The Framers’ Definition of a Natural Born Citizen Is Not Based on Race, Color, or Religion

The Framers’ Definition of a Natural Born Citizen Is Not Based on Race, Color, or Religion

By Mario Apuzzo, Esq.

February 29, 2016

Donald Trump has questioned whether Ted Cruz, born in Canada to a U.S. citizen mother and an alien father, and Marco Rubio, born in the United States to two alien parents, are Article II natural born citizens, which they must be in order to be eligible to be President or Vice-President.  Garrett Epps[1] attacks Donald Trump, saying that he is attempting to redefine who is a natural born citizen by basing the clause’s definition on blood and race (he left out religion).  He states in The Atlantic:  “It’s not coincidental that the targets of these birther libels are the first African American president and the first two credible Latino presidential candidates.”  He adds:  “In much of the public mind, American citizenship is being redefined into a matter of race and blood, apparently as part of the nostalgia for an imagined golden era of racial, religious, and sexual exclusion.”  You can read the whole story at http://www.theatlantic.com/politics/archive/2016/02/trump-birther-rubio-cruz/471015/#article-comments .  Ignoring that in our history, President Chester Arthur, Charles Evan Hughes, George W. Romney, Barry Goldwater, and John McCain (all very white) were all challenged for not being natural born citizens, Epps does no better than to play the despicable race card and by so doing it becomes evident that Epps is what he unjustly accuses Trump of being. 

  

Donald Trump is not redefining the meaning of a natural born citizen.  Rather, he is only recognizing what that meaning is.  Allow me to explain. 

Article II, Section 1, Clause 5 of the Constitution provides:  "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States."  Hence, for those born after the adoption of the Constitution, if one is not a natural born citizen, then one is prohibited from being President.  The Twelfth Amendment requires that also the Vice-President be a natural born citizen. 

Under Article II, one of the three requirements to be President of the United States and its Commander in Chief of the Military, for those born after the adoption of the Constitution, is not that the individual be a human. Nor is it that the individual be a citizen. Rather, the requirement is that the individual be a natural born citizen. (Under Article II, one was eligible to the Office of President if one was just a citizen if one had that status as of the time of the adoption of the Constitution.) This simple dichotomy tells us that a natural born citizen has birth characteristics which are not possessed by humans in general, or even citizens in general.  So then what is a natural born citizen, what are its birth characteristics, and how does its definition differ from that of a citizen? 

Having fought a bloody revolution which saw not only Americans fighting the British, but also Americans fighting Americans, the Founders and Framers were well aware of how vital undivided and unwavering allegiance was to the creation, survival, and perpetuation of the new nation under republican principles.  When setting up the new national government, the Founders and Framers sought to prevent monarchical and foreign influence from making its insidious way into the new national government in general and into the Office of President and Commander in Chief of the Military in particular.  Hence, the Framers provided that not Congress, but the Electoral College elect the President and that any person born after the adoption of the Constitution to be eligible to the Office of President and Commander in Chief be a natural born citizen.  Being a natural born citizen, the President and Commander would from birth be loyal, faithful, and in allegiance only to the United States.  How do we know that the Framers saw this consequence in a President and Commander being a natural born citizen? 

Since the beginning of their creation, men and women who first created new groups and later ordered civil and political societies became the first members of those groups or societies.  As to their children, they belonged to the groups or societies in which their member parents chose by free will to have them be born.  These children, born to parents who were the first members of that group or society in the land to which their parents belonged were the natives or natural born members.  This belonging became known as membership in those ordered societies, which later became countries or nations.  This membership entitled one to defined privileges, immunities, and rights as provided by the customs and later laws of those countries or nations.  In countries led my monarchical governments,[2]  these members were called subjects.  In contrast, in a country or nation led by a republican form of government,[3] a member of such country or nation came to be called a citizen.  So, the first members of these republican societies or countries were called citizens and their children, the first ones to be born to those first members in those new societies or countries, were called natives or natural born citizens. [4]

Needless to say that a natural born citizen is a citizen from the moment of birth.  But that statement does not articulate any definition of the clause, for it does not state the producing causes of the character.  As we have seen, in order for a child to be a natural born citizen, the child must satisfy certain birth circumstances.  It is these birth circumstances that join at the moment of birth to produce the recognized and articulated birth character and the clause’s ultimate definition.    

So just what are these birth circumstances which unite at birth to produce a natural born citizen?  A child to be a natural born citizen must be born to two citizen parents.  Such a child must also be born in the country of his or her parents.  This ancient Greek[5] and Roman[6] rule was confirmed by Emer de Vattel as being incorporated into the law of nations.  Vattel wrote in his highly acclaimed and influential treatise, The Law of Nations, Section 212 (1758) (1797): 

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 the 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.

The Law of Nations, at sec. 212 (emphasis supplied). 

Here we see how Vattel defined the natural born citizens as children born in the country to parents who were its citizens.  After providing this definition of the clause, he referred to a citizen father because under the common law doctrine of coverture, wives upon marriage adopted the citizenship of their husbands.  Hence, Vattel was merely explaining how the citizen parents were to come to be, i.e., through a citizen husband/father.  Hence, the birth character of a natural born citizen required a citizen father and a citizen mother just as a natural child required a natural father and a natural mother. 

Not being natural born citizens, Vattel then explained what status children born in the country to alien parents would have, which was not that of a natural born citizen: 

The inhabitants, as distinguished from citizens, are foreigners, who are permitted to settle and stay in the country. Bound to the society by their residence, they are subject to the laws of the state, while they reside in it; and they are obliged to defend it, because it grants them protection, though they do not participate in all the rights of citizens. They enjoy only the advantages which the law or custom gives them. The perpetual inhabitants are those who have received the right of perpetual residence. These are a kind of citizens of an inferior order, and are united to the society, without participating in all its advantages. Their children follow the condition of their fathers; and as the state has given to these the right of perpetual residence, their right passes to their posterity.

Vattel, Section 213, entitled, “Inhabitants.” 

We can see that if a child was born in a country to parents who were only legal and permanent inhabitants and not its citizens, those children inherited the same status possessed by the parents, i.e., that of a permanent residents.  That child was not a natural born citizen.  

Vattel also explained in Section 214 how persons, who were not natural born citizens could become citizens of a nation by that nation through its positive laws adopting such persons as its members either at birth or after birth:

A nation, or the sovereign who represents it, may grant to a foreigner the quality of citizen, by admitting him into the body of the political society. This is called naturalisation. There are some states in which the sovereign cannot grant to a foreigner all the rights of citizens,—for example, that of holding public offices,—and where, consequently, he has the power of granting only an imperfect naturalisation. It is here a regulation of the fundamental law, which limits the power of the prince. In other states, as in England and Poland, the prince cannot naturalise a single person, without the concurrence of the nation represented by its deputies. 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, Section 214, entitled “Naturalisation.” 

We see that Vattel explained how a nation could adopt as citizens persons not born as natural born citizens.  He also explained how in England, because of its local laws, children born there, even to alien parents, were naturalized at birth to be subjects of that nation.  The historical and legal record demonstrates that the Founders and Framers did not adopt this rule of the common law of England for defining a natural born citizen.  Rather, they adopted Vattel’s definition of a “native[], or natural-born citizen[]” that Vattel provided in Section 212.   

Vattel also covered children born out of the country to citizen parents in Section 215.  There he explained: 

It is asked, whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and their regulations must be followed. By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (§212); the place of birth produces no change in this particular, and cannot of itself furnish any reason for taking from a child what nature has given him; I say “of itself,” for civil or political laws may, for particular reasons, ordain otherwise. But I suppose that the father has not entirely quitted his country in order to settle elsewhere. If he has fixed his abode in a foreign country, he is become a member of another society, at least as a perpetual inhabitant; and his children will be members of it also.

Vattel, Section 215, entitled “Children of citizens, born in a foreign country.” 

Again, Vattel confirmed that if a child was born in a country to perpetual inhabitants, the child upon birth inherited from his or her parents their status and became like them a habitual inhabitant of that country and not its natural born citizen. 

Vattel, through Section 212, 214, and 215 confirmed that only children born in the country to parents who were its citizens were natural born citizens, and that all the rest were in need of naturalization, either at birth or after birth.  He explained that in England, children born in the King’s dominion to alien parents were naturalized at birth under the law of that nation which we know was the English common law.  He also explained that children born out of the country to parents who were its citizens were by the law of nature “citizens” of their parents’ nation, but such status could be changed by the positive laws of that nation.  Hence, under the law of nations, which did not exist in a state of nature, only children born in a country to parents who were its citizens were natural born citizens, which takes us back to the definition that Vattel gave of a natural born citizen in Section 212.   

Finally, Vattel also covered children born at sea and to parents serving in diplomatic capacities or in the armies of the state: 

As to children born at sea, if they are born in those parts of it that are possessed by their nation, they are born in the country: if it is on the open sea, there is no reason to make a distinction between them and those who are born in the country; for, naturally, it is our extraction, not the place of our birth, that gives us rights: and if the children are born in a vessel belonging to the nation, they may be reputed born in its territories; for it is natural to consider the vessels of a nation as parts of its territory, especially when they sail upon a free sea, since the state retains its jurisdiction over those vessels. And as, according to the commonly received custom, this jurisdiction is [103] preserved over the vessels, even in parts of the sea subject to a foreign dominion, all the children born in the vessels of a nation are considered as  born in its territory. For the same reason, those born in a foreign vessel are reputed born in a foreign country, unless their birth took place in a port belonging to their own nation: for the port is more particularly a part of the territory; and the mother, though at that moment on board a foreign vessel, is not on that account out of the country. I suppose that she and her husband have not quitted their native country to settle elsewhere.

Vattel, Section 216, entitled, “Children born at sea.” 

We can see that if a nation continued to exercise jurisdiction over a person who was physically located outside its territory, the nation could continue to claim that person as its citizen. 

Vattel continued: 

For the same reasons also, children born out of the country in the armies of the state, or in the house of its minister at a foreign court, are reputed born in the country; for a citizen, who is absent with his family on the service of the state, but still dependent on it, and subject to its jurisdiction, cannot be considered as having quitted its territory.

Vattel, §217, entitled, “Children born in the armies of the state, or in the house of its minister at a foreign court.” 

So, any child who was born at sea but still subject to the jurisdiction of his or her parents’ nation or born out of the country to parents either on diplomatic service for their nation or serving the armies of their nation were reputed born in their country.  This meant that such children, reputed born in their parents’ country, were also natural born citizens.  

Vattel in Sections 220 to 223 also explained that persons had a right to expatriated themselves from the country of their birth, under prescribed conditions.  In Sections 224 to 231, Vattel also explained the sovereign right of a nation to determine who it will allow to enter its territory and under what conditions. 

Who the nation accepted to be its citizens was tested in Dred Scott v. Sandford, 60 U.S. 393 (1857).  In that decision, the U.S. Supreme Court held that a person of African descent, whether a slave or not, was not and could not be a citizen of a State or of the United States.  To arrive at its decision, the Court found that the slave was not a part of the sovereign people who made the political decision to associate together to form the United States.  We know that that ultimate holding was eventually abrogated by the Civil War, the Civil Rights Act of 1866, the Thirteenth and Fourteenth Amendment, and U.S. v. Wong Kim Ark, 169 U.S. 649 (1898).   The Civil War, these constitutional provisions, and statutory and case law together outlawed slavery and confirmed that all people, regardless of race or color, could be citizens of the United States.  But none of that has anything to do with how Dred Scott defined a natural born citizen, whose definition does not contain any reference to race, color, or condition of servitude.  Dred Scott prevented free blacks from being recognized as members of American political society, i.e., citizens, not from being recognized as natural born citizens.  Hence, what the Court explained about who were the natural born citizens, which did not rest on any factors of race, color, or condition of servitude, is still valid.  In fact, in interpreting the Fourteenth Amendment, the U.S. Supreme Court in The Slaughterhouse Cases quoted from and relied upon the Dred Scott decision, explaining that Dred Scott   

held that the words “people of the United States" and "citizens" were synonymous terms; that the people of the respective States were the parties to the Constitution; that these people consisted of the free inhabitants of those States; that they had provided in their Constitution for the adoption of a uniform rule of naturalization; that they and their descendants and persons naturalized were the only persons who could be citizens of the United States, and that it was not in the power of any State to invest any other person with citizenship so that he could enjoy the privileges of a citizen under the Constitution, and that therefore the descendants of persons brought to this country and sold as slaves were not, and could not be, citizens within the meaning of the Constitution.

The Slaughter House Cases, 83 U.S. 36, 95 (1873) (citing and quoting  Dred Scott v. Sandford, 60 U.S. 393 (1857).

Justice Daniel, in his Dred Scott concurring opinion was more exact with the definition of a natural born citizen.  Concurring with the majority, relying upon Vattel’s explanation of what the civil society, its citizens and natural born citizens were, and quoting the definition of a natural born citizen found in Section 212 of The Law of Nations, stated:

Thus Vattel, in the preliminary chapter to his Treatise on the Law of Nations, says: 'Nations or States are bodies politic; societies of men united together for the purpose of promoting their mutual safety and advantage, by the joint efforts of their mutual strength. Such a society has her affairs and her interests; she deliberates and takes resolutions in common; thus becoming a moral person, who possesses an understanding and a will peculiar to herself.' Again, in the first chapter of the first book of the Treatise just quoted, the same writer, after repeating his definition of a State, proceeds to remark, that, 'from the very design that induces a number of men to form a society, which has its common interests and which is to act in concert, it is necessary that there should be established a public authority, to order and direct what is to be done by each, in relation to the end of the association. This political authority is the sovereignty.' Again this writer remarks: 'The authority of all over each member essentially belongs to the body politic or the State.'

By this same writer it is also said: 'The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority; they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As society [60 U.S. 393, 477]   cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights.' Again: 'I say, to be of the country, it is necessary to be born of a person who is a citizen; for if he be born there of a foreigner, it will be only the place of his birth, and not his country. The inhabitants, as distinguished from citizens, are foreigners who are permitted to settle and stay in the country.' (Vattel, Book 1, cap. 19, p. 101.)

Dred Scott, 60 U.S. at 476-77 (Daniel, J., concurring).

It should be noted that Justice Daniel took out of Vattel’s definition the reference to “fathers” and “father” and replaced it with “parents” and “person,” respectively.  This shows that Justice Daniel understood that Vattel was requiring citizen “parents” and that “father” or “fathers” was only under the common law doctrine of coverture the means by which married parents were to be both citizens in order for a child born to them in their country to be a natural born citizen.

Hence, Dred Scott explained that the citizens were only those persons who were the original citizens and children born to citizen parents, meaning father and mother, and those made by naturalization.  Hence the natural born citizens were children born in the country to parents who were citizens.  All the rest of the people were aliens or foreigners who could become citizens through naturalization, which is what Minor v. Happersett (1875) also later confirmed.  The definition of a natural born citizen that the Court gave had nothing to do with slavery or keeping slaves or children of slaves from being citizens.  The Court confirmed what the Framers’ definition of a natural born citizen was.  At the same time, the Dred Scott Court found that slaves were never citizens nor could they ever naturalize under any then-existing naturalization Act of Congress.  Hence, they and their descendants were not citizens and with no parents who were ever citizens, could also not be natural born citizens.  That the Court made this finding does not in the least disturb the definition of a natural born citizen which was a child born in the country to parents who were its citizens at the time of the child’s birth and which the unanimous U.S. Supreme Court in Minor v. Happersett in 1875 confirmed to be the correct definition of the clause, which was after the Dred Scott decision, the Civil Rights Act of 1866, and the Fourteenth Amendment. 

Because of the disability of slavery found by the Dred Scott Court, we know that the Civil Rights Act of 1866 and the Fourteenth Amendment were passed to allow free slaves to become “citizens” of the United States.  Becoming citizens under those laws, free slaves were then placed in a position to give birth to children in the United States who would qualify as natural born citizens.

The American Civil War was fought from 1861 to 1865 to determine the survival of the United States as then constituted or independence for the Confederacy.  Of the 34 states that existed in January 1861, seven Southern slave states each declared their secession from the United States and formed the Confederate States of America. The Confederacy grew to include eleven states and claimed thirteen states and additional western territories.  Slavery and its extension into the western territories was a major issue of the Civil War.   With the defeat of the Confederacy, slavery was abolished, after which began Reconstruction and the processes of once again uniting the nation and guaranteeing the freed slaves civil rights.

As part of that Reconstruction, Congress passed the Civil Rights Act of 1866 to undue Dred Scott’s holding that free blacks were not citizens of the United States.  It provided in pertinent part:  “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.”

Congress then followed with The Fourteenth Amendment, which the nation ratified in 1868.  It provided 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.” 

The U.S. Supreme Court for the first time interpreted the Fourteenth Amendment in The Slaughterhouse Cases (1873).  Critically important is the fact that the Court, which was virtually the same Court as the later Minor Court except for Chief Justice Chase who would pass away by then,  when interpreting the Fourteenth Amendment, which interpretation reflected its understanding of who could be a citizen of the United States by birth in the country, found that a child born in the United States to alien parents was not a citizen of the United States under the Fourteenth Amendment.  Here is what Court said was the purpose and meaning of the Fourteenth Amendment, and who the Amendment excluded from being a citizen of the United States:  

The first section of the fourteenth article to which our attention is more specially invited opens with a definition of citizenship -- not only citizenship of the United States, but citizenship of the States. No such definition was previously found in the Constitution, nor had any attempt been made to define it by act of Congress. It had been the occasion of much discussion in the courts, by the executive departments, and in the public journals. It had been said by eminent judges that no man was a citizen of the United States except as he was a citizen of one of the States composing the Union. Those, therefore, who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens. Whether [p73] this proposition was sound or not had never been judicially decided. But it had been held by this court, in the celebrated Dred Scott case, only a few years before the outbreak of the civil war, that a man of African descent, whether a slave or not, was not and could not be a citizen of a State or of the United States. This decision, while it met the condemnation of some of the ablest statesmen and constitutional lawyers of the country, had never been overruled, and if was to be accepted as a constitutional limitation of the right of citizenship, then all the negro race who had recently been made freemen were still not only not citizens, but were incapable of becoming so by anything short of an amendment to the Constitution.

To remove this difficulty primarily, and to establish clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States and also citizenship of a State, the first clause of the first section was framed.

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.

The first observation we have to make on this clause is that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. 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.

The Slaughterhouse Cases, 83 U.S. 36, 72-73 (1873).  

As we can see, the Court explained how Dred Scott confirmed that it was not state law and state citizenship as so defined which defined who the citizens of the United States were, but rather national law. It explained how the Fourteenth Amendment confirmed that it was federal law that created U.S. citizenship which then determined whether one was a citizen of some state and that being a "citizen of the United States" was not to be limited by race, color, or any factor other than the floor of birth in the country while subject to its jurisdiction.  For sure, in so explaining, the Court was well aware of the ceiling of U.S. citizenship provided by the natural born citizen clause which is birth in the country to U.S. citizen parents and that anyone who satisfied that ceiling was without any doubt a citizen of the United States.  It then added that the jurisdiction clause excluded from U.S. citizenship not only children born in the United States to foreign ministers and consuls, but also those born to alien parents. Hence, contrary to what Justice Gray said in U.S. v. Wong Kim Ark (1898), the Fourteenth Amendment did not remove any doubts regarding whether children born in the United States to alien parents were citizens.  Rather, it removed doubts regarding who had jurisdiction to decided U.S. citizenship, the states or the national government (it said the national government), and what law was to decide that very important question, state or national law (it was national law), and concerning whether free blacks could be U.S. citizens (it said they were for they were not aliens and when born in the United States not subject to any foreign power).  And finally, according to the U.S. Supreme Court in The Slaughterhouse Cases, the Fourteenth Amendment, through its subject to the jurisdiction thereof clause, also confirmed that children born in the United States to alien parents where not citizens of the United States under the Fourteenth Amendment.  The Court made no reference to race, color, or condition of servitude in its statement that children born in the United States to alien parents were not citizens under the Fourteenth Amendment.  Rather, what disqualified these children from U.S. birthright citizenship was alien parents.  So if a person was a natural born citizen, there was no doubt that one was a citizen of the United States under any law.  If one was born in the United States to alien parents and hence not a natural born citizen, the Supreme Court said that one was not a citizen of the United States, either at common law or under the Fourteenth Amendment.

The U.S. Supreme Court in 1875 was again called upon to determine who were the citizens and natural born citizen of the United States.  It did not look to either the Civil Rights Act or the Fourteenth Amendment to answer that question, explaining how citizens and natural born citizens had existed since the beginning of the nation.  Minor  confirmed the common law definition of a natural born citizen used by the Framers when they drafted and adopted the Constitution.  It said, as Dred Scott had, that all children born in a country to parents who were its citizens were “natives, or natural-born citizens,” and that under that common law all the rest of the people were “aliens or foreigners,” who could be naturalized by naturalization Acts of Congress.  This was a definition that it paraphrased from Emer de Vattel, The Law of Nations, Section 212 (1758) (1797), where  Vattel provided the same definition of “natives, or natural-born citizens.”  Even though The Slaughterhouse Cases had already said they were not citizens of the United States, Minor opened the door for children born in the United States to alien parents to be accepted as citizens of the United States under the Fourteenth Amendment, by saying that “there have been doubts” whether those children were citizens given that “some authorities” contended that they were.  Minor observed that it was not necessary for it to resolve those doubts because Virginia Minor, being a natural born citizen, was without any doubt a citizen.   

The unanimous U.S. Supreme Court in Minor confirmed Vattel’s rules of the law of nations, as stated by Vattel in Section 212, 214, and 215, when it 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 v. Happersett, 88 U.S. 162, 167-68 (1875).  Later in its decision, the Court went on to explain how persons who were not born in the country to parents who were its citizens could become citizens of the United States, either at birth or after birth, through the naturalization Acts of Congress. 

So, the high Court explained that at common law all children born in a country to parents who were its citizens were “natives, or natural-born citizens” and that all the rest of the people who were not natural born citizens were “aliens or foreigners,” who could be naturalized under that nation’s positive laws (as Vattel explained in Section 214).   We can readily see that the Court paraphrased the definition of “natives, or natural-born citizens” provided by Vattel in Section 212 of The Law of Nations.  As we can also see from what Minor explained, this law of nations definition became part of the common law, which could only be American national common law and not the English common law, which did not require that children born in the King’s dominion be born to English subject parents.  On the contrary, as we saw from Vattel’s Section 214, the English common law automatically naturalized at birth children born in the country to alien parents.[7] 

Our nation has also adopted Vattel’s explanations on expatriation, which was rejected by the English common law, and his explanations on a nation’s right to decide for itself who shall be admitted to its territory and under what circumstances. [8] 

We know that U.S. v. Wong Kim Ark (1898) resolved the doubts raised by Minor (who else can be a “citizen” by birth in the country) by holding that those children were “citizens” of the United States at birth by virtue of the Fourteenth Amendment (not to be conflated, confounded, and confused with the ceiling of national character provided by the “natural born citizen” clause).   A plain reading of the Court’s holding shows that it held that Wong was a “citizen” of the United States from the moment of birth and never made any mention of the clause “natural born citizen” in its holding.  Here is the Court’s 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 domicil 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.

Wong Kim Ark, 169 U.S. at 705. 

Wong Kim Ark confirmed Minor’s definition of a natural born citizen and held, with the colonial English common law providing it guidance on how to interpret and apply “subject to the jurisdiction” and not as an aid to define a natural born citizen, and also by adding the conditions of domicile and permanent residency to the jus soli (right from the soil) rule of the English common law, that a child born in the United States to alien parents who were domiciled and permanently residing in the United States and neither foreign diplomats nor military invaders was born subject to the jurisdiction of the United States, i.e., subject to its laws, and therefore a “citizen” of the United States from the moment of birth, but only by virtue of the Fourteenth Amendment.  With the Court requiring that those alien parents be subject to the laws of the United States, it is doubtful that the Court would benefit those aliens in the country illegally or temporarily with any right to pass on to their children the right to be a U.S. citizen by birth in the United States. 

Wong Kim Ark did not hold that Wong was a natural born citizen nor could it so hold, for the Court itself confirmed that a natural born citizen was a child born in the country to parents who were its citizens.  Wong Kim Ark confirmed and accepted Minor’s definition of a natural born citizen, not only when it cited Minor and quoted its definition of a natural born citizen, but also when it 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, at 665 (citing and quoting Horace Binney, “Alienigenae of the United States,“ p. 22, note, December 1, 1853, 2^nd ed.).  Justice Gray explained:  “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 Amer.Law Reg.193, 203, 204.” Justice Gray accepted the distinction that Binney made between a child born in the country to citizen parents who Binney called a “natural born” citizen and a child born in the country to alien parents who he called a “citizen” without any adjective.  By adopting Binney’s quote, Justice Gray told us that he saw a difference between a child born in the United States to citizen parents who he called "natural born" citizen and a child born in the United States to alien parents who he called a "citizen” of the United States under the Fourteenth Amendment, and said that it was birth in the country that made them both citizens.  To defend his position that it was birth in the country that made them both citizens, he explained that for those born out of the United States, it was only a naturalization Act of Congress that made them citizens, without which those children would be aliens.[9]  Hence, how Binney and Minor defined a natural born citizen were the same and Justice Gray accepted the definition both provided.

When it came to defining a natural born citizen, Chief Justice Fuller and Justice Harlan also cited and quoted Vattel thus: 

Before the Revolution, the view of the publicists had been thus put by Vattel:

"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 the 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."

Book I, c.19, § 212.

"The true bond which connects the child with the body politic is not the matter of an inanimate piece of land, but the moral relations of his parentage. . . . The place of birth produces no change in the rule that children follow the condition of their fathers, for it is not naturally the place of birth that gives rights, but extraction."

And to the same effect are the modern writers.  

Wong Kim Ark, 169 U.S. at 708 (Fuller, C.J. dissenting).    

So, when Minor and Wong Kim Ark are read in tandem, we can see that Minor defined a common law Article II “natural born citizen” and Wong Kim Ark defined a Fourteenth Amendment “born citizen,” (there are also “born citizens” under Congressional naturalization Acts) which are two separate and distinct classes of U.S. citizenships.

It has been said by some who have misinterpreted Vattel in Section 212 of  The Law of Nations that it was not birth in the country to citizen parents, but rather only a citizen father that was necessary for one to be a natural born citizen.  They come to this conclusion because after Vattel defined a natural born citizen as being born in the country to citizen parents he said:  “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 country of the fathers is therefore that of the children, and these become true citizens merely by their tacit consent. . . . 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."  But this language cannot serve as a basis for coming to the conclusion that a citizen father is all that is required to be a natural born citizen. 

Vattel first defined a natural born citizen as being born in the country to citizen “parents.”  Most clearly, Vattel in his definition of a natural born citizen said, born in the country and born to citizen “parents,” not citizen “father.”  If birth could occur anywhere, Vattel would not have said born in the country.  Also, if he meant to say just citizen father, it would have been easy for him to simply say so rather than using the word “parents” in this definition of a natural born citizen.   Vattel did go on to explain that the child had to be born to a citizen father.  But requiring that the child be born to a citizen father did not mean that it was sufficient for the child to be born only to a citizen father or to just one citizen parent.  Vattel did not express the idea that it was sufficient for the child to be a natural born citizen to be born in the country to only one parent who was a citizen.  Rather, while at the time that Vattel wrote his treatise it was sufficient for a child born in the country to a citizen father to be a natural born citizen, that was only because having a citizen father meant that the child also had a citizen mother.  Under the common law doctrine of coverture, when a woman married a man, she automatically took on his citizenship and they both thereafter held the same citizenship and allegiance.  Also, at common law, “children” meant legitimate children.  Hence, requiring that a child be born to a citizen father was the equivalent to requiring that a child be born to married citizen parents.  It was only by being born in the country to two citizen parents that no foreign nation could lay claim to the child’s allegiance and citizenship through either jus sanguinis (right of blood or inheritance of citizenship from one’s parents) or jus jus soli (right from the soil or acquisition of citizenship by being born in a country). 

So, for the Framers, it was sufficient that a child be born in the country to a citizen father to make that child a natural born citizen, for under the common law doctrine of coverture, that meant that the child was born in the country to citizen parents.  This was the original definition of a natural born citizen.  Of course, the Framers had no idea that Congress would pass a law in 1922 (the Cable Act) which broke the wife’s allegiance and citizenship away from her husband.  Congress did not provide that an alien husband became a U.S. citizen upon marrying a U.S. citizen wife.  Of course, this statute did not nor could it amend the Constitution and its original definition of a natural born citizen which required birth in the country to citizen parents, which then was achieved through a citizen father.   Rather, this law just changed the means or mechanism by which that requirement was to be met. Each man and woman would have to satisfy all applicable laws on their own in order to be citizens of the United States.  

For the Founders and Framers and for many years thereafter, marriage of a woman to a U.S. citizen husband was enough for both to become U.S. citizens.  The Framers never saw an alien husband becoming a U.S. citizen upon marrying a U.S. citizen wife.  For Congress in later years, marriage was no longer sufficient for an alien woman to become a U.S. citizen.  Rather, the wife would now have to go through her own naturalization process if not a citizen of the United States.  The Framers saw one mechanism for becoming a natural born citizen which was based on the common law doctrine of coverture.  By abrogating the common law doctrine of coverture, Congress changed that mechanism.  But still the original status of a father and mother being both citizens could be achieved by an alien woman marrying a citizen husband. 

All U.S. Supreme Court cases both before and after Minor that have provided a definition of a natural born citizen have used the word citizen “parents” and never just citizen “father” and rightfully so.  Justice Daniel in his concurring opinion in Dred Scott even went as far as to remove “fathers” and replaced it with “parents.”   Being born in the country to two citizen parents, citizenship and allegiance in a foreign country was cut off, for no nation could claim it either through jus soli (right of the soil) or through jus sanguinis (right of the blood). 

Of course, people who are natural born citizens are all human and citizens. But not all humans are natural born citizens nor even just citizens. Also, not all citizens are natural born citizens.  Under U.S. law today, the difference between humans, citizens, and natural born citizens is that only those who are born in the country to parents who were its citizens are natural born citizens. Those who do not have those birth circumstances, but who are still citizens under some positive law (e.g., the Fourteenth Amendment, naturalization Act of Congress, or treaty) are citizens. Those who are neither natural born citizens (not born in the country to citizen parents) nor citizens (they do not satisfy the Fourteenth Amendment, naturalization Act of Congress, or treaty) are just humans.  Race, color, or religion do not play any role in establishing any of those categories. 

So, first there were citizens.  Then naturally there were natural born citizens, who were their descendants born in the country.  Being a citizen meant one was a member of a political or civil society which was called a country or nation.  The first citizens were those who made that society.  Other citizens that followed were persons made citizens by the country's positive laws.  A natural born citizen (not to be conflated, confounded, and confused with a citizen) was a child born in the county to parents who were its citizens.  As can be seen, race, color, and religion, had nothing to do with the definition of being a natural born citizen.  The barrier that has existed in the United States in the past had been one about who was to be accepted as a citizen, not as a natural born citizen. 

All things in nature perpetuate themselves through a process provided by nature itself.  Nothing outside of nature itself is needed for that thing to perpetuate itself.  Man can add to that natural process by introducing what we call artificial agents.  But by doing so, man is not changing the natural process, but rather only adding to it.  Vattel, who greatly influenced the Founders and Framers, explained that as a natural and moral person, a nation too needed to perpetuate itself if it were to survive as conceived.  He saw a nation not only surviving but also perpetuating itself through the love that its members gave to it.  He also saw that it was parents, both father and mother, who taught that love of country to their children on the most fundamental and powerful level.  Indeed, Vattel did not see love of country emanating from a child being born in any particular place, but rather from a child’s citizen parents who instill love of their country in their child through education and rearing from the moment of birth.  

The natural born citizen clause is not about pretend fairness or egalitarianism.  The natural born citizen clause provides a constitutional bright-line and objective test for Presidential and Vice-Presidential eligibility.   That objective test is basically to ask whether the presidential candidate was born or reputed born in the United States to parents who were both U.S. citizens at the time of the person’s birth.  When voting for a President, voters cannot constitutionally vote for a person who is not a natural born citizen, just like they cannot constitutionally vote for one who is not at least 35 years old and at least 14 years a resident within the United States.  On the other hand, voting for an eligible President is a subjective act done by the voters and their choice is not to be questioned from a constitutional standpoint.   

Let us now apply these principles to de facto President, Barack Obama.  Obama was presumably born in the United States to a U.S. citizen mother.  But he was born to an alien father (British and then Kenyan upon Kenya’s independence from Great Britain).  He was born in allegiance to the United States and to Great Britain and then Kenya.  He is therefore not a natural born citizen.  Race, color, or religion has nothing to do with this conclusion. 

Let us now apply these principles to Ted Cruz.  Cruz concedes that he was born in a foreign country (Canada).  While he was born to a U.S. citizen mother, he also concedes that he was born to an alien father (Cuban).  He barely became a citizen and only under a naturalization Act of Congress.  Not until 1934 could someone born under such birth circumstances be a citizen, let alone a natural born citizen.  Cruz was born with allegiance to the United States, Canada, and Cuba.  Hence, he is not a natural born citizen.  Race, color, or religion has nothing to do with this conclusion. 

Let us now apply these principles to Marco Rubio.  He concedes that he was born in the United States to a father and mother who were both aliens (they were Cuban).   Not until the U.S. Supreme Court ruled in 1898 in its Wong Kim Ark decision that persons like Rubio born in the United States to alien parents were citizens of the United States under the Fourteenth Amendment did someone like Rubio become a citizen of the United States (not to be confused with a citizen of a state).  So, while Rubio can be a citizen of the United States, it is only by virtue of the Fourteenth Amendment.  Rubio was born with allegiance to the United States and Cuba.  He is therefore not a natural born citizen.  Race, color, or religion has nothing to do with this conclusion.    

Trump is right.  Both Cruz and Rubio are not eligible to be President.   

We come to the same conclusion with respect to Bobby Jindal and Nikkie Haley.   They were born in the United States, but to two alien parents (both their parents were Asian Indian).  They have the same status as Rubio.   They were born with allegiance to the United States and India.  They are therefore not natural born citizens.  Race, color, or religion has nothing to do with this conclusion.    

Barack Obama, Ted Cruz, Marco Rubio, Bobby Jindal, and Nikkie Haley are humans. They are also all (assuming Obama was born in the U.S.) citizens (all citizens only by virtue of the Fourteenth Amendment, except for Cruz who is a citizen only by virtue of a naturalization Act of Congress). None of them were born in the country to two parents who were its citizens at the time of their child’s birth. None of them were born with sole allegiance to the United States.  None of them are natural born citizens.  Race, color, or religion has nothing to do with this conclusion.   Hence, being neither a natural born citizen nor a citizen of the United States at the time of the adoption of the Constitution, none of them are eligible to the office of President. 

After its framing and ratification, the Constitution prescribed who could be citizens and who could be natural born citizens.  Because of the constitution’s limitation on who could be a citizen, it took the Civil War, the Civil Rights Act of 1866, and the Thirteenth and Fourteenth Amendments to make free blacks citizens of the United States.  It will not take another civil war to change the definition of a natural born citizen which would allow people like Obama, Cruz, Rubio, Jindal, and Haley to be elected President or Vice-President.  But it will take at least another constitutional amendment.   

Professor Epps needs to go back and rethink his entire race-based premise and unjust accusation against Donald Trump. 

Mario Apuzzo, Esq.
February 29, 2016
http://puzo1.blogspot.com
####

Copyright © 2016
Mario Apuzzo, Esq.
All Rights Reserved

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ENDNOTES:

[1] Professor Garrett Epps is a contributing writer for The Atlantic Online . He teaches constitutional law and writing for law students at the University of Baltimore School of Law which he joined in 2008. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

[2] A monarchy is a form of government in which sovereignty is actually or nominally embodied in one individual reigning until death or abdication. They are called monarchs.^[1] Forms of monarchy differ widely based on the level of legal autonomy the monarch holds in governance, the method of selection of the monarch, and any predetermined limits on the length of their tenure. When the monarch has no or few legal restraints in state and political matters, it is called an absolute monarchy, and is a form of autocracy. Cases in which the monarch's discretion is formally limited, either by law or by convention, is called a constitutional monarchy. In hereditary monarchies, the office is passed through inheritance within a family group, whereas elective monarchies use some system of voting. Each of these has variations: in some elected monarchies only those of certain pedigrees are eligible, whereas many hereditary monarchies impose requirements regarding the religion, age, gender, mental capacity, and other factors. Occasionally this might create a situation of rival claimants whose legitimacy is subject to effective election. Finally, there have been cases where the term of a monarch's reign is either fixed in years or continues until certain goals are achieved: an invasion being repulsed, for instance. Thus there are widely divergent structures and traditions defining monarchy.  (emphasis in the original)  https://en.wikipedia.org/wiki/Monarchy .

[3] A republic (from Latin: res publica) is a sovereign state or country^[1] which is organised with a form of government in which power resides in elected individuals representing the citizen body^[2][3] and government leaders exercise power according to the rule of law. In modern times, the definition of a republic is commonly limited to a government which excludes a monarch.^[3][4] Currently, 147 of the world's 206 sovereign states use the word "republic" as part of their official names; not all of these are republics in the sense of having elected governments, nor do all nations with elected governments use the word "republic" in their names.

Both modern and ancient republics vary widely in their ideology and composition. In the classical and medieval period of Europe, many states were fashioned on the Roman Republic, which referred to the governance of the city of Rome, between it having kings and emperors. The Italian medieval and Renaissance political tradition, today referred to as "civic humanism", is sometimes considered to derive directly from Roman republicans such as Sallust and Tacitus. However, Greek-influenced Roman authors, such as Polybius^[5] and Cicero, sometimes also used the term as a translation for the Greek politeia which could mean regime generally, but could also be applied to certain specific types of regime which did not exactly correspond to that of the Roman Republic. Republics were not equated with classical democracies such as Athens, but had a democratic aspect.

Republics became more common in the Western world starting in the late 18th century, eventually displacing absolute monarchy as the most common form of government in Europe. In modern republics the executive is legitimized both by a constitution and by popular suffrage. Montesquieu included in his work "The Spirit of the Laws" both democracies, where all the people have a share in rule, and aristocracies or oligarchies, where only some of the people rule, as republican forms of government.^[6]  https://en.wikipedia.org/wiki/Republic .  

[4] In 1673, Pufendorf wrote, “De jure naturae et gentium libri octo,” or “The Law of Nature and Nations:  Eight Books,” published in condensed form as “The Duty of Man and Citizen According to Natural Law.”   There he explained:

13. The state being thus constituted, the central authority, according as it is one man, or one council of the few, or of all, is called a monarch, a senate, or a free people. The rest are styled subjects, or citizens, understanding the latter term in its wider sense. There are some, however, who, in a narrower sense, usually call only those citizens, who by their union and consent formed the state in the first place, or else their successors, namely, the heads of households.  Moreover, citizens are either original or adopted. The former are those who were present in the beginning at the birth of the state, or their descendants. These it is the custom also to call indigenous. The adopted citizens are those who from without join themselves to a state already constituted, with the purpose of planting the seat of their fortunes there. As for those who sojourn in the state, merely to tarry for a time, though subject just so long to its authority, they are still not regarded as citizens, but are called strangers or immigrants. 

Samuel von Pufendorf,  De Officio Hominis et Civis Juxta Legem Naturalem ,  The Whole Duty of Man According to the Law of Nature (1673), trans. Andrew Tooke, ed. Ian Hunter and David Saunders, with Two Discourses and a Commentary by Jean Barbeyrac, trans. David Saunders, Book II, Chapter VI (Indianapolis: Liberty Fund, 2003). 4/5/2015. http://oll.libertyfund.org/titles/888 . 

John Locke, Jean-Jacques Rousseau, and Denis Diderot all recommended that Pufendorf's teachings be included into law curricula.  He greatly influenced Blackstone and Montesquieu.  Through these thinkers, Pufendorf  became familiar to Alexander Hamilton, James Madison, and Thomas Jefferson.  Pufendorf’s political concepts are part of the culture that produced the American Revolution.  Clifton E. Olmstead, History of Religion in the United States 89 (1960).

[5] “Ancient Greece was composed of a number of city states, each one independent of the other and conferring certain privileges upon its subjects. The greatest advantages of citizenship among these city states was conferred by the Athenians, limited, however, to native sons of native fathers and mothers, excluding from such privileges foreigners and slaves.”  TRAINING MANUAL } WAR DEPARTMENT,  No. 2000-25 } WASHINGTON, November 30, 1928.CITIZENSHIP.  http://www.constitution.org/mil/tm/tm_2000-25/tm_2000-25.htm  

Aristotle explained that citizenship came from both parents.  In “Politics, Book Three, Part II, Aristotle, writing in 350 B.C.E., as translated by Benjamin Jowett, gave us his definition of citizenship: 

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.

[6] Citizenship in ancient Rome was defined as follows: 

Civitas, plural Civitates, citizenship in ancient Rome. Roman citizenship was acquired by birth if both parents were Roman citizens (cives), although one of them, usually the mother, might be a peregrinus(“alien”) with connubium (the right to contract a Roman marriage). Otherwise, citizenship could be granted by the people, later by generals and emperors. "civitas". Encyclopædia Britannica. Encyclopædia Britannica Online.  Encyclopædia Britannica Inc., 2015. Web. 12 Jul. 2015.

http://www.britannica.com/topic/civitas .   

[7] Lord Coke in famous English case of Calvin's Case (1608) and later English authorities believed that birth conferred the right to naturalization for those children who were born to alien parents in the King's dominion and under his allegiance and protection.

Lord Coke wrote:

"it followeth that Calvin the plaintiff being born under one ligeance to one King, cannot be an alien born; and there is great reason, that the law of nature should direct this case, wherein five natural operations are remarkable: first the King hath the Crown of England by birthright; being naturally procreated of the blood royal of this realm: secondly, Calvin the plaintiff naturalized by procreation and birth-right."

Lord Coke in Calvin's Case naturalized Calvin at birth and made him an English "natural-born subject."

Richard Wooddeson, 3rd Vinerian Professor of English Common Law from 1777 to 1793, recognized that mere birth in the country to alien parents under English common law conferred the birthright to naturalization.

[8] The allegiance of a natural-born British subject is regarded by the Common Law as indelible. We are of opinion that this doctrine of the Common Law is neither reasonable nor convenient. It is at variance with those principles on which the rights and duties of a subject should be deemed to rest; it conflicts with that freedom of action which is now recognized as most conducive to the general good, as well as to individual happiness and prosperity, and it is especially inconsistent with the practice of a State which allows to its subjects absolute freedom of emigration.

***

But from the Declaration of Independence to this day, the United States have rejected the doctrine of indissoluble allegiance and maintained the general right of expatriation, to be exercised in subordination to the public interests and subject to regulation.

***

The subject was examined at length in 1856, in an opinion given the Secretary of State by Attorney General Cushing, 8 Opins.Attys.Gen. 139, where the views of the writers on international law and those expressed in cases in the Federal and state courts are largely set forth, and the Attorney General says:

The doctrine of absolute and perpetual allegiance, the root of the denial of any right of emigration, is inadmissible in the United States. It was a matter involved in, and settled for us by, the Revolution which founded the American Union.

Moreover, the right of expatriation, under fixed circumstances of time and of manner, being expressly asserted in the legislatures of several of the States and confirmed by decisions of their courts, must be considered as thus made a part of the fundamental law of the United States.

Expatriation included not simply the leaving of one's native country, but the becoming naturalized in the country adopted as a future residence. The emigration which the United States encouraged was that of those who could become incorporate with its people, make its flag their own, and aid in the accomplishment of a common destiny, and it was obstruction to such emigration that made one of the charges against the Crown in the Declaration. [p713]

***

In 1859, Attorney General Black thus advised the President (9 Op. 356):

The natural right of every free person who owes no debts and is not guilty of any crime to leave the country of his birth in good faith and for an honest purpose, the privilege of throwing off his natural allegiance and substituting another allegiance in its place -- the general right, in one word, of expatriation, is incontestable. I know that the common law of England denies it, that the judicial decisions of that country are opposed to it, and that some of our own courts, misled by British authority, have expressed, though not very decisively, the same pinion. But all this is very far from settling the question. The municipal code of England is not one of the sources from which we derive our knowledge of international law. We take it from natural reason and justice, from writers of known wisdom, and from the practice of civilized nations. All these are opposed to the doctrine of perpetual allegiance.

In the opinion of the Attorney General, the United States, in recognizing the right of expatriation, declined from the beginning to accept the view that rested the obligation of the citizen on feudal principles, and proceeded on the law of nations, which was in direct conflict therewith.

And the correctness of this conclusion was specifically affirmed not many years after, when the right, as the natural and inherent right of all people and fundamental in this country, was declared by Congress in the act of July 27, 1838, 15 Stat. 223, c. 249, carried forward into sections 1999 and 2000 of the Revised Statutes, in 1874. [p714]

It is beyond dispute that the most vital constituent of the English common law rule has always been rejected in respect of citizenship of the United States.

Wong Kim Ark, 169 U.S. 649, 711-714(1898) (Fuller, C.J. dissenting). 

[9] With respect to children born out of the United States, United States v. Perkins, 17 Fed. Supp. 177 (D.D.C. 1936); Schaufus v. Attorney General, 45 Fed. Supp. 61 (1942); Zimmer v. Acheson, 191 Fed.2d 209 (10^th Cir. 1951); Montana v. Kennedy, 366 U.S. 308 (1961);  Rogers v. Bellei, 401 U.S. 815 (1971); and Miller v. Albright, 523 U.S. 420 (1998), later all observed the same.  They all said that such children could be citizens of the United States only through a naturalization Act of Congress, and that without such Act, such children would be aliens.