Barack Obama Is Ineligible to be President, For He Is Neither a “Natural Born Citizen” Nor a “Citizen of the United States, at the time of the Adoption of this Constitution”
By Mario Apuzzo, Esq.
October 28, 2012
Updated November 10, 2012
We have been debating for over four years whether now presidential candidate Barack Obama is an Article II “natural born Citizen.” Just what is a “natural born Citizen?” Why should we require that he be a “natural born Citizen?” Here I will demonstrate that the Founders and Framers, for the preservation and survival of the constitutional republic as conceived under republican principles, demanded that future presidents be “natural born Citizens” and that Obama, even if he was born in Hawaii, is not a “natural born Citizen.” This means that he is not constitutionally eligible to be President and Commander in Chief of the Military.
In Part I, I will discuss the rules of constitutional interpretation and construction. In Part II, I will analyze the text of the Constitution and specifically the “natural born Citizen” clause. In Part III, we will explore the Founders’ and Framers’ purpose for requiring that future presidents be “natural born Citizens.” Part IV will include a discussion of both English and American “common-law,” with a presentation on the critical differences between the two as they relate to how the Founders and Framers defined a “natural born Citizen” under the law of nations which was incorporated into the laws of the United States as national American common law. In Part V, I will discuss the early naturalization acts and how they reveal how the Founders and Framers defined a “natural born Citizen.” I will discuss the Civil Rights Act of 1866 in Part VI and the Fourteenth Amendment in Part VII, showing how the amendment does not define a “natural born Citizen,” but rather a “citizen of the United States.” In Part VIII, I will explain the importance of Minor v. Happersett and show how it confirmed the American common law definition of a “natural born Citizen” which is a child born in a country to parents who were “citizens” of the country when the child was born. In Part IX, I will show how U.S. v. Wong Kim Ark only defined a “citizen of the United States” from the moment of birth under the Fourteenth Amendment and that it did not change the American common law definition of a “natural born Citizen.” In Part X, I will show why two U.S. “citizen” parents are needed to have a “natural born Citizen.” Finally, I will present my conclusion in Part XI which is that the plain text of Article II, Section 1, Clause 5 shows that the only person that is eligible to be President is a “natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution.” This means that today a "citizen of the United States" is not eligible to be President and only a "natural born Citizen" is. If Obama were born in Hawaii in 1961 as he claims, being born to a non-U.S. “citizen” father, he would not be an Article II “natural born Citizen,” but he would be a "citizen of the United States" as of 1961 under the Fourteenth Amendment. Since Obama is neither a “natural born Citizen” nor a “Citizen of the United States, at the time of the Adoption of this Constitution,” his is not eligible to be President and Commander in Chief of the Military.
I. RULES OF INTERPRETATION AND CONSTRUCTION
In interpreting what “natural born Citizen” means, we should be reminded of what Thomas Jefferson said: "On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed." Thomas Jefferson, in his letter to William Johnson, dated June 12, 1823 from Monticello. "It is never to be forgotten that in the construction of the language of the Constitution here relied on, as indeed in all other instances where construction becomes necessary, we are to place ourselves as nearly as possible in the condition of the men who framed that instrument." Ex Parte Bain, 121 U.S. 1, 12 (1887), http://supreme.justia.com/us/121/1/case.html . "[T]he enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said." Gibbons v. Ogden, 22 U. S. 1, 188 (1824). http://supreme.justia.com/us/22/1/case.html . There are also some rules that our U.S. Supreme Court has established to accomplish the task.
“It cannot be presumed that any clause in the constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it….” Marbury v. Madison. 5 U.S. 137, 174 (1803). “In expounding the Constitution of the United States, every word must have its due force and appropriate meaning, for it is evident from the whole instrument that no word was unnecessarily used or needlessly added. The many discussions which have taken place upon the construction of the Constitution have proved the correctness of this proposition and shown the high talent, the caution, and the foresight of the illustrious men who framed it. Every word appears to have been weighed with the utmost deliberation, and its force and effect to have been fully understood. No word in the instrument, therefore, can be rejected as superfluous or unmeaning, and this principle of construction applies.” Holmes v. Jennison, 39 U.S. 540, 570-71 (1840). http://supreme.justia.com/us/39/540/case.html . Our Supreme Court has consistently expressed "a deep reluctance to interpret a statutory provision so as to render superfluous other provisions in the same enactment." Pennsylvania Department of Public Welfare v. Davenport, 495 U.S. 552, 110 S.Ct. 2126, 2133, 109 L.Ed.2d 588 (1990); International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Uaw v. Johnson Controls, Inc, 499 U.S. 187, 111 S.Ct. 1196, 1204, 113 L.Ed.2d 158 (1991) .
Hence, the “natural born Citizen” clause of Article II must be given independent effect from the “citizen of the United States” clause of Article II itself and of the Fourteenth Amendment. All Presidents must qualify as Article II “natural born Citizens,” not as Fourteenth Amendment “citizens of the United States.” The two clauses have different and distinct meanings or they would not have their own independent life in the Constitution. Article II says “natural born Citizen” and the Fourteenth Amendment says “citizen of the United States.” If being a “citizen of the United States” had the same exact effect as being a “natural born citizen,” then the “natural born Citizen” clause would have no effect. Such a construction is not admissible. If we were not to give special meaning to the words “natural born” and conclude that “natural born Citizen” and “citizen of the United States” mean the same thing, the words “natural born” in the “natural born Citizen” clause of Article II would be superfluous. Hence, we have to give special meaning to the words “natural born.”
“[W]here a phrase in a statute appears to have become a term of art, . . . any attempt to break down the term into its constituent words is not apt to illuminate its meaning.” Sullivan v. Stroop, 496 U.S. 478, 483 (1990). The clause “natural born Citizen” (not “born Citizen”) is a word of art, an idiom, a unitary clause. So we cannot accurately know its meaning by only defining parts of the clause like “born citizen.” Rather, we must look deeper and find its common meaning as understood by the Founders and Framers when they wrote the entire clause into the Constitution and when state conventions ratified the Constitution.
The U.S. Supreme Court case of District of Columbia v. Heller, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) is very instructive in providing a methodology that our courts have adopted for interpreting the Constitution. There the Court looked to the text of the Constitution itself. It looked to the structure of the Constitution. It looked at what state constitutions said and also the Federalist Papers. It said that debates on the Constitution (pre-enactment statements) are not reliable when interpret the text of the Constitution. The Court said the debates are not reliable because they do not necessarily reflect the “general understanding of disputed terms.” Rather, the Court said debates can be persuasive given that it can be argued that the people who voted on the legislation probably voted with that understanding in mind. Id. The Court said that post ratification commentary are “sources to determine the public understanding of a legal text in the period after its enactment or ratification.” Id. This inquiry “is a critical tool of constitutional interpretation.” Id. This understanding is provided by interpreters of the constitutional provision being examined in the years following its enactment and ratification. Id. Apart from analyzing the text of the “natural born Citizen” clause, the structure of the Constitution, and case law, here I will present historical evidence of the type that our courts and legal profession have always relied upon when trying to determine the meaning of a specific clause in the Constitution. This evidence shows that the American common law definition of a “natural born Citizen” at the Founding was a child born in the country to citizen parents. This evidence also shows that this definition has never been changed and prevails today.
II. THE CONSTITUTIONAL TEXT
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 fourteenth Years a Resident within the United States.” Neither this clause nor any other part of the Constitution provides any definition of the “natural born Citizen” clause.
We can see from this clause that it is not sufficient to simply say that a “citizen of the United States” is eligible to be President. There is a critical constitutional distinction between an Article II “natural born Citizen” and an Article II/Fourteenth Amendment “[c]itizen of the United States.” This constitutional distinction has already been recognized by scholars who have studied and written on the meaning of a “natural born Citizen.” Mr. McElwee, in his paper on the question of whether presidential hopeful, George Romney, then Governor of the State of Michigan who was born in Mexico to U.S. citizen parents, was a “natural born Citizen,” stated: “Mr. Romney appears probably to be a ‘citizen’ of the United States. But, the question under consideration is not one of simple ‘citizenship’ but rather, whether he is a ‘natural born citizen’ as prescribed in the constitution of the United States for the Presidency.” Pickney G. McElwee, The Meaning of the Term “Natural Born Citizen” As Used in Clause 4, Section 1 of Article II of the Constitution of the United States Relating to Eligibility for the Office of President (emphasis in the original), Congressional Record-House 15876 (June 14, 1967). http://www.scribd.com/doc/20829167/Natural-Born-Citizen-Congressional-Record-6-14-1967-p-15875-80. Hence, today, for someone aspiring to be President, the relevant question is whether that person is a “natural born Citizen,” not just a “citizen of the United States.”
The text of Article II, Section 1, Clause 5 does tell us something that is important. It is plainly and clearly written in the text that someone who wants to be president has to be either a “natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution.” As we can clearly see, the article says that to be eligible to be President as a "citizen of the United States," one had to be born before or at the adoption of the Constitution and that after the adoption of the Constitution one has to be a "natural born Citizen." The Founders and Framers chose the clauses, “natural born Citizen” and “Citizen of the United States” very carefully. They focused on minute detail when drafting the Constitution and they did not spare any when drafting Article II, Section 1, Clause 5. The way they used these two clauses in Article II demonstrates the intimate familiarity that they had with the new forms of citizenship in the new republic. At no time did the Founders and Framers ever confuse a “natural born Citizen” with a “citizen of the United States” nor use one clause to define the other. Hence, it is quite evident that they saw that the two clauses had a clear distinction between them.
A member of a republic is called a "citizen" and a member of a monarchy is called a “subject.” In the republic of the United States of America, we have two classes of "citizens," "natural born Citizens" and "citizens of the United States." The clear distinction between a “citizen” and a “natural born Citizen” is natural and therefore universal, for a civil society must start with original members who are the creators of that society. And then naturally, those original “citizens” have children who go on to be the “natural born Citizens” like their descendants.
Our first “citizens” were “citizens of the United States.” They became such by the Declaration of Independence and by adhering to the American Revolution. So these first “citizens” were naturalized as such by condition. Their children became the first “natural born Citizens.” Their children, grandchildren, etc. (“Posterity”) (Preamble to the Constitution) are the “natural-born citizens.” This Posterity, as “natural born Citizens,” would not have been considered a subset of “citizens of the United States.” Rather, they were seen as being part of a completely different class. It simply is illogical and unnecessary for the status of “natural born Citizen” to be treated as part of the class of “citizens of the United States.” “Natural born Citizens” had to be born of parents who were “citizens of the United States.” Hence, they would not be a subset of the citizenship class of their parents, but rather would create a totally new and different class. This is what Article II, Section 1, Clause 5 in effect says.
The Founders and Framers also allowed for new citizens through naturalization. Hence, any naturalized citizen under any Act of Congress becomes a “citizen of the United States,” just like the original “Citizens of the United States.” The First Congress in 1790 in the Naturalization Act of 1790 expressed a desire that children born out of the United States to U.S. citizen parents be “considered as natural born citizens.” Congress, ever since 1795 with the Naturalization Act of 1795 changed the language from “natural born citizen” to just “citizen of the United States.” This shows that early Congress, many members of which were Founders and Framers, had every intention to carefully distinguish between a “natural born Citizen” and a “citizen of the United States,” revealing that, with the limited exception under the grandfather clause which expired for children born after the adoption of the Constitution, only the former were to be eligible to be President and not the latter. This also demonstrates that Congress understood that, without a constitutional amendment, it could not by any positive law make a “natural born Citizen.” It is also to be understood that as easy as it is for Congress to grant under its statutes birthright citizenship upon any person, it is easy for Congress to take it away. See Rogers v. Bellei, 401 U.S. 815 (1971) (held that a person who was born out of the United States and who Congress granted citizenship at birth by one of its naturalization acts, may lose his citizenship for failure to fulfill any reasonable residence requirements which Congress may impose as a condition subsequent to that very birthright citizenship. Again to demonstrate Congress’s control over who may be “citizens of the United States,” Congress in 1978 repealed the statute under which Bellei was stripped of his citizenship). From such power given to Congress, we can see that “citizens of the United States” from the moment of birth, either because they are created by acts of Congress or because they are not called “natural born Citizens,” are not and cannot be “natural born Citizens.”
Congress constitutionalized its Civil Rights Act of 1866 through the Fourteenth Amendment. If Congress wanted to change the meaning of an Article II “natural born Citizen,” now was the opportunity to do it. But Congress in the amendment did not alter or repeal the definition of a “natural born Citizen.” Rather, it only addressed who was a “citizen of the United States.” The amendment did not change the class of citizen that Congress so constitutionalized, i.e., a “citizen of the United States.” A reading of the plain text of the Fourteenth Amendment shows that it only adds to the membership in the United States. It calls these members “citizens of the United States,” and they are so made by being born or naturalized in the United States while “subject to the jurisdiction thereof,” which under U.S. Supreme Court interpretation of the clause in United States v. Wong Kim Ark, 169 U.S. 649 (1898), as we shall see below does not require that the child be born to “citizen” parents. And the children (“Posterity”) born in the United States to these new first generation “citizens of the United States” then become “natural born Citizens,” just like the children of the descendants of the original “Citizens of the United States.” As we shall see below, today a “natural born Citizen” is still a child born in the United States to parents who were “citizens” at the time of the child’s birth. Any other U.S. “citizen” is a “citizen of the United States” under the Fourteenth Amendment, Act of Congress, or treaty, but not being a “natural born Citizen,” is not eligible to be President under Article II, Section 1, Clause 5.
The critical constitutional distinction between an Article II “natural born Citizen” and a “citizen of the United States” “at birth” has also been recognized by our State Department. In fact, our Foreign Affairs Manual, with respect persons made “citizens of the United States” “at birth” by Congressional statutes, says:
"7 FAM 1131.6-2 Eligibility for Presidency
(TL:CON-68; 04-01-1998)
a. It has never been determined definitively by a court whether a person who acquired U.S. citizenship by birth abroad to U.S. citizens is a natural- born citizen within the meaning of Article II of the Constitution and, therefore, eligible for the Presidency.
b. Section 1, Article II, of the Constitution states, in relevant part that ―No Person except a natural born Citizen...shall be eligible for the Office of President.
c. The Constitution does not define "natural born". The ―Act to establish an Uniform Rule of Naturalization, enacted March 26, 1790, (1 Stat. 103,104) provided that, ―...the children of citizens of the United States, that may be born ... out of the limits of the United States, shall be considered as natural born citizens: Provided that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.
d. This statute is no longer operative, however, and its formula is not included in modern nationality statutes. In any event, the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes."
7 FAM 1130 Page 8 of 81 U.S. Department of State Foreign Affairs Manual Volume 7 - Consular Affairs the United States.
The question raised by the State Department in its manual pertains only to children born abroad to U.S. citizen parents. Even though these children are “citizens of the United States” from the moment of birth, the State Department still has doubts whether they are Article II “natural born Citizens.” The State Department also states that no court has ever ruled that a statutory “citizen of the United States” from the moment of birth is an Article II “natural born Citizen.”
Despite the fact that Article II itself, and when read together with Articles I, III, IV and Amendments Eleven, Fourteen, Fifteen, Nineteen, Twenty-Four, and Twenty-Six, clearly makes a distinction between a “Citizen of the United States” and a “natural born Citizen,” when it comes to deciding whether Obama is eligible to be President under Article II, many incorrectly interpret a “Citizen of the United States ” to be the same thing as a “natural born Citizen.” The Constitution, Congressional Acts, and the common law gave such distinct meaning to the clauses “natural born Citizen” and “citizen” that they can not be confounded together, or mistaken for each other when defining each one. They are distinct in their natures and meaning. Conflating and confounding an Article II “natural born Citizen” with an Article II “Citizen of the United States” or Fourteenth Amendment “citizen[] of the United States” causes one to come to an improper understanding of the history of the “natural born Citizen” clause and ultimately to an incorrect understanding of its meaning. Confusing the two phrases causes one to accuse the “Birthers" of telling us that almost everything we learned about this term [“natural born Citizen”] for 200 years is wrong.” The error made by these persons is that our nation has never had any doubts about what a “natural born Citizen” is and we have not had to learn that definition over the last 200 plus years. The error that is made by these individuals is that they inadvertently or intentionally fail to recognized that our battle during our history regarding citizenship has been over who may be a “citizen of the United States,” not over who may be a “natural born Citizen.”
From evidence existing outside the Constitution, we will see that Obama, if born in Hawaii, is a “citizen of the United States” as of 1961, the year he was born. But he is neither a “natural born Citizen, [n]or a Citizen of the United States, at the time of the Adoption of this Constitution.” He is therefore not eligible to be President and Commander in Chief of the Military.
III. THE PURPOSE OF THE NATURAL BORN CITIZEN CLAUSE
We have seen that there is a constitutional distinction between a “natural born Citizen” and a “citizen of the United States.” So let us examine what is the meaning of a “natural born Citizen.” The Founders and Framers did not require in Article I, Section 2 and 3 that Representatives and Senators be “citizens” from the moment of birth. But they did impose that requirement in Article II, Section 1, Clause 5 for future presidents. Any definition of a “natural born Citizen” must therefore be driven by the Founders’ and Framers’ purpose for requiring that future presidents have that citizenship status from birth. Examining their purpose for the clause can assist us in discovering its meaning.
Those arguing that Obama is a “natural born Citizen” downplay the Founders’ and Framers’ reasons for requiring that any future presidents be “natural born Citizen[s].” They says that there were fears then about wealthy European aristocracy or royalty coming to America, gaining citizenship, and then buying their way to the presidency without long-standing loyalty to the nation. They add that such fears no longer exist today. They even go as far as to say that today there no longer is any need for the “natural born Citizen” clause. But the Founders and Framers had a greater reason than just wanting to avoid that “wealthy European aristocracy or royalty” from “that time” make their way into American government for inserting the clause in Article II. Rather, it was overall fear of foreign and monarchical influence invading the Office of Commander in Chief of the military then and in the future. They saw the “natural born Citizen” clause as a means by which to preserve and perpetuate the new republic and its new republican values. The Founders were very much concerned about loyalty to the American cause. They often used loyalty oaths to make sure persons were really with the patriots and not with the loyalists. The Founders fear of disloyalty and foreign and monarchical influence also extended to the new government they had created and especially to the Office of President and Commander in Chief of the Military.
It was the fear of foreign and monarchical influence invading the Office of Commander in Chief of the military that prompted John Jay, our first U.S. Supreme Court Chief Justice, to write to George Washington in 1787. In his letter of July 25, 1787, John Jay wrote to George Washington: “Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen” (underlying "born" in the original). 3 The Correspondence and Public Papers of John Jay 1782-1793, at p. 250 (ed. H.P. Johnston 1891), accessed at http://books.google.com/books?id=ElB2AAAAMAAJ&jtp=478#v=onepage&q&f=false . See also Max Ferrand, editor, The Records of the Federal Convention of 1787, Revised Edition, Volume III (New Haven: Yale University Press, 1937), p. 61; http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=2329&chapter=220302&layout=html&Itemid=27.) . Charles Gordon in his, Who Can Be President of the United States: The Unresolved Enigma, Maryland Law Review, Vol. 28, No. 1 (Winter 1968), p. 5, maintains that Jay’s letter was not only sent to Washington but "probably to other delegates." In this famous letter, Jay used “natural born citizen” as a means to better assure the safe and proper “administration of our national government.”
John M. Yinger, Trustee Professor of Public Administration and Economics, The Maxwell School of Citizenship and Public Affairs, Syracuse University, and Associate Director for Metropolitan Studies Program and Director, Education Finance and Accountability Program, Center for Policy Research, provides some insight into the “natural born Citizen” clause.
"The most direct evidence about the origins of the "natural born citizen" clause comes from a letter that John Jay wrote to George Washington, who was at the time serving as President of the Constitutional Convention.(2) John Jay was not a delegate to the Convention; his views conflicted with those of the majority in his state, New York, and he was not elected by the state legislature.(3) However, he was a well-known figure who had been President of the Continental Congress. Moreover, he would become an author, along with Alexander Hamilton and James Madison, of some of the famous Federalist Papers, written to encouraged New Yorkers to ratify the proposed constitution, and, after the Constitution had been ratified, he would be appointed as the first Chief Justice of the U.S. Supreme Court.(4) It seems reasonable to suppose, therefore, that his letter carried some weight."
John M. Yinger, The Origins and Interpretation of the Presidential Eligibility Clause in the U.S. Constitution: Why Did the Founding Fathers Want the President To Be a "Natural Born Citizen" and What Does this Clause Mean for Foreign-Born Adoptees? (Revised Version, April 6, 2000), http://faculty.maxwell.syr.edu/jyinger/citizenship/history.htm. [footnotes: 2. omitted. “3. One source reports that he had been appointed as a delegate but declined to serve. See Wilborne E. Benton, editor, Drafting the Constitution, Vol. I. (College Station, TX: Texas A&M University Press, 1986), p. 20. I have not been able to confirm this information in any other source.” “4. As one scholar puts it, ‘Although he was not present at Philadelphia, Jay's views were known to the most influential delegates, and he even indulged in a bit of lobbying while the Continental Congress was in session.’ Richard B. Morris, Witnesses at the Creation: Hamilton, Madison, Jay and the Constitution (New York: Holt, Tinehart, and Winston, 1985), pp. 189-90.”]. While doubts have been expressed as to the effect this letter had on the eventual inclusion of the “natural born Citizen” clause in the Constitution, “[n]evertheless, this letter is the only document connected to the Constitutional Convention that explicitly argues for a "natural born" citizen in a high executive position.” Id. Yinger. (Yinger provides an excellent discussion of what occurred during the constitutional convention regarding how the “natural born Citizen” clause was eventually inserted into the Constitution and regarding the Framers’ fear of foreign influence making its way into the new government and into the Office of President and Commander in Chief. He concludes that the Framers used both the Electoral College and the “natural born Citizen” clause to keep foreign influence out of the Office of President and Commander in Chief.)
Yinger continued:
"The delegates at the Constitutional Convention were deeply concerned about foreign influence on the national government, and in particular on the President. .. they wanted the Legislature to select the President, and they tried to limit foreign influence on the President by devising time-of-citizenship requirements for members of the Legislature. Ultimately, however, the Convention decided that a President elected by the Legislature could not be insulated from foreign influence and it turned, instead, to the Electoral College.
In one sense, the switch to the Electoral College lowered the need for explicit presidential qualifications because it minimized the line of potential foreign influence running through the Legislature. In another sense, however, this switch broke the clear connection between the citizenship requirements of legislators and the selection of the President, and therefore boosted the symbolic importance of a citizenship requirement for the President. This change in context, along with the Convention's decision to make the President the commander-in-chief of the army, gave new weight to the arguments in Jay's letter, and in particular to the suggestion in that letter that the presidency be restricted to "natural born" citizens.
On March 25, 1800, [Charles] Pinckney made the only documented statement by one of the Founders connecting the Electoral College and the presidential eligibility clause. The Founders "knew well," he said that to give to the members of Congress a right to give votes in this election, or to decide upon them when given, was to destroy the independence of the Executive, and make him the creature of the Legislature. This therefore they have guarded against, and to insure experience and attachment to the country, they have determined that no man who is not a natural born citizen, or citizen at the adoption of the Constitution, of fourteen years residence, and thirty-five years of age, shall be eligible....
The Federalist Papers
The Federalist Papers (Oct 1787-May 1788) are 85 essays written by Alexander Hamilton, John Jay, and James Madison. Professor Yinger explained that the main focus of essays 2-5, written by Jay, and titled “Concerning Dangers from Foreign Force and Influence" is on the need for a strong central government to protect a nation from foreign military action, they also suggest that a strong central government can help protect a nation from "foreign influence." Concern about foreign influence also appears in essay number 20, written by Hamilton and Madison; essay number 43 by Madison; and essays number 66 and 75 by Hamilton. Moreover, the role of the presidential selection mechanism in limiting foreign influence is explicitly discussed by Hamilton in essay number 68.
Hamilton said:
Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors."
Thomas Paine, was one of the most influential writers of the revolutionary period. "If any man is entitled to be called the Father of American Independence, it is Thomas Paine." Common Sense, Rights of Man, and Other Essential Writings of Thomas Paine xix (intr. by S. Hook and foreword by J. Fruchtman Jr. 1969). Paine criticized England for being lead by kings who were the product of foreign influence and explained that the Constitution had remedied that problem:
"If there is any government where prerogatives might with apparent safety be entrusted to any individual, it is in the federal government of America. The president of the United States of America is elected only for four years. He is not only responsible in the general sense of the word, but a particular mode is laid down in the constitution for trying him. He cannot be elected under thirty-five years of age; and he must be a native of the country.
In a comparison of these cases with the Government of England, the difference when applied to the latter amounts to an absurdity. In England the person who exercises prerogative is often a foreigner; always half a foreigner, and always married to a foreigner. He is never in full natural or political connection with the country, is not responsible for anything, and becomes of age at eighteen years; yet such a person is permitted to form foreign alliances, without even the knowledge of the nation, and to make war and peace without its consent.
But this is not all. Though such a person cannot dispose of the government in the manner of a testator, he dictates the marriage connections, which, in effect, accomplish a great part of the same end. He cannot directly bequeath half the government to Prussia, but he can form a marriage partnership that will produce almost the same thing. Under such circumstances, it is happy for England that she is not situated on the Continent, or she might, like Holland, fall under the dictatorship of Prussia. Holland, by marriage, is as effectually governed by Prussia, as if the old tyranny of bequeathing the government had been the means.
The presidency in America (or, as it is sometimes called, the executive) is the only office from which a foreigner is excluded, and in England it is the only one to which he is admitted. A foreigner cannot be a member of Parliament, but he may be what is called a king. If there is any reason for excluding foreigners, it ought to be from those offices where mischief can most be acted, and where, by uniting every bias of interest and attachment, the trust is best secured. But as nations proceed in the great business of forming constitutions, they will examine with more precision into the nature and business of that department which is called the executive. What the legislative and judicial departments are every one can see; but with respect to what, in Europe, is called the executive, as distinct from those two, it is either a political superfluity or a chaos of unknown things."
President Washington warned the nation about foreign attachment and influence. He warned about harboring feelings for one’s “favorite nation” at the expense of the United States. Here is an excerpt from Washington’s Farewell Address of 1796:
"Against the insidious wiles of foreign influence (I conjure you to believe me, fellow-citizens) the jealousy of a free people ought to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government...
***
Sympathy for the favorite nation, facilitating the illusion of an imaginary common interest, in cases where no real common interest exists, and infusing into one the enmities of the other, betrays the former into a participation in the quarrels and wars of the latter, without adequate inducement or justification. It leads also to concessions to the favorite nation, of privileges denied to others, which is apt doubly to injure the nation making the concessions; by unnecessarily parting with what ought to have been retained; and by exciting jealousy, ill-will, and a disposition to retaliate, in the parties from whom equal privileges are withheld.
And it gives to ambitious, corrupted, or deluded citizens, (who devote themselves to the favorite nation,) facility to betray or sacrifice the interests of their own country, without odium, sometimes even with popularity; gilding, with the appearance of a virtuous sense of obligation, a commendable deference for public opinion, or a laudable zeal for public good, the base or foolish compliances of ambition, corruption, or infatuation."
As we can see, Washington warned that a “passionate attachment of one nation for another, produces a variety of evils.” And surely Washington as well as the other Founders and Framers would not have wanted the President and Commander in Chief of the Military to also be weakened in his critical national decisions by any such foreign influence.
A law professor in the University of William and Mary, a judge of The General Court in Virginia, St. George Tucker also served as a major in the Revolutionary War and was present at the Battle of Yorktown. Yinger cites Tucker's Treatise on the Constitution (1803) as lending further evidence to the link between the natural-born citizen clause and foreign influence.
"The Federalist Papers do not mention the issue of presidential qualifications. However, a well-known treatise on the Constitution published in 1803, like Charles Pinckney's statement in the U.S. Senate in 1800, explicitly discusses the linkage between the "natural born citizen" clause and the need to avoid foreign influence. In particular, this treatise says:
That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence, which, wherever it is capable of being exerted, is to be dreaded more than the plague. The admission of foreigners into our councils, consequently, cannot be too much guarded against; their total exclusion from a station to which foreign nations have been accustomed to, attach ideas of sovereign power, sacredness of character, and hereditary right, is a measure of the most consummate policy and wisdom. It was by means of foreign connections that the stadtholder of Holland, whose powers at first were probably not equal to those of a president of the United States, became a sovereign hereditary prince before the late revolution in that country. Nor is it with levity that I remark, that the very title of our first magistrate, in some measure exempts us from the danger of those calamities by which European nations are almost perpetually visited. The title of king, prince, emperor, or czar, without the smallest addition to his powers, would have rendered him a member of the fraternity of crowned heads: their common cause has more than once threatened the desolation of Europe. To have added a member to this sacred family in America, would have invited and perpetuated among us all the evils of Pandora's Box."
Charles Pinckney of South Carolina was one of the delegates to the Constitutional Convention of 1787. He was not an ordinary delegate to the Convention. He carried with him to the Convention a set of draft provisions for the new constitution. He developed this draft through a thorough study of colonial laws and reference materials. Nearly one half (29 components out of 60) of the adopted United States Constitution follows Pinckney’s recommendations. Richart Bary, Mr. Rutledge of South Carolina, Ayer Company, Publishers, Inc., Salem NH, 1942. p. 314. Charles Pinckney was also the last of the Framers of the Constitution to remain in Congress. Speaking to the Sixth Congress, on the method by which the Congress certifies election of the President, Senator Pinckney, made clear that the Founders and Framers saw the office of the President to be an important office and sought to insulate the President to the greatest degree possible from foreign influence. He said:
"March 28, 1800
It was intended to give your President the command of your forces, the disposal of all the honors and offices of your Government, the management of your foreign concerns, and the revision of your laws. Invested with these important powers, it was easily to be seen that the honor and interest of your Government required he should execute them with firmness and impartiality . . .
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[T]o insure experience and attachment to the country, they have determined that no man who is not a natural born citizen, or citizen at the adoption of the Constitution, of fourteen years residence, and thirty-five years of age, shall be eligible. . . .
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[F]rom our rapidly increasing strength and commerce, from the enterprise of our citizens, and our particular maritime situation as it respects the West Indies, South America, and the Powers having possessions in both, it was easily to be seen, that in any conflict between these Powers, our friendship or hospitality must be of the greatest importance; that they therefore would never cease to interfere in our politics and endeavor to direct them in the manner most suitable to their own interests; that from the difficulty of influencing so large a body as Congress, and from the immense power of the President, not only over the laws, but foreign connexions of the Union, that their principal effort would be always to have one of their own friends chosen; and to effect this, no influence would be left untried.
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If an election is made by the Electors, and subject to no future control or revision on the part of Congress, then the end intended by the Constitution, of preventing the interference of foreign influence, is completely answered: for, elected as they are, and voting as the Electors must, the interference of foreign gold, or influence, is impossible. . . .
It is to be remembered, that around the seat of Congress will be placed all the open and accredited Ministers, as well as secret emissaries, of foreign Powers. Here too will be assembled the concealed leaders of domestic faction; all the arts and intrigues that have been used in Elective Governments in the Old World, will soon find their way among us; and if the Electors do not conceal their votes until the day appointed by law for opening them, and in case of no election by them, an immediate one by the House of Representatives does not take place, we shall soon have the scenes of Polish Diets and elections re-acted here, and in not many years the fate of Poland may be that of United America.
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Charles Pinckney in the United States Senate (March 28, 1800), The Records of the Federal Convention of 1787, editor Max Farrand, edit year 1911.
Justice Story, Associate Justice of the United States Supreme Court from February 3, 1812 to September 10, 1845, in his Commentaries on the Constitution of the United States (3 vols., 1833), tells us why the Framers included the grandfather clause:
"Volume 3, Sec. 1473.
It is indispensable, too, that the president should be a natural born citizen of the United States; or a citizen at the adoption of the constitution, and for fourteen years before his election. This permission of a naturalized citizen to become president is an exception from the great fundamental policy of all governments, to exclude foreign influence from their executive councils and duties. It was doubtless introduced (for it has now become by lapse of time merely nominal, and will soon become wholly extinct) out of respect to those distinguished revolutionary patriots, who were born in a foreign land, and yet had entitled themselves to high honours in their adopted country. A positive exclusion of them from the office would have been unjust to their merits, and painful to their sensibilities. But the general propriety of the exclusion of foreigners, in common cases, will scarcely be doubted by any sound statesman. It cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interposes a barrier against those corrupt interferences of foreign governments in executive elections, which have inflicted the most serious evils upon the elective monarchies of Europe. Germany, Poland, and even the pontificate of Rome, are sad, but instructive examples of the enduring mischiefs arising from this source. A residence of fourteen years in the United States is also made an indispensable requisite for every candidate; so, that the people may have a full opportunity to know his character and merits, and that he may have mingled in the duties, and felt the interests, and understood the principles, and nourished the attachments, belonging to every citizen in a republican government. By "residence," in the constitution, is to be understood, not an absolute inhabitancy within the United States during the whole period; but such an inhabitancy, as includes a permanent domicil in the United States. No one has supposed, that a temporary absence abroad on public business, and especially on an embassy to a foreign nation, would interrupt the residence of a citizen, so as to disqualify him for office. If the word were to be construed with such strictness, then a mere journey through any foreign adjacent territory for health, or for pleasure, or a commorancy there for a single day, would amount to a disqualification. Under such a construction a military or civil officer, who should have been in Canada during the late war on public business, would have lost his eligibility. The true sense of residence in the constitution is fixed domicil, or being out of the United States, and settled abroad for the purpose of general inhabitancy, animo manendi, and not for a mere temporary and fugitive purpose, in transitu."
Justice Story also wrote in his 1840 guidebook to the Constitution, A Familiar Exposition of the Constitution of the United States, about the natural-born-citizen clause: “It is not too much to say that no one, but a native citizen, ought ordinarily to be intrusted with an office so vital to the safety and liberties of the people.” Joseph Story (1840). A familiar exposition of the Constitution of the United States: containing a brief commentary on every clause, explaining the true nature, reasons, and objects thereof : designed for the use of school libraries and general readers : with an appendix, containing important public documents, illustrative of the Constitution. Marsh, Capen, Lyon and Webb. pp. 167 §269–271. http://books.google.com/books?id=Aew9AAAAIAAJ .
The Offices of President and Commander in Chief of the Military has so much domestic and foreign power that we can understand why Barack Obama would say before the 2008 election that the United States was only five days away from “fundamentally transforming” America. A narrow interpretation of the “natural born Citizen” clause is therefore warranted given its purpose and the enormous powers given to the President. They saw the “natural born Citizen” clause as a means by which to preserve and perpetuate the new republic by making sure as best they could that future presidents were faithful and loyal only to the United States and its republican principles. The Founders and Framers knew that the nation would be populated by many persons from foreign lands who would bring with them foreign ideas, cultures, customs, and loyalties. But for the sake of preserving and perpetuating the new republic, they also expected the person who was to assume the great and singular civil and military powers of the Office of President and Commander in Chief, be born in full and complete political and military allegiance and jurisdiction to the U.S. and free of any monarchical and foreign influence and allegiance to any other nation. To accomplish their goal, they would have used a citizenship clause that had a well-defined meaning and left no room for doubt.
For the Founders and Framers, it was all about allegiance and so they applied the “natural born citizen” concept as a basis to assure the President’s and Commander in Chief’s absolute and sole allegiance and loyalty from birth to the nation. In England, becoming King was hereditary and not tied to citizenship. A “natural born subject” who had no royal blood could never become King. The English therefore had no need to impose any strict safeguards for who could become a “natural born subject” for the sake of protecting the “office” of King. But in the new America, a constitutional republic with a representative form of government, the President was going to be elected from among its citizens. Hence, electing someone who the people could trust became critical. It only stands to reason that the Founders and Framers would eventually demand that the President, who was given both the highest executive civil and military power, hold the highest form of citizenship available. And that is what they did for those children born after the Constitution was adopted in 1787. While persons born before that date could because of necessity be “Citizens of the United States,” those born after that date had to be “natural born Citizens.” Indeed, Justice Story explained that the status of being a “citizen of the United States” as being sufficient to be eligible to be President “has now become by lapse of time merely nominal, and will soon become wholly extinct.” The highest form of citizenship would be one bestowed upon a child who under the law of nations was born with sole allegiance and loyalty to the United States, i.e., not born subject to any foreign power. The only way a child could be so born was to be born in the United States to “citizen” parents. Being born under such birth circumstances (jus soli and jus soli united and producing allegiance and citizenship only in the United States), the child would inherit U.S. citizenship from each one of his parents and acquire it from U.S. soil. Under such birth circumstances, no foreign allegiance could attach to the child at the moment of birth. Natural law and the law of nations called such a citizen a “natural born Citizen.” The Founders and Framers being avid followers of natural law and the law of nations understood this and so they demanded that future presidents be “natural born Citizen[s].”
The Founders and Framers put their ultimate trust in “the Laws of Nature and of Nature’s God” and not in the laws of mankind and human political and legal institutions. The Declaration of Independence, preamble. The “natural born Citizen” clause is a manifestation of this trust. Through this clause, the Founders sought to guarantee that the ideals for which they fought would be faithfully preserved for future generations of Americans. The Founders wanted to assure that the Office of President and Commander in Chief of the Military, a non-collegial and unique and powerful civil and military position, was free of all foreign and monarchical influence and that its holder had from birth sole and absolute allegiance, loyalty, and attachment to the United States. Indeed, the Founders and Framers demanded that a would-be President, born after the adoption of the Constitution, be born with sole allegiance to and unity of citizenship in the United States. The “natural born Citizen” clause was the best way for them to assure this birth circumstance.
Jay’s recommendation did make it into the Constitution. Article II, Section 1, Clause 5 of the Constitution provides in pertinent part: “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. . .” In this clause and in Articles I, III, and IV, the Framers distinguished between "Citizen of the United States" and "natural born Citizen." Per the Framers’ explicit command, while Senators and Representatives can be just “Citizens of the United States,” the President must be a "natural born Citizen." It is telling that of all the positions and offices the Framers provided for in the Constitution, only that of the President and Commander in Chief of the Military (and also the Vice President under the Twelfth Amendment) may be occupied only by a “natural born Citizen.” They therefore believed that this singular and all-powerful office was more vulnerable to foreign and monarchical influence than any other and they thereby sought to give it the most protection that they could. Given Jay’s recommendation to George Washington that there we a “strong check” against foreign influences affecting the administration of our government and specifically the commander in chief of our armed forces, the “natural born Citizen” clause must be interpreted in a manner to give it the strongest possible check on that foreign influence. Given the existing evidence which shows that this was the Founders’ and Framers’ goal for including the “natural born Citizen” clause in Article II, the clause can only be interpreted in a manner to accomplish that goal. This leads to the conclusion that the clause could have but one meaning which is a child born in the United States to citizen parents.
In fact, this is the definition confirmed in Minor v. Happersett, 88 U.S. 162, 167-68 (1875), which said that there have never been any doubts that this was the meaning of the clause. Minor said that “there have been doubts’ whether the children born in the United States to alien parents were “citizens.” The Minor decision was decided in 1875 or 87 years after the Constitution was adopted and as Justice Waite explained in that decision our nation still had doubts on whether children born in the United States to alien parents were even “citizens.” If American society still had doubts about whether these children were “citizens,” there is virtually no chance that it would have considered them “natural born Citizens.” We cannot reasonably imagine that the Framers would have used a standard for a person to meet in order to be eligible to be President and Commander in Chief of the Military which would have created doubts as to its meaning and which would therefore have put at risk the security and integrity of that critically important office. Surely, they would have relied on a definition that created no doubt which Minor explained was one that included that the child not only be born in the country, but that the child also be born to “citizen” parents. Indeed, as Minor explained, such a standard created no doubt. It was through the “natural born Citizen” clause that the Framers sought to accomplish the goal of protecting the Office of President and Commander in Chief of the Military from foreign and monarchical influence and providing a definition of national citizenship which the nation would have no difficulty to understand.
The importance of the “natural born Citizen” component of Article II, Section 1, Clause 5 can be seen when we consider the other eligibility requirements that the Founders and Framers included in that clause. There, the Founders and Framers provided that the President only had to be at least 35 years old and at least a 14-year resident within the United States. Based on these minimal requirements, a person could live for many years out of the United States and still be eligible to be President. But the Founders and Framers made up for the rather laxness of these other two requirements by requiring absolute and complete natural allegiance from birth through the “natural born Citizen” clause.
The “natural born Citizen” clause also provided a citizenship standard that was national in scope. In the colonies and after the revolution, the states each had their own rules for naturalizing newcomers to their territories. James H. Kettner, The Development of American Citizenship, 1608-1870, at 78 (1978). We know that the Founders and Framers sought to make uniform the rules of naturalization by giving Congress the power to do so in Article I, Section 8, Clause 4. Since “natural born Citizen” was going to be a citizenship standard for the President of the United State to meet, the Founders and Framers would have accepted nothing less than a standard which all the states would accept and by which to be bound. This need for uniformity in the national standard for citizenship probably explains why they wrote in Article II “natural born Citizen” and then later wrote “Citizen of the United States.” As we can see, they did not qualify “natural born Citizen” by following it with the words, “of the United States.” They only did that with the word “Citizen.” Since the states each treated their “subject” and “citizens” differently and had for quite a long time relied upon the English common law to define “subjecthood” to the state, the Founders and Framers allowed any person that was a “subject” or “citizen” of any state under the former English common law or under that state’s naturalization laws to be simply considered a “Citizen of the United States” and eligible to be President. But for those born after the Constitution was adopted, a national standard was to be applied and that was “natural born Citizen.” As we shall see, this new national standard did not follow the English common law definition of a “natural born subject.” Rather, this new standard which was based on natural law and the law of nations would now require absolute and undivided allegiance to the United States from the moment of birth.
IV. THE ENGLISH COMMON LAW VERSUS THE AMERICAN COMMON LAW UNDER THE LAW OF NATIONS
A. The English Common Law
There is no need to try to make the English common law say something that would make it consistent with how Emer de Vattel defined a “natural born Citizen.” To make “natural-born citizens,” Vattel required “citizen” parents which did not include any person who was simply an alien. The English common law for births in the King’s dominion did require “subject” parents, but such “subject” parents also included aliens in amity which were not so included in the United States. The correct approach is therefore to recognize that the English common law did not provide the rule of decision, but Vattel and the law of nations did. Hence, it does not matter how we define what “under the allegiance and obedience of the King” means. Such definition simply did not control the definition of a “natural born Citizen.”
Lord Coke in Calvin’s Case, Trinity Term, 6 James I, 14a (1608); the world-renowned, Emer de Vattel; the learned Vinerian Professors of English common law, William Blackstone (1758–1766) and Richard Wooddeson (1777–1793); and founder and jurist St. George Tucker, all recognized that mere birth in the country to alien parents under English common law conferred the birthright to naturalization at birth. We know from studying English legal history that England through its judge-made common law made “natural born subjects” out of children who were born to alien parents in the King’s dominion and under the King’s obedience and allegiance. Calvin’s Case, at 14a. But a careful analysis of this law shows that the courts actually naturalized these children at birth to be “natural born subjects.”
Naturalization at birth is that citizenship status obtained from a constitutional provision, statute, or judicial decision which removes from the moment of birth the alienage of a person, either inherited jus sanguinis from being born to an alien parent or acquired jus soli from being born outside the United States, and declares that person to be a “citizen of the United States” from the moment of birth. Being declared a “citizen of the United States” automatically from the moment of birth, the person does not have to take any further steps after birth to perfect his or her naturalization as does a person who is naturalized after birth.
Lord Coke is instructive in this regard when he said in Calvin’s Case: “Calvin the plaintiff naturalized by procreation and birth-right, since the descent of the Crown of England.” http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=911&chapter=106337&layout=html&Itemid=27 . Here, he told us that Calvin was naturalized at the time of his birth and had such right because he was born in the King’s dominion while under his allegiance. We need to understand that Parliament had refused for political reasons to naturalize persons like Calvin, a postnati, as he was born to alien parents in Scotland after Scottish King James IV in 1603 became King of England as James I. So, they left it up to the English courts to do so. Under English law, a child born anywhere in the world to British “natural born subjects” was himself a “natural born subject.” Calvin had to be naturalized because his parents were aliens. And he earned the right to be naturalized at birth because he was born within the King’s dominion (“by . . . birth-right”).
William Blackstone divided the people into “aliens, denizens, and natives.” 1 William Blackstone, Commentaries on the Laws of England, Book I, 366 (1765). He did not use the clause “natural born subject” in his nomenclature. He then stated that the “first and most obvious division of the people is into aliens and natural-born subjects.” Id. at 366. He considered all those born within the King’s dominions and within the allegiance of and therefore under his protection “natural born subjects.” Id. at 366; 373. He considered all aliens, if not ambassadors or military occupiers, present within the King’s dominions “subjects,” even without such alien taking any oath of allegiance or fealty. Id. at 369. They were “subjects” because they owed the King a local but temporary allegiance. Id. at 370. These aliens remained “subjects” and owed that temporary and local allegiance to the King as long as they continued to be physically present within his dominions. Id. These aliens owed the King that local but temporary allegiance because the King, while those aliens were physically present in his dominion, owed them protection. Id. He maintained:
"The “children of aliens, born here in England, are, generally speaking, natural-born subjects (8) [8 Unless the alien parents are acting in the realm as enemies; for my Lord Coke says, it is not caelum nec solum [[climate nor soil]], but their being born within the allegiance, and under the protection of the king. 7 Co., 18. a.], and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien. (9) [9 The late Vinerian professor informs us, that, ‘in this respect there is not any difference between our laws and those of France. In each country, birth confers the right of ‘naturalization.’ 1 Woodd. 386.]".
Id. at 373.
What is critical to understand about Blackstone’s reference to Wooddeson is that he actually said that in England, a child born to alien parents became a “natural born subject” by naturalization at birth and that France also allowed the same under its naturalization laws. In both countries, birth in its territory conferred the right to naturalization at birth. Hence, he agreed with Wooddeson that there really was no difference between the English common law and the French Constitution which treated children born in France to alien parents as aliens, but French laws then allowed those children to be naturalized at birth. Hence, the laws of both nations allowed children born in their territories to alien parents to become “subjects” or “citizens” by naturalization at birth. Professor Wooddson’s comment, which Blackstone cites and quotes approvingly in his footnote 9, shows that England, France, and eventually the United States, all provided for naturalization at birth for children “born within the jurisdiction” to alien parents. So, both Lord Coke in Calvin’s Case and William Blackstone in his Commentaries considered a child born in the King’s dominion and under his allegiance to alien parents to be a “natural born subject” by naturalization at birth.
Emer de Vattel in Section 214, entitled “Naturalisation,” confirmed this aspect of English common law when he said: “Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalises the children of a foreigner.” Vattel confirms at Section 214 of The Law of Nations that there can be “naturalisation” after birth and “at birth,” an expression used by Congress in its naturalization statutes. He first presented the procedure for naturalization after birth, explaining that it could occur by the power of the “nation,” a “sovereign,” or a nation’s “deputies,” exercised in favor of a “foreigner” after his or her birth. According to Vattel, the exercise of that naturalization power produced a “citizen.” It is important to keep in mind that he said “citizen” because in Section 212, he explained that the “natural-born citizens” are those born in the country to parents who are themselves “citizens” at the moment of the child’s birth. Then he explained that in England, there also existed naturalization from the moment of birth. He showed how that nation followed naturalization “at birth” without the need of other legal process after birth. Hence, Vattel explained that a child born in the country to alien parents, if given citizenship regardless of his or her parents not being “citizens” at the time of his or her birth, was by positive law naturalized “at birth” and therefore became a “citizen,” but not a “natural born Citizen.” Being naturalized, such a person was a “citizen,” but not a “natural born Citizen.”
So, Vattel would have considered Calvin to be a naturalized citizen from birth, not a Section 212 “native, or natural-born citizen.” Hence, Calvin could be a “natural born subject” under English common law, but he, being naturalized at birth by the power of jus soli, could not be a “natural born Citizen” under American common law, for the latter needed no naturalization at birth by any judicial or legislative act because of being born in the country to two “citizen” parents. So, the plain holding of Calvin’s Case is that a child born to alien parents in the dominion of the King was a naturalized “natural born subject.”
Calvin, if born under the same circumstances in the United States (i.e., born in the country to alien parents) after the adoption by the First Congress of the Naturalization Act of 1790 and before Wong Kim Ark would have been an alien for being born to alien parents. After Wong Kim Ark, he would have been a born “citizen of the United States” under the Fourteenth Amendment (as interpreted and applied by Wong Kim Ark) and 8 U.S.C. Sec. 1401(a). But Calvin, not being born to British subjects [U.S. “citizens”] and therefore needing naturalization at birth, could not be an Article II “natural born” Citizen.” Relying on Calvin’s Case (1608) and its “fundamental principle” of jus soli (subjectship/citizenship by being born on the soil of a nation) and producing the same result that the court did in that case when it “naturalized” Calvin “by procreation and birthright,” that is exactly what the U.S. Supreme Court did in U.S. v. Wong Kim Ark (1898) when it held that because of the Fourteenth Amendment Congress could not deny naturalization to anyone born in the United States and “subject to the jurisdiction thereof” and it in effect naturalized Wong to be a “citizen of the United States” from the moment of birth. In doing so, Wong Kim Ark also acknowledged the distinction between a “natural born” Citizen and a “citizen of the United States.”
Under a notion of broad allegiance, the English considered even an alien in amity to have allegiance to the King, although just local and temporary, but yet strong enough to make him or her a “subject” (Lord Coke in Calvin’s Case). Lord Coke considered any alien in amity who was present in England as having a duty under the law to give to the King local and temporary allegiance. This local and temporary allegiance which was imposed upon the alien by the law was enough to have Lord Coke consider that alien a “subject.” Lord Coke explained in Calvin’s Case: "Concerning the local obedience, it is observable, that as there is a local protection on the King’s part, so there is a local ligeance of the subject’s part.” Lord Coke referred to the alien physically present in his dominion, who owed the King a local ligeance and who in return for that local ligeance the King gave him protection as long as he stayed in his dominion, as a “subject.” Calvin’s Case, or the Case of the Postnati, Trinity Term, 6 James I (1608). http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=911&chapter=106337&layout=html&Itemid=27
So Blackstone explained that “generally speaking,” a child born in the King’s dominion to an “alien” was a “natural-born subject.” When we look beyond what was “generally speaking,” what Blackstone was really saying was that a child born in the King’s dominion to an “alien subject” was a “natural-born subject.” The one example he gives about alien enemies shows that those aliens were not “alien subjects.” And neither were “alien subjects” those persons who were foreign ambassadors, royalty, or any other type of enemy aliens. All other aliens who found themselves within the King’s dominion were “alien subjects” and if they gave birth to children in the King’s dominion, their children, having been born to “subjects” in the King’s dominion, were “natural-born subjects.”
More support for the existence of an “alien subject” under the English common law can be found in the words of Justice Joseph Story. U.S. v. Wong Kim Ark explained that Justice Story, in Inglis v. Sailors’ Snug Harbor, 28 U.S. 99 (1830), referring to Calvin's Case, Blackstone's Commentaries, and Doe v. Jones, said:
"Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto. There are some exceptions which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine. Thus, a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance; for he is still deemed under the protection of his sovereign, and born in a place where he has dominion in common with all other sovereigns. So the children of an ambassador are held to be [p660] subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince.
3 Pet. 155. "The children of enemies, born in a place within the dominions of another sovereign, then occupied by them by conquest, are still aliens." 3 Pet. 156.
Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto, are subjects by birth.”
3 Pet. 164."
Wong Kim Ark, 169 U.S. at 659-60.
So, Justice Story explained that “Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is.” Thus, it follows from what Justice Story explained that any “alien” who was in the King’s dominion and who owed allegiance and obedience to the King, had to be a “subject,” for only a “subject” owed the King allegiance and obedience. And since any person located in the King’s dominion, even if an alien, with the foreign ambassador and military invader exceptions, was a “subject” and therefore owed the King that allegiance and obedience, his children, born in the King’s dominion, were “natural-born subjects” of the King. So, yes, indeed, these persons to whom Justice Story and Justice Gray referred, giving birth to children in the King’s dominion, were “aliens,” but also de facto “subjects,” which made them “alien subjects.”
Obama’s supporters point to this quote from Coke as proving that a person could be either a “subject” or an “alien” and give birth to a “natural born subject” in the King’s dominion. Hence, they maintain that one did not have to be a “subject” to give birth to a “natural born subject.” Coke said:
"And it is to be observed, that it is nec coelum, nec solum, neither the climate nor the soyl, but ligeantia and obedientia that make the subject born: for if enemies should come into the realm, and possess a town or fort, and have issue there, that issue is no subject to the King of England, though he be born upon his soyl, and under his meridian, for that he was not born under the ligeance of a subject, nor under the protection of the King."
Calvin’s Case.
From this quote, Obama’s supporters maintain that “not born under the ligeance of a subject” and “not born under the protection of the King” are two separate and distinct clauses with each having its own meaning, with the former applying only to “subjects” and the latter applying only to “aliens.” As such, they maintain that the latter is not subsumed within the former and vice versa. From this they argue that one did not have to be a “subject” under English common law in order to give birth to a child in the King’s dominion who was considered a “natural born subject,” for one could simply be an “alien” and be under the protection of the King. But their attempt to create an “alien” who was physically present in the King’s dominion who was not a “subject” of the King, but was under his protection, and who could give birth to a child in the King’s dominion who was considered a “natural born subject” has no merit.
There is no difference between “those born under the ligeance of a subject” and those “born under the protection of the King.” The focus of the former clause was on “ligeance” or what was also called allegiance or obedience, not “subject,” which is what they contend. What is meant by this clause is any “subject” located in the King’s dominion, even if an “alien,” owed the King allegiance or obedience. So if a child was born to such an “alien” who was in effect a “subject” who owed the King allegiance and obedience, that child was “born under the ligeance of a subject.”
The focus of the latter was “protection,” not “alien,” which is what they contend. In fact, the word “alien” does not even appear in the second clause. Under English common law, all those who were physically present in the King’s dominions were entitled to his protection, unless they were enemy aliens or foreign ambassadors, royalty, or military invaders. These persons, while in the King’s dominion as “aliens,” were also “subjects” of the King, for they owed the King allegiance, obedience, faith, and loyalty which only a King’s “subject” could owe him. In return for that allegiance and obedience, the King gave these “alien subjects” protection. So, if a person got protection from the King while present in his dominion, that person had to be a “subject” of the King. In contradistinction, the King could not expect such allegiance and obedience from enemy aliens or foreign ambassadors, royalty, or military invaders. Hence, these persons were not his “subjects” and were not entitled to his protection.
Lord Coke, William Blackstone, Justice Joseph Story, Justice Gray in Wong Kim Ark, and others all said that allegiance and protection go together. “The doctrine of the common law is that every man born within its jurisdiction is a subject of the sovereign of the country where he is born, and allegiance is not personal to the sovereign in the extent that has been contended for; it is due to him in his political capacity of sovereign of the territory where the person owing the allegiance as born.” Wong Kim Ark, 169 U.S. at 663 (citing and quoting Kilham v. Ward (1806), 2 Mass. 236, 265). If one gave allegiance to the King, the King gave one protection. If the King gave one protection, he could expect one to give him allegiance. Hence, allegiance could not exist without protection and protection could not exist without allegiance. If both allegiance and protection were inextricably intertwined, having a “dual and reciprocal tie” (Coke in Calvin’s Case), how could one be born with allegiance to the King, but without protection from him or with protection from the King, but without allegiance to him? So “every man” that was present in the King’s dominion and who was within his power to control was the King’s “subject” and owed the King allegiance, in return for which the King gave him protection. If one was a “subject” (apart from natural born subjects and naturalized subjects, included all aliens present in his dominion except foreign ambassadors, diplomats, and military invaders) one owed the King allegiance for which he got protection from the King. If one was not a “subject,” one did not owe the King allegiance and the King in turn did not owe that person protection. Since the “alien” parent present in the King’s dominion was considered a “subject,” which compelled him to give allegiance to the King, his child born in the King’s dominion was considered as being born within that same allegiance to the King and therefore a “natural born subject.” So, not being “born under the ligeance of a subject” and not being “born under the protection of the King,” are two different way of saying the same thing. One expression does not have meaning that the other does not have and Obama’s supporters cannot articulate any.
So, these Obama supporters attempt to create a dichotomy between “subjects” and “aliens,” each represented by these clauses, but there is no evidence that these clauses created such a distinction between those two terms. Rather, there is no distinction between “subject” and “aliens” to be found in the clauses and both clauses really mean the same thing, both focusing on allegiance and protection, both of which were tied together and possessed by all “subjects” of the King, whether “natural born subjects,” naturalized subjects, or just aliens in amity. So if one was “born under the ligeance of a subject,” he had to also be “born under the protection of the King.” It could not be any other way. Therefore, there is no difference between the two clauses.
There are several exceptions in the English common law to jus soli subjecthood/citizenship, e.g., parents who were foreign diplomats or military invaders. Lord Coke in Calvin’s Case gave us his military invader example: “But if Enemies should come into any of the king’s dominions and surprise any Castle or Fort, and [18 b] possess the same by hostility, and have issue there, that issue is no subject to the king, though he be born within his dominions, for that he was not born under the king’s ligeance or obedience.” Id. at 18a-18b. These exceptions actually confirm the general doctrine that all aliens in amity while physically present in the King’s dominion were the King’s “subjects.” The aliens who fell within these exceptions did not owe the King any allegiance, obedience, faith, or loyalty and were therefore not his “subjects.” But all other aliens in amity located within his dominion did owe him that allegiance and obedience, were under his power and jurisdiction, which made them his “subjects” and for which he owed them protection.
Obama’s supporters attempt to get around the “alien in amity/subject” problem by saying that these aliens were not “subjects” of the King, but rather only “subject to” the King’s jurisdiction and laws. There is not merit to this argument. First, the English common law used the clause “natural born subject,” not “natural born subject to.” Second, Justice Gray’s own statement in Wong Kim Ark informs us that these aliens in amity “were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English sovereign.” Hence, they were much more than just “subject to” the King’s jurisdiction and laws. They were actually within his allegiance, obedience, faith, and loyalty, and in return received the King’s protection. Having these obligations and duties to the King, they were the King’s “subjects.” So under the English common law, if an alien was “subject to” the King jurisdiction and laws, he was a “subject” of the King.
Chancellor Kent was wrong when he said that the parents’ “political condition or allegiance” was irrelevant under the English common law to make a “native.” 2 Kent Com. (6th ed.) 39, 42. As we can see, Justice Gray informed us that the parents’ political condition and allegiance mattered much. After all, how can we say that a person who owes to a sovereign allegiance, faith, and loyalty for which he receives protection from that sovereignty does not have a political relationship with that sovereign? Such a statement would be contradictory.
B. The American Common Law Under The Law of Nations
So if the Founders and Framers did not adopt the English common law to define a “natural born Citizen,” what law did they adopt to accomplish that purpose? After the American Revolution, there was a significant change in the new republic as to who was and who could become a member of the new republic. After the revolution and the new American society was created, we no longer used the English common law to define our national citizenship. The American Revolution severed the "Political Bands" that connected the United States with Great Britain. With that dissolution, came a different philosophy of law. The Founders and Framers abandoned the English common law and replaced it with the law of nations as our national law. The new republic no longer followed the doctrine of broad allegiance used by the English common law, that broad allegiance reaching as far as to consider “aliens” within the King’s dominion a “subject” of the King. The English common law continued to have selective application until abrogated by state legislatures only in the states. This was done to maintain order in the states and not to revert to a state of nature. But on the national level as our Constitution explains at Article III, it was only the “Constitution, the Laws of the United States, and Treaties” that provided the rules of decision on the national law. The law of nations was adopted as part of our national law (see Article I, Section 8, Clause 10), but the English common law was not. With the American Revolution, being in the allegiance of the king meant one thing, but being in the allegiance of the United States meant another. Under the latter new standard, in order for a child’s parents to also be in the allegiance of the United States at the time of the child’s birth, they had to be more than just aliens in amity. Now, they had to be actual U.S. “citizens.” As we shall see below, even the Civil Rights Act of 1866 required that the child be born in the United States and “not subject to any foreign power” which could only be accomplished if the child’s parents were U.S. “citizens.” This revolutionary change was eloquently explained by our U.S. Supreme Court in Inglis v. Sailors’ Snug Harbor, 28 U.S. 99 (1830) and Shanks v. Dupont, 28 U.S. 242, 245 (1830), which defined our new national citizenship after July 4, 1776 and said that a child inherits the citizenship of his or her parents.
In Inglis, the majority, which included Chief Justice John Marshall, cited Vattel on the right of election to change one’s allegiance and thus citizenship in the context of the new nation being formed after revolution. Court explained how with the America Revolution, concepts of citizenship had changed in the United States. The Court said that no longer was America going to be guided by English notions of broad allegiance. Rather, there had been created a new society with a new government in America and now citizenship would be determined under different standards. In explaining this change to the American political society, the Court said:
"This question as here presented, does not call upon the court for an opinion upon the broad doctrine of allegiance and the right of expatriation, under a settled and unchanged state of society and government. But to decide what are the rights of the individuals composing that society, and living under the protection of that government, when a revolution occurs; a dismemberment takes place; new governments are formed; and new relations between the government and the people are established."
Id. at 120.
With that new political society in mind, the first thing that the Court did was explain how the United States did not follow the English common law notion of perpetual allegiance. The majority, which included Chief Justice John Marshall, cited Vattel on the right of election to change one’s allegiance and thus citizenship in the context of the new nation being formed after the revolution.
The American “common-law” and naturalization and citizenship acts did not consider any type of alien physically present on U.S. soil to be a “citizen” (a “subject”). The U.S. Supreme Court in Minor v. Happersett (1875) explained what it meant to be a U.S. “citizen.” It said:
"There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an [p166] association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association. He owes it allegiance and is entitled to its protection. Allegiance and protection are, in this connection, reciprocal obligations. The one is a compensation for the other; allegiance for protection and protection for allegiance. . . . When used in this sense it [citizen] is understood as conveying the idea of membership of a nation, and nothing more.
To determine, then, who were citizens of the United States before the adoption of the amendment it is necessary to ascertain what persons originally associated themselves together to form the nation, and what were afterwards admitted to membership."
Id. at 165-66. The Court explained that a “citizen” was someone who voluntarily associated with other like-minded persons for the purpose of forming the new nation. They associated together to form that nation so as to promote their general welfare. These persons voluntarily chose to become members of the new nation. The Court then added that “[a]dditions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization.” Id. at 167. So if one was not an original “citizen,” one could become a “citizen” either by birth or through naturalization which made one a “citizen” after birth.
So, in the United States, an alien, no matter what his circumstances may have been, could not be a “citizen of the United States” unless he naturalized. This is a critical difference from the English common law, for in the United States, an alien could not beget a “citizen of the United States,” let alone a “natural born Citizen.” An alien had to be naturalized to be a “citizen of the United States” in order to beget a “citizen of the United States” (when the child was born out of the United States) or a “natural born Citizen” (when the child was born in the United States). Hence, unlike the English who considered even "aliens" as "subjects" of the King, in the United States, we have never allowed any "alien" to be considered a "citizen" without satisfying our common law and immigration and naturalization laws.
Another case which demonstrates how our nation defined U.S. citizenship before the Civil Rights Act of 1866 and the Fourteenth Amendment was passed is Benny v. O’Brien, 586 N.J.L. 36, 29 Vroom 36, 32 A. 696 (1895). The lower court in Benny, relying on Elk v. Wilkins, 112 U.S. 94 (1884), had ruled that a child born in the United States to domiciled alien parents was not a “citizen of the United States” under the Fourteenth Amendment, but the New Jersey Supreme Court, again being concerned that generation of persons would lose their right to vote if it affirmed the lower court, reversed and held a person born in the United States to permanently domiciled alien parents was a “citizen of the United States” under the Fourteenth Amendment. The person whose citizenship was in question was not an American Indian, but rather a local politician who was born in 1867 in Brooklyn, New York to a father who was born in Scotland and never naturalized. Also note that the New Jersey Supreme Court as Minor had said in 1875 explained that in the absence of the Civil Rights Act and the Fourteenth Amendment, children born in the United States to “citizen” parents were themselves “citizens” by virtue of their birth.
In Benny, the Supreme Court of New Jersey explained that children born in the United States to alien parents were born subject to a foreign power but that “it will never be conceded by our government that such persons are subject to any foreign power, so as to exclude them from the right to citizenship intended to be conferred upon persons born in this country by the first section of the civil rights bill of April 9, 1866, hereinbefore referred to.”
The court held:
“Allan Benny, whose parents were 'domiciled here at the time of his birth, is subject to the jurisdiction of the United States, and is not subject to any foreign power. The right of our government to his allegiance on the one hand, and its duty to protect him on the other hand, cannot be denied if in any case birth here is to be of controlling force under the aforesaid act and amendment, for, in the absence of their provisions, children born here of parents who are citizens are themselves citizens in virtue of their birth.”
The court added:
“Persons intended to be excepted are only those born in this country of foreign parents who are temporarily traveling here, and children born of persons resident here in the diplomatic service of foreign governments. Such children are, in theory, born within the allegiance of the sovereign power to which they belong, or which their parents represent.”
The court explained that children born in the United States to domiciled alien parents were “citizens of the United States” by virtue of the Civil Rights Act of 1866 and the Fourteenth Amendment. The court did not say that such children were “citizens” by virtue of the common law. The court also excluded from citizenship children born to aliens who were temporarily in the United States. This was not the English common law which accepted even alien parents who were temporarily visiting in the King’s dominion as able to produce “natural born subjects.” The court added that children born in the United States to “citizen” parents were “citizens” “in virtue of their birth.” In other words, no law was needed to make the latter children “citizens.” We know from Minor that these children born in the country to “citizen” parents were the “natural-born citizens.”
The court said:
"The object of the fourteenth amendment, as is well known, was to confer upon the colored race the right of citizenship. It, however, gave to the colored people no right superior to that granted to the white race. The ancestors of all the colored people then in the United States were of foreign birth, and could not have been naturalized, or in any way have become entitled to the right of citizenship. The colored people were no more subject to the jurisdiction of the United States by reason of their birth here than were the white children born in this country of parents who were not citizens.
***
The same rule must be applied to both races, and unless the general rule that, when the parents are domiciled here, birth establishes the right to citizenship is accepted, the fourteenth amendment has failed to accomplish its purpose, and the colored people are not citizens. The fourteenth amendment, by the language, "all persons born in the United States and subject to the jurisdiction thereof," was intended to bring all races, without distinction of color, within the rule, which, prior to that time, pertained to the white race."
Benny explained that prior to the Civil Rights Act of 1866 and the Fourteenth Amendment, children born in the United States to alien parents, despite being born in the country, were not considered to be born “subject to the jurisdiction” as much as black children born in the United States to black parents. If these children were not born “subject to the jurisdiction” of the United States, they could not be either “natural born Citizens” or “citizens of the United States.” Hence, prior to the act and amendment, children born in the United States to alien parents could be neither “natural born Citizens” nor “citizens of the United States.” Because of the act and amendment, the court ruled that children born in the United States to domiciled alien parents were born “subject to the jurisdiction” of the United States and therefore “citizens of the United States” by virtue of the Civil Rights Act of 1866 and the Fourteenth Amendment. In Benny, we have a clear statement from the New Jersey Supreme Court of what birthright citizenship was in the United States before the Civil Rights Act of 1866 and the Fourteenth Amendment. This was not the jus soli English common law rule.
So we can see that aliens in the United States after the Constitution was adopted were neither treated as nor did they become U.S. “citizens” until they naturalized under an Act of Congress to become a “citizen of the United States.” Under American “common-law,” anyone giving birth to a child in the United States had to be a “citizen” in order for that child to be born a “natural born citizen.” Minor v. Happersett (1875). Under that same “common-law,” any alien physically present in the United States did not automatically become a “citizen,” even if not a foreign diplomat or a military invader. Rather, under U.S. naturalization acts, that alien had to take affirmative steps defined by those acts to become a “citizen of the United States.” Those persons who were not “citizens” and who should come into the United States, only if those persons became a “citizen” under the naturalization laws which included taking an oath renouncing all foreign allegiance and accepting only that of the United States did person owe allegiance to the United States and thereby become a “citizen of the United States.” It was not sufficient for one to be simply present on U.S. soil to be treated as a “citizen.” Rather, one had to naturalize in order to become a “citizen of the United States” and to give birth to a “natural born Citizen” child.
Just for this reason alone, and there are many more, the Founders and Framers did not use the English common law and its “natural born subject” to define an Article II “natural born Citizen.” A child born in the country to alien parents (not diplomats or military invaders), who were not even “natural born subjects” or even “naturalized subjects,” was a “natural born subject” in England under the English common law. But as Coke explained in Calvin’s Case (1608), such a “natural born subject” was in reality naturalized at birth. Vattel in The Law of Nations (1758), at Section 214 which covers the subject of “Naturalisation,” explained how the English naturalized persons at birth born in the English country to alien parents when he said: “Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalises the children of a foreigner.” In the United States, at no time have we ever allowed a naturalized “citizen,” when correctly recognized as such, to be a “natural born Citizen.” Moreover, in the United States, since aliens in amity have never been considered “citizens,” before the Civil Rights Act of 1866, the Fourteenth Amendment, Benny, and Wong Kim Ark, a child born in the United States to alien parents was considered an alien and not even a “citizen of the United States.”
So if it was not the English common law which controlled the definition of national citizenship, which law was it? The historical record shows that the law of nations became American national law which the U.S. Supreme Court considered as “common law.” Blackstone explained that
“[T]he law of nations (wherever any question arises which is properly the object of it’s [sic] jurisdiction) is here adopted in it’s [sic] full extent by the common law, and is held to be a part of the law of the land. And those acts [sic] parliament, which have from time to time been made to enforce this universal law, or to facilitate the execution of it’s [sic] decisions, are not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the kingdom; without which it must cease to be a part of the civilized world."
William Blackstone, Commentaries on the Laws of England, Book 4, Chapter 5 Of Offenses Against the Law of Nations (1769). http://ebooks.adelaide.edu.au/b/blackstone/william/comment/book4.5.html .
The Constitution itself provides very convincing evidence of the law of nations becoming part of the supreme law of the land. The Founders and Framers expressly incorporated the law of nations into the Constitution at Article I, Section 8, Clause 10 and thereby made it a part of Article III “Laws of the United States” and under Article VI a part of our supreme law of the land.
There is other evidence that Congress considered the law of nations as national law as it did its treaties. Congress actually incorporated the law of nations into its act concerning torts against aliens. The text of the Alien Tort Statute, 28 U.S.C. Section 1350, as it appeared in the Judiciary Act of 1789, Ch. 20, § 9(b), 1 Stat. at 76-77, reads: “[The District Courts] shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States” (emphasis added). The ATS as it is currently codified provides: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”
Indeed, that law of nations became national law and was even taught well into the nineteenth century at our major law schools as such. What our nation’s law schools taught regarding citizenship is a significant factor in discovering what our nation considered to be our national law and how our nation defined our national citizenship under that law. Our law schools taught Vattel and the law of nations as being part of our “national law.” Jefferson explained how after the Revolution the curriculum of study was changed at the College of William and Mary in Virginia, our nation’s first law school. Thomas Jefferson, Notes on the State of Virginia 161 (1787). He showed how professorships, which had been fixed by charter and not able to be altered , were changed to include various law subjects. One of the new subjects taught was the “Law of Nature and Nations.” It is worthy to note that we do not see listed the study of the English common law. Id. at 161. When Jefferson inaugurated the study of the Law of Nature and Nations at William and Mary College in 1779, the text from then until 1840 was Vattel's, The Law of Nations. There is reason to believe that Vattel’s treatise was taught at William and Mary earlier than at any other college in America. There is also in the college library a copy of the laws published, somewhere about 1803, in which Vattel is named as a text-book. Professor and Judge Beverly Tucker was Professor of Law at the prestigious College of William and Mary in Virginia from 1833 to 1851. In his law lectures on “National Law” at William and Mary College, he included discussions on Vattel and his, The Law of Nations. Vattel was also the text at Dartmouth College from 1796-1828.
The historical record also demonstrates that the Founders and Framers would have relied upon the law of nations for their definition of a “natural born Citizen.” The Founders and Framers believed that the first duty of any nation and its people is the duty of self preservation. They specifically sought the preservation of republican government. Apart from their reliance on the spiritual, they looked to both universal and positive law to accomplish that end. The historical record is replete with information showing that the Founders, Framers, and early political leaders looked to the law of nations for help in preserving the new nation and solving the many national problems with which they were faced during the early years of the republic. Indeed, while the States continued to apply the English common law to solve their local legal problems, the national political leaders did not look to the English common law for needed solutions on the national level. Rather, they looked to the law of nations which they saw as universal law. They also considered the law of nations to be common law and a part of the supreme law of the land that was binding on the nation. Simply stated, the English common law never became the national law of the United States. But the law of nation did become national law. And it would have been that national law and not the English common law which would have provided the rules of decision for defining an Article II “natural born Citizen.”
The historical record shows that the Founders and Framers relied heavily upon Vattel and his treatise in justifying the Revolution and in writing the Constitution. Vattel, through his master treatise, The Law of Nations (1758), whose first English edition was printed in 1759, presented the law of nations to the Founders and Framers. Both the French and English editions made their way to the colonies before the American Revolution. Editions were received at both Harvard College and at the Library Company of Philadelphia. There is no doubt that great use of Vattel and the law of nations was made by the Continental Congress when devising policy for our nation and by the Framers who sat in the constitutional convention in writing the Constitution. The Constitution, by incorporating it through Article I, Section 8, Clause 10, expressly recognizes the law of nations as being a part of the law of the land. See Thomas Willing Balch, The Beginnings of International Law, in 20 Publications of the Colonial Society of Massachusetts, Colonial Society of Massachusetts 2 (1920) (gives the history of how Vattel’s treatises made their way to the American colonies and the influence they had on the Continental Congress in formulating its policies and the framers when drafting the Constitution). http://books.google.com/books?id=FD4-AAAAYAAJ&pg=PA5&dq=law+of+nations+de+vattel+english+translation+1773&hl=en&ei=sOauTML9FI6ksQOegsHyCw&sa=X&oi=book_result&ct=book-thumbnail&resnum=3&ved=0CD0Q6wEwAg#v=onepage&q=law%20of%20nations%20de%20vattel%20english%20translation%201773&f=false .
In 1784, Alexander Hamilton, as the lawyer for the defense, arguing in the case of Rutgers v. Waddington (1784), quoted prolifically from Vattel’s, The Law of Nations. The Waddington case shows how Vattel shaped Hamilton’s thinking. Hamilton argued that the law of nations was part of the common law and that the decisions of the New York Legislature must be consistent with the law of nations. Hamilton used Vattel as the standard for defining the law of nations. Hamilton argued that state law was superseded by national law and the law of nations. He also argued that the intent of the state legislature had to be that their laws be applied in a fashion that was consistent with national law and the law of nations. Judge James Duane in his ruling described the importance of the new republic abiding by the law of nations, and explained that the standard for the court would be Vattel. He ruled that the New York statue passed under the color of English common law must be consistent with the law of nations. Hamilton espoused a concept of constitutional law which he obtained from the teachings of Vattel. It was Vattel that gave him the idea of the judicial branch of government making sure that both the legislative and executive branches follow the Constitution. It was Hamilton’s views on Vattel that lead to the creation of judicial review which was included into the Constitution and which was later given prominence by Chief Justice John Marshall in Marbury v. Madison. It was Vattel’s idea of what the purpose of government should be (promote commerce, revenue, agriculture, tranquility, happiness, stability, and strength) that Hamilton advocated to the convention delegates in 1787. Hence, there is no doubt that Vattel shaped the founding of the United States.
In Respublica v. De Longchamps, 1 U.S. 111 (Pa. Ct. of Oyer & Terminer 1784), the Pennsylvania criminal trial court, when stating what law applied to the defendant’s charged offenses of threatening behavior and assault and battery upon a French public minister, said: “This is a case of first impression in the United States. It must be determined on the principles of the law of nations. This law, in its full extent, is part of the law of this State, and is to be collected from the practice of different Nations, and the authority of writers.” Id. at 114. The Attorney General argued that the law of nations “compose a part of the law of the land.” Id. 113. This case is important because it was decided in the early years of our republic and it gives us insight into the laws to which the legal community was looking in order to resolve legal matters. The court made a statement that generally the law of nations was considered a part of law of Pennsylvania. The Attorney General went even further and said that it was “a part of the law of the land.” Neither the court nor the Attorney General said that the law of nations applied in Pennsylvania or “as part of the law of the land” only in matters related to public ministers. Rather, their statements were sweeping as to the broad applicability of that law across the United States. And who were these “writers” on the law of nations to whom the court was referring? The historical record shows that there are several of them. Hence, we can reasonably infer that the Founders and Framers also would have relied upon the law of nations and these same writers when looking to identify and apply the law of nations. We have seen who these writers were. For the Founders and Framers, the most influential were Pufendorf, Burlamaqui, Locke, and Vattel. As we have seen, the most influential of these writers was Emer de Vattel.
We have a letter from George Mason to Arthur Lee, dated Philadelphia, May 21, 1787, which stated:
“I arrived in this city on Thursday evening last, but found so few of the deputies here from the several States that I am unable to form any certain opinion on the subject of our mission. The most prevalent idea I think at present is a total change of the federal system, and instituting a great national council or parliament upon the principles of equal, proportionate representation, consisting of two branches of the legislature invested with full legislative powers upon the objects of the Union; and to make the State legislatures subordinate to the national by giving to the latter a negative upon all such laws as they judge contrary to the principles and interest of the Union; to establish also a national executive, and a judiciary system with cognizance of all such matters as depend upon the law of nations, and such other objects as the local courts of justice may be inadequate to. . . .”
Rowland, Life of George Mason, II, 102-103; Max Farrand, The Records of the Federal Convention of 1787, ed. Max Farrand (New Haven: Yale University Press, 1911). Vol. 3. Accessed from http://oll.libertyfund.org/title/1787 on 2009-12-02. George Mason continued:
"The common law, sir, has prevented the power of the crown from destroying the immunities of the people. We are placed in a still better condition -- in a more favorable situation than perhaps any people ever were before. We have it in our power to secure our liberties and happiness on the most unshaken, firm, and permanent basis. We can establish what government we please. But by that paper we are consolidating the United States into one great government, and trusting to constructive security. You will find no such thing in the English government. The common law of England is not the common law of these states. I conceive, therefore, that there is nothing in that Constitution to hinder a dismemberment of the empire."
George Mason, July 19, 1788. http://www.constitution.org/rc/rat_va_16.txt . Here we see, the "Father of the Bill of Rights," a “Founding Father,” explicitly tells us that the judicial system was going to be set up to handle matters arising under the law of nations and other matters not handled by local courts. He did not say that the English common law would be consulted. In fact, he said: “The common law of England is not the common law of these states.”
In 1789, the Continental Congress expressly resolved that the United States would cause the “‘law of nations to be strictly observed.’” 14 Journals of the Continental Congress 1774-1789, at 635 (1909), cited in Harold Hongju Koh, Is International Law Really State Law? 111 Harv. L. Rev. 1824-25 (1998).
In 1792, the supremacy of the law of nations within the United States was affirmed by Chief Justice McKean in Ross v. Rittenhouse:
"The Congress on the 15th of January, 1780, resolved (inter alia) 'that the trials in the Court of Appeals be according to the usage of nations, and not by Jury.' This has been the practice in most nations, but the law of nations, or of nature and reason, is in arbitrary states enforced by the royal power, in others, by the municipal law of the country; which latter may, I conceive, facilitate or improve the execution of its decisions, by any means they shall think best, provided the great universal law remains unaltered. "
Ross v. Rittenhouse, 2 U.S. 160, 162 (1792).
On May 22, 1793, John Jay delivered a grand jury charge to the grand jury in Richmond, Virginia. Here is part of Jays charge to that grand jury:
"It is an observation no less useful than true, that nations and individuals injure their essential interests in proportion as they deviate from order. By order I mean that national regularity which results from attention and obedience to those rules and principles of conduct which reason indicates and which morality and wisdom prescribe. Those rules and principles reach every station and condition in which individuals can be placed, and extend to every possible situation in which nations can find themselves.
Among these rules are comprehended the laws of the land, and that they may be so observed as to produce the regularity and order intended by them, courts of justice were instituted whose business it is to punish offences and to render right to those who suffer wrong.
To inquire into and present those offences is the duty which the law generally imposes upon you, and, as there is a national tribunal having cognizance only of offences against the laws of the United States, your inquiries and presentments are to be confined to offences of that description.
The Constitution, the statutes of Congress, the laws of nations, and treaties constitutionally made compose the laws of the United States.
***
It may be asked who made the laws of nations? The answer is he from whose will proceed all moral obligations, and which will is made known to us by reason or by revelation."
John Jay, Charge to Grand Jury, Richmond, Virginia, May 22, 1793, 3 The Correspondence and Public Papers of John Jay 1782-1793, at p. 478-80 (ed. H.P. Johnston 1891), accessed at http://books.google.com/books?id=ElB2AAAAMAAJ&jtp=478#v=onepage&q&f=false .
Upon independence from Great Britain, the United States "were bound to receive the law of nations, in its modern state of purity and refinement. Ware v. Hylton, 3 Dall. 199. 199, 281 (1796). Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) ("an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains"). So if the law of nations had a preeminent role in interpreting Congressional Acts, it also would have had one when interpreting the Constitution. Chief Justice Marshall again considered the law of nations in The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812). Because the Court found the case to explore "an unbeaten path" it "found it necessary to rely much on general principles," and turned to the practice of the civilized nations and the writings of Vattel and Bynkershoek for guidance. Id. at 136, 137, 143-46. In The Nereide, 13 U.S. 388, 423 (1815), Chief Justice John Marshall stated that the “Court is bound by the law of nations, which is part of the law of the land.” Even William Blackstone recognized the importance of the law of nations which he considered "universal law" and the life blood of a nation wanting to be part of the "civilized world." 4 W. Blackstone, Commentaries on the Laws of England 67 (1769).
Michael D. Ramsay tells us how important the law of nations was to the Founding generation and that it even became part of the “Laws of the United States” in Article III. He explains:
"In particular, the constitutional generation acknowledged a set of international rights and duties, which they called the ‘law of nations,’ arising outside of U.S. law and yet binding, in at least some senses, on the United States. The Constitution’s text itself acknowledged such a system, giving Congress power to ‘define and punish … offenses against the law of nations.’ Moreover, the existence of this law formed a central tenet of Enlightenment legal and political writing, on which eighteenth-century Americans heavily relied. 3 [Footnote 3 E.g., 1 William Blackstone, Commentaries on the Laws of England 43 (1765); Emmerich de Vattel, Droit des Gens [Law of Nations] (Joseph Chitty ed. 1852 (1758). See Peter Onuf & Nicholas Onuf, Federal Union, Modern World: The Law of Nations in an Age of Revolutions, 1776-1814, at 11 (1993). See Arthur Nussbaum, A Concise History of the Law of Nations 150-64 (rev. ed. 1954)]. It is not implausible that, when the Framers spoke of “laws,” they meant the law of nations as well as statutory law. *** Although it was not implicitly incorporated into Article VI, it was an implicit part of the law federal courts could use as a rule of decision under their “judicial power,” conveyed by Article III, Section 1."
Michael D. Ramsey, The Law of Nations as a Constitutional Obligation http://www.law.georgetown.edu/internationalhrcolloquium/documents/Ramsey Paper.doc. (Provides many historical sources and much case law showing how committed the Founders and Framers were to the law of nations during the yearly years of the nation. Ironic for President Obama, Mr. Ramsey concludes that the President has a duty to comply with the law of nations). See also, Jordan J. Paust, In Their Own Words: Affirmations of the Founders, Framers, and Early Judiciary Concerning the Binding Nature of the Customary Law of Nations, University of California, Davis Vol. 14:2, p. 205 (2008) (provides an exhaustive list of case law, authorities, and other sources showing that the Founders and Framers saw the people, Congress, the President, and the States to be bound by the law of nations and considered the law of nations as part of the “Laws of the United States”); Steven Calabresi and Stephanie Dotson Zimdahl, The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision, 47 Wm. & Mary L.Rev. 743 (2005), http://scholarship.law.wm.edu/wmlr/vol47/iss3/3 . There are numerous other authorities that state that the law of nations became the national law of the United States. “The courts have always considered the law of nations to be part of the law of the United States.” M. J. Glennon, Constitutional Diplomacy (Princeton, NJ: Princeton University Press 1990), at 245. Indeed, The Law of Nations was widely read and cited in revolutionary America. Akhil Reed Amar, America’s Constitution: A Biography, p. 27 (Random House 2005). Hence, the law of nations, when not codified into any Act of Congress, became the common law of the United States and its national law.
The Founders and Framers did not look to Vattel only in a general way on natural law and the law of nations, but also specifically for their definition of a “natural born Citizen.” Those who argue that the Founders and Framers relied upon the English common law to define a “natural born Citizen” contend that it would appear fanciful to contend that the Founders and Framers in using terms in the U.S. Constitution disregarded the meanings those terms had in English common law, the law in the American colonies, and subsequently in all of the states in the United States after independence, in favor of secretly using, without explanation, a French-language treatise written by some “Swiss guy” on international law. What these persons are really doing here is appealing to our sense of nationalism, suggesting that we should be offended with the notion that some foreign law would determine who is eligible to be President in the United States. They are really telling us that if we apply a parent citizenship component in the definition of an Article II “natural born Citizen” that we are allowing foreign law to determine who is a “natural born Citizen” and therefore who is eligible to be President and that the Founders and Framers would never had allowed that, especially without telling us. This argument is meritless.
The Founders and Framers did not view the law of nations as some “international” or “foreign” law. They believed that the law of nations was nothing more than the law of nature applied to the affairs of nations. This concept was well-explained by Emer de Vattel. Locke’s views on citizenship was echoed by Emer de Vattel, who told us that natural law when applied to nations became the law of nations. Vattel, in his The Law of Nations, Sec. 122, in defining what a country is, explained it
"signifies the state, or even more particularly the town or place, where our parents had their fixed residence at the moment of our birth. . . . A man ought to preserve gratitude and affection for the state to which he is indebted for his education, and of which his parents were members when they gave him birth. But as various lawful reasons may oblige him to chuse another country,--that is, become a member of another society; so, when we speak in general of our duty to our country, the term is to be understood as meaning the state of which a man is an actual member."
Id. Section 122. We see Vattel spoke here of a “man” and “his parents.” There is little doubt that Vattel gave importance to both parents of a child and not just the father.
He also defined citizenship in Sec. 212 Citizens and natives, where he explained:
"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 the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of he children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country."
Vattel, in Section 215, also told us that place of birth produced no change in a child’s citizenship, provided the child’s father had not quitted his country and become a member of that foreign land. Vattel maintained that by the law of nature alone children followed the conditions of their “fathers.” He did recognize that a nation could pass “civil or political laws” which could alter the citizenship status of a child born out of the country. He said that these laws trumped natural law and had to be followed. In interpreting Vattel’s passages, we need to keep in mind that when Vattel wrote, the wife’s citizenship followed that of her husband’s, so when he spoke of “father” or “fathers,” in effect he was speaking of father and mother. We can see that Vattel maintained that a child followed the condition of his parents. Hence, the child had no capacity to acquire any allegiance or citizenship different from that of his or her parents regardless of where he or she was born. Vattel did add that the child was free upon reaching the age of majority to decide whether he or she would keep the citizenship that was given to him or her by his or her parents or join a different society and select that society’s citizenship.
The 1797 English translation of Vattel in Section 212 used the words, “native” and “natural born Citizen.” We saw above that Paine explained that the president in America
The Founders and Framers were influenced by natural law as much as Locke was. They were also influence by natural law applied to nations which became the law of nations. They adopted this law as national law for the United States. When it came to studying the law of nations, they relied upon Vattel more than any other publicist. The law of nations that they came to know by studying Vattel defined a “natural born Citizen” as a child born in the country to citizen parents. Vattel, Section 212. Such a definition of citizenship, grounded on the child’s parents and requiring sole and absolute allegiance to the nation from birth, fit their idea of republican government. As we shall see below, this fundamental definition of membership or “citizenship” in a republic was adopted by Minor v. Happersett, 88 U.S. 162, 165-68 (1875).
During the 1789 Ramsay-Smith congressional debate on whether Representative William Smith was at least a “Citizen of the United States” for seven-years so as to be eligible to be a representative under Article I, Section 2, Smith relied upon Vattel to show that he was such a “citizen.” Smith argued that he was a “citizen.” Smith did not refer to the English common law to show that he was a “citizen of the United States” for the requisite 7 years. Rather, he cited Emer de Vattel for support and said he did not have enough money to come back to America. In his own defense William Smith quotes Emer de Vattel:
"The Doctor [Ramsay] says the circumstances of birth do not make a citizen–This I also deny. Vattel says: “The country of the father is that of the children and these become citizens by their tacit consent.” I was born a Carolinian [before the Declaration], and I defy the Doctor to say at what moment I was disenfranchised. The revolution which took place in America made me a citizen, though then resident at Geneva…. There was never a moment when I was a citizen of any other country."
So we can see that William Smith, during a debate on the floor of the House of Representatives in 1789, cited Emer de Vattel in defense of his own citizenship to show that he was eligible to be a Representative of the United States under our Constitution.
Smith argued that Vattel provided: "The country of the father is that of the children and these become citizens by their tacit consent." Madison said: "Mr. Smith founds his claim upon his birthright; his ancestors were among the first settlers of that colony." The case for Vattel's "citizen" was clearly made. Smith, in defining his own citizenship did not mention the English common law, but rather looked to Vattel and the law of nations.
David Ramsay (April 2, 1749 to May 8, 1815) published, A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789). Ramsay 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 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 essay, while not using the phrase “natural born Citizen,” Ramsay described the original citizens that existed during the Founding and what it meant to acquire citizenship by birthright after the Founding. The Constitution itself shows that the Framers called the original citizens “Citizens of the United States” and those that followed them “natural born Citizens.” 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. Here, Ramsay referred to “natural right,” which ties into the Framers’ use of the clause “natural born Citizen.” By focusing on citizenship that occurs by “natural right,” Ramsay distinguished citizenship that occurs naturally versus citizenship that occurs by operation of law. But Ramsay also explained that there is an “immense” difference between a British “subject” and a United States “citizen,” with the former being “under the power of another” and the latter being “a unit of mass of free people, who, collectively, posses sovereignty.” He informed that “Republics, both ancient and modern, have been jealous of the rights of citizenship.” He then explained that the “original citizens” of the United States were those who were parties to the Declaration of Independence and thereby adhered to the revolutionary cause. It is evident from his writing that in defining a “citizen of the United States” and a “natural born Citizen,” Ramsay did not look to English common law but rather to natural law, the law of nations, and Vattel, Sec. 212. Ramsay’s dissertation presents valuable evidence of how the Founding generation defined the original citizens and the future generation of citizens which the Framers called “natural born Citizens.” It is valuable because it is evidence of the public meaning of these terms at the time they were framed and ratified, if not among the general population then at least among those learned in the law. For further information on David Ramsay and the “natural born Citizen” clause, see my essay at this blog entitled, Founder and Historian David Ramsay Defines a Natural Born Citizen in 1789.
Supreme Court Justice James Wilson wrote in 1791:
"English law has its roots in Anglo-Saxon customs, which were too firmly established to be completely broken by the Norman Conquest and still form the basis of their common law today. In 1068, having at last reduced the country to submission, William set to work to establish a Roman government on a firm and lasting basis. Roman law, the legal system of ancient Rome is now the basis of civil law, one of the main European legal systems. . . .
I know that the term citizen is often applied to one of the more numerous party—to one of the people: and I shall be obliged to take the description of a citizen from the character which he supports as one of the people. But you will easily perceive, that the same person may, at different times, act or be viewed in different characters; and though his description be taken from one of them, the account of his duties and of his rights too may, on a particular occasion, be referred to the other. This I have chosen to do, rather than to introduce an unknown phrase, or to use a known phrase in a new signification. Besides, the expression is frequently employed also in the sense in which I now use it. “Generally speaking,” says the great political authority, Aristotle, “a citizen is one partaking equally of power and of subordination.”
A citizen then—to draw his description as one of the people—I deem him, who acts a personal or a represented part in the legislation of his country. He has other rights ; but his legislative I consider as his characteristic right. In this view, a citizen of the United States is he, who is a citizen of at least some one state in the Union: for the members of the house of representatives in the national legislature are chosen, in each state, by electors, who, in that state, have the qualifications requisite for electors of the most numerous branch of the state legislature. In this view, a citizen of Pennsylvania is he, who has resided in the state two years; and, within that time, has paid a state or county tax: or he is between the ages of twenty one and twenty two years, and the son of a citizen. . . . You will be pleased to hear, that, with regard to this as well as to many other subjects, we have renewed, in our governments, the principles and the practice of the ancient Saxons."
James Wilson, 1st Commentaries on the Constitution.
Supreme Court Justice James Wilson was both a signer of the Declaration of Independence and the Constitution. He was very influential in drafting of the Constitution. Needless to say, Justice Wilson was a highly influential Founder and Framers. Pennsylvania also passed an English common law reception statute but it did not define its citizenship under that English common law. Here, Wilson explained that the concept of a “citizen” that the Founders and Framers used was taken from the “ancient Saxons” who took it from the Roman republic. He explained that the current “character” of a “citizen” was confusing and could mean different things in different places and moments. He was looking for a clear definition which would provide the least amount of confusion possible. He explained that he did not want to introduce a new word which no one would know what it meant. He also did not want to use a phrase that was well know and then try to explain that it had a different meaning. In this latter case, we can reasonably presume that he was referring to a “natural born subject,” which was the common term used in the colonies and already had its established meaning under English common law. Clearly, he told us that the “character” of the new American citizen was not going to be like the “natural born subject” and that the term was not going to be used so as to avoid confusing matters even worst. He went on to say that the term “citizen” was already being used in the new sense given to the term. He also referred to citizenship as defined by Aristotle. Wilson then went on to define this new citizen or who he called “one of the people.” As “one of the people,” his necessary defining characteristic, among the various rights that he had, was that he acts in a personal or representative capacity to legislate for the nation. Hence, we can see from Wilson, a main Founder and Framer and signer of both the Declaration of Independence and the Constitution, that the Framers and Founders did not adopt the English common law or the definition of a “natural born subject” under that law to define a “citizen of the United States” and a “natural born Citizen” of the new republic but rather relied upon natural law and the law of nations which had its origins in the Greek and Roman republics.
We saw that Justice Wilson referred to citizenship as defined by Aristotle. Examining how Aristotle defined citizenship gives us insight into how Wilson would have defined it. In “Politics, Book Three, Part II, Aristotle, writing in 350 B.C.E., as translated by Benjamin Jowett, gave us his definition ofcitizenship:
"Part II
But in practice a citizen is defined to be one of whom both the parents are citizens; others insist on going further back; say to two or three or more ancestors. This is a short and practical definition but there are some who raise the further question: How this third or fourth ancestor came to be a citizen? Gorgias of Leontini, partly because he was in a difficulty, partly in irony, said- 'Mortars are what is made by the mortar-makers, and the citizens of Larissa are those who are made by the magistrates; for it is their trade to make Larissaeans.' Yet the question is really simple, for, if according to the definition just given they shared in the government, they were citizens. This is a better definition than the other. For the words, 'born of a father or mother who is a citizen,' cannot possibly apply to the first inhabitants or founders of a state.
There is a greater difficulty in the case of those who have been made citizens after a revolution, as by Cleisthenes at Athens after the expulsion of the tyrants, for he enrolled in tribes many metics, both strangers and slaves. The doubt in these cases is, not who is, but whether he who is ought to be a citizen; and there will still be a furthering the state, whether a certain act is or is not an act of the state; for what ought not to be is what is false. Now, there are some who hold office, and yet ought not to hold office, whom we describe as ruling, but ruling unjustly. And the citizen was defined by the fact of his holding some kind of rule or office- he who holds a judicial or legislative office fulfills our definition of a citizen. It is evident, therefore, that the citizens about whom the doubt has arisen must be called citizens."
http://classics.mit.edu/Aristotle/politics.html. Here we can see that Aristotle did not define citizenship like the English did in the English common law. Aristotle included in the definition of a “citizen” birth to “citizen” parents, which is what was handed down through the millennia in the law of nations.
Another important Founder and jurist to examine regarding the question of the meaning of a “natural born Citizen” is St. George Tucker. Tucker was born in Bermuda on July 10, 1752, and died on November 10, 1827 in Virginia. He studied law at the College of William and Mary in 1771 under George Wythe, who also taught law to Thomas Jefferson and John Marshall, and served as chief justice of Virginia. He was fluent in French. He also fought in the Revolutionary War. He became a lawyer in 1775, a law professor at the College of William and Mary, and a judge of Virginia's highest court. As we shall see below, being a law professor at the College of William and Mary is also an important factor in understanding what Tucker’s view would have been on the meaning of a “natural born Citizen.” St. George Tucker wrote in 1803: “The spirit of monarchy is war, and the enlargement of dominion; peace and moderation is the spirit of a republic.” http://www.history.org/foundation/journal/summer08/republican.cfm . Upon President James Madison’s nomination, in 1813 he became a federal district judge for Virginia. He denounced slavery as a contradiction to the American ideal of freedom and an immorality. In 1796, he wrote and published the pamphlet "A Dissertation on Slavery: With A Proposal for the Gradual Abolition of It in the State of Virginia.” Tucker “was arguably the most important American legal scholar of the first half of the nineteenth century.” Paul Carrington, The Revolutionary Idea of University Legal Education, 31 Wm. & Mary L.Rev. 527, 540 (1990). Davison M. Douglas, Foreword: The Legacy of St. George Tucker, 47 Wm. & Mary L.Rev. 1111 (2006) (same), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1758861 . "Tucker established a virtual dynasty of legal and constitutional talent that carried on Jeffersonian principles through successive generations." Clyde N. Wilson, ed., Views of the Constitution of the United States x (Indianapolis: Liberty Fund 1999) (foreword) p. viii (1803). An article which shows what influence St. George Tucker had regarding interpreting and understanding the Constitution is one written by Kurt T. Lash, "Tucker's Rule": St. George Tucker and the Limited Construction of Federal Power, 47 Wm. & Mary L. Rev. 1343 (2006), http://scholarship.law.wm.edu/wmlr/vol47/iss4/8 ; http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1242&context=wmlr (explores Tucker’s view of federalism, called Tucker’s Rule, which was that the state’s maintained their sovereignty and reserved powers despite having become part of the union under the Constitution). Further information on St. George Tucker may be read at: http://www.history.org/almanack/people/bios/biotuck.cfm.; http://en.wikipedia.org/wiki/St._George_Tucker .
Regarding citizenship and the right to be elected President, Tucker said:
"The right of electing, and being elected to, any public office or trust, may be considered as among the most important of these rights. These civil rights may be inherited, or acquired, in the United States: they are acquired by a foreigner who is naturalized; they are inherited by all whose parents, at the time of their birth, were citizens. *** Persons naturalized according to these acts, are entitled to all the rights of natural born citizens, except, first, that they cannot be elected as representatives in congress until seven years, thereafter. Secondly, nor can they be elected senators of the United States, until nine years thereafter. Thirdly, they are forever incapable of being chosen to the office of president of the United States. Persons naturalized before the adoption of the constitution, it is presumed, have all the capacities of natural born citizens. See C. U. S. Art. 1, 2."
St. George Tucker, Blackstone’s Commentaries Volume 2, Book 1, Chapter 1 (1803).
Given that the Founders and Framers wrote in Article II, Section 1, Clause 5 that a person born after the adoption of the Constitution must be a “natural born Citizen” to be eligible to be President, clearly they expected that person to inherit the right to be elected President at birth. Only a child who was not naturalized could inherit such rights. Since that right could only be inherited at birth and Tucker told us that “civil rights” (which included the right to be elected President) are inherited by a child by being born to “citizen” parents, a child could inherit the “civil right” to be elected President only by being born to “citizen” parents. Tucker explained that coming to possess “civil rights” other than by inheriting them by being born to “citizen” parents meant the person acquired those rights through naturalization. He also said that any person who was naturalized was forever barred from being eligible to be President. This means that the only way a child could inherit the “civil right” to be elected President was to be born to “citizen” parents. And only by being born to “citizen” parents could one be a “citizen” from the moment of birth and not be a naturalized “citizen” after birth. So, for Tucker only a child born to “citizen” parents was not a naturalized “citizen” and could therefore inherit the right to be elected President. For Tucker a “natural born Citizen” could only be a child born to “citizen” parents. Tucker (America’s Blackstone) was one of the greatest legal minds of our Founding period. He would have known how the people of the founding period and the Founders and Framers themselves defined a “natural born Citizen.” He provided no other point of view on the definition of a “natural born Citizen.” This means that the Founders and Framers were unanimous on the definition. Tucker’s writing in his Commentaries, which was his treatise on how American law differed from English law, is incontrovertible evidence that the Founders and Framers understood that only a child born to “citizen” parents could be a “citizen” who was not naturalized and therefore a “natural born Citizen.”
Another founder to consider in our quest to discover the meaning of a “natural born Citizen” is Alexander McLeod (1774-1833), who was born in Scotland in 1774 and came to America in 1792. He gave a sermon to the Christian community entitled, A Scriptural View of the Character, Causes, and Ends of the Present War (2nd ed. 1815), http://books.google.com/books?id=kLUTAAAAYAAJ&pg=PA170&dq=%22doctrine+of+allegiance+%22+inauthor:McLeod&hl=en&ei=IXH_TcfHH4rk0QHpt5zKAw&sa=X&oi=book_result&ct=result&resnum=1&ved=0CCoQ6AEwAA#v=onepage&q=%22doctrine%20of%20allegiance%20%22%20inauthor%3AMcLeod&f=false . In this sermon, he denounced the English monarchy as cruel, unjust, and ungodly. Writing concerning the War of 1812, he explained that the United States had every right to go to war with Britain because of its violation of Americans' right to life, liberty, and property. Among other things, he denounced England’s attachment to perpetual allegiance and how England used the concept to enslave American citizens to whom it laid claim and its own subjects. He argued that a person, being born equal and free, has a natural right to expatriation from his or her native country. He explained that allegiance and protection are the essence of any society. He said that members of society give their allegiance to a society in return for that society’s protection. He explained that being born on a piece of land does not create allegiance to a society. He said that it is being born to parents who are members of that society that creates the true bond that morally connect the child to that society and best provides for the preservation of that society. McLeod stated:
“3. Allegiance and protection are reciprocal; and 'protection is the foundation upon which the claim of allegiance rests. When the foundation is removed, the edifice falls of course.
I readily admit, that there is something in the idea of native country, which is intimately connected with the doctrine of allegiance. It is not, however the spot of earth, upon which the child is born, that connects him with the national society; but the relation of the child's parents to that society.
In the ordinary concerns of life there is no need of such minute distinctions; and there is too little discrimination, exercised by the greater part of men, to be able to understand it. Even statesmen art not always wise; and designing men find it their interest to keep up a confusion of ideas upon important subjects. In the present discussion, nevertheless, it is necessary, that I distinctly state the true bond, which connects the child with the body politic. It is not the inanimate matter of a piece land, but the moral relations of his parentage. Let a child be born within the walls of a church, that does not make him a church member; but if the parent or parents be in connexion with the church, so is the offspring. Visible society, as it is provided for in the constitution of human nature, naturally seeks to perpetuate its own existence, by conferring upon children the membership of their parent. Each citizen too is supposed to reserve for his off spring the benefits of society. The Governor of the universe approves of this provision. Thus it is, that the country of the father is that of the child, and not because he happened to be born in its territory. Residence produces an attachment. Education cherishes affection for the scenes of early life; but only moral relations lay the foundation for moral obligation. It is the enjoyment of the privileges of society, that lays the foundation for obedience to its authority. It follows from this, that protection being the end of civil government, the sovereign has no other claim upon the allegiance of the subject, than what arises from the protection which he affords. As is the protection which I ask and receive, so is the fealty which I owe. If I ask none, I am under no allegiance: If I receive none, I have nothing to return. It is the very essence of despotism to claim authority over me without an equivalent.* . . . .
* " By the law of nature alone, children follow the condition of their fathers, and enter into all their rights. The place of birth produces no change in this particular—for it is not naturally the place of birth that gives rights, but extraction. Children born at sea—out of the country—in the armies of the state-in the house of its ministers at a foreign court, are reputed native citizens. Every man, born free, may examine whether it be convenient for him to join in the society for which he was destined by his birth. If he finds that it will be of no advantage to him to remain in it, he is at liberty to leave it."
Vattel, Sec. 216—220.”
Id. at 170-71.
Here we see how McLeod relied upon natural law and the law of nations to describe who Vattel called a “natural born Citizen.” What is telling is that he cited and quoted Vattel. We also witness McLeod arguing as Vattel did in The Law of Nations that society has a duty to preserve itself and that it does so “by conferring upon children the membership of their parent.” Hence, McLeod like Vattel said that a “natural born Citizen” is a child born to citizen parents. McLeod also cited and quoted from Vattel and holy scripture to support his argument that man has a natural right to expatriate. Id. at 171-80. McLeod, being a Presbyterian pastor, was a man of religion. http://www.covenanter.org/McLeod/alexandermcleod.htm . He also said that God provided the definition that he gave of such a citizen. This statement is important given that the Founders and Framers had very strong religious convictions. In fact, the Founders and Framers saw natural law and the law of nations as having a divine source. It cannot be doubted that someone like McLeod gives us true insight into how the Founders and Framers defined a “natural born Citizen.”
Our law schools (e.g., College of William and Mary which was our nation’s first law school) taught Vattel and the law of nations as being part of our “national law” and even provided lectures on and explanation of Vattel’s concepts of citizenship. Professor and Judge Beverly Tucker was Professor of Law at the prestigious College of William and Mary in Virginia from 1833 to 1851. In his law lectures on “National Law” at William and Mary College, he explained the meaning of Vattel’s Chapter 19 and specifically Section 212 of his The Law of Nations, which covered the definitions of “citizen” and “natural-born citizen” under natural law and the law of nations. Our law schools did not teach that the English common law defined our national citizenship.
Several U.S. Supreme Court and lower court cases specifically cited and quoted or paraphrased Vattel and his Section 212 definition of a “natural-born citizen.” Cases that cited and quoted Vattel for the definition of a “natural born Citizen” are The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (C.J. Marshall concurring) (cited and quoted Vattel’s Section 212 definition of a “natural-born citizen”); Dred Scott v. Sandford, 60 U.S. 393 (1857) (J. Daniels concurring) (cited and quoted Vattel’s Section 212 definition of a “natural-born citizen”); Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879) (cited and quoted Vattel’s Section 212 definition of a “natural-born citizen”); and United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (cited and quoted Vattel’s Section 212 definition of a “natural-born citizen”). Cases that paraphrased his definition are Inglis v. Sailors’ Snug Harbor, 28 U.S. 99 (1830) (a child inherits the citizenship of his parents); Shanks v. Dupont, 28 U.S. 242, 245 (1830) (a child inherits the citizenship of his parents); In Barry v. Mercein, 46 U. S. 103 (1847) (“child, though born in the United States during his father’s temporary residence therein – twenty-two months and twenty days – not withstanding its mother be an American citizen, is not a citizen of the United States. It is incapacitate by its infancy from making any present election, follows the legeance of its father, partus sequitur patrem, and is a British subject-argument of counsel); Slaughterhouse Cases, 83 U.S. 36, 73 (1873) (“The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States."); Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (said that the Founders and Framers were familiar with the “common-law” definition of a “natural-born citizen” which was “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”; the American “common-law” definition that the Court gave was a paraphrase of Vattel’s Section 212 definition of a “natural-born citizen” and not that of the English common law’s definition of a “natural born subject” and thus confirming the applicability in the United States of the maxim partus sequitur patrem) and Wong Kim Ark, 169 U.S. at 708 (cited and quoted Minor and its Vattel paraphrased American “common-law” definition of a “natural-born citizen”).
The Venus is highly relevant to the question of how the Founders and Framers defined a “natural born Citizen.” Chief Justice John Marshall was a Founder, Framer, and an influential U.S. Supreme Court Justice. He would have known how the people during the Founding defined a "natural born Citizen." In The Venus, he used Vattel Section 212 to define a "native" or "indigenes," which have the same meaning as "natural born Citizen." In The Venus, Chief Justice Marshall could not have been talking about anyone other than a "natural born Citizen." He even cited and quoted Vattel's The Law of Nations, Section 212, which defines the "natives" or "indigenes," later translated to the "natives, or natural-born citizens." In fact, these terms were later translated to "native" and "natural born citizen" in the 1797 English version of The Law of Nations, Section 212, and by Justice Daniels in his concurring opinion in Dred Scott (1857), and by Minor and Wong Kim Ark. There is no "citizen" other than a “natural born Citizen” who Marshall defined under Vattel’s Section 212.
Prior to Wong Kim Ark, which defined a Fourteenth Amendment “citizen of the United States” and not an Article II “natural born Citizen,” neither Marshall nor any other Supreme Court Justice in the majority used the English common law to define U.S. citizenship. Marshall confirmed the American "common law" definition of a "natural born Citizen" to be a child born in the country to parents who were "citizens" of the country at the time of the child's birth. This same American "common law" definition of a “natural born Citizen” was repeated in Inglis, Shanks, Dred Scott, Minor, and Wong Kim Ark. What Chief Justice Marshall said, which occurred near the time of the adoption of the Constitution, is very relevant to our understanding of the meaning of the “natural born Citizen” clause and presidential eligibility, for today only a “natural born Citizen” is eligible to be President.
In Inglis v. Sailors’ Snug Harbor, 28 U.S. 99 (1830), the Court explained how the new national citizenship changed from what state citizenship had been under English common law. The Court found on principles consistent with Vattel’s jus sanguinis and not on the English common law rule of jus soli, that simply being born in New York, after July 4, 1776 and before September 15, 1776, when the British took possession of New York, was not sufficient to establish one’s status as an American citizen, for a child of minor years is incapacitated from making any citizenship election but rather followed the citizenship held or chosen by the father. The majority of the Court held:
"2. If born after the 4th of July 1776, and before the 15th of September of the same year, when the British took possession of New York, his infancy incapacitated him from making any election for himself, and his election and character followed that of his father, subject to the right of disaffirmance in a reasonable time after the termination of his minority; which never having been done, he remains a British subject, and disabled from inheriting the land in question."
Id. 136 and 164.
On the contrary, relying upon principles of the English common law, Justice Story, who wrote a separate minority concurring opinion, would have found the child born in New York during the same time period a citizen of the State of New York or American citizen, respectively, regardless of the citizenship of his parents. Id. 136 and 164. But the majority rejected Justice Story’s minority view. This case shows what the majority rule was on citizenship and that it followed the Vattelian doctrine that a child when born took on the national character of his or her father (meaning father and mother under the doctrine of merger of the wife’s citizenship into the husband) and did not acquire his or her citizenship from the territory in which he or she was born. And guess what, Obama’s supporters cite and quote Justice Story’s minority view and completely ignore the majority decision of the Court.
Justice Story, who is considered a very influential jurist in American history, wrote the opinion in Shanks v. Dupont, 28 U.S. 242, 245 (1830). When he wrote that opinion, he had already written his minority opinion in Inglis. Given what he wrote in his majority opinion in Shanks, he no longer followed his minority view that he expressed in Inglis. In Shanks he used the rule of citizenship that the majority in Inglis had accepted. He found that Ann Scott was a citizen of the South Carolina, for she inherited “the citizenship of her father; for children born in a country, continuing while under age in the family of the father, partake of his national character, as a citizen of that country. . . .” This rule for citizenship is exactly what Vattel wrote in The Law of Nations. Here is what Justice Story said:
"Whether she was of age during this time does not appear. If she was, then her birth and residence might be deemed to constitute her by election a citizen of South Carolina. If she was not of age, then she might well be deemed under the circumstances of this case to hold the citizenship of her father; for children born in a country, continuing while under age in the family of the father, partake of his national character, as a citizen of that country."
Id. at 245.
Here, Justice Story actually provided the same rule for citizenship as did Vattel in Section 212 of The Law of Nations but did not cite him. Note that Justice Story speaking for the Court in stating the citizenship rule that applied to children did not distinguish whether the child was born in the United States or out of it. Rather, he said that “children born in a country” simply followed the nationality of the father. “[A] country” signifies the universality of the rule and that it did not matter what country it was. Rather, what controlled was the citizenship of the father, which at that time under the prevailing rule that the wife acquired the citizenship of her husband upon marriage, meant both that of the father and mother. We can see that this statement of what constitutes citizenship followed what Jefferson had written in his Virginia citizenship statutes. There is absolutely no connection to the English common law in his rule for determining citizenship. This American “common-law” rule was also followed by early Congress when it wrote the early naturalization acts (1790, 1795, 1802, and 1855) which treated children born in the U.S. to alien parents as aliens and those born out of the United States to “citizen” parents as “citizens of the United States.” These laws clearly show that Congress adopted the “common-law” rule that children followed the citizenship of their parents.
The separate concurring minority opinion of Justice Johnson is also instructive. Justice Johnson said:
"By an act of the state passed in 1712, the common law of Great Britain was incorporated into the jurisprudence of South Carolina. In the year 1782, when this descent was cast, it was the law of the land, and it becomes imperative upon these appellants after admitting that their parent was a native born citizen of South Carolina, daughter of a native born citizen of South Carolina, to show on what ground they can escape from the operation of these leading maxims of common law. Nemo potest exuere patriam -- and proles sequitur sortem paternam."
Id. at 252. Here we see that Justice Johnson not only accepted indelibility of allegiance (“Nemo potest exuere patriam”—“no man can renounce his own country.” Black’s Law Dictionary 936 (5th ed. 1979)) but also the maxim that the children follow the condition of their parents (“proles sequitur sortem paternam”—“the offspring follows the condition of the father.” Black’s Law Dictionary 1091 (5th ed. 1979)). So, having adopted this maxim that children followed the condition of their father, there is no way that Justice Johnson would have ruled that a child born in the United States to alien parents, was a “Citizen of the United States” from birth.
As we can see from what the Courts stated, these cases clearly did not follow the English common law to define U.S. citizenship. Obama supporters tell us that these cases do not count because they defined citizenship during the revolutionary period. For us to accept their position on these cases requires that we also accept the notion that magically when the revolution was over at some undefined moment in time we somehow returned to applying the English common law to define our national citizenship without the same Supreme Court or even Congress ever telling us anything about it. Obama’s supporters are not able to tell us just how this judicial policy worked, a policy that used jus sanguinis (citizenship inherited from one’s parents) to resolve the case and then through some unstated mechanism was supposed to use jus soli (citizenship acquired from the place of one’s birth) in the future. Clearly, the supporters’ position on the meaning of these authoritative cases finds no support from any historical or legal source. There is no qualification in what the Court said in Inglis and Shanks. They did not say that the rule that children follow the condition of their parents applied for a limited time during the revolution and that at some point in time the Court would revert to being guided by the English common law on questions of national citizenship. Inglis said that “new governments are formed; and new relations between the government and the people are established.” That new government and new relations between the government and the people was permanent, not just temporary during the revolution. Hence, the new rules of citizenship and expatriation would continue to apply as long as that new government and relation continued.
The understanding of some in the legal profession as to what a “natural born Citizen” was in 1847 is reflected in this argument of counsel in the case of In Barry v. Mercein, 46 U. S. 103 (1847). The Court dismissed the family-law based action for lack of subject matter jurisdiction. Counsel for appellant John A. Barry, the British natural born subject who brought the action to get custody of his minor daughter who was born in New York to him and his U.S. “citizen” mother, argued:
"4. The plaintiff in error being of legeance to the crown of England, his child, though born in the United States during his father’s temporary residence therein – twenty-two months and twenty days – not withstanding its mother be an American citizen, is not a citizen of the United States. It is incapacitate by its infancy from making any present election, follows the legeance of its father, partus sequitur patrem, and is a British subject. The father being domiciled and resident within the dominions of Her Britannic Majesty, such is also the proper and rightful domicil of his wife and child, and he has a legal right to remove them thither. The child being detained from the father, its natural guardian and protector, without authority of law, and writ of habeas corpus ad subjiciendum is his appropriate legal remedy for its restoration to him from its present illegal detention and restraint. Constitution United States, art. 3, sec. 2; Judiciary Act, 1789, sec. 11; Inglis v. Trustees Sailor’s Snug Harbor, 3 Peters, 99; 7 Anne, cap. 5; 4 Geo. III. cap. 21; Warrender v. Warrender, 2 Clar. & Fin. Ap. Ca. 523; Story’s Confl. Laws, 30, 36, 43, 74, 160; Shelford on Marriage, Ferg. Rep. 397, 398."
We can see that legal counsel relied upon the jus sanguinis rule of citizenship of the law of nations, Vattel, and the American common law, and not the jus soli rule of the English common law. Counsel argued that the child was not only not a “natural born Citizen,” but not even a “citizen of the United States.” Of course, arguments of counsel are not law and not binding in any way. But still, they do demonstrate what the understanding of some in the legal profession was at any given time in question.
The argument of counsel in Barry was addressed under different circumstances by the unanimous U.S. Supreme Court in Minor v. Happersett, 88 U.S. 162, 167-68 (1875). Minor confirmed that the law of nations became part of our American or national “common-law” when it informed that the Framers were familiar with that “common-law” when they adopted the “natural-born citizen” clause. The Court then proceeded to define a “natural-born citizen” under that “common-law” as a child born in a country to parents who were “citizens” of that country at the time of the child’s birth. Hence, the Court adopted the maxim partus sequitur patrem (children follow the allegiance and citizenship of the parents). Clearly, this was the law of nations jus sanguinis definition of a “natural-born citizen” as found in Emer de Vattel, The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758). The Court called the law that provided the basis for this definition “common-law.” Furthermore, Minor said that under this “common-law,” any child who was not born in a country to “citizen” parents was an “alien or foreigner.” From this definition and identification of who were aliens and foreigners, we know that the Court could not have been referring to the jus soli English common law, for that law made any child born in the King’s dominion and under his obedience a “natural born subject,” regardless of the citizenship or domicile of the child’s parents. See Vattel, Section 213 and 215 (explains that if parents give birth to a child in a country where they are only temporary or permanent inhabitants, the child will inherit their condition or status and be born either a temporary or permanent inhabitant of that country (but still an alien), but not a “citizen” of that country). When applying that American “common law,” Minor did not speak about the child’s parents having to be under any “allegiance” or “obedience,” or that the parents could not be foreign ambassadors, military invaders, or enemy aliens. Under American “common-law,” those factors were not part of the analysis because the law required that the parents be “citizens.” Such treatment by the Court proves that the Court did not look to the English common law for its definition of a “natural-born citizen.”
We have seen various U.S. Supreme Court cases tell us that the Constitution is to be interpreted in the light of the English common law of the time. That might be true on some subject matters involving state issues, but the unanimous U.S. Supreme Court in Minor necessarily informed that for defining a “natural-born citizen,” a national matter, it was American “common-law” that guided the Founders and Framers. From the definition of a “natural-born citizen” given by the Court, we know that that American “common-law” had its basis in the law of nations, as explained by Emer de Vattel in Section 212 of his, The Law of Nations, which the Founders and Framers adopted, as applicable, as national law, and not in the English common law. Under the Founders’ and Framers’ definition of a “natural born Citizen” which they adopted from this American common law, a child naturalized to be a “citizen of the United States” at birth was not an Article II “natural born Citizen.”
Obama’s supporters argue that Vattel is not even mentioned once in the Federalist Papers, while the common law was mentioned about twenty times. They add that the Founders and Framers looked to William Blackstone and not Vattel for their definition of a “natural born Citizen.” The specific issue is the meaning of a “natural born Citizen,” not the English common law and Blackstone in some general way. The English common law may be mentioned and Blackstone may have been influential, but there is no evidence that the Founders and Framers used the English common law or looked to Blackstone to define a “natural born citizen.” On the contrary, and only as one example, we know from his Federalist No. 42 that Madison called the English common law “a dishonorable and illegitimate guide” in defining terms in the Constitution. James Madison sat on the convention committee that drafted Article II presidential eligibility. Hence, he would not have relied upon the English common law or Blackstone to define a “natural born Citizen” or a “Citizen of the United States.” None of these cases cited above looked to William Blackstone to define a “natural born Citizen.” Moreover, the law of nations is not only mentioned many times in the Federalist Papers, but was actually incorporated in Article I, Section 8, Clause 10 as part of Article III’s “Laws of the United States.” The English common law cannot make the same claim.
The above-cited cases, along with other historical evidence, show that Obama’s supporters are wrong when they say that Vattel did not provide the Founders and Framers with the definition of a “natural born Citizen.” On the contrary, this evidence demonstrates that it was, indeed, Vattel who provided the Founders and Framers with the definition of a “natural born Citizen.” Indeed, this historical and case law evidence conclusively demonstrates that the definition of a “natural born Citizen” can be traced to Vattel’s Section 212 and was handed down from there to the Founders and Framers when they wrote the Constitution and continued to be confirmed in case law of our U.S. Supreme Court and lower court down to even the 1898 seminal case on citizenship, Wong Kim Ark.
So, before U.S. v. Wong Kim Ark (1898) neither our American “common-law” as explained by our U.S. Supreme Court nor as we shall see below Congressional naturalization Acts allowed a child born in the United States to alien parents to be a “citizen of the United States” at birth, let alone an Article II “natural born Citizen.” Under this American “common law” and statutory law, a child born in the United States to alien parents was neither a “natural born Citizen” nor a “citizen of the United States” by naturalization at birth or after birth. American “common law” required the father (and the mother under unity of citizenship of the parents) to be a “citizen” in order for the child to be born a “natural born Citizen.” Minor v. Happersett, 88 U.S. 162 (1875) (“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. Id. at 167-68)).
Hence, a child born in the United States to alien parents was not under American “common-law” a “natural born Citizen” like a child born in England to alien parents was under English common law a “natural born subject.” As we shall see, that child was also not a “citizen of the United States” under any Congressional Act. Wong Kim Ark changed that and held that under the Fourteenth Amendment a child born in the United States to domiciled and resident alien parents was included as a Fourteenth Amendment “citizen of the United States” from the time of birth. But as we shall see, this Fourteenth Amendment “citizen of the United States” is not an Article II “natural born Citizen.”
V. CONGRESS’S NATURALIZATION ACTS
The Constitution does not define what a “natural born Citizen” is. But the Constitution at Article I, Section 8, Clause 4 does give to Congress the power to make uniform the naturalization laws. With the “natural born Citizen” clause being a provision that establishes a certain class of citizenship and which has nothing to do with regulating immigration and naturalization, Congress’s naturalization power does not include the power to amend or dilute the constitutional meaning of a “natural born Citizen.” Still, what our early Congress said in the early naturalization acts provides us with evidence about who the Founders and Framers considered to be a “natural born Citizen.” The seventy-nine members of the First Congress contained 20 persons who had been delegates to the Constitutional Convention and 17 signers of the Constitution, eight of whom were members of the Committee of Eleven that drafted the "natural born Citizen" clause. Jill A. Pryor, Note, The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty, 97 Yale L.J. 881, 894, n.75 (1988). The membership of the Third Congress included Oliver Ellsworth (April 29, 1745 – November 26, 1807) an American lawyer and politician, a revolutionary against British rule, a drafter of the United States Constitution, an the third Chief Justice of the United States; Roger Sherman (April 19, 1721 – July 23, 1793) was an early American lawyer and politician. He served as the first mayor of New Haven, Connecticut, and served on the Committee of Five that drafted the Declaration of Independence, and was also a representative and senator in the new republic. He was the only person to sign all four great state papers of the U.S.: the Continental Association, the Declaration of Independence, the Articles of Confederation and the Constitution; Rufus King (March 24, 1755 – April 29, 1827) was an American lawyer, politician, and diplomat. He was a delegate for Massachusetts to the Continental Congress. He also attended the Constitutional Convention and was one of the signers of the United States Constitution on September 17, 1787; and other Founders and Framers. So, our early Congresses contained many Founders and Framers and they would have known how a “natural born Citizen” and a “citizen of the United States” were defined.
These acts provide us with evidence on how the Founders and Framers defined a “natural born Citizen” by taking us through a process of elimination. This evidence, gathered from our early Congress, is very significant. “[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.” Morissette v. United States, 342 U.S. 246, 263 (1952). We can reasonably conclude that any person over whom Congress exercised its naturalization powers was not and could not be a “natural born Citizen.” After all, if someone were a “natural born Citizen,” not only did Congress not have any constitutional power regarding delineating that person’s citizenship, but Congress also would not have seen any need to declare that person to be a U.S. “citizen” under its naturalization powers.
The Naturalization Acts of 1790, 1795, 1802, and 1855 (Act of March 26, 1790, 1 Stat. 103; Act of January 29, 1795, 1 Stat. 414; Act of April 14, 1802, 2 Stat. 153; Act of February 10, 1855, 10 Stat. 604), not making any distinction whether born in or out of the United States when the child was born to alien parents, all required that for a child to be born a U.S. “citizen,” regardless of where born, the child had to be born to U.S. “citizen” parents. These early naturalization acts plainly stated that a child became a “citizen of the United States” at the time of the naturalization of alien parents if done during his or her minority and if dwelling in the United States, or on his or her own naturalization petition if done after the age of minority. The general rule adopted in the United States was that for a child to be born a U.S. “citizen,” he or she had to be born to U.S. “citizen” parents. In other words, only “citizen” parents could beget a “natural born Citizen” and only a “citizen” could cause the naturalization of his minor alien children regardless of where born. This rule was confirmed by as we have seen various Founders and as we shall see by case law of our U.S. Supreme Court. This rule was also adopted by Congress in its early naturalization acts.
The early naturalization acts are very important to examine in our quest to discover the meaning of an Article II “natural born Citizen.” Congress first exercised its naturalization powers in 1790. The act of March 26, 1790, 1 Stat. 103, c. 3, provided for the naturalization of aliens and then provided that "the children of such persons so naturalized, dwelling within the United States, being under the age of twenty-one years at the time of such naturalization, shall also be considered as citizens of the United States."
The third section of the act of January 29, 1795, 1 Stat. 414, 415, c. 20, provided "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."
The fourth section of the act of April 14, 1802, 2 Stat. 153, 155, c. 28, carried into the Revised Statutes as section 2172, was: "That the children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject, by the government of the United States, may have become citizens of any one of the said States, under the laws thereof, being under the age of twenty-one years, at the time of their parents being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States."
The provision that children born in the United States to alien parents was carried in all the following naturalization acts, including that of 1855 and the Civil Rights Act of 1866 which required that the child be born in the United States and not be “subject to any foreign power.” Given the world-recognized doctrine of jus sanguinis (also utilized by our own Congress in 1790 to consider children born out of the United States to U.S. citizen parents as “natural born citizens” and starting with 1795 “citizens of the United States”), the only way such a child could be born not subject to any foreign power was to be born in the United States to U.S. “citizen” parents or to parents who had long lost any foreign nationality who at that time were American slaves and their descendants.
The early naturalization acts controlled the citizenship status of children by making requirements connected to the servitude and color status of their parents. We know that our early Congress adopted the ancient rule of partus sequitur patrem, meaning that children followed the citizenship of their parents no matter where born, because it textually required in the acts that alien adults to be “free” and “white” in order to be eligible to become a “citizen of the United States,” but did not make the same textual requirements when it came to their children. But why would Congress require parents to be “free” and “white,” as a condition of citizenship, but not make the same requirement for their children? Requiring that the parents be “free” and “white,” and given that children followed the condition and citizenship of their parents, there was no need for Congress to also say that the children had to be “free” and “white.” If this is not the case, it would make no sense for citizenship purposes to require of persons born out of the United States that only those who were “free” and “white” could naturalize to become a “citizen of the United States,” but not require that children born in the United States not meet the same conditions in order to be admitted as a “citizen of the United States.” On the contrary, since Congress wrote an act in which the children followed the condition and citizenship of the parents, it did not have to specify that those children born in the United States also had to satisfy that same requirement. And there is further confirmation of this understanding, given that with children born out of the United States to U.S. “citizen” parents, Congress made no mention of those children having to be “free” and “white.” Again those children also followed the citizenship and condition of their parents who were U.S. “citizen” and so, there was no need for Congress to require that those children be “free” and “white.” For their parents to be “citizens,” they would have had to be “free” and “white.” Hence, so would their children.
So, the early naturalization acts controlled the citizenship status of children by also making requirements about the citizenship status of their parents, regardless of where the child was born. The acts did not act directly upon children born in the United States to U.S. “citizen” parents, for these were the “natural born Citizens.” This was the American “common-law” definition of a “natural born Citizen” and not directly covered by these naturalization acts. As can be seen, the American “common-law” definition required both birth in the country and birth to parents who were “citizens” when the child was born. The fact that the Acts did not touch upon these “natural born” children confirms that this was the definition of a “natural born Citizen.”
But the Acts did address those children who either were not born to U.S. “citizen” parents or not born in the United States, the two elements of the American “common-law” definition of a “natural born Citizen.” Under these acts, if the child was born in the U.S. to alien parents, the child was born an alien and became a “citizen of the United States” at the time his or her parents naturalized if done during the age of minority when the child was dwelling in the United States and if not done in that time, then only upon the adult’s own naturalization petition.
As we see, Congress, in all of these acts, did not make any exception for children born in the United States. It simply said that any child of any person who naturalized would fall under the act. This is broad language and included also children who were born in the United States. If Congress meant to exclude children born in the United States from having to naturalize it surely knew how to do so by using simple language. Hence, Congress considered children born on U.S. soil to alien parents to be themselves aliens. See Secretary of State Blaine, February 1, 1890 (he drew no distinction between the children born in the U.S. and those born out of it if they were born to alien parents, arguing “[t]he naturalization of the father operates to confer the municipal right of citizenship upon the minor child”) (cited and quoted in Breckinridge Long, "Is Mr. Charles Evans Hughes a 'Natural Born Citizen' Within the Meaning of the Constitution?" Chicago Legal News, Vol. 146, p. 220 (1916) (Long argued that if children were “born in the United States and their father subsequently became naturalized, they then, upon the naturalization of the father, became citizens.”) Here we can see that for Congress, it was the citizenship of the child’s parents that controlled and not the place where the child was born. Congress did not even give controlling effect to the fact that the child might be born in the United States, considering that child an alien if his or her parents were not U.S. “citizens” at the time of the child’s birth and allowing that child to naturalize at the moment the parents naturalized if done before that child reached the age of majority and independently on his or her own if done thereafter or never done.
Under the 1790 Act, if the child was born out of the United States to U.S. “citizen” parents, the child was “considered as a natural born citizen.” With respect to children born out of the United States, the Third Congress, in 1795, specifically removed "natural born citizen" from the naturalization act which the First Congress had inserted in the Naturalization Act of 1790 and provided in the Naturalization Act of 1795 that any child born out of the U.S. to "citizen" parents was a "citizen of the United States," provided the father had at some time been a resident of the United States. To this day, Congress, other than allowing a child born out of the United States to be born to one U.S. “citizen” parent as opposed to two U.S. “citizen” parents, has never changed that definition.
If born out of the United States to alien parents, the child was also born an alien and could become a “citizen of the United States” at the time his or her parents naturalized if done during the age of minority when the child was dwelling in the United States and if not done in that time, then only upon the adult’s own naturalization petition.
From the expansive language used in the statutes, the requirement that children had to be born to “citizen” parents in order to be admitted as “citizens of the United States” applied to a child whether born in or out of the United States. So we know from our own statutory law that any such child, needing naturalization to become a “citizen of the United States,” could under no circumstances be a “natural born Citizen.” At best, that child could become a “citizen of the United States” only upon either the naturalization of the parents when the child was still a minor or upon his or her own naturalization upon becoming an adult.
Hence, we can see that Congress, as early as 1790, not acting upon children born in the United States to U.S. “citizen” parents who were already defined under American “common-law” as “natural born Citizens,” recognized that only a child born to U.S. “citizen” parents could be a “natural born Citizen” and had attempted to extend that status through its naturalization powers also to children born out of the United States to U.S. “citizen” parents. And as early as 1795, Congress then confirmed that a child did not gain the status of a “natural born Citizen” just by being born a U.S. “citizen.” Rather, it informed that only a child born in the United States to U.S. “citizen” parents could be a “natural born Citizen” and that the naturalization laws could not make a child, even if they declared that child to be a U.S. “citizen” at birth, a “natural born Citizen.” So, since 1795, Congress has confirmed that in order for one to be a “natural born Citizen,” one must be born in the United States to “citizen” parents.
Obama supporters argue that the early naturalization acts did not apply to children born in the United States, which they say means that the acts did not preclude any child born in the United States to alien parents from being a “natural born Citizen.” Lynch v. Clark, 1 Sandf.Ch. 583 (1844), reported in the New York Legal Observer, in 1844 also attempted as they do to explain away the early naturalization acts. In Lynch, the plaintiffs also argued that the naturalization acts also applied to children born in the United States. The court conceded that “[t]he acts make no distinction between children born here, and those born abroad.” Id. at 258. But then simply ignoring the plain text of the acts, the court said that they applied only to children born abroad. The court said that since the amount of children born in the United States to aliens was so small in comparison to those born to aliens out of the United States, it was not “necessary” for Congress to act upon them and such children were therefore to be removed from the reach of the statutes. It would have been nice if Congress had said that rather than a court which was supposed to only interpret what Congress plainly wrote.
The court then used the fact that the Naturalization Act of 1804 did not distinguish between widows who were born in the United States and those who were born abroad as justification for its decision to limit the acts just to children born abroad. Apart that it is highly suspect for the court to use a provision about women in the 1804 act to interpret a provision about children in the 1802 act, the court’s point makes no sense given that wives followed the citizenship of their husbands and therefore there was no need for Congress to make any distinction between widows who were born in the United States or abroad. In other words, any woman marrying an alien became an alien if she was a U.S. citizen and remained an alien if she was herself an alien. I cannot imagine that the court did not know that Congress understood based on natural law and the law of nations that both wives and children followed the citizenship of the husbands and fathers.
The court then said: “[u]pon the whole, the implication claimed from these statutes, is not a necessary one, and cannot be raised to overturn an established legal principle.” But it was up to Congress to say what was or what was not necessary. Also, in the very decision the court repeatedly said that the English common law would not have any application in defining national citizenship if there was a Congressional statute that abrogated it. Now in total contradiction, it said that an Act of Congress could not be raised to overturn the English common law which it said was “an established legal principle.” What is amazing is that the court thrust the English common law jus soli citizenship rule upon the national government when the historical record shows that the Founders and Framers, while adopting in 1791 only certain English common law rights through the Bill of Rights, did not include in that adoption the jus soli English common law rule on the national level.
Lynch did not cite to any authorities that supported its outlandish position on the meaning of the naturalization acts. The court basically just made things up about the meaning of what Congress plainly wrote. What a shameful display of judicial workmanship, all for the purpose of arriving at a preconceived result. The damage that Lynch did to citizenship jurisprudence in the United States is inestimable. Even Wong Kim Ark cited to and blindly relied upon its decision.
We have seen that the plain language of the acts does not show that Congress, when it came to children born of alien parents, made any distinction for children born in or out of the United States. Moreover, the historical record shows that Lynch and Obama’s supporters are wrong. Support for my position is found in an old article that has just recently surfaced. An internet researcher by the name "rxsid" of Free Republic has recently found this article and provided it to Attorney Leo Donofrio who published the article at his blog at http://naturalborncitizen.files.wordpress.com/2011/12/alexandria-herald.pdf . This old article was published by Publius on October 7, 1811, in The Alexandria Herald, concerning the “Case of James McClure,” which “made a great deal of stir in the U. States.” “Publius” was the pseudonym used by Alexander Hamilton, James Madison, and John Jay in the Federalist Papers. We cannot be sure who Publius was 1811, although we know that Hamilton was dead and Jay retired. We might not know who “Publius” is, but we do know that the McClure case was decided by the James Madison Administration and that Madison most likely had a say in how the matter was eventually resolved.
The Publius article states that McClure was born in the United States on April 21, 1785. His father was a British subject at the time of his birth. On February 20, 1786, his father naturalized to be a citizen under the laws of South Carolina. McClure remained in the United States until 1795 when he was sent to England for his education. He never returned to the United States. His father also returned to his country, Great Britain. In 1807, McClure dispatched from England the ship, the Horizon, for Lima. The ship became wrecked on the sea rocks of Morlaix and never reached Lima. The incident resulted in the Berlin Decree being first put into effect against the United States. Even though McClure had a U.S. passport issued to him by the “American minister in London,” showing that he was a “native citizen of the United States,” the French Minister of War, based on information that he received from the French police and the “Minister plenipotentiary of the U. States,” issued an order on April 12, 1810 directing that McClure be detained in France as an “English” prisoner of France (emphasis in the original). Pursuant to that order, McClure was “placed under surveillance at Tours” (emphasis in the original). A John Rodman then took up the cause of having McClure released, contending that McClure was a “citizen” of the United States, and he wrote a letter from Paris dated July 4, 1811 to that effect to the Editor of the “United States Gazette.” The names of James McClure and John Rodman appear as names existing in Chester County, South Carolina in the estate papers of Thomas Gillespie, who died in 1808. http://genforum.genealogy.com/sc/chester/messages/211.html.
Publius stated:
"Mr. Rodman hints, that it would have been sufficient for James McClure to have been born in the United States—he is mistaken. The law of the United States recognizes no such claim. The law of Virginia, of 1792, does—for, “all free persons born within the territory of this commonwealth,” is deemed a citizen. The law of Virginia considers him as a son of the soil. An alien, as well as a citizen, may beget a citizen, but the U. States’ act does not go so far. A man must be naturalized to make his children such."
Here are the articles from the Alexandria Herald and Richmond Enquirer. http://naturalborncitizen.files.wordpress.com/2011/12/alexandria-herald.pdf and http://naturalborncitizen.files.wordpress.com/2011/12/oct-1-1811.pdf . Source: http://naturalborncitizen.wordpress.com/2011/12/28/the-publius-enigma-newly-revealed-evidence-establishes-that-president-james-madisons-administration-required-citizen-parentage-to-qualify-native-born-persons-for-u-s-citizenship/
If children born in the United States were not covered by this naturalization act because they were already “citizen” under the “common law,” why would Publius say that McClure’s citizenship fell within the act and that the act even made him a naturalized citizen? Publius even said that in the United States, birth in the country was insufficient to make anyone a “citizen.” He said that a child needed to be born to “citizen” parents in order to be a “citizen.” Given these comments by Publius in 1811, there was no such “common law” rule based on the English common law prevailing in the United States after July 4, 1776. Hence, Publius had to resort to the 1802 act for resolution of the question of whether McClure was a “Citizen of the United States.”
James McClure was born in South Carolina on April 21, 1785. His father, a British subject, naturalized in South Carolina under that state’s naturalization statutes on February 20, 1786. Even though born in the United States, the James Madison Administration did not find James McClure to be a “natural born Citizen.” What is critical to understand about the McClure case and how Publius resolved the question of whether McClure was a “Citizen of the United States” is that it supports my position in which I have steadfastly argued that the early naturalization acts (Naturalization Acts of 1790, 1795, 1802, and 1855) applied not only to children born out of the United States but also to children born in the United States and treated any child born in the United States to alien parents to be an alien also. Given these Congressional statutes, we can reasonably conclude that our nation did not adopt the English common law jus soli concept of citizenship, but rather the law of nation’s jus sanguinis. There was not doubt that McClure was born in the United States. But he was not considered a “Citizen of the United States” by the force of being born on the soil of the United States. He was not declared to be a “Citizen of the United States” because as the English common law had provided that any child born within the King’s dominion, not born to any diplomat or military invader, was a “natural born subject,” and so too any child born in the United States under similar circumstances was a “Citizen of the United States.” Rather, he was considered a “Citizens of the United States” under the Naturalization Act of 1802 only because his father naturalized to be a U.S. citizen after McClure was born when McClure was still a minor and McClure was “dwelling in the United States” with his father at the time of his father’s naturalization. Indeed, Publius explained that under the statute, the child, whether born in the United States or out of it, had to be “dwelling in the United States” with the father at the time of his father’s naturalization, the idea being that if he was with the father at that time he probably would remain in the United States for the rest of his or her life. So we can see from the McClure case that any child born in the United States to alien parents was born an alien and only became a “Citizen of the United States” upon his father’s naturalization if done during the years of minority and only if the child was dwelling in the United States at the time of the father’s naturalization. If the father did not naturalize within that time, the child would have to petition for naturalization on his or her own upon reaching the age of majority.
In discussing how to interpret “dwelling in the United States,” Publius made reference to a Dr. Franklin. He said that the law naturalizes minor children with the parents’ naturalization “by saying grace over them,” as long as the children are together with the parents at the time of the parents’ naturalization and not left behind in the parents’ native country. Hence, Franklin, too, looked at children born in the United States to alien parents the same as did Publius or else Publius would not have used Franklin as a reference on the question of citizenship.
What is also important to note is that Secretary of State James Monroe ruled that James McClure was a “Citizen of the United States.” He so stated in his letter dated November 27, 1811 which he wrote to Joel Barlow, Esq., who was located in Paris. The National Archives has a copy of this Monroe letter which reads:
"Joel Barlow Esq. Department of State
Paris Nov. 27, 1811
Sir
I have the honor to enclose several affidavits and certificates just handed to me by Mr. Cheves the Representative in Congress from the City of Charleston proving that James McClure now detained in France as a British Prisoner of War was born in Charleston since the Revolution. To these Papers is annexed a Certificate of W[illiam] Johnson Esq. one of the Justices of the Supreme Court of the United States before whom the affidavits were taken stating “that agreeable to the laws and usage of the United States, the said affidavits and Certificates are sufficient to establish the fact that James M McClure above named is a Citizen of the United States.” As such he must be considered by this Government. You will therefore interpose your good offices in his behalf and obtain his release from confinement as soon as possible.
I have [the honor]
James Monroe"
In his letter to Barlow, Monroe states that he had just been given “several affidavits and certificates” by “Mr. Cheves the Representative in Congress from the City of Charleston.” From these documents, Monroe concluded that James McClure was born in South Carolina, that his father naturalized less than one year after James’ birth, and that James was dwelling in the United States when the father so naturalized. All these factors made James a naturalized “Citizen of the United States.” Even though there was no question that McClure was born in the United States, neither Justice Johnson nor Monroe ruled that he was a “natural born Citizen.” It appears that Mr. Cheves must have had some interest in the matter and that he favored finding James McClure to be a “Citizen of the United States.” But even if that were the case which it probably is, we know that Mr. Cheves himself did not view James McClure to be a “natural born Citizen.”
James Monroe in his letter of November 27, 1811 said that it was “Mr. Cheves the Representative in Congress from the City of Charleston” who handed to him the “affidavits and certificates,” which included the “Certificate” of Justice Johnson. So it appears that Representative Cheves also became involved in the matter and supported finding James McClure a “Citizen of the United States.” Let us see if there is any information on Representative Cheves which can lead us to conclude whether he would have found McClure to be a “natural born Citizen” or a “Citizen of the United States." The Speaker of the House of Representatives, Langdon Cheves, in February of 1814, made the following speech:
"The children have a natural attachment to the society in which they are born: being obliged to acknowledge the protection it has granted to their fathers, they are obliged to it in a great measure for their birth and education. … We have just observed that they have a right to enter into the society of which their fathers were members. But every man born free, the son of a citizen, arrived at years of discretion, may examine whether it be convenient for him to join in the society for which he was destined by his birth."
Speech of Rep. Langdon Cheves, in the House of Representative in 1814, reported in The Historical Register of the United States, Vol 3, Part 1, Sec. 7, p. 174 (Philadelphia 1814), accessed at http://books.google.com/books?id=6qC1NICFYR0C&pg=PA174&dq=%22children+have+a+natural+attachment%22&hl=en&sa=X&ei=cvtoT-PyEuiB0QHiscmLCQ&sqi=2&ved=0CDwQ6AEwAQ#v=onepage&q=children%20have%20a%20natural%20attachment&f=false . (citing and quoting Vattel, Book 1, Chapter 19, Sec. 220).
It can be readily seen that Cheves borrowed his ideas from Vattel, The Law of Nations. This was the Speaker of the House who in 1814 adopted Vattel’s definition of citizenship and not that of England’s common law. Cheves also said:
"Perpetual allegiance, said he, is alleged to be founded on natural law, the positive law of nations, or the municipal law of each state. We will examine each; and first, the law of nature. In this view we are able to discover but two principles or pretences on which the duty of perpetual allegiance is affirmed, or the right of expatriation denied.—These are, the necessities of the state and the gratitude of the subject. These are the only grounds stated by Vattel, to whom alone I shall refer as my authority for positions of natural and national law, because I can refer to no better authority, the more especially as on the points for which I shall use him, I believe he agrees with all other writers” (footnote which quoted Vattel’s explanation on the right to expatriate).
The Historical Register of the United States, Volume 3, Part 1, 174 (Thomas H. Palmer ed. 1814). Here, Cheves explains that on natural and national law, there was no better authority than Vattel.
There also exists evidence showing how Justice Johnson defined U.S. citizenship. We learn from then Secretary of State James Monroe’s letter of November 27, 1811 to Joel Barlow, Esq., that U.S. Supreme Court Justice, William Johnson, found that, based on “several affidavits and Certificates” and “agreeable to the laws and usage of the United States,” James McClure was a “Citizen of the United States.” Under the 1802 Act, the clerk of the court granted each applicant a “certificate” that could be exhibited to the court as evidence of time of arrival in the United States. Hence, one of the “Certificates” given to Justice Johnson would have been the “certificate” that McClure’s father obtained when he naturalized.
In his ruling, Justice Johnson also used the exact language that is contained in Article I and II, i.e., “Citizen of the United States.” Even though McClure was born after July 4, 1776 in the United States, Justice Johnson did not say he was a “natural born Citizen.” If the United States after the Revolution had adopted the English common law jus soli rule of citizenship as Justice Gray said it had in Wong Kim Ark, Justice Johnson would have ruled that McClure, born in the United States after July 4, 1776, was a “natural born Citizen” (a “citizen” “natural born”) and not just a “Citizen of the United States” (a “citizen” naturalized). But Justice Johnson only said he was a “Citizen of the United States.”
We also know from a legal opinion that Justice Johnson wrote in 1830 in a case while sitting on the U.S. Supreme Court that he would not have ruled 19 years earlier that McClure was a “Citizen of the United States” simply because he was born in the United States. In Shanks v. Dupont, 28 U.S. 242 (1830), the Court through Justice Story, reversing both state courts of the State of South Carolina which found Ann Shanks to be a citizen of South Carolina, ruled that Ann Shanks was born in South Carolina before the revolution a British subject, also became a “citizen” of South Carolina upon the Declaration of Independence, but then later adhered to the British which ultimately made her a British subject. Justice Johnson, dissenting, ruled that Ann Shanks, was born before the revolution in South Carolina to native born parents. He ruled, based on principles of the law of nations and the “common law” of the State of South Carolina, that, being born into a community whose allegiance was by the Declaration of Independence transferred to the free and independent states, was a “citizen” of South Carolina and that she was not able to throw off that allegiance and citizenship and to elect to become a British subject. Justice Johnson gave great deference to South Carolina to decide for itself questions of alienage and inheritance of real property. He said:
"By an act of the state passed in 1712, the common law of Great Britain was incorporated into the jurisprudence of South Carolina. In the year 1782, when this descent was cast, it was the law of the land, and it becomes imperative upon these appellants after admitting that their parent was a native born citizen of South Carolina, daughter of a native born citizen of South Carolina, to show on what ground they can escape from the operation of these leading maxims of common law. Nemo potest exuere patriam — and proles sequitur sortem paternam."
Id. at 252. Justice Johnson did not prescribe to an absolute denial of the right of expatriation. Rather, he looked to the law of nations and to the “writers on public law” (which undoubtedly included Vattel) for guidance on the matter. He explained that the law of nations left it up to each individual nation to decide by its own positive law under what circumstances it would grant to an individual the right of expatriation. He ruled that South Carolina had adopted the English common law with rules of allegiance which provided for the indelibility of allegiance (meaning natural allegiance was unalienable). He said that South Carolina had not by any statute altered that rule. He also considered whether Acts of Congress passed in 1790 and thereafter abrogated the South Carolina rule. Given that those acts did not make any express statement on the subject, he was not willing to declare that those acts by “inference” abrogated the law of South Carolina. But what is important in Justice Johnson’s discussion on the right of expatriation is how he shows what the basis of citizenship in the new nation was in the first instance. The ideas that he presents on why a person should not have an absolute right to throw of his or her allegiance comes directly out of Vattel, Section 220-33, where Vattel explains how the right to expatriation should be qualified depending on the needs of both the individual and the nation. Here is what Vattel said:
"The children are bound by natural ties to the society in which they were born: they are under an obligation to shew themselves grateful for the protection it has afforded to their fathers, and are in a great measure indebted to it for their birth and education. They ought therefore to love it, as we have already shewn (§122),—to express a just gratitude to it, and requite its services as far as possible by serving it in turn.We have observed above (§212), that they have a right to enter [104] into the society of which their fathers were members. But every man is born free; and the son of a citizen, when come to the years of discretion, may examine whether it be convenient for him to join the society for which he was destined by his birth. If he does not find it advantageous to remain in it, he is at liberty to quit it on making it a compensation for what it has done in his favour,* and preserving, as far as his new engagements will allow him, the sentiments of love and gratitude he owes it. A man’s obligations to his natural country may, however, change, lessen, or entirely vanish, according as he shall have quitted it lawfully, and with good reason, in order to choose another, or has been banished from it deservedly or unjustly, in due form of law, or by violence.
2. As soon as the son of a citizen attains the age of manhood, and
acts as a citizen, he tacitly assumes that character. . . . "
Vattel, Section 220.
And here is what Justice Johnson said:
"Nor have we anything to complain of in this view of the subject. It is a popular and flattering theory that the only legitimate origin of government is in compact and the exercise of individual will. That this is not practically true is obvious from history, for, excepting the State of Massachusetts and the United States, there is not perhaps on record an instance of a government purely originating in compact. And even here probably not more than one third of those subjected to the government had a voice in the contract. Women, and children under an age arbitrarily assumed are necessarily excluded from the right of assent and yet arbitrarily subjected. If the moral government of our maker and our parents is to be deduced from gratuitous benefits bestowed on us, why may not the government that has shielded our infancy claim from us a debt of gratitude to be repaid after manhood? In the course of nature, man has need [28 U. S. 263] of protection and improvement long before he is able to reciprocate these benefits. These are purchased by the submission and services of our parents; why then should not those to whom we must be indebted for advantages so indispensable to the development of our powers, be permitted, to a certain extent, to bind us apprentice to the community from which they have been and are to be procured?
If it be answered that this power ought not to be extended unreasonably or beyond the period when we are capable of acting for ourselves, the answer is obvious — by what rule is the limit to be prescribed unless by positive municipal regulation?"
Id. at 262-63.
Note how Justice Johnson emphasized the “moral government of our maker and our parents” and that children inherit their right to protection and advantages due them them from the society in which they are born based on the submission and services that the children’s parents gave to that society. He stated that infants during their years of minority are not capable of giving consent as to what allegiance or citizenship to choose. He also stated that their condition follows that of their “parents” and that children are indebted to the society to which they parents belonged and from which they gained benefits and protection which also benefited the children. He explained that it is a child’s parents’ “submission and services” to the society which earned for the child the society’s “protection and improvement.” He added that children upon reaching the age of majority should repay their parents’ society in which they were born and from which they received protection and benefits during their years of minority. These are ideas that come directly out of Vattel at Sections 220-33.
Here we see that Justice Johnson under the circumstances existing in South Carolina not only accepted indelibility of allegiance (“Nemo potest exuere patriam”—“no man can renounce his own country.” Black’s Law Dictionary 936 (5th ed. 1979)) but also the maxim that the children follow the condition of their fathers (“proles sequitur sortem paternam”—“the offspring follows the condition of the father.” Black’s Law Dictionary 1091 (5th ed. 1979)). So, having adopted the maxim that children followed the condition of their fathers, there is no way that Justice Johnson would have ruled that a child born in the United States to alien parents, was a “natural born Citizen” or even a “Citizen of the United States” from birth. So, having adopted this maxim that children followed the condition of their parents, there is no way that Justice Johnson would have ruled that James McClure, born in South Carolina to alien parents, was a “natural born Citizen” or even a “Citizen of the United States” from birth. Rather, in keeping with his position expressed in Shanks, he would have found that McClure at birth was a British subject because he was born to a British subject father. Then when his father naturalized, McClure the son would have followed his father’s condition and Justice Johnson would have declared him a “Citizen of the United States” (he did not say “natural born Citizen”). And this is exactly what he did for James McClure.
Justice Johnson said that McClure is a “Citizen of the United States” per “laws and usage of the United States.” He did not say according to any state law, whether common law or statutory. The case of Ross v. Rittenhouse, 2 U.S. 160, 162 (1792) gives us insight was Justice Johnson meant by “laws and usage of the United States.” In 1792, the supremacy of the law of nations within the United States was affirmed by Chief Justice McKean in Ross v. Rittenhouse where he said: “The Congress on the 15th of January, 1780, resolved (inter alia) 'that the trials in the Court of Appeals be according to the usage of nations, and not by Jury.' This has been the practice in most nations, but the law of nations, or of nature and reason, is in arbitrary states enforced by the royal power, in others, by the municipal law of the country; which latter may, I conceive, facilitate or improve the execution of its decisions, by any means they shall think best, provided the great universal law remains unaltered.” Hence, “the laws and usage of the United States” did not refer to the English “common law.” Rather it could have meant only a treaty, statute of Congress, or the law of nations. Since there was no treaty involved, we know he was referring to the Naturalization Act of 1802. Also, “usage of the United States” referred to the law of nations and not the English common law which only applied on the state level. The states continued to naturalize persons until the Naturalization Act of 1790, which under Article I, put the power of naturalization solely in the hands of Congress. So states made “citizen,” natives and naturalized, under their laws until they gave that power to the national government. Again, Justice Johnson spoke of the “laws and usage of the United States.” He did not mention the laws of the state of South Carolina where McClure was born or any other state law. In 1811, there was only the Naturalization Acts of Congress that were “laws . . . of the United States.” But if McClure’s birth alone made him a “Citizen of the United States,” he would not have gained that status under any naturalization act of Congress. He would have had to rely upon the “common law” as both Minor and Wong Kim Ark say applied to define a “natural born Citizen” and a “citizen of the United States.” McClure simply could not be a “natural born Citizen” under any “law of the United States,” for none existed other than the common law. So, in the words of Justice Johnson, McClure was declared a “Citizen of the United States” under a Congressional Act (the Naturalization Act of 1802) or the law of nations and not under any English common law. And being declared a “Citizen of the United States” under the Naturalization Act of 1802 proves that McClure was not a “natural born Citizen.” This historical record clearly proves Justice Gray wrong when he said in Wong Kim Ark that the English common law prevailing in the United States on matters of citizenship after July 4, 1776 and under the Constitution as adopted.
The McClure case it convincing evidence of who the Founders and Framers would have considered a “natural born Citizen,” and such a citizen was surely not one who was born in the United States to alien parents. These early Congressional statutes show that a “natural born Citizen” could not have been a child born in the United States to alien parents, for at best that child could naturalize to become a “Citizen of the United States” and we know that naturalized citizens were not “natural born Citizens.” This evidence further supports my position that a “natural born Citizen’ could only be a child born in the United States to citizen parents and could not be a child born in the United States to alien parents.
What is also noteworthy about the McClure case is that no one argued that the laws of the state of South Carolina, whether statutory or common law, provided McClure with any relief on the question of whether he was a “citizen of the United States.” Publius stated that South Carolina did not have a statute like Virginia which would have allowed McClure to be a citizen by simply being born on the soil or what he called a “son of the soil.” The fact that he used this expression “son of the soil” shows that Publius was well aware of the jus soli doctrine of citizenship but clearly rejected it as being some outdated way of granting anyone citizenship. Everyone argued that the only way that McClure could be a “citizen of the United States” was if he satisfied the then-existing Naturalization Act of 1802. This further confirms that no one expected that the English common law provided the rules of decision for resolving the question of who was a “Citizen of the United States,” regardless of what any state law may have provided.
Publius, in 1811, living when the acts were passed by Congress, would know what Congress intended when it passed the naturalization acts. In that connection, Publius told us that it did not matter where a child was born. Regardless of the child’s place of birth, if the child’s parents were aliens, the child was an alien. Regardless of where the child was born, the child’s parents had to naturalize in order to make their children citizens. The historical record tells us that Secretary of State, James Monroe, eventually declared McClure to be a “citizen,” not because he was born in South Carolina on April 21, 1785, but because a few months after he was born, his British father naturalized as a “citizen of the United States.” Publius’ and the James Madison’s Administration’s word in 1811 on what the early naturalization acts meant is very convincing evidence of what Congress intended by its language in those acts.
How does this apply to understanding how the Founding generation defined a “natural born Citizen?” They did not consider a child born in the United States to alien parents even a “citizen.” Then they surely would not have considered such child a “natural born Citizen.” McClure was declared to be a “citizen of the United States” under an Act of Congress. He was naturalized under that act after birth even though he was born in the United States. He had to be naturalized because he was born with alienage (he had alien parents when he was born). A child needing naturalization in order to be a “citizen of the United States” could not possibly be a “natural born Citizen.”
The James Madison Administration's view of national citizenship is consistent with Emer de Vattel, The Venus (Chief Justice John Marshall concurring), Shanks, Inglis (the majority of the United States Supreme Court), Dred Scott (Justice Daniels concurring), and Minor (the unanimous United States Supreme Court.
What is critically important about the James McClure citizenship case as elucidated by the writings of St. George Tucker, is that it provides incontrovertible evidence that after the adoption of the Constitution and passing by Congress of the Naturalization Act of 1790, the United States no longer followed the English common law practice of jus soli citizenship (citizenship by birth in the territory). These naturalization acts (national law) now abrogated any existing English common law on the question of national citizenship. Now, only birth in the United States to citizen parents (a union of jus soli or citizenship by birth in the territory and jus sanguinis or citizenship by parentage) gave one “a state of perfect citizenship, under the Constitution and laws of the union” (St. George Tucker, Blackstone’s Commentaries: With Notes of Reference (1803) Vol. I, Note D, Part 5, Para. 4. http://www.lonang.com/exlibris/tucker/tuck-1d5.htm . There is no doubt that what Tucker referred to as this “perfect citizenship” was a “natural born Citizen,” or those persons who “inherited” the “civil right” to be elected President by being born to “citizen” parents. All other “citizens,” who were “Citizens of the United States,” did not enjoy this state of “perfect citizenship,” but rather just that of being a “Citizen of the United States,” made so by naturalization through any Act of Congress or treaty and later even by the Fourteenth Amendment.
This evidence demonstrates that there was prevailing in the United States after the Revolution no English common law jus soli rule. Rather, Congress had put in place naturalization acts which abrogated that English common law. These naturalization acts followed American “common law” that developed from the law of nations which put forth the jus sanguinis rule of citizenship. Indeed, we can see from the writing of these persons who were intimately connected to the Founding that the citizenship of children followed that of the parents and that they could under proper circumstances throw that allegiance and citizenship off upon reaching the age of majority. And under these congressional acts, children born in the United States to alien parents were themselves born aliens.
Many of the members of the early Congress were Founders and Framers. Hence, the early Congress knew what the Framers meant when they wrote the “natural born Citizen” clause. Given what the early Congress wrote in the naturalization acts, we can safely conclude that a “natural born Citizen” excluded any child born in the United States to alien parents, for under those acts such a child had no birthright citizenship and could only become at best a naturalized citizen after birth either at the time his or her parents naturalized or by his or her own naturalization petition processed upon becoming an adult. From these same acts, we can also safely conclude that a “natural born Citizen” only included a child born in the United States to citizen parents.
VI. THE CIVIL RIGHTS ACT OF 1866
Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856) held that "the class of persons who had been imported as slaves, [or] their descendants . . . free or not," were not “citizens of the United States,” even though they were born in the United States, because of their ancestors being slaves and their current or past condition of servitude. To overcome the prohibition on blacks being “citizens of the United States,” Congress passed the Civil Rights Act of 1866 (C. 31, § 1, 14 Stat. 27) which provided that “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”
In matters of citizenship, the Constitution in Article I, Section 8, Clause 4 gave to Congress only the power of naturalization. Hence, Congress does not have the constitutional power to define a “natural born Citizen” in any manner that is not consistent with its definition under what as we shall see Minor calls “common-law.” So, consistent with the Third Congress which removed “citizen of the United States” from its naturalization act and replaced it with “citizen of the United States,” Congress knew that it had no constitutional power to define who may be the “natural born Citizens,” and so in the 1866 Act limited itself to using the clause “citizen of the United States.” Hence, Congress referred to persons born in the United States and “not subject to any foreign power” only as “citizens of the United States” and not as “natural born Citizens.” Additionally, Congress did not require in the text of this Act that the child be born in the United States to “citizen” parents. Hence, it chose to not even just confirm (rather than create any new definitions) that any child who should gain membership in the United States under the Civil Rights Act was a “natural born Citizen.”
This act was passed to make sure that blacks born in the United States were recognized as “citizens of the United States.” But the selection of the “citizen of the United States” language would have been consistent with the other purpose of the act which included making children born in the United States to alien parents U.S. citizens. Cong. Globe, 39th Cong., 1st Sess. 573-574 (1866). The effect of the act included naturalizing children born in the United States to alien parents. During the debate on the Civil Right Act of 1866, these exchanges occurred: Cowan, “ask[ed] whether [the Act] will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?” Senator Trumbull replied: “Undoubtedly. … [T]he child of an Asiatic is just as much a citizen as the child of a European.” Cong. Globe, 39th Cong. 1st Sess. 498 (1866). So, members of Congress understood that there is such a thing as being born in the United States and being naturalized. Hence, it would have been proper that Congress called those children “citizens of the United States” and not “natural born Citizens.” Finally, the act made no mention of naturalized persons and so we know that the clause “citizen of the United States” was not chosen to covered persons who would have been naturalized after birth. Rather, there is little doubt that person covered by the act would have been “citizens of the United States” from the moment of birth who Congress nevertheless called “citizens of the United States” and not “natural born Citizens.”
VII. THE FOURTEENTH AMENDMENT
The early naturalization acts and Minor inform us that the “natural born Citizen” clause had a settled meaning when the Founders and Framers adopted the Constitution and when it was ratified by the States. The question then becomes whether that meaning was ever changed by any constitutional amendment or even the U.S. Supreme Court. As we shall also see below, that Wong Kim Ark interpreted the Fourteenth Amendment so as to declare a person who is born in the United States to domiciled and resident alien parents a “citizen of the United States” at birth does not mean that the Fourteenth Amendment altered the original meaning of an Article II “natural born Citizen” as found under American “common-law.”
The Fourteenth Amendment was proposed by Congress because Dred Scott held that slaves or free blacks were not “citizens” because their parents were not “citizens” and being of African descent could not naturalize under any Act of Congress. The amendment was passed because some members of Congress believed that it did not have the power under the Civil Rights Act to naturalize blacks who were born in the United States to become “citizens of the United States” and to prevent later Congresses from changing the U.S. citizenship status blacks obtained under the Civil Rights Act. The amendment provides in pertinent part: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
Obama’s supporters argue that the Fourteenth Amendment makes one born in the United States and “subject to the jurisdiction thereof” a “natural born Citizen.” But a plain reading of the amendment’s text shows that it does not say that. The clause “natural born Citizen” appears nowhere in the amendment. Rather, like the Civil Rights Act of 1866, it uses the clause “citizen of the United States” which we know from Article II is a different class of “citizen” than “natural born Citizen.” There is no indication in either the text or debates on the amendment that it was designed to repeal, alter, or amend the definition of an Article II “natural born Citizen” which we know from that article is one of the requirements of presidential eligibility. The "normal rule of statutory construction is that identical words used in different parts of the same act are intended to have the same meaning." Sullivan v. Stroop, 496 U.S. 478, 485 (1990) (quoting Sorenson v. Secretary of the Treasury, 475 U. S. 851, 475 U. S. 860 (1986) (quoting Helvering v. Stockholms Enskilda Bank, 293 U. S. 84, 293 U. S. 87 (1934)) (quoting Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 286 U. S. 433 (1932)). Hence, when Congress wrote “citizen of the United States” in the Fourteenth Amendment, it must have intended to give the “citizen” that it defined under the amendment the same constitutional status of a “citizen of the United States” found in Article II, rather than that of a “natural born Citizen” also found in the same Article II. The Fourteenth Amendment, therefore, does not define a “natural born Citizen” and cannot be used for that purpose. Rather, with the passing of the Fourteenth Amendment, the definition of a “natural born Citizen” remained to be found in the “common-law” with which the Framers were familiar and to which Minor referred.
Recently, Hassan v. Federal Election Commission, No. 11-2189 (EGS) (D.D.C September 28, 2012), has again affirmed that neither Fifth or Fourteenth Amendment explicitly or implicitly alter the meaning of a “natural born Citizen” as provided by Article II as originally adopted. The court found:
"Hassan’s challenge to the Fund Act rests on his contention that the natural born citizen requirement has been implicitly repealed by the Fifth and Fourteenth Amendments. The Court need not repeat the thorough and persuasive opinions issued by its colleagues in at least five other jurisdictions, all of whom determined that the natural born citizen requirement has not been implicitly repealed by the Fifth and Fourteenth Amendments. See Hassan v. Colorado, 2012 WL 1560449, at *5-8, aff’d, No. 12-1190, 2012 WL 3798182, *1 (10th Cir. Sept. 4, 2012); Hassan v.Montana, slip op. at 3-5; Hassan v. Iowa, slip op. at 7-11; Hassan v. New Hampshire, 2012 WL 405620, at *2-4; Hassan v. United States, No. 08-CV-938 (NG), slip op. at 3-6 (E.D.N.Y. June 15, 2010) (Docket No. 28), aff’d on other grounds, 414 F. App’x 10.
Briefly, the Court notes that Article 5 of the Constitution provides an explicit method to amend the Constitution. See U.S. Const., Art. V. Even if a constitutional provision could be implicitly repealed in the same manner as a statute, the implicit repeal of statutes is disfavored and will not be found absent clearly expressed congressional intent. See Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662 (2007); Posadas v. Nat’l City Bank, 296 U.S. 497, 503 (1936) (holding that “[w]here there are two acts upon the same subject, effect should be given to both if possible”). Repeals by implication are only found where provisions in two statutes are in “irreconcilable conflict, or where the latter act covers the whole subject of the earlier one and is clearly intended as a substitute.” Branch v. Smith, 538 U.S. 254, 273 (2003)(internal quotation marks and citation omitted). Plaintiff has not pointed to any such manifest intent 9 or irreconcilable conflict, and therefore he has not carried the high burden necessary to demonstrate that the natural born citizen requirement has been implicitly repealed. Moreover, the Supreme Court has consistently held that the distinction between natural born citizens and naturalized citizens in the context of Presidential eligibility remains valid. See Schneider v. Rusk, 377 U.S. 163, 165 (1964) (“The only difference drawn by the Constitution is that only the ‘natural born’ citizen is eligible to be President.”); see also Knauer v. United States, 328 U.S. 654, 658 (1946) (same); Baumgartner v. United States, 322 U.S. 665, 673-674 (1944) (same).
Plaintiff essentially asks this Court to declare that a provision of the Constitution is itself unconstitutional. It is beyond this Court’s authority to do so. “[T]his Court lacks the power to grant the relief sought because the Court, as interpreter and enforcer of the words of the Constitution, is not empowered to strike the document’s text on the basis that it is offensive to itself or is in some way internally inconsistent.” New v. Pelosi, No. 08-Civ.-9055(AKH), 2008 WL 4755414, *2 (S.D.N.Y. Oct. 29, 2008) (internal quotation marks and citation omitted), aff’d, 374 F. App’x 158 (2d Cir. 2010). Because the natural born citizen requirement has not been explicitly or implicitly repealed, Hassan’s challenge to that provision, and the Fund Act’s incorporation thereof, must fail.
___________
9 Indeed, in the few years following the ratification of the Fourteenth Amendment, Congress considered and rejected numerous proposals to amend or repeal the natural born citizen requirement. See Hassan v. New Hampshire, 2012 WL 405620, at *3-4 (citing secondary authorities)."
Id. at 15-18.
The Fourteenth Amendment does not use the clause “natural born Citizen” when it defines U.S. citizenship. Rather, the amendment defines that class of U.S. citizenship that the Constitution calls “citizen of the United States.” The amendment therefore does not define a “natural born Citizen.” Additionally, if neither the Fifth nor the Fourteenth Amendment explicitly or implicitly amended or repealed the “natural born Citizen” clause, then the meaning of that clause must still exist as originally drafted and intended by the Founders and Framers when they adopted the Constitution and when the States ratified it and which Minor defined under American “common-law” as a child born in a country to parents who were “citizens” of that country when the child was born.
The amendment’s citizenship sentence as initially proposed by Senator Howard of Michigan used the clause “citizen of the United States,” but did not included “or naturalized.” Cong. Globe, 39th Cong., 1st Sess. 2890 (1866). Hence, we know that the clause “citizen of the United States” was not chosen so that the amendment could cover not only “natural born Citizens,” but also person who would have been naturalized after birth, for the clause “citizen of the United States” was chosen even when the citizenship sentence did not include those who were naturalized after birth. Hence, there is little doubt that, like the Civil Rights Act, persons covered by the amendment would have been “citizens” from the moment of birth who Congress still called “citizens of the United States” and not “natural born Citizens,” because the amendment was designed to grant birthright citizenship also to persons who were not born to “citizen” parents like the natural-born children born in the United States to “citizen” parents.
I have maintained that citizenship conferred upon a child born in the United States to alien parents is the product of naturalization at birth which automatically confers upon that child the status of a U.S. “citizen” at the time of his or her birth. For children born in the United States, the Fourteenth Amendment calls this class of citizenship “citizen of the United States.” For those children born out of the United States, Congressional Acts also call this class of citizenship “citizen of the United States.” Neither the Fourteenth Amendment nor any Congressional Act calls these “citizens” “natural born Citizens.” This class of citizenship is to be distinguished from the class Article II calls “natural born Citizen,” who is born in the United States of “citizen” parents and who needs no naturalization at birth for such status.
The Fourteenth Amendment is consistent with Coke’s, Blackstone’s, and Vattel’s analysis regarding naturalization at birth. The Fourteenth Amendment can be used to naturalize a person “at birth.” Its power in this regard was recognized by Justice Fuller who in his dissent in Wong Kim Ark had this to say about the amendment collectively naturalizing free blacks “at birth:”
"In providing that persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens, the Fourteenth Amendment undoubtedly had particular reference to securing citizenship to the members of the colored race, whose servile status had been obliterated by the Thirteenth Amendment and who had been born in the United States, but were not and never had been subject to any foreign power. They were not aliens (and, even if they could be so regarded, this operated as a collective naturalization), and their political status could not be affected by any change of the laws for the naturalization of individuals."
Id. at 727 (J. Fuller, dissenting). The Amendment makes those who are born in the United States to one or two alien parents or who are naturalized in the United States after birth, provided they are “subject to the jurisdiction thereof,” a “citizen of the United States,” not a “natural born Citizen.” Hence, the amendment recognizes that if one is not born in the country to citizen parents and is in need of the amendment to become a “citizen” “at birth” or in need of a Congressional Act to become a “citizen” after birth, the person shall be considered a “citizen of the United States,” but not a “natural born Citizen.”
VIII. MINOR V. HAPPERSETT (1875)
Minor v. Happersett (1875) had two holdings, one about U.S. citizenship and whether Virginia Minor was a “citizen” and the other about whether “citizen” women under then existing law had the constitutional right to vote which no state could abridge.
The unanimous U.S. Supreme Court in Minor informed us that the Constitution, which at that time already included the Fourteenth Amendment, does not define a “natural born Citizen.” The Court looked to the “common-law” for definitions of who were U.S. citizens. It explained who at “common-law” were without any doubt the original “citizens” and those that followed. It explained:
"Whoever, then, was one of the people of either of these States when the Constitution of the United States was adopted, became ipso facto a citizen -- a member of the nation created by its adoption. He was one of the persons associating together to form the nation, and was, consequently, one of its original citizens. As to this there has never been a doubt. Disputes have arisen as to whether or not certain persons or certain classes of persons were part of the people at the time, but never as to their citizenship if they were."
Id. at 167.
The Court continued:
"The fourteenth amendment did not affect the citizenship of women any more than it did of men. In this particular, therefore, the rights of Mrs. Minor do not depend upon the amendment. She has always been a citizen from her birth, and entitled to all the privileges and immunities of citizenship. The amendment prohibited the State, of which she is a citizen, from abridging any of her privileges and immunities as a citizen of the United States; but it did not confer citizenship on her that she did not have before its adoption."
Id. at 170. Here, the Court explained that people did not need the Fourteenth Amendment to be “citizens.” It explained that the amendment did not confer citizenship upon her but only prevented the state from abridging whatever privileges and immunities that citizenship gave her under the Constitution.
The Court then explained that under the Constitution more “citizens” could be made either by birth or by naturalization.
"Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides that 'no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President, and that Congress shall have power "to establish a uniform rule of naturalization." Thus new citizens may be born or they may be created by naturalization."
Id. at 167. What is critical in what the Court said here is how it separated the “natural-born citizen” from the “citizen of the United States,” referring to the original “citizens of the United States” and Congress’s power to make additional “citizens of the United States” through its naturalization powers to denote who were and would be the “citizens of the United States.”
The Court then demonstrated how more citizens were made by birth. The Court informed us that a "natural-born citizen" is not defined by the Constitution (which included the Fourteenth Amendment in 1875), but rather was defined at “common-law” with which the Framers were familiar as a child born in a country to parents who were "citizens" of the country when the child was born. The Court held:
"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. at 167-68.
What is critical to understand about what the Court said in this paragraph is that it set out to define what a “natural-born citizen” was. We know this by the first sentence in the quoted paragraph in which the Court refers directly to the question of what was a “natural-born citizen” under the Constitution. The Court arrives at a definition of a “natural-born citizen” by first explaining who was a “citizen” at “common-law” with which the Framers were familiar when they drafted the Constitution. In doing so, it gave two scenarios. The Court put the children who fell into these two scenarios into two different classes. The first class was comprised of children born in a country to parents who were “citizens” of the country at the time of the child’s birth. The Court then explained that this type of “citizen” was a “native” or “natural-born citizen.” Hence, we can see that the Court explained that this class of “citizen” was not only a “citizen,” but also a “natural-born citizen.” The Court added that there had never been any doubts that members of this class were “citizens.” And it was because these children were “natural- born citizens” that there could be no doubt that they were in fact “citizens.” Hence, it follows that there never had been any doubts at “common-law” with which the Framers were familiar with the citizenship status of the “natural-born citizens.” Knowing who the “natural-born citizen” were told us without any doubt who the “citizens” were. So what the Court actually said is that if one wanted to know without any doubt who a “citizen” was, one only had to determine whether the person was a “natural-born citizen,” which it defined as a child born in a country to parents who were “citizens” of the country at the time of the child’s birth. Thus, by being a “natural-born citizen” one was determined to be without a doubt a “citizen.” But the converse was not true. One could not establish that one was a “natural-born citizen” by showing that one was a “citizen,” for a “natural-born citizen” had its very own specific definition which the Court said was found in the “common-law” with which the Framers were familiar when they drafted the Constitution. Additionally, Congress had naturalization power to make anyone it pleased a “citizen” and such persons, while they could be “citizens” under those positive laws, did not necessarily satisfy the “common-law” definition of a “natural-born citizen.”
The “common-law” definition of a “natural-born citizen” provided by Minor can be traced almost word for word to Emer de Vattel who at Section 212 said: “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” The historical record is replete with evidence that the Founders and Framers were greatly influenced by the works of Vattel. Consider as just one example that
"[f]or James Otis, who was as well read as any American in both the English common law and the European theories of natural law, the conflict became especially acute. His frantic attempts to reconcile the two laws—Coke with Vattel—formed the crisis of his life and helped to tear his mind to pieces. Because he knew English history and the common law too well, because he clung too stubbornly to the veracity of seventeenth-century notions of jurisprudence and parliamentary supremacy, he was eventually compelled to sacrifice Vattel for Coke, to deny natural reason for the sake of historical truth, and to miss the Revolution."
Gordon S. Wood, The Creation of the American Republic 1776-1787, at 9 (1998) (citing Bernard Bailyn, ed. Pamphlets of the American Revolution, 1750-1776 (Cambridge, 1965--), I, 100-03, 106-07, 121-123, 409-17, 546-52, and noting that Bailyn’s introductory essay to the Pamphlets, entitled “The Transforming Radicalism of the American Revolution,” has been elaborated and republished separately as “The Ideological Origins of the American Revolution” (Cambridge, Mass., 1967)). Of course, we know that the Founders and Framers for sure chose natural reason, for they held “these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. The Declaration of Independence para. 2 (U.S. 1776). And we also know that they had a Revolution to “dissolve the Political bands which have connected them with another” [Great Britain] and to fight for those rights. Id. para. 1. So evidently they chose Vattel rather than Coke or Blackstone. Indeed, “It is therefore to be expected that, when terms of municipal law are found in the Constitution, they are to be understood in the sense in which they were used in Blackstone’s Commentaries; and when the law of nations is referred to, that its principles are to be understood in the sense in which Vattel defined them.” James Brown Scott, The United States of America: A Study in International Organization 439 (1920). It was, for sure, as Gordon S. Wood suggests, the writing and thinking of Vattel that was the primary motivation for them to have that Revolution and create the constitutional republic.
Clearly, Minor’s definition of a “natural-born citizen” was a definition based on American “common-law” which as we have seen above had its foundation on matters of citizenship in the law of nations which at the adoption of the Constitution became national law. This definition was not one based on the English common law which considered a child born in the King’s dominions and under his allegiance to alien parents, who were neither foreign diplomats nor military invaders, a “natural born subject.” As can be seen, under the English common law, there was no doubt that a child born in England to alien parents was a “natural born subject.” This American “common-law” rule would have been the one applied by the Founders and Framers, as Inglis v. Sailors’ Snug Harbor, 28 U.S. 99 (1830): explained, “when a revolution occurs; a dismemberment takes place; new governments are formed; and new relations between the government and the people are established. Id. at 120. Indeed, the original American “citizens” were the “Citizens of the United States” and their children born to them in the United States were the “natural born Citizens” and so on through Posterity. The Founders and Framers would not have expected anything less from aliens who should become by naturalization “citizens of the United States.” Their children born to them in the United States were also “natural born Citizens” and so on through Posterity.
Obama’s supporters argue that Minor left open the question of whether a child born in the United States to alien parents was a “natural-born citizen.” But the Court did no such thing, for it only left open the question if such child was a “citizen,” not a “natural-born citizen.” In the above quote, we see that the Minor addressed a second class of person. It said that “some authorities” maintained that children “born within the jurisdiction” to alien parents were also “citizens.” Here, the Court was referring to the Fourteenth Amendment which in referring to those persons to be declared “citizens” from the moment of birth in its text only required birth “in the United States and subject to the jurisdiction thereof.” If follows from the Court’s analysis and definition of a “natural-born citizen” that this class of person did not fall into the “natural-born citizen” category, for the Court said that “there have been doubts” whether these children were in fact “citizens.” We saw earlier that the Court explained that if a child was a “natural-born citizen,” there was no doubt that that child was a “citizen.” So, it follows from the Court’s explanation that the citizenship status of these children was in doubt because they were not “natural-born citizens.” So, if these children were not “natural-born citizens” in their own right under the “common-law,” the best that the Fourteenth Amendment could do for these children from the second class, i.e., children “born within the jurisdiction” to alien parents, was make them “citizens,” but not “natural-born citizens.” Not satisfying the definition of a “natural-born citizen” that existed at “common-law” with which the Framers were familiar when they drafted the Constitution, they could not be “natural-born citizens.” Also, these “other authorities” could have considered these other children to be “native-born” and eligible to be President, e.g. William Rawle, A View of the Constitution of the United States 80 (1825) ("Therefore every person born within the United States, its territories, or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the constitution, and entitled to all the rights and privileges appertaining to that capacity”); Lynch v. Clarke, 1 Sandford Ch. 583, 646 (N.Y. 1844) (a New York state case involving inheritance to property which found a child born in the United States to alien parents to be a “citizen” and in dicta stated that such child was a “natural born citizen”). But the unanimous U.S. Supreme Court in Minor expressed its position that “there have been doubts” whether those children were even just “citizens,” let alone “natural born Citizens.” If such doubts existed, the Court explained that they could not be “natural-born citizens,” because if one was a “natural-born citizen,” there was no doubt that one was a “citizen.” So the U.S. Supreme Court, confirming the definition of a “natural-born citizen” which included “citizen” parents and advising that “there have been doubts” whether these “other authorities’” position that “citizen” parents were not necessary for a child born in the United States to be a “citizen,” basically overruled those “other authorities” to the extent that they could be interpreted to say that such children were not only “citizens” but also “natural born citizens.”
It was not necessary for Minor to resolve the existing doubts regarding whether a child “born within the jurisdiction” to alien parents was a “citizen” because Virginia Minor was born in the country to “citizen” parents and therefore she was a “natural-born citizen” which without any doubt made her a “citizen.” So clearly, she was a “citizen,” which qualified her for the privileges and immunities granted only to “Citizens of each State” under Article IV and to “citizens of the United States” under the Fourteenth Amendment. Hence, with such children not being able to be “natural-born citizens” under the Court’s “common-law” definition of the clause, the Court left open the question of whether children “born within the jurisdiction” to alien parents were “citizens” under the Fourteenth Amendment.
But again, the question the Court left open was not about who was a “natural-born Citizen,” for the Court confirmed that “common-law” definition which did not include children from that second class. The Court did not say it was not addressing any question of whether children born in the United States to alien parents were "natural-born citizens." We know that the Court would have concluded they were not "natural-born citizens" because it told us that at "common-law" with which the Framers were familiar when they drafted the Constitution, a "natural-born citizen" was a child born in country to parents who were "citizens" of that country at the time of the child's birth. Rather, the question that the Court did not answer and which Wong Kim Ark did was whether a child "born within the jurisdiction" to alien parents was a "citizen of the United States" under the Fourteenth Amendment.
Obama’s supporters tell us that the English common law is to be looked at in defining a “natural born Citizen.” Then they tell us that Minor only considered one situation in that regard and that it was that of a child born in the country to “citizen” parents. They add that there could be other birth circumstances for a child which also made him a “natural born Citizen,” such as being born in the United States to alien parents. They add that the English common law did not require “subject” (“citizen”) parents for children born in the King’s dominion. In fact, they quote the words of Lord Coke and William Blackstone, telling us that they did not require that the parents of any child born in the King’s dominion be “subjects” in order for the child to be born a “natural born subject,” and that even if the child’s parents were just “aliens” in amity, their child born in the King’s dominion was a “natural born subject.”
If the English common law did not require “subject” parents to make a “natural born subject,” and if Minor gave us the English common law definition of a “natural born Citizen” as Obama’s supporters maintain, why would Minor present a definition of a “natural born Citizen” which included a situation of the child born in a country being born to “citizen” parents when the English common law made no such requirement? Additionally, why would Minor say that “there have been doubts” whether a child “born within the jurisdiction” to alien parents was a “citizen” when under the English common law there never was any doubt that that child was a “natural born subject?”
Obama’s supporters also argue that Minor was not really about citizenship, but rather about a woman’s voting rights. Minor did not provide some “brief statements” about citizenship. The Court did not accept the parties’ assumption that Virginia Minor was a “citizen.” Rather, it showed by analysis of historical sources and U.S. citizenship laws why women without a doubt were “citizens” as much as men. Its analysis of U.S. citizenship was thorough and part of its ratio decidendi. Its citizenship analysis is not dicta, but rather part of its first holding in which it found that women were as much as men “citizens” and “natural-born citizens.” In reaching that conclusion, it confirmed the definition of a “natural-born citizen” which it said was not found in the Constitution (which then already included the Fourteenth Amendment), but rather found in the “common-law” with which the Framers were familiar when they drafted the Constitution. The second holding was that women, even though “citizens” or even “natural-born citizens,” and thereby entitled to all the privileges and immunities offered to them at that time by Article IV and the Fourteenth Amendment, did not have a constitutional right to vote. Even U.S. v. Wong Kim Ark cited and quoted Minor for citizenship and not for voting rights.
IX. UNITED STATES V. WONG KIM ARK (1898)
The question of whether a child born in the United States to alien parents was a “citizen” was finally settled in 1898 when a majority of the U.S. Supreme Court (with Chief Justice Fuller and Justice Harlan dissenting) decided U.S. v. Wong Kim Ark (1898). In that landmark decision, the Court interpreted and applied the Fourteenth Amendment to finally resolve that lingering question. Here is the question asked by the Court:
"The question presented by the record is whether 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 by virtue of the first clause of the Fourteenth Amendment of the Constitution."
Wong Kim Ark, 169 U.S. at 653. And here is the holding:
"The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent 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. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative."
Id. at 705.
In Section 212 of The Law of Nations, Vattel defined "citizens” and “natural-born citizens.” Article II, Section 1, Clause 5 also includes “Citizen” and “natural born Citizen.” The issue in Wong Kim Ark was whether Wong was a “citizen,” not whether he was a “natural-born citizen.” The Court said he was a “citizen.” In so holding, the Court did not disturb Vattel’s definition of a “natural-born citizen” as adopted and made a part of American “common-law” per Minor. So, Wong Kim Ark did not change or repudiate the definition of a “natural born Citizen” as provided by American “common-law.”
Obama’s supporters claim that Wong Kim Ark said that we are to define a “natural born Citizen” under the English common law and that a “natural born Citizen” had the same meaning as a “natural born subject” under English common law. But as we can see, Wong Kim Ark stated in its holding that Wong was a “citizen of the United States” and did not state in that holding that he was a “natural born Citizen.”
Wong Kim Ark analyzed the meaning of a “natural born subject” under colonial English common law which we learn from Minor did not have the same definition as a “natural-born citizen.” Wong Kim Ark’s historical study of the meaning of an English “natural born subject” was not a study into the definition of an Article II “natural born Citizen.” Wong Kim Ark did not explore the question of whether anyone was a “natural born Citizen” which had already been done in Minor. Rather, it accepted Minor’s “common-law” definition of a “natural-born citizen,” distinguished that “natural-born citizen” from a “citizen of the United States” at birth under the Fourteenth Amendment, and held that Wong was a Fourteenth Amendment “citizen of the United States” at the time of his birth. It did not hold that he was an Article II “natural born Citizen.” With doubts existing as to whether Wong was a “citizen,” not a “natural born Citizen,” Wong Kim Ark answered the question of whether Wong was a “citizen,” not whether he was a “natural born Citizen.” Again, these were the doubts expressed by Minor concerning persons belonging to the “citizen” class, not to persons belonging to the “natural born Citizen” class about whom no doubts existed.
The question that Wong Kim Ark asked was "whether 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 who are not diplomats or officials of China is a “citizen of the United States” under the Fourteenth Amendment. Its holding was that a child born in the United States of "parent 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 who are not diplomats or officials of China is a Fourteenth Amendment “citizen of the United States” at the time of his birth. Not analyzing the meaning of an Article II “natural born Citizen,” we can see that Wong Kim Ark, following the lead of the New Jersey Supreme Court in Benny v. O’Brien, 586 N.J.L. 36, 29 Vroom 36, 32 A. 696 (1895), replacing “citizen” parents with domiciled alien parents, did not require that the child be born in the United States to “citizen” parents like Minor did when it confirmed the definition of a “natural-born citizen.” Actually, Wong Kim Ark even cited and quoted Minor and its definition of a “natural-born citizen” and did not see any need to alter that definition given that it was defining a “citizen of the United States” under the Fourteenth Amendment and not an Article II “natural born Citizen.”
Wong Kim Ark instructed that the Constitution is to be interpreted in light of the language and history of the English common law. It also told us that "subject" and "citizen" were analogous terms. Under the English common law, those aliens who resided in the King’s dominion “were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign,” and therefore every child born in England of alien parents was a “natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.” Wong Kim Ark, Id. at 658.
Since as we have seen the English common law required that a child born in the King’s dominion be born to a “subject” in order for that child to be a “natural born subject, American common law would have required that the child be born to a “citizen” to gain at birth the status of a “natural born Citizen.” The American common law would also have required that the child be born “within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the [American] Sovereign.”
Following this logic and with what Minor had early confirmed was the American “common-law” definition of a “natural-born citizen,” given the broad language of the Fourteenth Amendment (“subject to the jurisdiction thereof”) used in deciding who may be a “citizen of the United States” from the moment of birth, Wong King Ark was only willing to go and only had to go as far as holding that Wong was born “subject to the jurisdiction” of the United States. It so found because according to the Court, since at the time of Wong’s birth in the United States his parents were present within the territory of the United States, were domiciliaries and residents of the United States, and were not foreign diplomats or military invaders, the parents and Wong were bound to be obedient to the laws of the United States for which they received its protection. Under English common law, Wong’s parents would have been “subjects” of the King, but under American “common-law” and statutes, they would not have been U.S. “citizens.” Consequently, the Court did not find that Wong was within the allegiance, faith, and loyalty of the United States, which as English “subjects,” they would have been to the King. So the Court held that Wong was a Fourteenth Amendment “citizen of the United States,” not that he was an Article II “natural born Citizen” under the definition of that clause already confirmed by Minor. Under the Fourteenth Amendment, the child’s parents had only to be subject to the laws of the United States. Under the English common law, those parents were not only subject to the laws of England, but also had a further duty to be in allegiance, faith, and loyalty to the King. The alien parents did have a political connection to the sovereign under the English common law, but none under the American common law. So, while the English common law considered such parents’ connection to the King and his dominion strong enough to make his child born in the King’s dominion a “natural born subject,” the American “common-law” did not deem it strong enough to make that child a “natural born Citizen.” This rule had been earlier confirmed by the unanimous U.S. Supreme Court and the Wong Kim Ark Court followed it. Wong told us that if one is born in the United States and "subject to the jurisdiction thereof,” one is a "citizen of the United States." The Court held born in the United States to domiciled and resident parents was sufficient to make one born “subject to the jurisdiction” of the United States. It therefore held that a “citizen of the United States” under the amendment includes a child born in the United States to domiciled and resident alien parents. So, the Court found Wong’s parents’ connection to the U.S. territory and its laws strong enough to make their U.S.-born child a “citizen of the United States” from the moment of birth, but not strong enough to make their child a “natural born Citizen.” And their connection to the United States was not strong enough to make their U.S.-born child a “natural born Citizen” because as Minor informed, they were only aliens in the United States and not “citizens” thereof.
So, in interpreting and applying the Fourteenth Amendment, Wong Kim Ark distinguished a “natural born Citizen” from a “citizen of the United States.” Wong Kim Ark did answer the question left open by Minor and said that those children, born in the United States to domiciled and resident alien parents, are “citizens of the United States” under the Fourteenth Amendment. But Wong Kim Ark demonstrated that those children are only “citizens of the United States,” not “natural born Citizens.”
The Court did not refer to a “natural born Citizen,” but rather to a “native-born citizen of the United States” under that Amendment. The Court said:
"Passing by questions once earnestly controverted, but finally put at rest by the Fourteenth Amendment of the Constitution, it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional [p675] Amendment, all white persons, at least, born within the sovereignty of the United States, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States."
Id. at 674-75. Additionally Wong Kim Ark recognized that Wong was a Fourteenth Amendment “citizen of the United States,” not an Article II “natural born Citizen.” Justice Gray told us twice of this distinction. The first time he said: “The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.' Page 22, note. This paper, without Mr. Binney's name, and with the note in a less complete form, and not containing the passage last cited, was published (perhaps from the first edition) in the American Law Register for February, 1854. 2 Am. Law Reg. 193, 203, 204. ” Wong Kim Ark, 169 U.S. at 665-66. Later in his opinion, Justice Gray, in speaking about a child born in the United States to alien parents again said that an alien’s “child, as said by Mr. Binney in his essay before quoted, 'If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.'” Id. at 694. It is critical that when he mentioned it for the second time, his sentence followed the Court’s conclusion which he based on how the colonial English common law held aliens in amity to have sufficient allegiance to the King to make his children born in the King’s dominion “natural born subjects,” that Wong was born “subject to the jurisdiction” of the United States. So twice, Justice Gray told us of the distinction between a child born in the country to aliens and a child born in the country to “citizen” parents. He explained that both are “citizens,” but only the latter is a “natural-born citizen.”
Nowhere in either the words of the Fourteenth Amendment or the holding of Wong Kim Ark will we find the clause “natural born Citizen” mentioned. So, Article II, for presidential eligibility purposes, requires a “natural born Citizen” which Minor defined as a child born in a country to parents who were “citizen” at the time of the child’s birth and the Fourteenth Amendment, which provides for simple membership in the United States and has nothing to do with presidential eligibility, refers to a “citizen of the United States” which Wong Kim Ark held included a child born in the United States to domiciled and resident alien parents.
Minor had no doubts about what a “natural-born citizen” was and provided the “common-law” definition of that term with which the Framers were familiar when they drafted the Constitution. That definition was a child born in a country to parents who were “citizens” of the country at the time of the child’s birth. Minor did say that “there have been doubts” whether a child “born within the jurisdiction” to alien parents was a “citizen.” Wong Kim Ark resolved those doubts and held that such a child, born in the United States to domiciled and resident alien parents, was born “subject to the jurisdiction” of the United States and therefore was a “citizen of the United States” at the time of his birth under the Fourteenth Amendment. Giving someone a status at the time of his birth rather than because of his birth are two different things. In so holding, Wong Kim Ark did not rely upon the same “common-law” relied upon by Minor, for that “common-law” provided that such a child was an alien. That was the “common-law” that the Framers used to define a “natural-born citizen.” But since Wong Kim Ark was task with defining a “citizen” and not a “natural born Citizen,” it looked to the colonial English common law as an aid for determining whether Wong was a “citizen.” Hence, Wong Kim Ark used the Fourteenth Amendment with the aid of the English common law to hold that Wong was a “citizen of the United States.” But that “citizen of the United States” was not an Article II “natural born Citizen” who Minor had already defined under the “common-law” with which the Framers were familiar when they drafted the Constitution.
Wong Kim Ark also did not rely strictly upon that English common law as can be seen from its holding which was that a child, born in the United States to domiciled and resident alien parents, was born “subject to the jurisdiction” of the United States and therefore was a “citizen of the United States” at the time of his birth under the Fourteenth Amendment. Concerning persons who were not “natural born subjects” and present in the King’s dominion and who gave birth to a child while there, Blackstone only covered the situation of “aliens” giving birth to such children and said “[t]he children of aliens, born here in England, are, generally speaking, natural-born subjects (8) [with the exception of children born to military invaders], and entitled to all the privileges of such.” Blackstone, Commentaries, Book I, p. 374. Blackstone maintained that the King owed his protection to both an “alien” physically present in his dominion. This protection created a debt for that “alien” which he repaid in the form of allegiance to the King, even though such allegiance was temporary and lasted only as long as that “alien” physically remained in the King’s dominion. The King’s protection was denied only to ambassadors, military invaders, and priory-dwelling monks who did not owe any allegiance to the King even though physically present on his territory. Wong Kim Ark, in its thorough exposition of the colonial English common law, other than discussing the parental foreign ambassador and military invader exceptions to birthright subjectship, did not mention that that law made any distinction between “aliens” based on residency or domicile? Wong even explained how an alien owed allegiance to the King even though he may be located within his dominion and under his allegiance only on a temporary basis. Being present in a territory only on a temporary basis suggests that such person is not a domiciliary or resident of that place. Wong Kim Ark, without finding that the English common law required that an “alien” be a domiciliary of or resident in the King’s dominion for his children born there to be “natural born subjects,” nevertheless held that Wong’s parents and therefore Wong himself at the moment of birth in the United States were “subject to the jurisdiction” of the United States because the parents were domiciled and residing in the United States, which gave him the constitutional right under the Fourteenth Amendment to be considered a “citizen of the United States” at the moment of birth. Hence, what Justice Gray did in Wong Kim Ark was actually add a domicile and residency requirement to the Fourteenth Amendment’s “subject to the jurisdiction thereof” clause which did not exist in the English common law. See also Benny (“Allan Benny, whose parents were 'domiciled here at the time of his birth, is subject to the jurisdiction of the United States, and is not subject to any foreign power” and therefore a “citizen of the United States” under the Fourteenth Amendment).
That the Government in Wong Kim Ark argued for Vattel’s rule does not prove that the English common law did not treat aliens in amity located in its territory as “subjects” of the King. The Government opted for Vattel because his rule was more logical and sound. Under his rule, in order to be born a “natural-born citizen,” the child’s parents had to be citizens de jure and not simply aliens treated as citizens de facto. In contradistinction, the English common law allowed the parents of a “natural born subject” to be aliens de jure which it treated as subjects de facto. With Vattel, if the parents were not actual citizens, the child could not be born a “natural-born citizen.” And only the nation decided who were its citizens, not an alien by simply coming physically into its territory. Under Vattel’s rule, an alien did not simply come into a nation’s territory and through no consent of the nation become in effect a citizen of that nation which is what the English common law allowed of its aliens in amity and their children born in the King’s dominion. Vattel explained that a nation had a better chance of survival and preservation by deciding who were its citizens and letting those citizens run the nation. See Peter H. Schuck & Rogers M. Smith, Citizenship Without Consent: Illegal Aliens in the American Polity 50-54 (1985) (the authors reject the idea that the English common law provided the rule of decision for determining birthright citizenship in the United States). See also, Lynch v. Clarke, 1 Sandford Ch. 583, 641-63 (N.Y. 1844) (correctly concluding that the right to citizenship was a national right not pertaining to individual states, that U.S. citizenship was no longer defined by state laws but rather by national law, but incorrectly concluding that Congress had been silent on the question of whether children born in the United States to alien parents were citizens and that therefore that national law was the English common law rather than American common law which had its basis on matters of citizenship on the law of nations).
Regarding what type of “citizen” the child’s parents have to be, the American “common-law” definition confirmed by Minor only required a “citizen.” Our U.S. Supreme Court in Perkins v. Elg, 307 U.S. 325 (1939), confirmed that the child’s parents can be either “natural born Citizens” or “citizens of the United States.” This means that the child’s parents can be born either in the United States or out of it, provided that they are at least “citizens of the United States” at the time of the child’s birth.
Obama supporters are not able to respond to the argument that under the English common law, one had to be a “subject” of the King in order to give birth to a child born in his dominion who was accepted as a “natural-born subject.” So, they go off and look for solace in Wong Kim Ark and Justice Gray’s reference to some “same rule” existing between the English common law and American common law. They argue that they have won the debate on Obama’s eligibility because Wong Kim Ark said:
"It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established."
Wong Kim Ark, 169 U.S. at 658.
They conclude that since Wong Kim Ark said that the “same rule” that existed under English common law also existed under the Constitution, the Founders and Framers used as their definition of a “natural born Citizen” under American “common law” the same definition that the English used to define a “natural born subject” under the English common law. A careful analysis of our history and U.S. case law reveals that this argument is without merit.
First, after my many years of my arguing that there was such a thing as American common law and not only English common law, they have finally conceded that such a thing existed. But the only reason that they make such a concession is that they are too embarrassed to argue that the Founders and Framers defined a “natural born Citizen” under English common law rather than under American common law. So now they argue that there was American common law that defined a “natural born Citizen,” but that it provided the “same rule” as the English common law. Apart from what Justice Gray concocted in Wong Kim Ark, there is no historical evidence or U.S. Supreme Court case law to support their theory.
Second, this quote by Justice Gray regarding the English common law speaks about a “natural born subject.” But there is no such clause in Article II, Section 1, Clause 5. Rather, this constitutional provision speaks about a “natural born Citizen.” The Founders and Framers were meticulous and ever so careful in their word choices when writing the Constitution. Every word they chose (not words they did not choose) must be given proper meaning. Hence, the question becomes what is a “natural born Citizen,” not what is a “natural born subject.” These Obama supporters realize that the English common law did not speak about a “natural born Citizen” and that Justice Gray in Wong Kim Ark, when reviewing the English common law, also spoke about “natural born subjects” and not “natural born Citizens.” They attempt to hide this weakness of their argument by using in their discourse only a truncated part of “natural born Citizen,” i.e., “natural born,” so that it looks like when the English common law or Justice Gray was referring to “natural born subjects,” they were referring to “natural born Citizens.”
Third, the “single question” before the Wong Kim Ark Court was whether Wong, born in the United States to alien parents, was a “citizen of the United States” under the Fourteenth Amendment, not whether he was a “natural born Citizen” under Article II. This “single question” required the Court to answer the question left open by Minor which was whether such a person was a “citizen of the United States” under the Fourteenth Amendment, not whether he was a “natural born Citizen” under Article II, which Minor had already defined under the American “common-law” definition with which the Framers were familiar when they drafted the Constitution. Hence, any statement which Wong Kim Ark made which can be correctly or wrongly interpreted as providing a definition of a “natural born Citizen” is obiter dictum.
Fourth, Justice Gray does not provide any evidence that the Founders and Framers adopted any such “same rule” as part of the Constitution or in any other capacity on the national level. The historical record is replete with evidence that the Founders and Framers rejected the English common law and its broad-based allegiance as having any application in the Constitution or otherwise on the national level. If any thing and at most, such “same rule” may have continued to prevail in the States which adopted English common law for many local purposes including defining state citizenship and only until abrogated by state statute. But no such “same rule” became part of the Constitution or adopted on the national level for purposes of defining the new national citizenship as distinguished from state citizenship.
Fifth, Inglis v. Sailors’ Snug Harbor, 28 U.S. 99, 120 (1830) and Shanks v. Dupont, 28 U.S. 242, 245 (1830) demonstrated that the Founders and Framers rejected the English common law and its broad allegiance as having any application to define the nation’s new national citizenship. Congress, when passing the naturalization acts, also rejected the English common law’s broad-based allegiance (see below). As we have seen above, an alien in amity present in the King’s dominion was considered a “subject” of the King, owing him allegiance and obedience and the King in return owing him protection. But in the United States, no alien became a “citizen” by the mere fact of just being present on its territory. Rather, the alien had to satisfy Congress’s naturalization laws, which included a period of U.S. residency and the taking of an oath which included the renunciation of all foreign allegiance and acceptance of allegiance only to the United States. So, apart that “subjects” were members of monarchic and feudal societies and “citizens” were members of republics, surely a “subject” was not the same as a “citizen” who had to take and satisfy a number of legally prescribed steps in order to have gained that status in the United States.
Sixth, any such “same rule” that may have continued to prevail in the states was abrogated when Congress passed the Naturalization Act of 1790, which through a process of elimination confirmed that the Founders and Framers defined an Article II “natural born Citizen” as a child born in the country or out of it to parents who were “citizens” of the country at the time of the child’s birth, which in the 1795 Naturalization Act and those that followed in 1802 and 1855 confirmed that such status would be granted only to those children born in the United States to “citizen” parents. Prior to the Act of 1790, “[t]he acquisition of citizenship by birth and by naturalization in the United States depended on state laws, both statutory and common law. Margaret Mikyung Lee, Birthright Citizenship Under the 14th Amendment of Persons Born in the United States to Alien Parents, CRS Report for Congress 2 (August 12, 2010) (in footnote 14 Lee explains the circumstances of the Albert Gallatin Senate citizenship challenge and how Congress applied the laws of the states to conclude that Gallatin, who was born before the passage of the Naturalization Act of 1790 and even though had resided in the United States for 13 years but not at least nine years in any one state, had not been a “citizen of the United States” for the requisite nine years, with Congress applying the state laws of Virginia, Massachusetts, and Pennsylvania, and Gallatin arguing that U.S. citizenship no longer depended upon state laws, but rather on national laws, and that “even persons who had been natural-born citizens of the states were not considered citizens of the United States if they had not shown allegiance to the new government and nation”). These acts all treated children born in the United States to alien parents as aliens themselves and not as “citizens of the United States,” let alone as “natural born Citizens” or as Obama’s supporters contend under English common law, as “natural born subjects.” Congress in these acts gave membership in the United States from the moment of birth which it called “citizen of the United States” only to those children born to “citizen” parents.
Since these were naturalization acts, the children that Congress covered were only those who were born out of the United States to “citizen” parents, declaring them to be “citizens of the United States” from the moment of birth. Congress allowed those children who were born to alien parents, whether born in the United States or out of it, to become “citizens of the United States,” but only after birth. Under this legislative scheme, those given the status of “citizen of the United States” from the moment of birth were naturalized at birth and those who were given that status after birth were naturalized after birth. The only children Congress did not reach with its naturalization power were those born in the United States to “citizen” parents, for these were the “natural born Citizens” who did not need any naturalization act to be so declared, but rather were confirmed to be such under American “common-law” as the unanimous U.S. Supreme Court explained in Minor v. Happersett (1875).
Seventh, neither Justice Gray nor you come to grips with what Minor held was the “common-law” with which the Framers were familiar when they drafted the Constitution and which specifically defined a “natural-born citizen.” Minor held:
"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."
Minor, 88 U.S. at 167-68.
Neither Justice Gray nor Obama’s supporters address how this “common-law” definition of a “natural-born citizen” with which the Framers were familiar when they drafted the Constitution, as confirmed by the unanimous U.S. Supreme Court in Minor, could exist, one that called for birth in a country to parents who were “citizens” of that country at the time of the child’s birth, when the English common law did not limit that, in order for a child born in the King’s dominion to be a “natural-born subject,” he had to be born to parents who at the time of his birth were either “natural born subjects” or “naturalized subjects.” Rather, the English common law with its notion of broad allegiance included as qualifying parents all aliens in amity who were present in the King’s dominion. That law considered those aliens to be “subjects” of the King and thereby owing him allegiance and obedience, all without the alien having to go through any naturalization process to become a “subject.” But Minor even added that “there have been doubts” whether a child “born within the jurisdiction” to alien parents was even a “citizen.” If our nation since before the revolution and thereafter and even under the Constitution treated aliens in amity the same as the English treated theirs, the Supreme Court would not have stated that “there have been doubts” whether such a child was even a “citizen.” With such statements by the unanimous U.S. Supreme Court, there simply could not have prevailed in the United States the “same rule” that existed under the English common law that defined a “natural born subject.” On the contrary, Justice Gray approvingly cited and quoted Minor and its definition of a “natural-born citizen,” and did not take issue with that definition or with Minor’s “doubts” regarding whether children born in the United States to alien parents were even just “citizens.” Finally, what Chief Justice Fuller said in his dissent about Wong being able to be eligible to be President does not only not find any support in the majority’s holding, but is also a mere statement of obiter dictum.
Hence, Obama’s supporters will have to come up with evidence other than Wong Kim Ark’s “same rule” statement of dicta to convincingly prove that the Founders and Framers defined a “natural born Citizen” the same as the English defined a “natural-born subject” under English common law.
Article II requires a would-be president to be a “natural born Citizen.” Minor v. Happersett defines a “natural born Citizen,” and the Fourteenth Amendment and Wong Kim Ark, confirming Minor’s definition of a “natural-born citizen,” only defined a “citizen of the United States.” It is more than abundantly clear that when we read our American “common-law” and early naturalization acts in tandem, there is no doubt that when the Founders and Framers wrote the “natural born Citizen” clause into the Constitution, a “natural born Citizen” was a child born in the United States to parents who were “citizens” at the time of the child’s birth. This original American “common-law” definition has never been changed by any constitutional amendment (like the Fourteenth Amendment) or U.S. Supreme Court decision (like U.S. v. Wong Kim Ark). Hence, this definition under Article III is part of the “Laws of the United States” and under Article VI is the supreme law of the land today and still prevails today.
Today, the only way one can become a "natural born Citizen" is by satisfying the American "common-law" definition of a "natural born Citizen," i.e., a child born in the country to parents who were "citizens" when the child was born. Minor v. Happersett (1875) (“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”); United States v. Wong Kim Ark (1898) (a child born in the United States to domiciled and resident alien parents is a “citizen of the United States” at the time of his birth, but not a “natural born Citizen”). Congress has always recognized this, also in the Civil Rights Act of 1866 and the Fourteenth Amendment, both of which only define a “citizen of the United States” and not a “natural born Citizen.”
So as we have seen, U.S. v. Wong Kim Ark (1898) does not reign supreme on the definition of a “natural born Citizen.” The U.S. Supreme Court case that reigns supreme in that regard is Minor v. Happersett (1875). Minor had no doubts about what a “natural-born citizen” was and provided the “common-law” definition of that term with which the Framers were familiar when they drafted the Constitution.
Clearly, Minor provided the American “common-law” definition of a “natural-born citizen.” It did not provide a definition based on the English common law which considered a child born in the King’s dominions and under his allegiance to alien parents, who were neither foreign diplomats nor military invaders, a “natural born subject.” As can be seen, under the English common law, there was no doubt that a child born in England to alien parents was a “natural born subject.” This American “common-law” rule would have been the one applied by the Founders and Framers, as Inglis v. Sailors’ Snug Harbor, 28 U.S. 99 (1830): explained, “when a revolution occurs; a dismemberment takes place; new governments are formed; and new relations between the government and the people are established. Id. at 120. Indeed, the original American “citizens” were the “Citizens of the United States” and their children born to them in the United States were the “natural born Citizens” and so on through Posterity. The Founders and Framers would not have expected anything less from aliens who should become by naturalization “citizens of the United States.” Their children born to them in the United States were also “natural born Citizens” and so on through Posterity. The historical record shows that the Founders and Framers looked to Vattel for their ideas on natural law and the law of nations. These fundamental laws, and not the English common law, were incorporated into the Declaration of Independence and the Constitution, foundational documents of our republic. The old notion of English “natural born subject” no longer had any relevancy in the new republic. The American Revolution brought to the new nation the idea of a sovereign people. Under British rule, sovereign authority rested with the King and Parliament. With the American Revolution, the people dispossessed the English King and Parliament of sovereignty over their lives and gave it themselves. And with that new sovereignty they created a new America-a republic, a new representative government with limited powers, and a new membership in that republic which the Founders and Framers called “citizen of the United States” and “natural born Citizen.” No longer was one going to be merely a “subject” of a King. Now, one would be a “citizen” and have control over his or her destiny. The new “citizen” would now participate in the governing of his nation by electing representatives who would constitute their new government which was given the solemn task to protect and promote their well being and happiness.
I have never contended that Wong Kim Ark wrongly analyzed the definition of a “natural born Citizen.” While I do not agree with the Court’s use of the English common law to define any aspect of U.S. citizenship, the Court’s holding only went to define a “citizen of the United States” from the moment of birth under the Fourteenth Amendment and not an Article II “natural born Citizen.” In fact, while Wong Kim Ark may have analyzed what a “natural born subject” was under colonial English common law, other than cite Minor and quote its definition of the clause, it did not otherwise explore the meaning of an Article II “natural born Citizen.” So, it accepted and did not disturb Minor’s “common-law” definition of a “natural-born citizen,” distinguished that “natural-born citizen” from a “citizen of the United States” at birth under the Fourteenth Amendment, and held that Wong was a Fourteenth Amendment “citizen of the United States” at birth. It did not hold that he was an Article II “natural born Citizen.”
Wong Kim Ark resolved the doubts identified by Minor regarding whether children born in the United States to alien parents were “citizens,” and held that such a child was a “citizen of the United States” at birth under the Fourteenth Amendment. In so holding, Wong Kim Ark did not rely upon the same “common-law” relied upon by Minor, for that “common-law” provided that such a child was an alien. That was the “common-law” that the Framers used to define a “natural-born citizen.” Rather, what Wong Kim Ark did was look to the English common law for aid in answering the question of whether Wong was born “subject to the jurisdiction” of the United States,” clearly a test which had never before been applied in any definition of a “natural born Citizen.” Hence, Wong Kim Ark used English common law and the Fourteenth Amendment to hold that Wong was a “citizen of the United States” at birth. But that “citizen of the United States” at birth was not an Article II “natural born Citizen” who Minor had already defined under the “common-law” with which the Framers were familiar, which definition Wong Kim Ark acknowledged and did not alter.
Relying on the Fourteenth Amendment rather than an Act of Congress, Wong Kim Ark held that a child born in the United States to domiciled alien parents was born “subject to the jurisdiction” of the United States and therefore a “citizen of the United States” from the moment of birth. So Wong removed the need for the alien parents to naturalize before their U.S.-born child could be a “citizen of the United States.” Note that Wong’s parents could not naturalize because they were prohibited from doing so by Chinese laws. Wong also granted U.S. citizenship from the moment of birth rather than after birth. But Wong did all this in 1898, not 1787 when the Constitution was adopted and when the definition of a “natural born Citizen” was a child born in the country to parents who were citizens of that country.
More importantly, Wong did not nor could it change the meaning of a “natural born Citizen.” Rather, it only established a new definition of a “citizen of the United States” under the Fourteenth Amendment. And how did it do that? What Wong did was substitute domiciled parents in the place of citizen parents which were required by the Constitution in order for a child to be a “natural born Citizen.” With the Founders and Framers demanding that a child be born to “citizen parents” in order to be a “natural born Citizen,” removing “citizen parents” and replacing them with “domiciled parents” would require a constitutional amendment. Like how the Madison Administration ruled McClure, the Court ruled Wong to be a “citizen of the United States,” although from the moment of birth. There being no constitutional amendment changing the definition of a “natural born Citizen,” the Court could not and did not declare Wong a “natural born Citizen,” even though he was declared a “citizen of the United States” from the moment of birth. The Court could not declare him a “natural born Citizen” because he was born to domiciled alien parents, not U.S. “citizen” parents. He could not be a “natural born Citizen” because like McClure, he was born with alienage (alien parents). How Wong differs from McClure is that Wong was given the status of a “citizen of the United States” from the moment of birth rather than after birth. But their birth circumstances were the same, both born in the United States to alien parents. Hence, both not being born to “citizen” parents, at most they could be “citizens of the United States,” and not “natural born Citizens.”
Regarding the Wong Kim Ark majority (Chief Justice Fuller and Justice Harlan dissented), the Court simply naturalized Wong "at birth" under the Fourteenth Amendment, which means for the first time that a child could be born in the United States to alien parents (domiciled) who never naturalized and be considered a "citizen of the United States." Wong is nothing more than an extension of the James McClure case. Wong granted the status of a "citizen of the United States" "at birth" to a child born in the United States to alien parents who never naturalized after the child's birth. So Wong replaced the status of parents having to be “citizens” with the status that parents had to be “domiciled” (making the child born “subject to the jurisdiction” of the United States” before a child born in the United States could be found to be a “citizen of the United States.” And Wong also added that such a child’s citizenship would be from the moment of birth. But again, Wong Kim Ark held Wong to be a "citizen of the United States,” not a "natural born Citizen," like the James Madison Administration held James McClure to be a "Citizen of the United States" and not a “natural born Citizen."
That Wong Kim Ark analyzed the citizenship status of children born in the United States to alien parents does not convert the decision into one defining a “natural born Citizen.” Minor had already told us what a “natural born Citizen” was, i.e., a child born in a country to parents who were “citizens” of that country when the child was born. On the other hand, Wong Kim Ark held that a child born in the United States to domiciled and resident alien parents was included as a “citizen of the United States” at birth under the Fourteenth Amendment. Remember that Minor did not find the definition of a “natural born citizen” in the Fourteenth Amendment. Wong Kim Ark did not hold that child to be an Article II “natural born Citizen.”
One final point on Wong Kim Ark is that Obama’s supporter, in their effort to show that the Wong majority held what it really did not hold, resort to relying upon the dissenting opinion. They argue that what Chief Justice Fuller said in his dissenting opinion proves that the majority held Wong to be a “natural born citizen.” Here is the statement that they rely upon:
"Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that "natural-born citizen" applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not."
Id. at 715.
First, this statement regarding a “natural born Citizen” was dicta, for there was no issue before the Court contesting the meaning of an Article II “natural born Citizen” or asking whether Wong was a “natural born Citizen.” Rather, the Court was tasked with deciding whether Wong was a “citizen of the United States” under the Fourteenth Amendment, a different class of “citizen” than an Article II “natural born Citizen” which class applies only to presidential and vice-presidential eligibility. Second nowhere in the majority decision do we find the Court saying "that 'natural-born citizen' applied to everybody born within the geographical tract known as the United States, irrespective of circumstances." Hence, Justice Fuller’s statement regarding a “natural born citizen” is not only dicta but also incorrect given what the majority held.
So, Obama’s supporters misunderstand how Justice Gray used the English common law history to arrive at his decision. In Wong Kim Ark, he used an English common law “natural born subject” to arrive at his holding that Wong was a “citizen of the United States” from the moment of birth under the Fourteenth Amendment. He only used English common law concepts regarding who were “natural born subjects” to find that Wong was a “citizen of the United States” from the moment of birth. He did not use those concepts to find that he was a “natural born Citizen.” Again, Wong needed to be a “citizen,” not a “natural born Citizen,” not to be deported, and the only question before the Court was whether Wong was a “citizen of the United States,” not whether he was a “natural born Citizen.” Justice Gray did not need to nor did he hold that Wong was a “natural born Citizen,” for the United States, as explained by Inglis, no longer used the broad allegiance doctrine of the English common law. Under that broad allegiance doctrine, we have seen how the English common law treated aliens in amity as “subjects” of the King. But in the United States, an alien in amity had to go through a formal legal naturalization process prescribed by Congress to become a “citizen” and Minor confirmed in 1875 that one had to be born to “citizen” parents to be a “natural born Citizen.” Still, Justice Gray found that being born in the U.S. to domiciled and resident alien parents was sufficient to make one born “subject to the jurisdiction” of the United States and therefore a “citizen of the United States” under the Fourteenth Amendment. But he did not hold that such birth circumstances gave anyone the status of a “natural born Citizen.” We have seen how Justice Gray in his decision distinguished the two classes of “citizens.” Justice Gray told us twice of this distinction when he said: “The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.” Wong Kim Ark, 169 U.S. at 665-66 and at 694.
Obama’s supporters are mistaken to conflate and confound a Fourteenth Amendment “citizen of the United States” with an Article II “natural born Citizen” and to argue the Wong Kim Ark defined or even redefined what a “natural born Citizen” is when it only addressed the definition of a “citizen of the United States” under the Fourteenth Amendment. The “natural born Citizen” clause was already defined by American “common-law” with which the Founders and Framers were familiar as explained by Minor. That definition has never been changed by any constitutional amendment or U.S. Supreme Court decision. That definition today is still a child born in the United States to U.S. “citizen” parents.
X. ONE U.S. CITIZEN PARENT IS NOT ENOUGH TO MAKE A NATURAL BORN CITIZEN
Barack Obama was born to a U.S. “citizen” mother and a non-U.S. “citizen” father (his father was a British subject/citizen). Obama maintains that it is sufficient for him to be born to just one U.S. “citizen” parent in order to be a “natural born Citizen.” Such an argument has no historical or constitutional support. Having just one U.S. “citizen” parent is not enough to make one a “natural born Citizen.”
There is no question that historically, a husband’s and wife’s allegiance and citizenship followed that of the husband and united into that of the husband. There was no such thing as a husband having an allegiance or citizenship that was different from his wife’s. Consider that Vattel said born to “parents” who are “citizens.” And “parents” does, indeed, mean father and mother, for Vattel further told us that “[a] man ought to preserve gratitude and affection for the state to which he is indebted for his education, and of which his parents were members when they gave him birth.” Id. at Section 122, p. 153-54. The Founders and Framers believed that a husband and wife should be united as one when it came to allegiance and citizenship. Our U.S. Supreme Court explained in Mackenzie v. Hare that citizenship and nationality concern America’s “relations and intercourse with other countries” and further explained:
"The identity of husband and wife is an ancient principle of our jurisprudence. It was neither accidental nor arbitrary, and worked in many instances for her protection. There has been, it is true, much relaxation of it, but in its retention, as in its origin, it is determined by their intimate relation and unity of interests, and this relation and unity may make it of public concern in many instances to merge their identity, and give dominance to the husband. It has purpose if not necessity in purely domestic policy; it has greater purpose, and, it may be, necessity, in international policy."
Mackenzie v. Hare, 239 U.S. 299, 311 (1915). The Court upheld the constitutionality of Section 3 of the Citizenship Act of 1907 in which Congress confirmed the need for unity of citizenship between a husband and wife. The Court further explained that the rule of unity of husband and wife addresses “conditions of national moment” and “international aspects.” Id. at 312. The rule was designed to avoid “national complications,” “embarrassments,” and “controversies.” Id. So as we can see, the Founders and Framers did not believe that a husband and wife could have two different allegiances and citizenships. Speaking about a “father’s” citizenship meant that both the father and mother had the same citizenship and that they would both pass that citizenship on to their children. With citizenship being united into one, there could not be any child born with conflicting or split allegiances and loyalties inherited from one or both alien parents under the rules of jus sanguinis (allegiance and citizenship inherited from parents).
On September 22, 1922, Congress enacted the Cable Act (42 Stat. 1021) which changed the naturalization procedure for married women. Before then, women who were married U.S. citizens or naturalized citizens automatically became U.S. citizens by reason of the marriage. Before then, a U.S. “citizen” woman who married an alien became herself an alien. Under those same prevailing laws, when the husband naturalized, the wife and their children became "citizens" of the United States. The new law gave a wife her own citizenship. The Cable Act required that any woman married after the act’s effective date who wished to become a citizen must personally meet the requirements of the naturalization laws. So when Congress passed the Cable Act of 1924 and the Women’s Citizenship Act of 1934, a woman no longer was tied to her husband’s citizenship. Now she could have her own. This created a situation for the first time in our nation that a husband could be a citizen and a wife could be an alien and a husband could be an alien and his wife a citizen. While the Cable Act of 1922 finally allowed U.S. “citizen” women to retain their citizenship when marrying an alien husband, its framers also warned that it could create dual national children. So, it was not until 1922 with the Cable Act that wives could have a citizenship that was different from that of her husband. Hence, during the Founding, when one spoke about the father’s citizenship, that meant both the father’s and mother’s which if they were married always followed that of the husband.
More importantly, the Cable Act did not amend the definition of a “natural born Citizen,” which still requires that both parents be U.S. “citizens” at the time of the child’s birth in the United States. The fact that the Cable Act changed our citizenship law by separating the wife’s citizenship from her husband’s did not amend the Constitution’s natural born Citizen” clause. Regardless of these changes in the law, the fact still remained that the Founders and Framers required that both the father and mother of the child be citizens at the time of the child’s birth in the United States in order for that child to be a “natural born Citizen.” So, the Constitution still required two citizen parents. Rather, what the Cable Act did was just making it harder to created “natural born Citizens.” Before the wife automatically took on the citizenship of her husband upon marriage without having to do anything other than get married. Under our new citizenship laws, an alien wife now has to make her own personal application to have the same citizenship as her husband. But that an alien wife has to go through a more rigorous exercise to become a “citizen of the United States” did not amend the Constitution’s “natural born Citizen” clause by supposedly now only requiring one citizen parent. Hence, today, both father and mother must still be “citizens” at the time of the child’s birth. What changed is that the wife does not simply follow the citizenship of her husband or vice versa. Each spouse must acquire their own independent U.S. citizenships and transmit their respective U.S. citizenship to their child by inheritance.
Even Ankeny v. Governor of the State of Indiana, 916 N.E.2d 678 (Ind. Ct. App. 2009), transfer denied 929 N.E.2d 789 (Ind. 2010), which incorrectly ruled that “based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are ‘natural born citizens’ for Article II, Section 1 purposes, regardless of the citizenship of their parents,” also recognized in Footnote 14 that Wong Kim Ark “did not actually pronounce the plaintiff a ‘natural born citizen’ using the Constitution’s Article II language.” Ankeny said in Footnote 14: "We note the fact that the Court in Wong Kim Ark did not actually pronounce the plaintiff a ‘natural born Citizen’ using the Constitution’s Article II language is immaterial. For all but forty-four people in our nation’s history (the forty-four Presidents), the dichotomy between who is a natural born citizen and who is a naturalized citizen under the Fourteenth Amendment is irrelevant. The issue addressed in Wong Kim Ark was whether Mr. Wong Kim Ark was a citizen of the United States on the basis that he was born in the United States. Wong Kim Ark, 169 U.S. at 705, 18 S. Ct. at 478."
The Court admitted that Wong Kim Ark did not hold in words that Wong was a “natural born Citizen.” But incorrectly believing that the Fourteenth Amendment and Wong Kim Ark provide a definition of a "natural born Citizen" when in reality they only define a "citizen of the United States,” it still forged ahead and used Wong Kim Ark as a basis for the notion that Minor’s American “common-law” definition of a “natural born Citizen” had now been expanded to include children born in the United States to alien parents. This really is a fantastic feat, even just considering that Wong did not address whether Minor’s American “common-law” definition was right or wrong or if right why it needed to be expanded to include children born in the United States to alien parents.
Moreover, the Ankeny court is mistaken in concluding that simply because Wong analyzed under the Fourteenth Amendment the question of whether Wong was a “citizen of the United States on the basis that he was born in the United States,” the Court gave us a new definition of a “natural born Citizen.” First, the court begged the question. The Court relied upon Wong Kim Ark to come to its decision. Wong Kim Ark is a Fourteenth Amendment case. Ankeny assumed without analyzing the question whether the Fourteenth Amendment includes a definition of a “natural born Citizen.” This is amazing since the plain text of the Amendment speaks of a “citizen of the United States,” and not a “natural born Citizen,” the former being a class of “citizen” which Article II, Section, 1, Clause 5 expressly states was no longer eligible to be President in the future. Also, there is no evidence in the amendment’s debates which suggest that the amendment repealed or amended Article II’s “natural born Citizen” clause.
Second, if the Wong Kim Ark was giving us a new definition of a “natural born Citizen,” it would have referred to Minor’s definition and told us it was expanding that definition to include children born in the United States to alien parents. The Court would then not have just held Wong to be a Fourteenth Amendment “citizen of the United States,” but also a “natural born Citizen.”
Third , under the American “common-law” definition of a “natural born Citizen,” mere birth in the country had never been sufficient to make one a “natural born Citizen.” Citizen parents had always been required as an additional factor. After all, Article II, Section 1, Clause 5 says “natural born Citizen,” not “born Citizen.” Even Wong Kim Ark recognized the difference between a “natural born Citizen” and a “citizen of the United States” at birth when it said twice in its decision: “The child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle [born in the country].'" Wong Kim Ark, 169 U.S. at 665-66 and 694 (citing and quoting Horace Binney, The Alienigenae of the United States Under the Present Naturalization Laws (1853)). So what Ankeny did is amend the Constitution without a constitutional amendment. Needless to say, the Ankeny decision is unconstitutional and very bad law.
So Ankeny, while conceding that Wong’s actual holding does not state that the plaintiff was a “natural born Citizen,” incorrectly concluded that the actual language of the Wong holding was “immaterial” because the Fourteenth Amendment defines a “natural born Citizen” and Wong had held that the plaintiff was a “citizen of the United States” from the moment of birth under that amendment. As we have shown, the Fourteenth Amendment does not define a “natural born Citizen” and the Wong Court recognized that in its carefully worded holding. But Ankeny improperly conflated and confounded a “citizen of the United States’ under that amendment with an Article II “natural born Citizen.” Additionally, Ankeny in footnote 12 also said that Minor followed the rule of unity of husband and wife when it said: “Note that the Court in Minor contemplates only scenarios where both parents are either citizens or aliens, rather in the case of President Obama, whose mother was a U.S. citizen and father was a citizen of the United Kingdom.” So we can understand why Minor would never have spoken about any scenarios involving just one “citizen” parent. It just had simply never had been our law that a husband could have a different citizenship from that of his wife.
Hence, Vattel, the Founders and Framers, and our U.S. Supreme Court have never seen the need to say “father and mother” when defining a “natural born Citizen.” The use of the word “parents” said it all. “Parents” meant father and mother. Furthermore, the purpose of the “natural born Citizen” clause was to have a child born in allegiance and jurisdiction only to the United States. That is what the Founders and Framers expected of future Presidents and Commanders in Chief of the Military. Being born even to just one alien parent, causing the child to inherit that foreign parent’s allegiance and citizenship through jus sanguinis, would defeat the very national security purpose of the clause.
It has been pointed out that on August 23, in the Maryland case of Fair v. Obama (Circuit Court of Carroll Cty., Md), Judge Thomas Stansfield ruled on the "two citizen parent" argument. Judge Stansfield concludes:
"The issue of the definition of "natural born citizen" is thus firmly resolved by the United States Supreme Court in a prior opinion, as this Court sees it, that holding is binding on the ultimate issue in this case. While Ms. Fair and Ms. Miltenberger may disagree with the holding of the Supreme Court, from a perspective of stare decises, the only means by which an opinion of the Supreme Court, concerning substantive law can be overturned is either by a subsequent holding of the Supreme Court or an amendment to the U.S. Constitution. Both have occurred in the past on very rare decisions, but this Court does not believe that it has the discretion to simply disregard a holding which clearly applies to the definition of "natural born citizen" as it applies to President Obama."
http://www.scribd.com/doc/104377229/Fair-v-Obama-Maryland-Obama-Ballot-Challenge-Decision-8-27-2012 .
I agree with Judge Stansfield that “[t]he issue of the definition of a ‘natural born citizen’ is thus firmly resolved by the United States Supreme Court.” I also agree with him that “that holding is binding on the ultimate issue in this case.” I also agree that anyone disagreeing with a decision of the U.S. Supreme Court is bound by that decision and can be relieved of it only “by a subsequent holding of the Supreme Court or an amendment to the U.S. Constitution.” I also agree with him that a court does not have the “discretion to simply disregard a holding which clearly applies to the definition of a ‘natural born citizen’ as it applies to President Obama.”
"If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield…"
George Washington Farewell Address of 1796. Minor explained that the Court’s
“province is to decide what the law is, not to declare what it should be. . . . If the law is wrong, it ought to be changed; but the power for that is not with us. The arguments addressed to us bearing upon such a view of the subject may perhaps be sufficient to induce those having the power, to make the alteration, but they ought not to be permitted to influence our judgment in determining the present rights of the parties now litigating before us. . . . We can only act upon . . . rights as they exist. It is not for us to look at the hardship of withholding. Our duty is at an end if we find it is [mandated by the Constitution that we] withhold."
Minor, at 178. Hence, the courts have had and continued to have a constitutional duty to enforce Article II’s “natural born Citizen” clause as written and intended by the Founders and Framers. The inescapable conclusion is that the unanimous U.S. Supreme Court in Minor “firmly resolved” what a “natural born Citizen” is. It told us how the Framers defined that clause under the “common-law” with which they were familiar when they drafted the Constitution. Hence, the meaning of a “natural born Citizen” is “well-settled” under Minor. Minor’s holding is “binding on the ultimate issue in this case” which is whether Obama is an Article II “natural born Citizen.” Obama is bound by that decision unless he obtains “a subsequent holding of the Supreme Court or an amendment to the U.S. Constitution” providing him with the relief that he seeks. Lacking any such U.S. Supreme Court decision or constitutional amendment, today’s courts do not have the “discretion to simply disregard a holding which clearly applies to the definition of a ‘natural born citizen’ as it applies to President Obama.” Under the well-settled definition of a “natural born Citizen” as confirmed by the historical record and both Minor and Wong Kim Ark, Obama is not a “natural born Citizen” and therefore not eligible to be President and Commander in Chief of the Military.
XI. CONCLUSION
A friendly alien Frenchman with his alien wife located in England and their son born there had an allegiance or tie to the King which was strong enough under English common law to make the alien parents “subjects” of the King and their son a “natural born subject” of the King. Assuming those alien parents to be in the United States and their child to be born here before Wong Kim Ark, under American “common-law” and Congressional Acts, as confirmed in 1875 by the unanimous U.S. Supreme Court in Minor that allegiance and tie was not strong enough to make the alien parents “citizens of the United States” or to make the son a “natural born Citizen.” Minor even stated that “there have been doubts” whether that child was even a “citizen” (let alone a “natural-born citizen”).
Our citizenship laws changed with the Fourteenth Amendment and its interpretation and application by U.S. v. Wong Kim Ark (1898). While the U.S. domiciled and resident parents under American “common-law” and Congressional Acts were still not “citizens of the United States,” under the Fourteenth Amendment their son became a “citizen of the United States” from the moment of birth, for the parents and their son at the moment of his birth were held to be “subject to the jurisdiction” of the United States through their being physically present on U.S. territory and thereby being obligated to obey the laws of the United States. So, while under Wong Kim Ark the son became a “citizen of the United States” from the moment of birth, with his parents not being “citizens,” he did not become a “natural born Citizen,” which status Minor explained was reserved only to the children born in the United States to parents who were not only aliens but U.S. “citizens” at the time of the child’s birth.
Article II, Section 1, Clause 5 uses the clause, “natural born Citizen,” not “born Citizen.” Wong Kim Ark had to decide whether Wong was a Fourteenth Amendment "citizen of the United States" from the moment of birth or what may be called a “born Citizen,” not whether he was a "natural born Citizen," which according to Minor is not defined by our Constitution. Minor looked to American "common-law" to define an Article II "natural born Citizen." Wong Kim Ark looked to the English common law to define a Fourteenth Amendment "citizen of the United States" from the moment of birth (“born Citizen”).
Obama’s supporters have failed to demonstrate any contradiction in the evidence and argument that I have presented here, i.e., that a “natural born Citizen” is a child born in the United States to parents who were both U.S. “citizens” at the time of the child’s birth. On the contrary, they are the ones who have failed to provide any real historical and legal evidence to support their position that a “natural born Citizen” is any child born a “citizen of the United States,” which is not even the correct standard under Article II, Section 1, Clause 5. They put forth an unsubstantiated historical and legal position and hold it together with personal attacks and other fallacious reasoning.
Today for presidential eligibility purposes, Article II still requires a "natural born Citizen" and rejects a "citizen of the United States" as the proper constitutional standard for a would-be president to meet in order to be eligible for that office. In this connection, the Fourteenth Amendment only produces a "citizen of the United States," which the plain text of Article II shows is insufficient to be eligible to be President. What this means is that one who is neither a “natural born Citizen” nor a “Citizen of the United States, at the time of the Adoption of this Constitution, shall [not] be eligible to the Office of President.” Article II, Section 1, Clause 5.
The Founders and Framers were subject from birth to the natural allegiance of Great Britain. Having been naturalized by the Declaration of Independence and by adhering to the American Revolution, they became “Citizens of the United States,” but not “natural born Citizens.” They therefore grandfathered themselves to be eligible to be President. But the grandfather clause has long expired and now one has to be a “natural born Citizen” to be eligible to be President. Obama, like the Founders and Framers, was born subject from birth to the natural allegiance of Great Britain. He therefore would need the grandfather clause to be eligible to be President because like the Founders and Framers, he is not a “natural born Citizen.” The difference for Obama is, however, that while the clause was available to the Founders and Framers, it is not available to him. Obama, not being a “natural born Citizen, is therefore not eligible to be President and Commander in Chief of the Military.
As we have seen, the Founders and Framers inserted the "natural born Citizen" clause in Article II, Section 1, Clause 5 as part of presidential eligibility for the nation's safety and preservation. Hence, the "natural born Citizen" clause has a very specific constitutional meaning in the context of presidential eligibility. The historical record and U.S. Supreme Court case law convincingly demonstrate that that meaning is a child born in the United States to parents who were U.S. "citizens" at the time of the child's birth. That meaning does not and should not without constitutional amendment be changed based on the allegation that we should not prevent "good" people from becoming President. If our nation desires to amend the clause so that more people may be eligible for President, then let the people change the clause through national debate and by prescribed constitutional amendment. But until that is done, and to be guided by the wisdom of the Founders and Framers who gave us the clause for the purpose of self-preservation, the clause should be enforced the way the Founders and Framers so intended it to be.
Even if Obama were born in Hawaii, he is still not eligible to be President. A “natural born Citizen” is a child born in the U.S. or its jurisdictional equivalent to a U.S. citizen father and mother. Emer de Vattel, The Law of Nations, Sec. 212-217 (1758); Minor v. Happersett (1875); U.S. v. Wong Kim Ark (1898) (to name just a few sources). It is reported that Obama was born to Stanley Ann Dunham and Barack H. Obama. While his mother was a U.S. “citizen,” under the British Nationality Act 1948, Obama Sr. was a British citizen and never a U.S. domiciliary or legal permanent resident let alone a U.S. citizen. Under that same British Act, Obama himself was also born a British citizen by descent from his father. Under such birth circumstances, before the Fourteenth Amendment was adopted, Minor informed that under the “common-law” with which the Framers were familiar, Obama would have been an “alien or foreigner.” Minor also explained that “there have been doubts” whether Obama would even have been a “citizen of the United States” (let alone a “natural born Citizen”). Under the Fourteenth Amendment, as interpreted and applied by Wong Kim Ark, he can be a Fourteenth Amendment “citizen of the United States” at birth who can be born with dual and conflicting allegiances and loyalties. But he is not and cannot be an Article II “natural born Citizen,” for a “natural born Citizen,” being the presidential citizenship standard, is born only subject to the allegiance and jurisdiction of the United States and as such is born with no political, military, legal, or moral obligations to any foreign power nor can any foreign power expect any. Such allegiance, attachment, and loyalty to the U.S. from birth are what the Founders and Framers expected of all future presidents and commanders in chief of our military. Indeed, the Founders and Framers demanded that a would-be President, born after the adoption of the Constitution, be born with sole allegiance to and unity of citizenship in the United States.
Barack Obama, being born to a non-U.S. “citizen” father, if born in Hawaii, is only a Fourteenth Amendment “citizen of the United States” from the time of his birth in 1961, but not an Article II “natural born Citizen.” It simply is not humanly possible for Obama to be a “Citizen of the United States, at the time of the Adoption of this Constitution” which was 1787. Under Article II, he must therefore be a “natural born Citizen” if he wants to be eligible to be President. But under the well-settled definition of a “natural born Citizen” as confirmed by both Minor and Wong Kim Ark, Obama is not a “natural born Citizen.” Hence, being neither a “natural born Citizen” nor a “Citizen of the United States, at the time of the Adoption of this Constitution,” Obama is not constitutionally eligible under Article II to be President and Commander in Chief of the Military.
Should we as a nation be concerned that Obama is not a “natural born Citizen?” First, the “natural born Citizen” clause is part of the supreme law of the land which can be changed only by constitutional amendment. Second, The Founders and Framers understood that a nation’s first duty is self-preservation and survival. The Founders and Framers had personally witnessed the power and influence of oppression from abroad. They inserted the “natural born Citizen” clause into presidential eligibility to assure that the nation’s civil and military leader would be forever freed from such influence and be attached from birth to the new American republican ideals and values of life, liberty, and property. Indeed, the “natural-born citizen” clause was designed to assure that the President and Commander in Chief of the Military would be born and presumably be raised by his or her parents with unwavering allegiance only to the United States. The purpose of the clause was to make sure that the President served only the interests of the American people and not, whether done consciously or unconsciously, those of some foreign nation or interest, however defined. Third, the United States is a constitutional republic which practices representative democracy. This means that the people, who are the ultimate sovereigns and who hold the ultimate power over their own destinies and pursuit of happiness, have given part of that power to representatives who will govern over them for the purpose of providing the people the most protection possible. The “natural born Citizen” clause is intended to give the people as best it can assurance that their President will act in their best interests. Being a requirement of presidential eligibility involving allegiance and citizenship, it is a national security measure. It is both inclusive and exclusive in absolute terms. The “natural born Citizen” clause therefore provides strong protection to our nation’s republican and democratic form of government. It provides protection from monarchical, foreign, and radical influence, in whatever forms they may take. This means that the clause protects the life, liberty, property, safety, security, and tranquility of every U.S. “citizen” and resident.
I will now leave you with a story from ancient Roman history which specifically speaks about the love and loyalty that a military general, a “natural born citizen” of Rome, had for his country and how it affected his ability to command his armies in time of war. The clause “natural born Citizen” appears in, 3 The Roman Antiquities of Dionysisus Halicarnassensis, Book VIII, p. 358 (Edward Spelman trans. London 1758). I first learned of this source from John Woodman at his blog. The clause appears in a story involving Marcius Coriolanus who had been banished by his Roman “fellow-citizens” for what they said was plotting tyranny. Marcius, a former Roman general, takes revenge on Rome. He convinces a Volsci general, Tullus Attius, to give him the command of the Volsci, who he leads on a tour of conquest of Roman cities and territories. At the end, Marcius is going to make his final push into the city of Rome and conquer her. Roman ambassadors were sent to speak to Marcius to get him to reconsider his planned war on Rome. Id. at 340. He refuses to reconsider and tells them to brace for war. Id. at 342. Then the wives of the Roman ambassadors intervene. Id. They go to Marcius’ mother, Veturia, and his wife, Volumnia, both Roman citizens, and plead with them to go to and convince their son and husband not to attack “his country.” Id. at 343. At the request of the women, Veturia “promised to undertake the embassy in favor of her country” and goes to her son. Id. at 349. She tells him that she understands that the Volsci have “communicated to you all the advantages which their natural born citizens are intitled to.” Id. at 358. But she adds that he has repaid his debt to his adopted people and that he cannot attack and shed the blood of his “fellow-citizens.” Id. at 359. She pleads with him that he cannot make war against his “fellow-citizens” and his country. Id. She tells him of his “unjust hatred you bear to your country.” She invokes the law of nature and says:
"But if you are irreconcileable to her [his country] grant this honor and favor to me, from whom you have received benefits not of the least value which none else can claim, and such are of the greatest consideration and esteem, and with which you have acquired every thing else you are possessed of, I mean, your body, and your mind: These are debts you owe to me, which no place, no time can over deprive me of; neither can the favors of the Volsci, or of all the rest of mankind, however extensive, so far prevail, as efface, and surpass, the rights of nature; but you will be ever mine; and you will owe to me, preferably to all others, the favor of life, and you will oblige me in everything I desire, without alledging any excuse: For this is a right, which the law of nature has prescribed to all, who partake of sense, and reason. Confiding in this law, Marcius, my son, I beg of you not to make war upon your country; and, if you offer violence, I oppose you: Either, therefore, first, sacrifice with your own hand to the Furies your mother, who opposes you, and, then, begin the war against your county; or, trembling at the crime of parricide, yield to your mother, and grant, my son, this favor willingly. Supported and assisted by this law, which no time has ever repealed, I do not think fit, Marcius, to be alone deprived by you of the honors I am intitled to under it. But, to omit this law, remember the good offices you have received from me, and consider how many, and how great they are: You were left an orphan by your father, and an infant, when I took you under my care; for your sake, I continued a widow, and underwent the trouble of bringing you up, showing myself not only a mother to you but also a father, a nurse, a [363] sister, and every thing, that is most endearing.”
Id. at 361-63. Veturia eventually convinces Marcius to spare his country. He tells his mother, “You have saved your country, but ruined me your pious, and affectionate son.” But Marcius is then killed by angry Volsci for not completing the capture of Rome.
http://books.google.com/books?id=wwAMAAAAYAAJ&pg=PA358&dq=The+Roman+Antiquities+of+Dionysius+Halicarnassensis+natural+born+citizen&hl=en&sa=X&ei=iBS_T8blCIij2QX_v-CACg&ved=0CDgQ6AEwAA#v=onepage&q=natural%20born%20&f=false . What is most fitting about this Roman story is that it demonstrates the effects upon a military leader of divided national loyalties caused by birth circumstances and family. It shows how the natural love of and attachment to parent and country causes Marcius, a “natural born citizen” of Rome, to abandon his military command which he held for the benefit of another country and not to attack and conquer Rome, a country that had become the political enemy but for which he had unbreakable love and attachment from the tie and bond of the law of nature.
Mario Apuzzo, Esq.
October 28, 2012
http://puzo1.blogspot.com
####
Copyright © 2012
Mario Apuzzo, Esq.
All Rights Reserved
P.S. There have been numerous cases that have ruled on one issue or another in a case somehow involving Obama’s eligibility to be President. Most of these cases have been dismissed for lack of standing, jurisdiction, ripeness, mootness, political question, or for some other procedural problem. A complete list of these cases as of October 18, 2012 may be found at
http://tesibria.typepad.com/whats_your_evidence/BIRTHER%20CASE%20LIST.pdf . Many of these cases have also involved state ballot challenges, with administrative and law courts not reaching the question of the meaning of a “natural born Citizen.” Only a handful of these cases have reached the merits of the question of what is an Article II “natural born Citizen” and whether Obama meets that definition. Of these merits cases, they have mistakenly relied upon U.S. v. Wong Kim Ark, which is only a Fourteenth Amendment “citizen of the United States” case and not an Article II “natural born Citizen” case, without analyzing constitutional and statutory law and historical sources from the founding era or shortly thereafter discussed above, and ruled while applying the wrong constitutional standard, that Obama is a “natural born Citizen.” We have not seen any written opinions by any State Supreme Court or from the U.S. Supreme Court. The U.S. Supreme Court has refused to hear any of the cases filed there, denying all petitions for a writ of certiorari without comment.
Also, note that tesibria, as virtually all other Obama supporters, misleads the public regarding Kerchner v. Obama which I filed in 2009 in the Federal Court in New Jersey. First, the case was dismissed for lack of standing which she does not note. This means that the court never reached the issue of what is a “natural born Citizen.” Second, she notes that the Third Circuit “taxed costs,” like that is supposed to be an indication of something sinister, and issued a show cause order for defense litigation damages (she calls them “sanctions”), but fails to note that the court discharged the order without assessing any such damages.
52 comments:
WoW, what a nice job. its going to take me awhile to read all that. I just wanted to ask you something.
If Obama does NOT get re-elected, do all the cases now pending go moot?
Just would like to know what I should believe, in case he looses. Does he get off scott-free?
WoW ! What a nice job. Its going to take me awhile to read all of that but I just wanted to ask you a question.
If Obama is NOT re-elected, do all the pending court cases go moot?
I just would like to know what to believe, in case he loses. Does he get off scott-free?
Thanks Mario, glad to know you are still on top of this important matter.
Mario,
Thank you for your admirable, highly significant, voluminous and priceless work. Your dedication and loyalty to the Republic and this issue of national security will be forever revered.
Pixel Patriot
www.pixelpatriot.blogspot.com
Thanks Mario!
The distinction between "Native born" without reference to the parent's status and "Natural-born" that does goes to the difference between Common Law and Natural Law.New York on April 20 1777 adopted a new constitution and addressed British Common law and allegiance to the king as follows:
http://avalon.law.yale.edu/18th_century/ny01.asp
XXXV. And this convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare that such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same. That such of the said acts, as are temporary, shall expire at the times limited for their duration, respectively. That all such parts of the said common law, and all such of the said statutes and acts aforesaid, or parts thereof, as may be construed to establish or maintain any particular denomination of Christians or their ministers, or concern the allegiance heretofore yielded to, and the supremacy, sovereignty, government, or prerogatives claimed or exercised by, the King of Great Britain and his predecessors, over the colony of New York and its inhabitants, or are repugnant to this constitution, be, and they hereby are, abrogated and rejected. And this convention doth further ordain, that the resolves or resolutions of the congresses of the colony of New York, and of the convention of the State of New York, now in force, and not repugnant to the government established by this constitution, shall be considered as making part of the laws of this State; subject, nevertheless, to such alterations and provisions as the legislature of this State may, from time to time, make concerning the same.
XLII. And this convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare that it shall be in the discretion of the legislature to naturalize all such persons, and in such manner, as they shall think proper: Provided, All such of the persons so to be by them naturalized, as being born in parts beyond sea, and out of the United States of America, shall come to settle in and become subjects of this State, shall take an oath of allegiance to this State, and abjure and renounce all allegiance and subjection to all and every foreign king, prince, potentate, and State in all matters, ecclesiastical as well as civil.(14)
Footnote 14 The custom of naturalizing aliens by special act was first introduced by the colonial general assembly in 1717, and was continued by the State legislature until the adoption of the Federal Constitution in 1789. After that date the right to hold land upon declaring an intention to become naturalized was granted by special act until 1825, when a general law for this purpose was passed.
CRIMES SINCE 2008 DO NOT GO AWAY!
The meaning of Natural Born Citizen has been defined by the Wong Kim Ark case, which BTW was AFTER Minor v. Happersett and hence would overturn it (if Minor actually were a ruling and not dicta).
And the Wong Kim Ark case ruled six to two (one justice not voting) that the meaning of Natural Born Citizen comes from the common law (thus not from Vattel) and that it refers to the place of birth, thus not to the parents of a US born citizen, and that every child born in the USA except for the children of foreign diplomats is a Natural Born Citizen.
“Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, those persons born within the United States are "natural born citizens" and eligible to be President. Much less certain, however, is whether children born abroad of United States citizens are "natural born citizens" eligible to serve as President ..."---- Edwin Meese, et al, THE HERITAGE GUIDE TO THE CONSTITUTION (2005) [Edwin Meese was Ronald Reagan’s attorney general, and the Heritage Foundation is a well-known Conservative organization.]
Here are sources to turn to for further research:
ttp://en.wikipedia.org/wiki/Natural-born-citizen_clause_of_the_U.S._Constitution
http://tesibria.typepad.com/whats_your_evidence/scotus-natural-born-citizen-a-compendium.html
http://tesibria.typepad.com/whats_your_evidence/the-natural-born-citizenship-clause-updated.html
http://www.obamaconspiracy.org/bookmarks/fact-checking-and-debunking/the-debunkers-guide-to-obama-conspiracy-theories/#nbc
http://www.obamabirthbook.com/http:/www.obamabirthbook.com/2012/02/an-open-letter-to-mario-apuzzo/
http://ohforgoodnesssake.com/?p=21346
http://thenaturalbornpresidency.blogspot.com/2012/10/first-blog-post.html
Great post. Definitive. I linked it to my own blog.
Thank you for starting a new thread and posting this excellent analysis.
Does this mean (HOPEFULLY!) that you have declared victory over the dark forces as lately championed by BrianH? And banished him forever?
Don't you get the sense that BrianH is just a new moniker for the same operative who has been throwing stink bombs in here off and on for a long time? Wasn't he named Andy last time?
http://supreme.justia.com/cases/federal/us/401/815/case.html
Little discussed but relevant.
The Wong Kim Ark Supreme Court case (which BTW was AFTER Minor v. Happersett and hence had the power to overturn the previous case) ruled six to two (one justice not voting) that the meaning of Natural Born comes from the common law and refers to the place of birth, hence not to the parents of a US-born citizen.
And on October 1, the US Supreme Court turned down two appeals of the ruling in a Georgia case in which the lower court ruled that the meaning of Natural Born does not refer to parents and that every child born in the USA is a Natural Born Citizen. The effect of the US Supreme Court rejecting the appeal is that the ruling of the lower court stands.
Natural Born Citizen status has been defined by the Wong Kim Ark ruling (six justices to two, one not voting) that the meaning of Natural Born comes from the common law and refers to the PLACE of birth and that every child born in the USA except for the children of foreign diplomats is Natural Born. The Wong Kim Ark ruling, btw, was AFTER Minor v. Happersett. So the ruling that applies is the Wong Kim Ark ruling.
And, btw, seven US state courts have ruled that way on Obama and one federal court, and one federal court had the same ruling on John McCain (Hollinder v. McCain), a total of NINE courts, and not one court has ruled that Obama was not eligible. And, in fact, no court has ever ruled, INCLUDING Minor v. Happersett, that two citizen parents are required to be a Natural Born Citizen.
Here are sources to turn to for further research:
http://en.wikipedia.org/wiki/Natural-born-citizen_clause_of_the_U.S._Constitution
http://tesibria.typepad.com/whats_your_evidence/scotus-natural-born-citizen-a-compendium.html
http://tesibria.typepad.com/whats_your_evidence/the-natural-born-citizenship-clause-updated.html
http://www.obamaconspiracy.org/bookmarks/fact-checking-and-debunking/the-debunkers-guide-to-obama-conspiracy-theories/#nbc
http://www.obamabirthbook.com/http:/www.obamabirthbook.com/2012/02/an-open-letter-to-mario-apuzzo/
http://ohforgoodnesssake.com/?p=21346
“[A]nother guide to the meaning of a statute is found in the evil which it is designed to remedy.” See Church of the Holy Trinity v. United States, 143 U.S. 457, 463 (1892).
Since the purpose of A2S1C4 requirement is prevention of foreign influence, it is impossible that one is a natural born Citizen if born to foreign parentage. This is confirmed by Federalist #68, where an "improper ascendant" ("IMPROPER ANCESTOR") was to be avoided in order to ensure that the chief magistrate be a "child of their own" (natural born Citizen).
“Even if the word or phrase is not defined by statute, it may have an accepted meaning in the area of law addressed by the statute”. Sullivan v. Stroop, 496 U.S. 478, 483 (1990; also “where a phrase in a statute appears to have become a term of art . . . , any attempt to break down the term into its constituent words is not apt to illuminate its meaning.” Id.
Thus "born a US Citizen" does not mean "natural born Citizen".
“[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts
the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such a case, absence of contrary
direction may be taken as satisfaction with widely accepted definitions, not as departure from them.” Morissette v. United States, 342 U.S. 246, 263 (1952).
The founders implicitely adopted law of nations by the use of the term of art "natural born Citizen". It also EXPLICITELY adopted it in A1S8C10. "Congress shall punish violations against the law of nations".
Wong Kim Ark (169 US 649) EXPLICITELY stated that Wong Kim Ark was NOT a natural born Citizen. "[A]nd this child is as much a citizen as the natural born child of a citizen." (169 US 649, 693). The case also EXPLICITELY stated that the children of resident domiciled aliens were NATURALIZED "without the aid of legislation" by the 14th Amendment. (The Constitution itself naturalizes "without the aid of legislation" in 2 places, A2S1C4 ("or a CITIZEN at the time..."-- now expired), and Amendment 14, ("born subject to the jurisdiction"). Only natural born Citizens, those born of US Citizens on US soil since 7/4/1776, need no naturalization.
"This right of election must necessarily exist in all revolutions like ours, and is so well established by adjudged cases that it is entirely unnecessary to enter into an examination of the authorities. The only difficulty that can arise is to determine the time when the election should have been made. 28 US 99, 122 (1830), quoting, Vattel, B. 1, ch. 3, sec. 33; 1 U. S. 1 Dall. 58; 2 U. S. 2 Dall. 234; 20 Johns. 332; 2 Mass. 179, 236, 244, note; 2 Pickering 394; 2 Kent's Com. 49.,
When the US adopted the "right of election" then it adopted the cluster of ideas attached to "law of nations" as evidenced also by A1S8C10. Natural born Citizen is a "term of art" within "law of nations". It cannot be defined by breaking it into its constituent words, and only by the meaning it has w/in "law of nations."
"Natural Allegiance, or the obligation of perpetual obedience finds no countenance in the law of nations, and is in direct conflict with the incontestable rule of that rule of law." Twiss, Law of Nations in Peace, pg. 231
"The doctrine of perpetual allegiance is inadmissible in the US, that matter settled by the Revolution." Cushing, Foreign Relations of the United States, Part 2, pg. 1280 (Cushing was a member of the first Supreme Court)
@Joe said...
October 29, 2012 12:07 AM
Do all the cases now pending go moot?
Does he get off scott-free?
======================================
He will not be prosecuted for anything while he is in office.
Any future Democrat president will pardon him for any and all sins.
Don't be surprised if Romney wins and does the same thing.
The Powers That Be are convinced that wallowing in this sort of thing damages the prestige of the office of the President and therefore damages America at home and especially abroad.
Mr. Apuzzo, Thank you for your passion and integrity.
May I add to your dispositive post and Chris Strunk's comment, that there is a distinction between common law and legislated act.
First, the constitution confers plenary power over naturalization/nationality law to Congress, i.e., legislated act . . . not the courts and common law.
Secondly, the Calvin case is ancient, and its conclusion of law relying on jus solis particularized to that time and unusual circumstances.
Thirdly, both the 1790 Uniform Naturalization Act et seq 1855 and the 1772 British Nationality Act deny Barack Hussein Obama even citizenship, let alone natural born citizenship.
Fourthly, Obama has admitted he favors Islam. Indeed, his Christianity is contrived, manipulated and tutored as mere appearances by the 'Reverend' Wright, who himself recognized Obama to be Muslim.
Finally, to Mr. Strunk, many other jurisdictions denied English Common law as having force of law, only allowing particular elements if specifically condoned in the State's high court.
How is it, therefore, that 50% of our electorate, and almost all of our lawmakers, consider Obama . . . an admitted member of our avowed ENEMIES, Marxism and Islam, . . . eligible to the presidency?
Our voice of reason and sanity is bismirched and ridiculed by those who will not even take the first steps, i.e., standing, into diligence and investigation.
Woe to us, if Obama wins re-election.
I agree with
Wong Kim Ark (169 US 649) EXPLICITELY stated that Wong Kim Ark was NOT a natural born Citizen. "[A]nd this child is as much a citizen as the natural born child of a citizen." (169 US 649, 693). The case also EXPLICITELY stated that the children of resident domiciled aliens were NATURALIZED "without the aid of legislation" by the 14th Amendment. (The Constitution itself naturalizes "without the aid of legislation" in 2 places, A2S1C4 ("or a CITIZEN at the time..."-- now expired), and Amendment 14, ("born subject to the jurisdiction"). Only natural born Citizens, those born of US Citizens on US soil since 7/4/1776, need no naturalization.
I ADD THAT re Ark the US Treaty with China held that the US would not interfere with the sovereignty of the Emperor of China. To allow the off spring of a subject of the emperor US Citizenship would relegate the offspring to sure death for an act of treason against allegiance to the emperor!
The 1910 Black's Law definition of "NATURAL CHILD" is "BASTARD" the definition of "Natural" versus "Native" in the context of A2S1C5 is the difference between "American Common Law" that makes every man/woman a King versus "English Common Law" that makes every man/woman a subject to the King.
BHO claims on his website in 2008 to be "Native-born" under English Common Law (no matter where he is born) not "Natural-born" under American Common Law that requires a blood and soil Natural Law definition of the status of the child based upon the father's legal status with the mother who takes the legal status of the husband. BHO by his own and mother's admissions against interest that he clearly has a problem with American Common Law and prefers to conflate his status with "English Common Law"since his father is a Subject of the English Monarch.
NATURAL DOES NOT EQUAL NATIVE although Natural is Native Native is not Natural.
Carlyle forgets his history. Remember Charles I?
smrstauss,
I have addressed your arguments in my essay. You simply repeat your arguments without addressing how I have refuted them. Hence, what you write really adds nothing to the debate.
At this point you are just posting repetitive comments via cut and paste which adds nothing new. You will have to do better than this.
Hello folks,
In case Obama wins tomorrow things aren't official until the Electoral College meets. Is there ANY chance they might be more favorably disposed toward Mr. Apuzzo's arguments this time?
Too many Congressmen and Senators are now apprised of the situation to claim ignorance (even if they don't support the argument) - they are now aware, are they not?
Secondly, in the even that Obama loses the election, which Democrat will be the first to jump on the bandwagon and claim "I knew we shouldn't have kept the fraud - he ruined the country!" in order to save his or her own reputation?
I really wish Sherrif Joe and Donald Trump and others who have physical evidence about the deception could have their day in court - but WHO has the authority to go after Obama at this point?
Fool me once, Chester Arthur. Fool me twice, Barack Obama - might as well vote for Abdul Hassan... (or me, I'm first gen, Mom naturalized three years after my birth! I'm at least as qualified as BHO)
Praying for a miracle tomorrow. Mario, I love you! Thank you for everything and I hope Truth will prevail in the end.
@Mick said...
November 3, 2012 5:32 AM
“[A]nother guide to the meaning of a statute is found in the evil which it is designed to remedy.”
==============================
Exactly. That is why some of us keep screaming that the NBC provision must necessarily be RESTRICTIVE. Anything other than the definition described here is hardly restrictive, and one might argue even inclusive.
I am reliably informed that The Constitution was written well prior to our misguided attempts at political correctness - and therefore those twin moronic fantasies of Multiculturism and Inclusiveness/Diversity.
NBC was clearly meant to restrict the Presidency to "one of us". Such a powerful office is no place for sociology experiments.
Children born of resident aliens, in America, are naturalized "without the aid of legislation" (Wong Kim Ark, 169, US 649, 703 (1898)). Thus the 14th Amendment NATURALIZES. Those born of some aliens who are inhabitants are NATURALIZED by the 14A.
"But it [the first sentence of the Fourteenth Amendment] has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization."
Thus, at long last, there emerged an express constitutional definition of citizenship. But it was one restricted to the combination of three factors, each and all significant: birth in the United States, naturalization in the United States, and subjection to the jurisdiction of the United States. The definition obviously did not apply to any acquisition of citizenship by being born abroad of an American parent. That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action.
The court responded with: "We feel that it does not make good constitutional sense, or comport with logic, to say, on the one hand, that Congress may impose a condition precedent, with no constitutional complication, and yet be powerless to impose precisely the same condition subsequent. Any such distinction, of course, must rest, if it has any basis at all, on the asserted "premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive," Schneider v. Rusk, 377 U.S. at 377 U. S. 165, and on the announcement that Congress has no "power, express or implied, to take away an American citizen's citizenship without his assent," Afroyim v. Rusk, 387 U.S. at 387 U. S. 257. But, as pointed out above, these were utterances bottomed upon Fourteenth Amendment citizenship and that Amendment's direct reference to "persons born or naturalized in the United States." We do not accept the notion that those utterances are now to be judicially extended to citizenship not based upon the Fourteenth Amendment and to make citizenship an absolute. That it is not an absolute is demonstrated by the fact that even Fourteenth Amendment citizenship by naturalization, when unlawfully procured, may be set aside. Afroyim v. Rusk, 387 U.S. at 387 U. S. 267 n. 23."
Mario Apuzzo wrote: "So if it was not the English common law which controlled the definition of national citizenship, which law was it?"
I spent the day filling three pages in response to that question. It begins with these paragraphs:
The Supreme Court, being the final arbiter of legal matters, should and does (usually) consult prior authority in forming its opinion. To do that there must first be some prior authority, and there almost always is. But sometimes there isn't, and so what they must consult is merely opinion, and some issues are strictly philosophical so all that legal determination can do is consult opinions by lawyers regarding philosophical issues that are outside the legal realm.
The legal mind sees everything connected to the law through legal eyes. It is incapable of seeing things as they really are, -they can't see the forest for the trees because they are completely surrounded by trees. To see the forest they must move far away, -to a vantage point outside of the legal realm. But they are not wired to do that because their minds are filled with legal trees.
The very question itself, quoted above, reveals a lack of natural perspective into the reality of the issue. Understand this: the words "controlled" and "definition" and "which law" should be thrown out completely unless arguing before a judge because they come from a realm that is outside of the real world, the natural world, the world from which the word "natural" is derived. "Natural" does not come from the Legal realm nor is it defined in that realm. It comes only from the natural realm.
In the natural realm there is no such thing as control of definitions because definitions do not exist, nor do human laws. There is only natural relationships and natural laws & principles. The term CITIZENSHIP is a concept from the Legal realm.
Membership is a reality in the natural realm, describing the connection of families, herds, prides, tribes, and clans, which on a larger scale includes countries and nations. To be a Citizen is to be something that the legal realm can define, but to be natural is not something that the legal realm defines, -natural things are only described by natural law principles. So to describe a type of national member which is a native, indigenous member requires spanning the gulf between the legal realm and the natural realm by creating a hybrid concept involving both.
The natural realm is not a part of the legal realm and the legal realm is not a part of the natural realm, but a hybrid combination of the two is needed to describe native members of nations, and that combination involves the use of the term
~natural CITIZEN, or natural born citizen, implying that such a person was born being a citizen via natural inheritance of their parents' political nature.
read the rest here: http://h2ooflife.wordpress.com/2012/11/05/nations-citizens-natural-law/
(obama--nation.com)
Also read a fuller version of the new insights in the rest of this exposition (which are very surprising and never before discovered)
The Lost Truth About Citizenship
http://h2ooflife.wordpress.com/2012/10/24/the-lost-truth-citizenship/
and also: The Bastardization of Citizenship Law & Principles http://h2ooflife.wordpress.com/2012/10/24/the-bastardization-of-citizenship-law-principles/
Now I need to add a link to this most excellent and thorough treatise, along with attempting to read through the whole thing.
PS HTML tags "cannot be accepted: Tag is not closed: -something wrong there
Hello Mr. Apuzzo,
How is your case "Barack Obama Ballot Challenge Proceeding Forward in the NJ Supreme Court" at http://puzo1.blogspot.co.uk/2012/08/barack-obama-ballot-challenge.html going?
With the NJ situation following the Sandy super-storm, will you be able to get a final decision anytime soon?
re:
Chris Strunk's comment, that there is a distinction between common law and legislated act - I NEVER CLAIMED DIFFERENTLY OTHER THAN NEW YORK DOES NOT USE ANY ASPECT OF ENGLISH LAW THAT DEALS WITH THE KING'S SUPPOSED POWERS AND OR MATTERS OF ALLEGIANCE.
First, the constitution confers plenary power over naturalization/nationality law to Congress, i.e., legislated act . . . not the courts and common law- NEW YORK DID NOT GIVE CONGRESS THE RIGHT TO REDEFINE NBC WITHOUT IT BEING AN AMENDMENT - SO WHAT IS YOUR POINT?
McPherson v. Blacker, 146 U.S. 1 (1892)and U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).
Secondly, the Calvin case is ancient, and its conclusion of law relying on jus solis ---- so was lynch v clark having been an error of law and Kim Wong Ark having dealt with the China Treaty and 14th Amendment does not apply to NBC status at all (ces)-- particularized to that time and unusual circumstances.
Thirdly, both the 1790 Uniform Naturalization Act et seq 1855 and the 1772 British Nationality Act deny Barack Hussein Obama even citizenship, let alone natural born citizenship. (HE WAS BORN IN 1961 AND ONLY THE MODIFICATIONS APPLY AS A STANDARD WHICH I AGREE LEAVES HIM HIGH AND DRY AS INELIGIBLE)
Fourthly, Obama has admitted he favors Islam ---- BHO WAS BORN A SUNNI MUSLIM, WAS ADOPTED BY A SUNNI MUSLIM AND PRACTICED THE STRICTER FORM OF ISLAMIC STUDY OF THE KORAN, SIRA and HADITH IN INDONESIA (READ What Is the Truth about American Muslims? IR RE http://www.politicalislam.com/blog/what-is-the-truth-about-am-muslims-part-1/- BHO SPEAKS ARABIC VERY WELL - WEARS A RING SINCE OCCIDENTAL MUSLIM STUDENT ASSOCIATION MEMBERSHIP IN 1979 THAT STATES "ALLAH AKBAR!" IN ARABIC and practice AL TAKIA (READ http://www.islamla.com/takia-the-islamist-art-fooling-the-enemy-t1767.html )-----(CES). Indeed, his Christianity is contrived, manipulated and tutored as mere appearances by the 'Reverend' Wright, who himself recognized Obama to be Muslim. REV wRIGHT IS MEMBER OF NATION OF ISLAM FINANCED BY GHADDFI...AS WAS BARRY SOETORO IN 2005 AND 2008 BOTH PRACTICE AL TAKIA.
Finally, to Mr. Strunk, many other jurisdictions denied English Common law as having force of law, only allowing particular elements if specifically condoned in the State's high court.
http://avalon.law.yale.edu/18th_century/ratny.asp
Without New York there never would never have been a Union per se (NY and Gen. George Clinton did NOT want any part of the first draft) with this present US Constitution NEW YORK enforced its own meaning of NBC into the second draft and in the ratification demanded that even Congress must be NBC - but much to our chagrin to this day did not get that requirement! New York does not bow to British Law in ANY of its statutes or practices - notwithstanding Lynch v Clark (1844) that was soundly corrected by the legislature and NYS Appeals Court on a matter of error.
With the exception of Virginia all the then separate states were far below New York in their civil standards and remain so with a few exceptions including Georgia as evidenced inter alia in the treatment of real property and estate powers and trusts laws. Missouri and Indiana are pretty good in that regard.
With the 1868 14th amendment came the subservience of each state to the corporate United States of America, and requires that each citizen retrieve his or her respective Freedom accordingly separate and apart from any liberty license provided by their respective state. The 14th Amendment nevertheless does not change the NBC status in the least bit.
The electoral votes must now be counted and certified, and a simple letter signed by one Senator and one House Member can halt the proceedings to examine the following:
• The 1790 Uniform Naturalization Act et seq 1855 denied a U.S. born son of a British subject U.S. citizenship. This law stood for 99 years, until Wong Kim Ark.
• Conversely, a son of a British subject born on U.S. soil was a natural born U.S. subject, under the 1772 British Nationality Act.
• The 14th Amendment guaranteed citizenship at birth to children of 'stateless' freed slaves, who had no nationality jurisdiction through the father.
'Under the Jurisdiction Thereof' is the analog of its antecedent Act, the 1866 Civil Rights Act's 'Not subject to any foreign power.' It referred to the nationality of the father, not place of birth.
• Article 1, Sec. 8 of the U.S. Constitution gave plenary power to congress, NOT the Judiciary, for the LEGISLATION of Uniform Naturalization law . . ..
• Minor vs. Happersett (U.S. Supreme Court, 1875) defined in judicial notice, i.e., stare decisis still valid to this day, that a ‘natural born citizen’ was of two U.S. citizen parents.
• Wong Kim Ark violated Art 1, Sec 8 by ignoring existing statutes, acts, and treaty and misinterpreted the 14th Amendment to apply to children born of aliens. Regardless, Wong Kim Ark did not, nor could not, redefine 'natural born citizen.'
Fact: Obama's April 27, 2011 birth certificate is an altered, fake, and forged document.
Fact: Obama's SS# does not pass E-Verify.
Fact: Obama has admitted, in his own writing and voice, that he was born a British citizen.
Can we not find one senator and one house member willing to fight for the constitution?
McCain was booed when he tried to sooth the crowd, defending Mr Obama as ‘a decent person and a person you do not have to be scared of as president of the United States.’ Minnesota, 2008
“Obama is a radical Communist. And I think it is becoming clear; that’s I told everyone in Illinois. I think everybody knows its true. He is going to destroy this country. We’re either going to stop him, or the United States of America is going to cease to exist.”
Ambassador Alan Keyes, February 19, 2009
“Congress shall be in session on the sixth day of January succeeding every meeting of the electors . . . and the President of the Senate shall be their presiding officer . . . Upon such reading of [the electoral votes], the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received . . . No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of.” 3 U.S.C. § 15 Counting electoral votes in Congress
New York Times WASHINGTON, Jan. 6 [2000] – “Congress officially ratified President Bush’s election victory on Thursday, but not before Democrats lodged a formal challenge to the electoral votes from Ohio, forcing an extraordinary two-hour debate that began the 109th Congress on a sharp note of partisan acrimony . . . a single senator – Barbara Boxer, a California Democrat who was sworn in Tuesday for a third term – joined Representative Stephanie Tubbs Jones, Democrat of Ohio, in objecting to Ohio’s 20 electoral votes for Mr. Bush, citing voting irregularities in the state.”
"one Senator and one House Member"
I believe that the Republicans will never let it happen. Their leaders are weak of will and corrupt.
It has become abundantly clear that the political theater staged by the two parties will be protected at all costs. Witness the actions of the state Secretaries of State, particularly although not exclusively after Mr. Klayman's letter. The show must go on, the law be damned.
Lawlessness is rampant. Rule by administrative fiat, Fast & Furious, Benghazi....
If the future shows me to be wrong I will rejoice, yet it seems it is dusk in America.
I beg to be proven wrong and pray for "one Senator and one House Member" to come forward.
A lot of people fought to the death to create and defend this country. Are there even two who will write a letter, ask questions, demand answers?
Two?
The puppet masters are puppets too. Last time around Obama was the Anti-Christ this time the New York Post seems to think he is Caesar. History will be the decider. What happens during the coming four years is not in anyone's hands. Given its record these past 67 years becoming a third world country might be poetic justice. There was Ron Paul; before that there was Ralph Nader and so on. This society was given choices it would seem but it has stuck to the downward path. I am not for making moral judgments. I believe Edward Gibbon considered the 2nd century A.D. the happiest. For the Romans at least. It might have been the 3rd. If the Hindus are correct all this is the creation of our minds--and all we have to do is change them, and it will change. But then who is wise enough to know what change to make. Remember there are already millennia of human endeavors to balance. And if we were to slip . . . it might all come tumbling down!
paraleaglenm said...
"The electoral votes must now be counted and certified, and a simple letter signed by one Senator and one House Member can halt the proceedings to examine the following:"
That may be true but it will not happen because the Rs are complicit.
Obama's minions say his eligibility is a "political question", ie one decided by a branch of government in the course of its Constitutional duty (see R.I. v. Mass). However the SCOTUS has held that the Presidential Electors are NOT members of the goverment, but are on the same level as state voters voting for representatives of Congress (see Mcpherson v. Blacker, 146 US 1, 35; also see Fitzgerald v. Green p. 179, and Ray v. Blair).
Further Ray v. Blair holds that Presidential Electors may pledge their vote to their party candidate as a condition of being an elector--- so how would they be impatial, and choose only a natural born Citizen? Ray v. Blair also holds that the President elect "may have become disqualified" prior to the Electoral college.
Nothing in US Code 3 s. 15 says that the Electors will qualify the President elect, only that "objections" may be submitted. Nothing is stated about what those "objections" may be.It only becomes a political question after members of Congress may "sponsor" an "objection" to Obama's eligibility, if their is one.
The 20th Amendment is only about succession after the President is deemed not to qualify, and says nothing about who disqualifies him.
A2S1C4 is a self executing Constitutional provision. No law or statute is required for it to take effect. Since electors are NOT members of Government, then the issue of Obama's eligibility cannot be a "political question", and is instead a judicial question. It only becomes "political" AFTER Congress sponsors an objection by a Presidential elector, if there is one.
@ Ray,
My studies of the 'natural born citizen' birther issue found Wong Kim Ark to be the cusp, or turning point. It opened the door for the 'liberalization' of nationality law, resulting in rampant illegal immigration and an unconstitutional president.
The Schneiderman case (1944) explicitly expressed the court's usurpation of nationality law, claiming constitutional right under 'case and controversy.'
However, the court is limited to the consitution, which makes nationality law a matter of legislated act!
The Republicans hold the House, but from my experience are hypnotized/programmed that the Supreme Court reigns supreme.
Therefore, from Wong Kim Ark to Plyler, and lower court holdings misinterpreting or wrongly applying 'natural born citizen' reviewed in this post by Mr. Apuzzo, are considered the law of the land!
So, the Natural Born Citizen issue extends to illegal immigration, which may be the reason for Obama winning. FACT--The number of drivers licenses issued to illegal aliens in New Mexico alone was 82,000 . . . 10% of the NM electorate voting in the 2008 election.
Others estimate the number of illegals in the U.S. to be from 10 to 30 million!
That is an invasion, e.g., Arizona SB1070.
Rubio wants the Republican Party to embrace 'minorities,' i.e., Hispanics.
Balderdash . . . all we want is for every citizen and immigrant to abide by the law, EQUALLY, not as a 'minority.'
EDIT
I can't believe the error.
The second bullet point should read that the 1772 British Nationality Act made a U.S. born child of a British subject a 'natural born British subject,' not a U.S. subject.
As for the New York Ratification of the present Constitution by the State of New York; July 26, 1788 see http://avalon.law.yale.edu/18th_century/ratny.asp the legislature as for the definition of NBC clearly was unhappy also with the final version that left out the requirement as to Congress and stated in the document:
quote:
"That no Persons except natural born Citizens, or such as were Citizens on or before the fourth day of July one thousand seven hundred and seventy six, or such as held Commissions under the United States during the War, and have at any time since the fourth day of July one thousand seven hundred and seventy six become Citizens of one or other of the United States, and who shall be Freeholders, shall be eligible to the Places of President, Vice President, or Members of either House of the Congress of the United States. "
New York was right everyone else was wrong!
Don't anyone be fooled that Obama is eligible to be prez because of claims Obama looks so much like Frank Marshall Davis that that is his daddy. Obama looks so much like his mama's daddy there's no room left to tell who his bio dad is by looking at him.
http://peacecorpsonline.typepad.com/poncacityweloveyou/2009/02/barack-obamas-mother-lived-in-ponca-city-for-two-years.html
Summary of Rogers v Bellei;
"Congress has the power to impose conditions subsequent regarding residence upon the citizenship of those born outside the United States. The plaintiff is not covered by the Fourteenth Amendment which defines “citizen” as one who is “born or naturalized in the United States”.
The central factor in our weighing of the plaintiff’s claim to United States citizenship is that he was neither born nor naturalized in the United States and has not been subject to its jurisdiction. The first sentence of the Fourteenth Amendment therefore does not apply to Bellei. The plaintiff’s claim must therefore rest on some restriction of the power of Congress other than the Fourteenth Amendment.
Our law in this area follows the English concept of jus soli; the place of birth governs citizenship status except as modified by statute. Congress has an appropriate concern regarding dual nationality. The provisions of the Act imposing conditions subsequent on citizenship are not unreasonable, arbitrary, or unlawful. The Act is not an unconstitutional exercise of power by Congress."
So, if illegal immigrant parents give birth to a child on US soil that child is eligible for the presidency? Yet, a child born abroad to military parents is not. Wow.
If this juxtaposition were brought before the USSC, I find it hard for them to affirm mere jus soli as the intent of Art II eligibility for the office.
The WKA reflection on the 14th Amendment makes it impossible to include the foreign born of US citizens. Those born in such circumstance are Americans at birth through statutory naturalization.
If the nature of the Art II eligibility requirement is exclusive in nature, how is that we even consider the anchor babies of law breakers who are dual citizens?
WKA did not answer the "doubts" described in MvH.
Now that the Fraud has stolen another election, he will add 3 more Obots to the Supreme Ct and change the Constitution to legalize himself. Only hope is Benghazi coverup. High crimes and Misdemeanors.
It's a sad day in America when a Marxist is running what was the greatest country.
To add insult to injury, Every single senator, rep, supreme court and virtually all citizens know he is illegal. If we can't depend on our own representatives to enforce the law, we are doomed.
Mario, does the fact that Obama has stolen yet another election as an illegal alien, will it set precedent for future usurpers, i.e., Rubio and Jindal, neither of whom are constitutionally qualified? Perhaps that is why the Republicans remain silent.
Cetan,
Rubio and Jindal are like Obama not "natural born Citizens."
What happens to everyone's fate in this regard depends upon what enough people who make a difference under our constitutional structure are willing to do about it.
Chris Strunk,
"or such as were Citizens on or before the fourth day of July one thousand seven hundred and seventy six"
Who were the "Citizens" before July 4th, 1776?
I just posted this comment at Dr. Conspiracy's blog, http://www.obamaconspiracy.org/2012/11/the-docs-skyrocketing-legal-career/#comment-224600
"The childish nonsense on this blog thread all together does not amount to a minuscule of truth, reason, and logic.
You incessantly and vengefully attack me personally. You call me names, have changed my name, mock my family origins, keep trying to mislead the public by attempting to get it to believe that I was sanctioned in any court, and even attack the fine law school that I went to, Temple University School of Law in Philadelphia. You spend inordinate time and resources on pseudo-psychology and parody rather than making legal arguments based on historical sources and case law. You are personality fixated rather than truth and reason oriented. You paint all those who question government activity as conspiracy theorists and view the world through race-colored glasses, but only when it suits your end. I do not see how any of that is rational and supposed to prove that you are correct on the meaning of an Article II “natural born Citizen.”
You keep repeating what some lower administrative and law courts have said regarding, among other things, the definition of an Article II “natural born Citizen.” You continue to argue that this issue has been finally and authoritatively decided and that therefore I have no reasonable grounds to persist with my position. Yet, you know darn well that I do not agree with these lower court decisions. My disagreement is perfectly acceptable under our legal system given the propensity of mankind to err, the existence of appeals courts and the U.S. Supreme Court, and the constitutional requirements of due process.
We have not yet received any written opinion from either any State or U.S. Supreme Court on the matter. Should it decide the question, the U.S. Supreme Court would have the final say on the meaning of an Article II “natural born Citizen” and its application to any particular presidential candidate. As far as the U.S. Supreme Court is concerned, it has turned down all Obama petitions for certification without comment. As you should know, because of limitation of resources and for policy reasons, the Supreme Court only takes for review and decision a very small percentage of cases, regardless of whether the parties correctly believe those cases were rightly or wrongly decided.
I am therefore here to debate you on how the U.S. Supreme Court should rule on the meaning of an Article II “natural born Citizen” and its application to presidential candidate Barack Obama or any other such candidate should it ever decide to review the issue, and not what a lower court has done or not done or to deal with your personal attacks on me. Unfortunately, I doubt that any of that fits well into your political agenda.
Regarding my argument on the meaning of a “natural born Citizen” and what my analysis of Minor v. Happersett (1875) and U.S. v. Wong Kim Ark (1898) is, apart from the briefs that I have filed in the courts and other articles that I have written on my blog, you can read it in my latest article entitled, "Barack Obama Is Ineligible to be President, For He Is Neither a “Natural Born Citizen” Nor a “Citizen of the United States, at the time of the Adoption of this Constitution,” accessed at my blog
http://puzo1.blogspot.com/2012/10/barack-obama-is-ineligible-to-be.html ."
“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.” Article II, Section 1, Clause 5.
“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution.” Article III, Section 2.
The question of whether candidate Barack Obama is a “natural born Citizen,” raised in a case or controversy, is a “Case, in Law . . . arising under this Constitution.”
The Constitution does not give to Congress the power to be the final arbiter on who is eligible to be President. While the 12th Amendment gives the House the power to “choose a President whenever the right of choice shall have devolved upon them,” this power does not include the power to have the final say on the question of whether the President is constitutionally eligible. Additionally, the question of what is a “natural born Citizen” does not fall under Congress’s “legislative powers” (Article I, Section 1), including its naturalization power under Article I, Section 8, Clause 4. Despite these limitations, under the 20th Amendment, Congress can have an opinion on whether a “President elect” qualifies for that office as called for by Article II, Section 1, Clause 5, which includes the requirement that he/she be a “natural born Citizen.” But, by analogy under the 12th Amendment which prohibits Congress from choosing an unconstitutional Vice-President, Congress does not have constitutional power to confirm a President elect under the 20th Amendment who is not a “natural born Citizen.” Since Congress can express an opinion, but does not have the final say on whether a President elect is constitutionally eligible for that office, does not have constitutional power to confirm a President elect who is not constitutionally eligible, and the question arises under the Constitution, the question of whether a President elect is a “natural born Citizen” ultimately falls within the judicial power to resolve, with the U.S. Supreme Court having the final word.
Maybe it's time to launch a national drive to gather a huge number of US citizens (at least in excess of 25,000) and with such a list of signatories, move to partition members of the US Congress and/or the SCOTUS to rule on precisely who would qualify as an Article II "natural born Citizen".
Mr. Apuzzo,
You and radio pundit and constitutional scholar, Mar Levin, share Temple University Law School.
Mr. Levin concurs, that Congress does not have plenary power over the definition of 'natural born citizen' under 'Case and Controversy.'
I disagree.
Congress was empowered in Art I, Sec 8 to legislate 'uniform' naturalization law. The conflicts of law created by Wong Kim Ark et seq violated AIS8.
Congress has the power to reverse Wong Kim Ark by defining 'under the jurisdiction thereof' as being the analog and derivative of 'not subject to any foreign power.' 1866 Civil Rights Act.
This will negate the judicial liberalization and undermining of the original meaning and intent of the Acts and subsuquent Amendment, and liberalization of the law to such an extent as allowing citizenship rights and visas to communists, Muslims, and illegal aliens.
Of course, the court will be challenged, however, the role of the judiciary is to apply law, not subvert or create it.
paraleaglenm,
"Case and Controversy" applies to judicial power, not legislative power.
Also, you do not need to give Congress the power to define a "natural born Citizen" to accomplish what you seek to accomplish. Simply, Congress has the power to define what is both a statutory and constitutional "citizen of the United States." As to the Fourteenth Amendment, it can define such a Fourteenth Amendment "citizen of the United States" by "enforcing" under Section 5 what is meant by "subject to the jurisdiction" of the United States.
Mr. Apuzzo,
I agree. In fact, a simple bill revising 8 USC 1401 adding a definition of 'under the jurisdiction' and citing legislative history referencing both the preamble to the 1866 Civil Rights Act and the 14th Amendment would 'fix' immigration law, and make it more apparent Obama is not eligible to the president, as he would not be a citizen at birth, as such our laws were from 1790 to 1898.
The Hispanics would scream bloody murder. However, those South of the Border are the primary offenders. Must we kowtow to them? Moderate Republicans say we do.
Here is an interesting case, citing 'case and controversy,' and calling communism a 'freedom of thought' issue, although it is specifically denied in the Aliens and Nationality Act, specifically 8 USC 1424.
SCHNEIDERMAN v. UNITED STATES
320 U.S. 118; 63 S. Ct. 1333; 87 L. Ed. 1796; 1943 U.S. LEXIS 1110
In all this talk of National Security, even the liberal pundits have started to grasp that any sort of secret (especially in someone of international significance) is an irresistible target for blackmail. How they fail to connect the dots to the biggest secret of all is incomprehensible. Perhaps they will?
What is really weird is that even if The Obama were to be pure as the driven snow, the fact that he is trying mightily to hide many things is INSTANT CAUSE FOR GRAVE CONCERN - not the facts of what he is hiding, but just that the hiding is taking place.
Regardless if any of you agree or not, or think this is all a tempest in a teapot, I can guarantee you that any halfway competent espionage master would look at this whole situation as low hanging fruit.
Hello Mr. Apuzzo,
And now Obama is there for another four years!!! At a cost very likely of $1 TRILLION OF US DEFICIT EACH YEAR!!!
Obama has already bankrupted the US but he nevertheless cons for four more years the American people and the Constitution of the USA and nobody cares and no one has been able so far to hear a case based on merits with full discovery of ALL the documents related to Obama!!!
Keep fighting, Mr. Apuzzo, and let us pray that there is at least one honest judge in the entire US who is ready to apply true Justice in relation to the non-eligibility of Obama to be Presidency of the USA, not to mention the following:
1) Sheriff Arpaio has proven that Obama's long form birth certificate as well as Obama's selective service card are all forgeries!!!
2) Obama's Connecticut social security number that Obama uses is fraudulent, as it belongs to a deceased person and Obama never lived regularly in Connecticut!
3) Obama is NOT a "natural born citizen", an INDISPENSABLE requirement of the Constitution of the USA, as BOTH Obama's parents were NOT American citizens at the time of his birth (his father was Kenyan).
A petition someone started: https://petitions.whitehouse.gov/petition/ask-united-states-supreme-court-define-term-natural-born-citizen-presented-our-us-constitution/C7FrWk8G?utm_source=wh.gov&utm_medium=shorturl&utm_campaign=shorturl
Mr. Apuzzo,
Any comments on the opinion in Paige v. Obama?
https://docs.google.com/file/d/0By9w3awDuyAUd2FGeDk3MVVsWW8/edit?pli=1
The court mentions you and your "scholarly article". But still uses Wong Kim Ark and Ankeny to decide the case, saying that in light of those decisions your article is only academic.
Mr. Apuzzo,
The flood gates are opening:
"Cruz was born in the Canadian city of Calgary, Alberta, on Dec. 22, 1970. He is the son of a Cuban-immigrant father and an Irish-American mother from Delaware."
[skip]
"Both Cruz and Obama are the sons of American mothers and immigrant fathers. Like McCain, Cruz was born outside of the United States. (McCain was born in the unincorporated Panama Canal Zone in 1936.)"
[skip]
"'He [Cruz]almost certainly was a citizen at birth. I think that he would be eligible for the presidency,' said Peter Spiro, a professor of constitutional law at Temple University."
http://www.texastribune.org/texas-local-news/texplainer/texplainer-could-canadian-born-ted-cruz-be-preside/
Didn't you go to Temple?
The Framers of the USC wisely sought to protect the office of president of the USA from foreign influence and allegiance, to the best possible extent.
The framers of the USC were familiar with English common law AND Vattel, where in both instances, the qualities required for a child to be a natural born subject/citizen, were for a child to be born native to parents who were subject/citizen thereof.
It is an absurd notion that the Framers of the USC were derelict in their duty and imperative, to accept or propose USC Article II "natural born Citizen" to mean anything less than born native to citizen parents.
Time for the SCOTUS to deliver.
4zoltan,
The "natural born citizens," “[a]t common law, with the nomenclature of which the framers of the Constitution were familiar” were “all children, born in a country, of parents who were its citizens.” Minor; Wong Kim Ark.
Cruz was born in Canada to a non-U.S. "citizen" father. He therefore fails both the place of birth and citizen parents requirements. He can be a "citizen of the United States" from the moment of birth under a Congressional act (not under the Fourteenth Amendment, for he was neither born nor naturalized in the United States), but he cannot be an Article II "natural born Citizen."
Peter Spiro, a professor of constitutional law at Temple University, argues: "'He [Cruz] almost certainly was a citizen at birth. I think that he would be eligible for the presidency.'" This is fallacious reasoning called the fallacy of affirming the consequent. We know from Minor’s definition of a “natural born Citizen” that satisfying the definition means that one is a “citizen” from the moment of birth. But being a citizen from the moment of birth is a necessary condition of being a “natural born Citizen.” It is not a sufficient condition, for according to Minor, the definition also contains the two requirements of being born in the country to “citizen” parents. Hence, just showing that one was “a citizen at birth” only satisfies part of the definition which by the very nature of the definition is necessary but not sufficient. Here is an example of this fallacy committed by Professor Spiro: If someone is smart, then someone is a professor. Someone is a professor. Therefore someone is smart. This argument is not valid. It demonstrates the fallacy of affirming the consequent. The first premise does not state that if one is a professor one is smart. Rather, it states that being a professor is the consequence of or follows from being smart. So, being a professor does not necessarily mean that one is smart. So likewise, the definition of a “natural born Citizen” does not state that being “a citizen at birth” makes one a “natural born Citizen.” Rather, being “a citizen at birth” is the consequent of or follows from being a “natural born Citizen.” Being “a citizen at birth” does not prove that one is a “natural born Citizen,” for the other two conditions of being a “natural born Citizen” must also be proven. There is also case law and statutes which prove that simply being “a citizen at birth” does not make one a “natural born Citizen.” Wong Kim Ark and Rogers v. Bellei, 401 U.S. 815(1971) said that children born out of the United States to “citizen” parents are citizens at birth, but are made such by naturalization statutes of Congress and not the common law or even the Fourteenth Amendment. We know from a plain reading of these statutes that they only define “citizens of the United States” and not “natural born Citizens.”
Barack Obama, like Cruz, is also not a “natural born Citizen.” He may have been born in Hawaii, but he was not born to a U.S. “citizen” father, a necessary element of being a “natural born Citizen.” Contrary to Spiro’s belief that Obama Sr. was an “immigrant,” he was not, for he was in the U.S. only with a student visa on a temporary basis for university studies. U.S. immigration eventually required that he return to Kenya which he did. If Obama was born in Hawaii, he would be a Fourteenth Amendment “citizen of the United States” from the moment of birth, but not an Article II “natural born Citizen.”
John McCain, regardless of where he was born, is a “natural born Citizen” because he was born to two U.S. “citizen” parents who were serving “the armies of the states” at the time of his birth. Under these birth circumstances, he is “reputed born in the country” and born to two U.S. “citizen” parents. Hence, he satisfies the American common law definition of a “natural born Citizen” by being born in the country to “citizen” parents. See Vattel, Section 217 in The Law of Nations.
I'm so glad I found this quiet, dusty corner of the internet.
Your post made great reading, BTW. Very erudite, and well-reasoned and argued. Please don't let the fact that you're factually wrong about pretty much everything that counts get you down.
I'd be interested to see how much better America could do, in reality and in world opinion, if everyone spending so much time and effort to repeat their already refuted anti-American arguments instead spent some time working for the America you all claim to love so much.
The problem as the world sees it, is that while the US has so many reasons to be proud of itself, Truthers, Birthers, and other people incorrectly calling themselves "patriots" are detracting from that united front, by continually repeating themselves, to themselves, using those oft-refuted arguments that no-one listens to any more.
It's truly embarrassing for international readers and thinkers to see so many intelligent, reasonable American people taking up a cause belittling their beloved country; and it's even more embarrassing (if that were possible) to hear those people calling themselves "patriots", when all they're doing is working against the name and strength of the country they purport to love!
I'm incredibly glad I'm not an American, because then I'd be ashamed by these attacks on the dignity and cohesiveness of the country. Instead, like pretty much everyone in the rest of the world who even bothers to listen to the dissent, I'm just embarrassed for the real patriots who have to put up with the BS you guys generate and perpetrate.
Quick question : what does it say about a cause when the cause has been soundly, irrefutably, and completely refuted by the best minds in the rest of the country, yet the followers of that cause continue to offer the same identical arguments without consideration of their truth or value?
Remember what is said when someone does the same thing over and over, expecting different results.
If you guys used your intelligence and knowledge and passion to work for your country instead of against it, imagine what you could achieve!
In fact, I dare you!
Good luck with your self-examination, and I hope you get with the program and work for your country instead of always against it. The opportunity is yours for the taking! Go to it!
Cephas Atheos,
The "natural born Citizen" clause is not what you in your idealized world wish it to mean. Rather, it means what the Founders and Framers meant it to mean. If we as a society do not like it, then we can change it by constitutional amendment.
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