Thursday, May 28, 2009

Natural Born Citizen Through the Eyes of Early Congresses

Not much information exists on why the Third Congress deleted "natural born" from the Naturalization Act of 1790 when it passed the Naturalization Act of 1795. There is virtually no information on the subject because they probably realized that the First Congress committed errors when it passed the Naturalization Act of 1790 and did not want to create a record of the errors.

It can be reasonably argued that Congress realized that under Article I, Section 8 of the Constitution, Congress is given the power to make uniform laws on naturalization and that this power did not include the power to decide who is included or excluded from being a presidential Article II "natural born Citizen." While Congress has passed throughout United States history many statutes declaring who shall be considered nationals and citizens of the United States at birth and thereby exempting such persons from having to be naturalized under naturalization laws, at no time except by way of the short-lived “natural born” phrase in Naturalization Act of 1790 did it ever declare these persons to be “natural born Citizens.” The uniform definition of "natural born Citizen" was already provided by the law of nations and was already settled. The Framers therefore saw no need nor did they give Congress the power to tinker with that definition. Believing that Congress was highly vulnerable to foreign influence and intrigue, the Framers, who wanted to keep such influence out of the presidency, did not trust Congress when it came to who would be President, and would not have given Congress the power to decide who shall be President by allowing it to define what an Article II "natural born Citizen” is.

Additionally, the 1790 act was a naturalization act. How could a naturalization act make anyone an Article II "natural born Citizen?" After all, a "natural born Citizen" was made by nature at the time of birth and could not be so made by any law of man.

Finally, allowing a child born on foreign soil to be President would have invited conflict with the foreign nation on whose soil the child was born. For example, Great Britain adhered to the concept of perpetual natural allegiance. Just imagine the Framers allowing a child born in Great Britain to two U.S. citizen parents (a perpetual natural born subject under English common law) after the adoption of the Constitution (post Article II grandfather time period) to be President and Commander in Chief of the United States. Also, “natural born Citizen” status, having a uniform definition under the laws of nations, could not be made to depend on the laws of the foreign country in which the child would be born to U.S. citizen parents. Congress realized their errors in passing the 1790 Act and corrected it in 1795.

What is important about these two naturalization acts which were passed in the early part of the founding of the Republic and which is also reflected in the Constitution itself, is that they show that the Framers of the Constitution clearly saw a distinction between a “Citizen” and a “natural born Citizen.” They show that the Framers rejected English common law which in addition to how it granted “natural born subjectship” through jus solis also made a child a “natural born subject” if born out of the King’s dominion to parents who were “natural born subjects” (jus sanguinis). Under the law of nations which the Framers adopted for the new United States, a “natural born Citizen” was a child born in the United States to a mother and father who were at the time of the child’s birth both United States citizens and a “Citizen” was any person who became a citizen by naturalization. A “Citizen” had the same civil and political rights as a “natural born Citizen” except he was not eligible to be President if born after the adoption of the Constitution. Only by becoming a citizen could a father and derivatively from him the mother give to their child the inherited right to be a “natural born Citizen.” Not including the American Indians because they belonged to a different nation and blacks because they were or their parents had been slaves, the United States was a new nation and only after its new citizens gave birth to a new generation of Americans could that new generation be called indigenous, natives or “natural born Citizens” of the United States. All those who were born British subjects before the adoption of the Constitution (which included the Founding Fathers themselves), actually became naturalized United States citizens by electing to become a United States citizen by adhering to the revolutionary cause rather than chosing to become British subjects by remaining loyal to Great Britain. They could not elect to become “natural born Citizens” because they were born British subjects.

From these early naturalization statutes, we can see that it is not sufficient to be a born “citizen” under the Fourteenth Amendment to qualify as a Presidential Article II “natural born Citizen.” While this amendment constitutionally makes those who qualify under its terms to be “citizens,” it does not nor was it ever intended to make these individuals Article II “natural born Citizens.” The framers of the Fourteenth Amendment were well aware that Article II refers to “natural born Citizen” and that Article I and Article IV refer to “Citizen.” By chosing the word “citizen,” they left intact the original meaning of “natural born Citizen” as it existed under the law of nations which the Founders adopted as the national law of the new United States.

Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg NJ 08831
Email: apuzzo [AT]
TEL: 732-521-1900 ~ FAX: 732-521-3906

P.S. Also, please feel free to join the discussions and comments in this forum about the subject of the Natural Born Citizenship clause in Article II of our U.S. Constitution by [Clicking Here].


Doublee said...

The issue of whether or not Senator John McCain is a natural born citizen is somewhat problematic for me, but if I understand Vattel correctly, he is not a natural born citizen.

First, he does not meet the basic requirement of having been born on U.S. soil.

Second, Vattel (Book 1, Section 212) says:

"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."

From this, the conclusion is that Senator McCain would be a citizen. Vattel did not use the words “natural born citizen”. Furthermore, he allows that as the child matures and can make his own decisions he could renounce the citizenship that he had tacitly assumed at his birth. This suggests that the person born on foreign soil would not have the complete allegiance to the land of his father that a natural born citizen would have.

It is obvious to me that Senator McCain does have complete allegiance to the United States, and would otherwise qualify for the office of President. This highlights the problem with any definition that attempts to demarcate between two classes – in this case between citizen and natural born citizen: there is always an example that can be found that unfairly puts a person in the wrong class.

Bob said...

It is important to note that on McCain's "birth certificate" that his parents were living in the Republic of Panama, and not on the Canal Zone (as the McCain Campaign wanted everyone to believe).

What this means is that McCain was "born across seas" (to use the language used by the Framers of the Constitution). Children born across seas to American Citizens were considered "aliens" from the Jefferson Administration to the Pierce Administration. The NaturalizationL aw was changed to reflect an article written by Horace Binney, an article discussed in passing by Justice Horace Gray in Wong Kim Ark.

shakes said...

Mario---Any word on your court case due on June 1st or did the court give the Obama THUGS their extension???

Mario Apuzzo, Esq. said...


No word yet. The government's motion for the additional extension is scheduled for Monday, 6-1-09.

Mario Apuzzo, Esq.

Mick said...

McCain is clearly not a NBC because he was born in Colon, Panama. Any proclamation by Congress saying that he is a NBC (Resolution 511) is very much like the Naturalization Act of 1790. It was recognized that the Act of 1790 was unconstitutional since it changed the Constitution w/o the Amendment process, that is why it was repealed with the Act of 1795. Congress can enact naturalization law, but can not change the meaning of NBC w/o amendment.

mtngoat61 said...

Hi all,

An online article titled, "Obama Presidential Eligibilty - An Introductory Primer", by Stephen Tonchen. Publius Goat