauses together show that the Framers during the period that the grandfather clause of Article II, Section 1, Clause 5 was in effect, allowed naturalized citizens to be eligible to be President. After the grandfather clause expired, it was no longer sufficient to be simply a “Citizen of the United States” to be eligible to be President, for such citizens also include naturalized citizens. Rather, one had to now show that one was a “natural born Citizen” which was not a naturalized citizen.
The problem with applying Article II, Section 1, Clause 5 is that the Constitution as originally written defines neither a “natural born Citizen” nor a “Citizen of the United States.” Hence, we have to identify the sources to which the Founders and Framers would have looked for their definition of these terms. The historical record and early case law show that they probably would not have relied upon the English common law for these national definitions but rather on natural law and the law of nations to which they normally looked to solve problems of national proportions. This historical record and case law also show that Emer de Vattel was the Founders’ and Framers’ favorite commentator on the law of nations. Vattel said “[t]he citizens are the members of civil society.” Emer de Vattel, The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758). He said that “each citizen on entering into society, reserves to his children the right of becoming members of it.” Id. Other than explaining in Section 214 how a “foreigner” can become a “citizen” through “naturalisation,” Vattel did not explain how that membership or entrance into society is acquired. Incidentally, he said that in England, “the single circumstance of being born in the country naturalises the children of a foreigner.” Hence, historically, our nation has struggled with defining who is a “citizen,” which our Constitution and laws have called a “citizen of the United States.” On the other hand, Vattel clearly told us who is a “natural born Citizen,” i.e., “[t]he natives, or natural-born citizens, are those born in the country, of parents who are citizens.” Id.
Hence, never in the history of our nation have we had any doubt as to what a “natural born Citizen” is. See Minor v. Happersett, 88 U.S. (21 Wall.) 162, 167 (1875) (“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”). Consequently, our national debate over citizenship has been over who is a “citizen.” This debate has involved former slaves and their descendents, Asians, American Indians, and even the children born in the United States to alien white European parents. But this debate has never been over who is a “natural born Citizen.”
Because of the doubts over who is a “citizen,” our nation has had to define a “citizen” in Acts of Congress, treaties, the Fourteenth Amendment, and through case law (e.g., U.S. v. Wong Kim Ark, 169 U.S. 649 (1898)). Regarding a “natural born Citizen,” we have defined this class of citizen only through case law which has explicitly or impliedly relied upon Vattel’s Section 212 and which to this day has never changed (e.g., The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (C.J. Marshall concurring and dissenting for other reasons-explicitly); Dred Scott v. Sandford, 60 U.S. 393 (1857) (Justice Daniels concurring-explicitly); Minor v. Happersett (1875) (impliedly); Wong Kim Ark (impliedly)).
This means that a “citizen” is defined by Acts of Congress, treaties, and the Fourteenth Amendment (e.g., a child born in the United States to one or two alien parents or a child born out of the United States to one or two United States citizen parents or a child born out of the United States to alien parents who naturalizes to be a “citizen” after birth) and a “natural born Citizen” is defined by American common law. And that American common law definition has been since the Founding and continues until today to be a child born in the United States to a United States citizen father and mother. Finally, we are to keep in mind that the only difference between a “natural born Citizen” and a “citizen of the United States” who is not a “natural born Citizen” is that only a “natural born Citizen” is eligible to be President and Vice-President.
If putative President, Barack Obama, was born in Hawaii, he can be a Fourteenth Amendment born "citizen of the United States." But because he was not born to a father and mother who were both U.S. citizens when he was born (he was born to a father who was a British citizen), he is not and cannot be a "natural born Citizen." He is therefore not eligible to be President and Commander in Chief.
Mario Apuzzo, Esq.
September 1, 2011
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Mario Apuzzo, Esq.
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