A
Citizen is One Thing, But a Natural Born Citizen is Another
By Mario Apuzzo,
Esq.
November 29, 2015
Understanding that a citizen of the United States
(“citizen”) is one thing, but that a natural born citizen of the United States
(“natural born citizen”) is another is the key to understanding what a natural
born citizen is. To avoid constitutional
error, it is critical that these two classes of citizens not be conflated,
confounded, and confused. There are
different way by which one can become a citizen. But none of that does or should change what a
natural born citizen is.
Why is it important that we understand the constitutional
distinction between a citizen and a natural born citizen and give the correct
meaning to a natural born citizen? It is
important because the Framers looked to the natural born citizen clause, apart
from the Electoral College, through its requirement of absolute allegiance and
love of country, as a means to provide for the safety and national security of
the republic. They looked to the natural
born citizen clause as a way to keep monarchical and foreign influence out of
the singular and powerful civil Office of President and military Office of Commander
in Chief of the Military. The Framers
saw such monarchical and foreign influence as an insidious way to destroy what
they had so greatly sacrificed to build.
The historical record is replete with examples showing
how the Framers sought to keep monarchical and foreign influence out of the
Office of President and Commander in Chief of the Military. For sake of brevity, I shall focus on this
one example. Alexander Hamilton gave a
speech to the Convention on June 18, 1787.
He read to Convention his Propositions for A Constitution of
Government. See Works of Alexander
Hamilton (page 393); 3 Max Farrand, The
Records of the Federal Convention of 1787, at 617 (1911) (Farrand).
This speech contained a sketch of a plan which has become known as the
English Plan. This plan can be read
here, http://avalon.law.yale.edu/18th_century/debates_618.asp
. James Madison informed us in his
Convention notes that “[i]t meant only to give a more correct view of his
ideas, and to suggest the amendment which he should probably propose to the
plan of Mr. R. in the proper stages of its future discussion. Although this plan was not formally before
the Convention in any way, several of the delegates made copies . . .
Farrand. at 617. Hamilton proposed in his Propositions that
the "supreme executive authority of the United States to be vested in a
Governor. . ." and that he also be the "commander-in-chief. .
." In this initial sketch, Hamilton
did not include any eligibility requirements for the supreme executive
authority who he would call the President rather than Governor in his later
draft of the Constitution. In his speech
to the Convention, Hamilton advocated an executive for life. The reason that he gave for such a life
position was the following: “The
Hereditary interest of the King was so interwoven with that of the Nation, and
his personal emoluments so great, that he was placed above the danger of being
corrupted from abroad-and at the same time was both sufficiently independent
and sufficiently controuled, to answer the purpose of the institution at home.
one of the weak sides of Republics was their being liable to foreign influence
& corruption. Men of little character, acquiring great power become easily
the tools of intermedling Neibours.” Id. Here we can see that Hamilton was very
concerned with the harm that could be done to the nation by an executive who
was corrupted by foreign influence and intrigue.
This “sketch of a plan of government” was not formally
presented to the Convention, but delegates, including James Madison, had
various copies of this plan. Farrand, at
617. This plan does not include
Hamilton’s “born a citizen” language which he included in his later draft of a
constitution.
On July 25, 1787, about five weeks later, John Jay
wrote a letter to then-General Washington, who was acting as president of the
Constitutional Convention, stating:
"Permit me to hint, whether it would not be wise
& seasonable to provide a strong check to the admission of Foreigners into
the administration of our national Government; and to declare expressly that
the Command in chief of the american army shall not be given to, nor devolve
on, any but a natural born Citizen" (“born” underlined in the original).
John Jay reminded General George
Washington of the importance of remanding back to the original concerns of the
people and offered his presentation, to which George Washington offered, verbatim,
to the convention. Alexander Heard and
Michael Nelson, Presidential Selection 123 (Duke University Press 1987) via
Google Books.
Jay demanded that there be a "strong check"
on foreign influence infiltrating the national government in general and the
Office of Commander in Chief of the Military specifically. A “natural
born subject,” as defined by the English common law, which permitted dual and
conflicting allegiance at birth, would not have provided that strong check on
foreign influence for which Jay was looking.
On September 2, 1787, George Washington wrote a letter
to John Jay the last line of which read:
"I thank you for the hints contained in your letter." 4
Documentary History of the Constitution of the United States of America
1786-1870, p. 269 (1905). While the Committee on Detail originally
proposed that the President must be merely a citizen as well as a resident for
21 years, the Committee of Eleven changed "citizen" to "natural
born citizen" without recorded explanation. On September 4, 1787, about six weeks after
Jay's letter and just two days after Washington wrote back to Jay, the
"natural born citizen" requirement appeared in the draft of the
Constitution. Here is the first style of
the clause as presented by the Committee of Eleven:
(5) 'Sect. 2. No person except a natural born citizen
or a Citizen of the U. S. at the time of the adoption of this Constitution
shall be eligible to the office of President; nor shall any person be elected
to that office, who shall be under the age of thirty five years, and who has
not been in the whole, at least fourteen years a resident within the U. S.'
Madison's notes of the Convention http://www.nhccs.org/dfc-0904.txt
.
The proposal passed unanimously without debate which
does not mean that the proposal was not discussed, for the convention meetings
were conducted in secrecy. Another
reason that there was no debate is probably that the definition that was used
of a natural born citizen was of such universal acceptance that it satisfied
all laws then know to the Framers.
At the close of the Convention, Hamilton gave to Madison
another document which does contain in Article IX provision for the election of
a President and the “born a citizen” language for eligibility. Ferrand wrote that Hamilton gave this “paper”
to Madison at the end of the Convention and that Hamilton “would have wished to
be proposed by the Convention: He had
stated the principles of it in the course of the deliberations.” p. 619.
Farrand also wrote that Hamilton’s paper “was not submitted to the
Convention and has no further value than attaches to the personal opinions of
Hamilton.” p. 619. This draft of the Constitution is not to be
confused with his sketch of a plan of government (the British Plan) which he
read to the Convention on June 18, 1787.
Elliott’s Debates has additional information on this
proposed constitution. He explains:
No. 5.
Copy of a Paper communicated to James
Madison by Col. Hamilton, about the close of Convention in Philadelphia, 1787,
which, he said, delineated the Constitution which be would have wished to be
proposed by the Convention. He had stated the principles of it in the course of
the deliberations.
Note.— The caption, as well as the copy of the
following paper, is in the hand-writing of Mr. Madison, and the whole
manuscript, and the paper on which it is written, corresponds with the debates
in the Convention with which it was preserved. The document was placed in Mr.
Madison’s hands for preservation by Col. Hamilton, who regarded it as a
permanent evidence of his opinion on the subject. But as he did not express his
intention, at the time, that the original should be kept, Mr. Madison returned
it, informing him that he had retained a copy. It appears, however, from a
communication of the Rev. Dr. Mason to Dr. Eustis, (see letter of Dr. Eustis to
J Madison, 28th April, 1819,) that the original remained among the papers left
by Col. Hamilton.
In a letter to Mr. Pickering, dated Sept. 16 1803,
(see Pitkin’s History, Vol. 2, p. 259—60) Col Hamilton was under the erroneous
impression that this paper limited the duration of the presidential term to
three years. This instance of the fallibility of Col. Hamilton’s memory, as
well as his erroneous distribution of the numbers of the “Federalists” among
the different writers for that work, it has been the lot of Mr. Madison to rectify;
and it became incumbent, in the present instance, from the contents of the plan
having been seen by others, (previously as well its subsequently to the
publication of Col. Hamilton’s letter,) that it, also, should be published.
Elliott’s Debates:
Volume 5 Appendix to the Debates
of the Federal Convention, Note 5. http://teachingamericanhistory.org/ratification/elliot/vol5/appendix/
This subsequent draft of a constitution provided that
the President be either at that time a citizen of one of the States or be “born
a citizen of the United States.” Article
IX Sec. 1 in Appendix F of the Hamilton Plan of 1787 read: “No person shall be eligible to the office of
President of the United States unless he be now a citizen of one of the States,
or hereafter be born a citizen of the United States.”
Hamilton gave his paper to Madison before the
convention came to an end which we know occurred on September 17, 1787, the
date the delegates signed the Constitution.
Hamilton served on committees that drafted convention rules and provided
for writing style. We can reasonably
assume that since the document was in the hands of these two influential
Founders and Framers, they would have discussed Hamilton’s presidential
citizenship proposal with others making decisions at that time. While we do not know exactly what happened
during the convention regarding Hamilton’s “now a citizen of one of the States”
and “born a citizen of the United States” concept, we do know that they were
both rejected and “natural born Citizen, or a Citizen of the United States, at
the time of the Adoption of this Constitution[]” was accepted. We can see that the Framers did not accept
merely being a citizen of the United States at birth. Rather, they demanded that future presidents
be natural born citizens.
Hamilton did provide his paper containing the “born a
citizen” language to James Madison.
Additionally, he most likely also discussed his paper with other
Convention delegates, even if he did not submit his paper to the
Convention. Ferrand stated that Hamilton
“had stated the principles of it in the course of the deliberations” of the
Convention. Id. at 619. It is hard to accept that Hamilton would have
gone through all that effort to draft that proposed constitution and not share
its principles with the Convention delegates prior to the end of the
Convention. Hence, enough delegates
probably knew about Hamilton’s “born a citizen,” but no one made any suggestion
that the Constitution read “born a citizen” rather than “natural born citizen.”
What is critical to understand about the Hamilton
“born a citizen” language is that it shows that he did not request that the
President be a “natural born citizen.”
So he knew that the definition of the clause was a child born in the
country to citizen parents. By
advocating born a citizen, anyone who was made a citizen from the moment of
birth by positive law [Endnote 1] such as an Act of Congress would have been
eligible to be President. This would
have included children born out of the United States to U.S. citizen parents
and even children born in the United States to alien parents who should by
positive law be made citizens from the moment of birth. But the Convention adopted “natural born
citizen” and not “born a citizen,” which means that the delegates wanted a more
stringent standard than just born a citizen.
So then how did the Framers define a natural born citizen?
To understand who the natural born citizen are, we
must first understand who the citizens are.
Our U.S. Supreme Court has many times looked to the principles of the
English common law and William Blackstone to understand what the Framers meant
by various terms and phrases that they used in the Constitution. But Blackstone did not define either a
citizen or a natural born citizen. “The
constitution uses the words 'citizen' and 'natural born citizens;' but neither that instrument nor any
act of congress has attempted to define their meaning. British
jurisprudence, whence so much of our own is drawn, throws little light upon the
subject . . . . Blackstone and Tomlin contain nothing upon the subject.” United States v. Rhodes, 27 F. Cas. 785, 788
(Cir. Ct. Ky 1866) (Justice Noah H. Swayne).
In fact, Minor v. Happersett, 88 U.S. 162 (1875) did not look to the
English common law to define a citizen. Minor
explained who the citizens were in a general way thus:
Before its adoption the Constitution of the United
States did not in terms prescribe who should be citizens of the United States
or of the several States, yet there were necessarily such citizens without such
provision. 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.
For convenience it has been found necessary to give a
name to this membership. The object is to designate by a title the person and
the relation he bears to the nation. For this purpose the words
"subject," "inhabitant," and "citizen" have been
used, and the choice between them is sometimes made to depend upon the form of
the government. Citizen is now more commonly employed, however, and as it has
been considered better suited to the description of one living under a
republican government, it was adopted by nearly all of the States upon their
separation from Great Britain, and was afterwards adopted in the Articles of
Confederation and in the Constitution of the United States. When used in this
sense it is understood as conveying the idea of membership of a nation, and
nothing more.
Id. at 165-66.
The Founders and Framers were greatly influenced by
natural law and the law of nations.
Their favorite writer on the law of nations was Emer de Vattel, and his
treatise, The Law of Nations (1758) was constantly in their hands in the early
years of the republic. Vattel did not
define the citizens, simply saying in Section 212 of his treatise that they
“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.”
We can understand why Vattel would not have defined the citizens other
than to say that they were the members of a civil and political society, for
each society defined its members based on its own historical development and
positive laws. As we saw, Minor added
that being a citizen under the Constitution did nothing more than “convey[] the
idea of membership of a nation, and nothing more.”
Again, without mentioning the English common law or
Blackstone, but rather expressing concepts of natural law and the law of
nations, Minor then explained who the original “citizens’ were during the Founding
of the free and independent states and then the United States as a nation:
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.
Looking at the Constitution itself we find that it was
ordained and established by "the people of the United States," [n3] and then going further back, we find that these were
the people of the several States that had before dissolved the political bands
which connected them with Great Britain, and assumed a separate and equal
station among the powers of the earth, [n4] and that had by Articles of Confederation and
Perpetual Union, in which they took the name of "the United States of
America," entered into a firm league of [p167]friendship
with each other for their common defence, the security of their liberties and
their mutual and general welfare, binding themselves to assist each other
against all force offered to or attack made upon them, or any of them, on
account of religion, sovereignty, trade, or any other pretence whatever. [n5]
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 166-67.
Having examined the concept of who the original citizens were,
now we have to consider who the natural born citizens were. Minor said that “additions might always be
made to the citizenship of the United States in two ways: first, by birth, and
second, by naturalization.” Id. at
167. It is in telling us about those
additions to the citizens that Minor then told us how the Framers defined a
natural born citizen. The Framers had
one and only one definition of a natural born citizen. How do we know that? The unanimous U.S. Supreme Court in Minor informs
us. There 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 [p168] 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. The words
"all children" are certainly as comprehensive, when used in this
connection, as "all persons," and if females are included in the last
they must be in the first. That they are included in the last is not denied. In
fact the whole argument of the plaintiffs proceeds upon that idea.
Id. at 167-68.
The Court explained that neither the original nor
amended Constitution (with the Fourteenth Amendment) defined a natural born
citizen. It said that we had to look
outside the Constitution for a definition of the clause. It held that the definition of a natural born
citizen existed at common law the nomenclature with which they were
familiar. Explaining what that common
law provided, it said that “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 were “aliens or foreigners,” who would need a naturalization
Act of Congress in order to become a citizen of the United States. Here we can see that like when it defined
citizens, the Court did not rely upon the English common law and Blackstone,
who explained that any child born in the King’s dominion and under his
jurisdiction, regardless of the citizenship of the child’s parents, was a
natural-born subject. Rather, Minor’s definition
of “natives, or natural born citizens” was a paraphrase of the definition of
those terms provided by Emer de Vattel who in his The Law of Nations, Section
212 (1758) (1797) 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.”
So, Minor looked to the law of nations and not to the
English common law for the Framers’ definition of a natural born citizen. Chief Justice John Marshall in The Venus, 12 U.S. 253, 289 (1814) (Marshall,
C.J., concurring) and Justice Daniel in Dred Scott v. Sandford, 60 U.S.
393, 476 (1857) (Daniel, J., concurring), had done the same, citing and quoting
the law of nations and Vattel at Section 212 and not the English common law and
Blackstone. Hence, when Minor said that
a natural born citizen was defined “at common-law,” it was not referring to the
English common law. Rather, it was
referring to American national common law which incorporated the citizenship
principles of the law of nations.
Minor explained that if one was a natural born
citizen, there was no doubt that one was a citizen. Hence, accepting that Virginia Minor was a
natural born citizen, it held that she was a citizen. After the Court defined the natural born
citizens and told us that anyone who was a natural born citizen was without any
doubt a citizen, the Court raised the question sua sponte whether there could
be other “citizens” by birth “within the jurisdiction.” This question regarding other “citizens” did
not involve the “natural born citizens,” who the Court had just defined through
an all-inclusive and all-exclusive definition (the Court said that under that
common law all the people who did not meet that definition were “aliens or
foreigners”). So the Court did not raise
any question of whether there could be other birth circumstances that could
serve as the basis for making one a natural born citizen. These other children were different from
those that were natural born citizens because unlike them, they were born to
alien parents. In fact, the Court even
referred to these children as belonging to another “class.” The Court said that “some authorities”
included these other children as “citizens” also. The Court, however, said that “there have
been doubts” whether they were citizens.
So, not only did the Court explain that those children could not be
natural born citizens, it also said that it was doubtful whether they were even
just citizens. The Court was referring
to The Slaughter House Cases, 83 U.S. 36 (1873) which stated that children born in the
United States to alien parents were not citizens of the United States under the
Fourteenth Amendment. In the end, the
Court explained that it was not necessary for it to solve the doubts involving
whether the children of that other class were citizens. For sure, it was not necessary because
Virginia Minor was born in the country to parents who were its citizens which
made her a natural born citizen. Knowing
that Virginia Minor was born in the country to parents who were citizens, which
made her a natural born citizen, provided the Court with sufficient information
for it to decide the question of whether Virginia Minor was a citizen.
The Court finally held that “all children born of
citizen parents within the jurisdiction are themselves citizens,” meaning that
all children who were natural born citizens were citizens. Accepting both that rule to be true and that
Virginia Minor satisfied that rule was sufficient for the Court to hold that
she was a citizen. It simply was not
necessary for the Court to explore any other avenues by which Virginia Minor
could be a citizen. Indeed, she was a
natural born citizen which without any doubt ipso facto made her a citizen and
that is all she had to be in order for her to have standing to make her
Fourteenth Amendment argument that as a citizen of the United States, she had a
privilege or immunity that created a constitutional right to vote which the
State of Missouri could not abridge by making or enforcing any law against
her. The Court in the end held that citizenship
did not constitutionally give one the right to vote and so Missouri could
through its laws decide that it would not allow women to vote. But the Court's ultimate holding regarding a
woman’s right to vote has absolutely no bearing on the court’s ratio decidendi
that it applied to defining the citizens and the natural born citizens, an
analysis which makes its definition of a natural born citizen binding
precedent.
So Minor confirmed the Framers’ definition of a
natural born citizen. It also left open
the question of whether a child born in the United States to alien parents
could be a citizen of the United States under the Fourteenth Amendment. Again, the Court demonstrated that there was
only one way to become a natural born citizen which was to be born in the
country to parents who were its citizens.
But it also explained that there were different avenues by which one
could become a citizen. It explained
that one way was for a person to satisfy the naturalization Acts of
Congress. Another way was to satisfy the
requirements of the Fourteenth Amendment which it chose not to analyze and left
to be done another day.
The majority of the United States Supreme Court in U.S.
v. Wong Kim Ark, 169 U.S. 649 (1898) answered in 1898 the Fourteenth Amendment
question regarding birth in the United States to alien parents which Minor left
open in 1875. It is the seminal case for
interpreting and applying the Fourteenth Amendment’s citizenship clause, which
establishes thereunder who may be a “citizen” of the United States from the
moment of birth, to persons who are born in the United States, but who do not
satisfy Minor’s common law definition of a natural born citizen. Wong Kim Ark thoroughly analyzed the question
of who was included as a citizen of the United States under the Fourteenth
Amendment and it showed that people like Wong, born in the United States to
alien parents who were legally domiciled and permanently residing in the United States and neither foreign diplomats nor military invaders, were citizens of the United States from the moment of birth
by virtue of the Fourteenth Amendment, but they could not be natural born
citizens by virtue of the common law which Minor explained defined a natural
born citizen.
Wong Kim Ark explained that “[t]he Constitution of the
United States, as originally adopted, uses the words "citizen of the
United States," and "natural-born citizen of the United States" and
that “[t]he Constitution nowhere defines the meaning of these words, either by
way of inclusion or of exclusion, except insofar as this is done by the
affirmative declaration that "all persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are citizens of the
United States." Id. at 654. Hence, Wong Kim Ark also confirmed that the
Fourteenth Amendment did not define a natural born citizen. The Court then explained that “[i]n this as
in other respects, it must be interpreted in the light of the common law, the
principles and history of which were familiarly known to the framers of the
Constitution. Minor v. Happersett, 21 Wall. 162; Ex parte
Wilson, 114 U.S. 417, 422; Boyd v. United States, 116
U.S. 616, 624, 625; Smith v. Alabama, 124
U.S. 465. The language of the Constitution, as has been well said, could
not be understood without reference to the common law. Kent Com. 336; Bradley,
J., in Moore v. United States, 91
U.S. 270, 274.” Id. at 654. Hence, Wong Kim Ark, like Minor, explained
that the Court could use the common law to interpret the Constitution, Article
II in Minor and the Fourteenth Amendment in Wong Kim Ark.
While it acknowledged Minor’s definition of a natural
born citizen and the common law it relied upon to arrive at that definition, in
rendering its decision it did not rely upon American national common law, but
rather on colonial English common law.
It did not rely on the former because it was not defining an Article II
natural born citizen, but rather a different clause of the Constitution, as
amended, the Fourteenth Amendment. In
fact, Wong Kim Ark said that it was not constrained by any rule of
“international law” or the municipal laws of any foreign nation in interpreting
the Fourteenth Amendment. Rather, it
resorted to looking to and using colonial English common law as an aid to construing
the Fourteenth Amendment’s “subject to the jurisdiction thereof” clause. It found that under the English common law, a
child born in the King’s dominion to alien parents who were neither foreign
diplomats nor military invaders were born subject to his jurisdiction and
entitled to his protection, and therefore English natural-born subjects. It found that this rule had been continued in
the new free and independent states after the Declaration of Independence and
the adoption of the Constitution, by the states selectively adopting the
English common law through their constitutions and reception statutes. By the force of that state practice, it ruled
by analogy that a child born in the United States to alien parents who were
permanently domiciled and resident in the United States and neither foreign diplomats
nor military invaders was born in the United States and “subject to the
jurisdiction thereof.” Hence, that child
was a “citizen” of the United States from the moment of birth by virtue of the
Fourteenth Amendment. Relying on the
English common law’s exceptions to being born in the King’s dominion and within
the jurisdiction of the King, it also explained that any child born in the
United States to foreign diplomats or military invaders would not be born
subject to its jurisdiction and therefore not a citizen of the United States
under the Fourteenth Amendment.
So Wong Kim Ark resolved the question of the meaning
of the Fourteenth Amendment’s “subject to the jurisdiction thereof” clause, as
applied to children born in the United States to alien parents, by resort to
the colonial English common law, which under its notion of broad allegiance,
treated non-diplomatic and friendly aliens present in the King’s dominions as
his subjects. It used the colonial
English common law to interpret the meaning of the Fourteenth Amendment’s
“subject to the jurisdiction thereof” clause, not the meaning of an Article II
natural born citizen. In conducting its
jurisdiction analysis, it did not reinterpret the natural born citizen clause
under the English common law, for Minor had already demonstrated that its
definition was to be found in American common law. In fact, no U.S. Supreme Court that ever
provided the definition of a natural born citizen relied upon any jurisdiction
analysis when defining a natural born citizen.
Actually, Wong Kim Ark recognized that a natural born citizen was a
different type of citizen than a citizen of the United States at birth under
the Fourteenth Amendment. “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.” Emer de Vattel, The Law of Nations, Section 212 (1758)
(1797). “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.” Minor 88 U.S. at 167. “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 (citing and quoting Horace Binney, “Alienigenae of the
United States,” 22, note (2nd ed. Philadelphia, December 1, 1853).
As we can see, both Vattel and Minor said a natural born citizen was a child
born in the country to parents who were its citizens. Justice Gray in Wong Kim Ark agreed.
Another crucial point needs to be addressed. What did Vattel and Minor mean when they said
“children” and “parents” as in all “children” born in the country to citizen “parents”
were natural born citizens? Under the
law of nations and at common law, children meant legitimate children. Hence, using the term children suggested that
the father and mother were married or at least that the child was legitimated
at some point. Under the law of nations
and at common law, “parents” could only mean father and mother. In fact, Vattel throughout The Law of
Nations, when referring to parents, spoke about a child’s father and
mother. Under the common law doctrine of
coverture, a wife upon marriage (femes
covert) become one with her husband.
She acquired the citizenship and allegiance of her husband, whether her
husband was a citizen or an alien. At
the Founding and until the passage of the Cable Act in 1922 (ch. 411, 42 Stat.
1021), there was no such thing as a husband having one citizenship and the wife
having another. This father and mother interpretation
of Vattel has been confirmed by our U.S. Supreme Court which has always
interpreted Vattel’s “parents” to mean both father and mother. In their concurring opinions, Chief Justice John
Marshall in The Venus (1814) and Justice Daniel in Dred Scott did just
that. Minor provided a scenario where
the child’s parents were both either citizens or both aliens. The same occurred in Wong Kim Ark, where the Court
explained that a child born in the country to an alien parent is as much a
“citizen” as the natural born child born in the country to a citizen
parent. This statement can have
sense only if both parents are either aliens or citizens. So, both Minor and Wong Kim Ark provided
scenarios wherein the child’s parents are both either citizens or both
aliens. See also Lynch v. Clarke, 1
Sandf.Ch. 583, 3 NY Leg. Obs. 236 (1844) (confirms the same scenario when it said: “it is insisted that the national rule is
that of the public law, by which a child follows the status of its parents (emphasis in the original);” “Suppose a
person should be elected President who was native born, but of alien parents .
. .;” and “every person born within the dominions and allegiance of the United
States, whatever were the situation of his parents”); Ankeny v. Governor of the
State of Indiana, 916 N.E.2d 678 (Ind. Ct.App. 2009) (stating in footnote 12
“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”). This reasoning followed from
our nation adopting the common law doctrine of coverture that the wife acquired
the citizenship of her husband. Hence,
the word “parents” in both Vattel’s and Minor’s definition of a natural born
citizen could not mean that one parent had one citizenship and another had a
different one; it could only mean father and mother who had the same
citizenship at the time of the child’s birth.
This law of nations and common law rule regarding parents having the
same nationality is reflected in the 1961 Convention on the Reduction of
Statelessness. Article 2
provides: “A foundling found in the territory of a Contracting State shall, in
the absence of proof to the contrary, be considered to have been born within
that territory of parents possessing the nationality of that State,” in effect
providing that a foundling is to be treated and considered as though she
satisfies the definition of a natural born citizen under the law of
nations. Hence, the common public
understanding of “parents” at the time the Constitution was adopted and
ratified was that parents meant father and mother, with the spouses acquiring
the citizenship of the husband, and children meant legitimate children of those
parents. So, at the time of the adoption
and ratification of the Constitution, legitimate children were born either to
two citizen parents or to two alien parents.
Under the ancient maxim partus sequitur patrem (children follow the
condition of their parents), those children inherited the citizenship and
allegiance of their parents.
Finally, other convincing evidence demonstrating that
the Framers defined a natural born citizen as a child born in the country to
citizens parents are the Naturalization Acts of 1790, 1795, 1802, and
1804. The only children Congress did not
seek to reach with its naturalization powers in these Acts were children born
in the United States to U.S. citizen parents. There was no constitutional basis for Congress
to do that, for these children were the natural born citizens. What is also most telling is that in these
naturalization Acts, Congress treated children born in the United States to alien parents as aliens and
in need of naturalization. This
Congressional naturalization rule was not changed until after the U.S. Supreme
Court in Wong Kim Ark held that children born in the United States to
qualifying alien parents were citizens of the United States from the moment of
birth.
What this historical and legal evidence (not meant to be exhaustive) shows is that
there is only one definition of a natural born citizen. That definition is a child born in a county
to parents (father and mother) who were its citizens at the time of the child’s
birth. But there can be different
definitions of a citizen. Those other
definitions exist under the Fourteenth Amendment, naturalization Acts of
Congress, and treaties, all positive laws.
We can argue, for whatever reasons, about what those other definitions
of being a citizen should be under those particular positive laws. But whatever we agree or disagree on with
respect to a citizen under those laws, none of that changes or can change the Framers’
original common law definition of a natural born citizen which under the
Constitution is a child born or reputed born in the United States to parents,
meaning a married father and mother, who were U.S. citizens at the time of the
child’s birth. The Framers adopted this
definition of a natural born citizen into the Constitution. As such, it is the supreme law of the land
and cannot be changed unless done so by a duly ratified constitutional
amendment.
Even if today we were to relax the requirement of
parents having to be married due to Fourteenth Amendment equal protection
requirements, we would still be left with the requirement that the father and
mother be both U.S. citizens at the time of the birth of their child in the
United States. Finally, the Cable Act of
1922, which for the first time gave to women the right to have a separate
citizenship and allegiance from that of their husbands, did no more than that;
it did not nor could it amend the definition of a natural born citizen which
required that both parents be U.S. citizens at the time of their child’s birth
in the United States.
For sure, the United States would never deny its
protection to a natural born citizen, for no other foreign nation can make any
legitimate claim based on its sovereign authority to that person’s citizenship and
allegiance based on either jus sanguinis or jus soli, for under the American
national common law’s definition of a natural born citizen, i.e., a child born
in a country to parents who were its citizens at the time of the child’s birth,
both right of blood and right of soil merge into the child at the moment of
birth to create a unity of citizenship and allegiance in the child at the time
of birth. Hence, that child is born with allegiance only to the United
States and to no other nation. Simply
stated, all the nations of the world recognize that person to be only a citizen
of the United States and of no other nation.
The Framers commanded that future Presidents and Commanders be born with
sole allegiance to the United States. In
contrast, citizens at birth under the Fourteenth Amendment and naturalization
Acts of Congress, who do not meet the definition of a natural born citizen, while
born with allegiance to the United States, are also born with citizenship and
allegiance to some foreign nation, under the Fourteenth Amendment, citizenship
in and allegiance to the foreign nation of one or both alien parents, and under
a naturalization Act of Congress, citizenship in and allegiance to the foreign
nation in which born and/or of an alien parent.
These citizens “at birth” are made citizens at birth only by operation
of law, the Fourteenth Amendment or Act of Congress, and not by universal
principles of natural law and the law of nations, recognized and adopted by
American national common law.
It is treason upon the Constitution and the Framers’
command that for the sake of the national security of the republic, for persons
born after the adoption of the Constitution, no person except a natural born
citizen is to be eligible to be President and Commander in Chief of the Military, to interpret
the natural born citizen clause out of the Constitution and replace it with how
we may today define under the positive laws of the Fourteenth Amendment or
naturalization Acts of Congress a citizen of the United States at birth, a person
who, if not also a natural born citizen, is not born with sole allegiance to
the United States.
With these principles to guide us, we can only
conclude that de facto President Barack Obama, Senator Ted Cruz, Senator Marco
Rubio, and Governor Bobby Jindal are all not natural born citizens. None of them were born in the United States
to parents who were both U.S. citizens at the time of their children’s birth.
Obama, assuming he was born in the United States, is a
citizen of the United States at birth, but only by virtue of the Fourteenth
Amendment. He is not and cannot be a
natural born citizen under the common law because while he was presumably born in
the United States to a U.S. citizen mother, he was born to a non-U.S. citizen father.
Cruz was born in Canada, presumably to a U.S. citizen
mother and a non-U.S. citizen father. He
can be a citizen of the United States at birth, but only by virtue of a naturalization
Act of Congress (section 301(a)(7) of the Immigration and Nationality Act of
1952). He is not and cannot be a natural
born citizen under the common law because, while he was born to a U.S. citizen
mother, he was not born in the United States and he was born to a non-U.S.
citizen father.
Rubio and Jindal were
born in the United States to two non-U.S. citizen parents. They are both citizens of the United States
at birth, but only by virtue of the Fourteenth Amendment. They are not and cannot be natural born
citizens under the common law because, while they were born in the United
States, they were born to two non-U.S. citizen parents.
__________________
Endnote 1: The
concept of "positive law" has existed since the beginning of ordered
legal systems. Positive law includes constitutions, statutes, case law, and any
other law adopted by whatever sovereign has power to make law at any given
moment in time. It has been said by many
political and legal philosophers throughout the ages that positive law has its
origin in what man perceives to be natural law and God's law, or what Thomas Jefferson in The
Declaration of Independence called “the Laws of Nature and of Nature’s God,” meaning the laws of nature and the laws of nature's God.
Mario
Apuzzo, Esq.
November 29, 2015
http://puzo1.blogspot.com
####
Copyright © 2015
Mario Apuzzo, Esq.
All Rights Reserved
November 29, 2015
http://puzo1.blogspot.com
####
Copyright © 2015
Mario Apuzzo, Esq.
All Rights Reserved
