Wednesday, May 19, 2010

A U.S. Constitution Article II “natural born Citizen” Is Not the Same As an English Common Law “natural born subject”

I have already written an essay explaining that the Founders and Framers relied upon natural law, the law of nations, and Emer de Vattel, Sec. 212, for their Article II definition of a “natural born Citizen” and not upon the English common law. That essay is entitled, 'The Law of Nations or Principles of Natural Law' as U.S. Federal Common Law Not English Common Law Define What an Article II Natural Born Citizen Is . This essay will address the related specific question of whether the Framers gave to the “natural born Citizen” clause the same meaning that the English common law gave to a “natural born subject.”

Article II, Section 1, Clause 5 of the Constitution of the United States provides in the pertinent part: “No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution shall be eligible to the Office of President . . .” The Constitution itself does not define the clause “natural born Citizen.” For that we must look elsewhere.

We know one of the key founders of our nation, Thomas Jefferson used the term "natural born Citizen" in his writings in 1777. Also, see this essay by John Greschak for a detailed investigation of the use of the term "natural born Citizen" in the English language in colonial and earlier times. And, as mentioned in my prior essay, Emer de Vattel (1714-1767) did provide a definition of that term in Vol.1, Chapter 19, Section 212, of his legal treatise, The Law of Nations or Principles of Natural Law as follows:

"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."

For the definition of a “natural born subject”, William Blackstone (1723-1780), frequently cited for English Common Law, defined a “natural born subject” as follows:

“The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject. The thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors.
The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien.” William Blackstone, Commentaries 1:354, 357--58, 361—62.

As we can see, for children born within the King’s dominions and allegiance, they were considered “natural born subjects” without any consideration for the citizenship of their parents. On the question of what the Framers meant when they inserted the “natural born Citizen” clause in Article II, putative President Obama supporters argue that the Framers simply used the “natural born Citizen” clause in place of the English common law “natural born subject” clause. Hence, they argue that the clauses mean the same exact thing. In practical terms, they therefore argue that in the mind of the Framers mere birth on United States soil without any reference to the citizenship of the child’s parents (with exceptions for children of diplomats and of invading soldiers) made one a “natural born Citizen.” In support of their argument, they cite language in United States v. Wong Kim Ark, 169 U.S. 649 (1898). The quote is:

“‘And if, at common law, all human beings born within the ligeance of the king, and under the king's obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States in all cases in which there is no express constitutional or statute declaration to the contrary.' ‘Subject' and 'citizen' are, in a degree, convertible terms as applied to natives; and though the term 'citizen' seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, 'subjects,' for we are equally bound by allegiance and subjection to the government and law of the land.' Id. 258, note.” United States v. Wong Kim Ark, 169 U.S. 649, 664-65 (1898). (quoting Chancellor Kent’s Commentaries).  I submit  that Obama's supporters are wrong in concluding that a "natural born Citizen" has the same meaning as an English common law "natural born subject" and that Wong Kim Ark so held. 

The Framers did not use the definition of an English common law “natural born subject” to define a “natural born Citizen.” The text of the Constitution itself reveals that there is a difference between a “citizen” and a “subject.” The historical context in which the Framers wrote the Constitution would not have motivated them to rely on the English common law to define who would be eligible to be President and Commander in Chief of the Military of the new nation. The way the English common law defined a “natural born subject” and the Constitution itself reveal that for the Framers these two clauses did not have the same meaning. Additionally, there is direct evidence from the Founding period that shows that the Founders and Framers did not give the same meaning to the two clauses.

Let us start with the text of the Constitution to see if it distinguishes between a “citizen” and a “subject” and if it does let us consider the meaning of the terms during the Founding era and what any contemporaneous court decisions said regarding the terms. "The language of the Constitution recognizes a distinction between "citizens" and "subjects." For example, Article III, section 2 differentiates "citizens" of the several states from "citizens" or "subjects" of foreign states. In the framing era, these terms reflected two distinct theories of the relationship between individual members of a political community and the state. In feudal or monarchical constitutional theory, individuals were the subjects of a monarch or sovereign, but the republican constitutional theory of the revolutionary and post-revolutionary period conceived of the individual as a citizen and assigned sovereignty to the people. The distinction between citizens and subjects is reflected in Chief Justice John Jay’s opinion in Chisholm v. Georgia, [2 U.S. (2 Dall.) 419 (1793) the first great constitutional case decided after the ratification of the Constitution of 1789: [T]he sovereignty of the nation is in the people of the nation, and the residuary sovereignty of each State in the people of each State . . . .[A]t the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects (unless the African slaves among us may be so called) and have none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty. . . . Sovereignty is the right to govern; a nation or State-sovereign is the person or persons in whom that resides. In Europe the sovereignty is generally ascribed to the Prince; here it rests with the people; there, the sovereign actually administers the Government; here, never in a single instance; our Governors are the agents of the people, and at most stand in the same relation to their sovereign, in which regents in Europe stand to their sovereigns. [Id. 471-72 (Jay, C.J.)].

Jay’s articulation of the opposition between subjects and citizen confirmed by Justice James Wilson’s opinion in Chisholm. Wilson noted that with the exception of Article III, the Constitution refers to “citizens” and “persons,” and not subjects: “[t]he term, subject, occurs, indeed, once in the instrument; but to mark the contrast strongly, the epithet ‘foreign’ is prefixed.'” Lawrence B. Solum, Originalism and the Natural Born Citizen Clause, Michigan L.Rev. 9-10 (working draft created on April 18, 2010) (footnotes omitted). "Justice Wilson explained that “[i]n one sense, the term sovereign has for its correlative, subject, In [sic] this sense, the term can receive no application; for it has no object in the Constitution of the United States. Under that Constitution there are citizens, but no subjects. ‘Citizen of the United States.’ ‘Citizens of another State.’ ‘Citizens of different States.’ ‘A State or citizen thereof.’” (footnotes omitted). Id. at 456 (Wilson, J.). Additionally, Article III, Sec. 2 refers to “foreign States, Citizens or Subjects.”

Solum continues in his essay: "Both Jay and Wilson’s opinions suggest that usage in the founding era reflected a significant conceptual distinction between the words “subject” and “citizen”—a distinction that was strongly associated with the ideas about the nature of sovereignty. The term “citizen” reflects the notion that individual citizens are sovereign in a republic, whereas the term “subject” reflects feudal and monarchical conceptual of the monarch as sovereign and the individual as the subject, owing a duty of allegiance and duty to the monarch. This conceptual distinction may be relevant to the original understanding of the phrase “natural born citizen” which was used instead of “natural born subject,” the phrase that served as a term of art in English legal usage. The notion of a natural born subject may reflect a feudal understanding of political obligation: those born in the kingdom owed a natural duty of allegiance to their king and were his natural subjects. Given a republic theory of popular sovereignty, citizens are sovereign and the notion of a “natural born subject” would be anathema. This leaves a gap in the theory of citizenship—a gap that the Constitution fills with the concept of a natural born citizen.” Id. at 10-11.

In his earlier version of this essay, Solum stated: “Anyone born on American soil whose parents are citizens of the United States is a "natural born citizen." In this updated version, Solum explains that some readers misread what he wrote. Now he concludes that “[b]ased on my reading of the historical sources, there is no credible case that a person born on American soil with one American parent was clearly not a “natural born citizen.” I agree with Solum’s previous statement but disagree with his current one. See my essay entitled, The Natural Born Citizen Clause of Our U.S. Constitution Requires that Both of the Child’s Parents Be U.S. Citizens At the Time of Birth for my reasons. Additionally, Solum does not cite what those “historical sources” are. What is also strange is that while the debate over Obama’s “natural born Citizen” status is currently raging, Solum, while now taking a position which benefits Obama does not even acknowledge that the issue exists. His essay is all about analyzing the eligibility of John McCain who was born in Panama to two United States citizen parents who were in military service which circumstances present a more defensible case per Vattel Sec. 217 than that of Obama whose place of birth has not been confirmed and who was born in 1961 to only one United States citizen parent (18 years old at the time of his birth).

In order to understand what the Framers meant by terms they inserted in the Constitution, we have to consider the historical context in which they wrote. They had recently won a revolution with Great Britain and now had the task of constituting a new nation, including identifying who the original citizens were and who the future citizens were going to be. The definition of “natural born subject” as found in the English common law simply did not work for the Framers. Great Britain was a monarchy and the new nation was a Constitutional Republic with a representative government. Great Britain did not have a President to be democratically elected by the people but the new nation did. Great Britain was not concerned with foreign influence making its way into the hereditary monarchy but the Framers were concerned about the Office of President being attacked from within and without with foreign influence infecting not only the voters but also the political leaders themselves. The Framers understood that citizenship and allegiance went together. Vattel’s born-in-country-to-two-U.S.-citizen-parents formula was the best way for them to assure that only a person with undivided allegiance and loyalty to the United States would be eligible to be President and Commander in Chief of the Military. This test was not tied to the physical territory alone, which the Framers understood and which Lord Coke explained did not assure anyone’s natural allegiance when he said “liegance, and faith and truth, which are her members and parts, are qualities of the mind and soul of man, and cannot be circumscribed within the predicament of ubi.” (p. 76). Calvin’s Case (1608) (7 Coke, 1, 6 James I.) Coke believed that liegance was a function of natural law which he maintained was part of the common law of England. Daniel J. Hulsebosch, "The Ancient Constitution and the Expanding Empire: Sir Edward Coke's British Jurisprudence," Law and History Review Fall 2003 (18 May 2010). The Founders learned from Vattel that under the law of nature, the condition of a child follows the condition of his parents and not the place of his birth. Emer de Vattel, The Law of Nations; or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, Sections 212-215 (1758 French) (1759 first English translation). Hence, their test combined both the soil with the allegiance of the child’s parents into the child at the time of birth. For the Founders, this was the best way to assure sole and absolute allegiance in the new-born child. Charles Pinckney, who was the first delegate at the Constitutional Convention to raise the issue of presidential qualifications, in a statement made in the U.S. Senate in 1800, said that the "natural born citizen clause" was designed "to insure ... attachment to the country." The Records of the Federal Convention of 1787 (Farrand's Records), CCLXXXVIII, Charles Pinckney in the United States Senate, March 28, 1800, p. 387. . These citizenship concepts provided the basis for their definitions of the original citizens and the citizens of future generations.

The English common law did not distinguish between a “natural born subject” and a naturalized subject. "The English common law provided that an alien naturalized is “to all intents and purposes a natural born subject.” Co. Litt. 129 (quoted and cited in United States v. Rhodes, 27 F.Cass. 785, 790 (1866).). Under English common law, once a person became naturalized, he or she was deemed to be a “natural born subject.” Hence, under English common law a naturalized citizen was considered a “natural born subject.” Hence, giving the “natural born Citizen” clause the same meaning as a “natural born subject” would have allowed a naturalized citizen to be eligible to be President of the new Republic. But Article II, Section 1, Clause 5 mandates that only a “natural born Citizen” is eligible to be President. The clause is written as “No person except . . . shall be eligible . . .” which means that one must be a “natural born Citizen” in order to be eligible to be President, with no exceptions. The way we have interpreted the “natural born Citizen” clause since the beginning of the Republic, a naturalized citizen is not eligible to be President. But assuming the “natural born Citizen” clause had the same meaning as a “natural born subject,” with the Constitution as written it would not have conveyed in any manner that a naturalized citizen was not eligible to be President. No where do we find in the Constitution any direct statement that a naturalized citizen is not eligible to be President. To reach this conclusion, we have always relied upon the “natural born Citizen” clause itself which we have compared with the fact that the Framers prescribed in Article I that naturalized citizens were eligible to be Senators (“nine Years a Citizen of the United States”) and Representatives (seven Years a Citizen of the United States”) . The manner in which the Framers provided that Senators and Representatives needed to be “Citizen of the United States” for only a certain amount of years shows that the naturalized citizen class was included within “Citizens of the United States” and not within “natural born Citizens.” This shows that naturalized citizens were not part of “natural born Citizens.”

Hence, equating the meaning of a “natural born Citizen” to a “natural born subject” would have allowed naturalized persons to be President, a result that we have rejected from the beginning of the Constitutional Republic. Such a meaning would have created an exception to the “natural born Citizen” clause which would have eviscerated the clause itself. Additionally, since Congress has the power under Article I, Section 8, Clause 4 to make uniform the naturalization laws, such a meaning would have given Congress the power to decide who could be President by simply changing the naturalization requirements. The Framers, fearing that Congress would allow foreign influence to creep into the office of President if it were given the power to select the President, did not give Congress such power.

A letter that John Jay wrote to then-General Washington (transcription can be viewed here) also provides evidence that the Framers did not equate a “natural born Citizen” with a “natural born subject.” We have seen that if a “natural born Citizen” meant the same thing as a “natural born subject,” a naturalized citizen would have been eligible to be President of the new Republic. Giving the two clauses the same meaning would have produced a clear contradiction and a condition which the Framers rejected. We know that the Founders considered a naturalized citizen to be only a “citizen of the United States” (able to be President under Article II’s grandfather clause and Senator or Representative under Article I) and not a “natural born Citizen,” which status was required of a would-be President for births after 1787. How the English common law converted naturalized persons into "natural born subject" retroactively to the time of birth can explain why John Jay underlined the word "born" when recommending to General Washington in his famous letter of July 25, 1787 that it was both “wise and seasonable” for the purpose of providing a “strong check” against foreign influence invading the new national government that the Constitution “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” (underlining the word “born”). Jay’s underlining of the word “born” is evidence that he rejected a naturalized citizen as being eligible for that office. This is further evidence that the Founders rejected the meaning of a “natural born subject” which was not necessarily tied to the time of actual birth. Not being a “natural born Citizen,” the Founders did not permit naturalized citizens to be President. The Framers, after 1787 (when the grandfather clause expired and Article II required a child to be a “natural born Citizen” and not only a “Citizen of the United States”) did not allow naturalized citizens to be President, for they would have been included in the class of “Citizens of the United States” and not in the class of “natural born Citizens.” This rejection of a naturalized citizen as equivalent to a "natural born Citizen" was consistent with the law of nations. Emer de Vattel, The Law of Nations; or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, Sections 212-214 (1758 French) (1759 first English translation). The Fourteenth Amendment citizenship clause as originally intended (not the way that it has come to be interpreted by giving “subject to the jurisdiction thereof” a territorial meaning rather than an allegiance and political one) also made the same recognition.

Further evidence that the Founders and Framers did not consider the two clauses as meaning the same thing can be found in the writings of David Ramsay, who published A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789). David Ramsay (April 2, 1749 to May 8, 1815) was an American physician and historian from South Carolina and a delegate from that state to the Continental Congress in 1782-1783 and 1785-1786. He was one of the American Revolution’s first major historians. Ramsay “was a major intellectual figure in the early republic, known and respected in America and abroad for his medical and historical writings, especially for The History of the American Revolution (1789)…” Arthur H. Shaffer, Between Two Worlds: David Ramsay and the Politics of Slavery, J.S.Hist., Vol. L, No. 2 (May 1984). In his 1789 essay, while not using the phrase “natural born Citizen,” Ramsay described the original citizens that existed during the Founding and what it meant to acquire citizenship by birthright after the Founding. The Constitution itself shows that the Framers called the original citizens “Citizens of the United States” and those that followed them “natural born Citizens.” He said concerning the children born after the declaration of independence, “[c]itizenship is the inheritance of the children of those who have taken part in the late revolution; but this is confined exclusively to the children of those who were themselves citizens….” Id. at 6. He added that “citizenship by inheritance belongs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring….” Id. at 7. He continued that citizenship “as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776….” Id. at 6. Here, Ramsay referred to “natural right,” which ties into the Framers’ use of the clause “natural born Citizen.” By focusing on citizenship that occurs by “natural right,” Ramsay distinguished citizenship that occurs naturally versus citizenship that occurs by operation of law. But Ramsay also explained that there is an “immense” difference between a British “subject” and a United States “citizen,” with the former being “under the power of another” and the latter being “a unit of mass of free people, who, collectively, posses sovereignty.” He informed that “Republics, both ancient and modern, have been jealous of the rights of citizenship.” He then explained that the “original citizens” of the United States were those who were parties to the Declaration of Independence and thereby adhered to the revolutionary cause. It is evident from his writing that in defining a “citizen of the United States” and a “natural born Citizen,” Ramsay did not look to English common law but rather to natural law, the law of nations, and Vattel, Sec. 212. Ramsay’s dissertation presents valuable evidence of how the Founding generation defined the original citizens and the future generation of citizens which the Framers called “natural born Citizens.” It is valuable because it is evidence of the public meaning of these terms at the time they were framed and ratified, if not among the general population then at least among those learned in the law. For further information on David Ramsay and the “natural born Citizen” clause, see my essay entitled, Founder and Historian David Ramsay Defines a Natural Born Citizen in 1789.

A “natural born subject” under English common law if born within the domain and allegiance of the King did not need any connection to citizen parents. But Jefferson in 1799 wrote the citizenship laws of Virginia which provided as follows:

"A Bill Declaring Who Shall Be Deemed Citizens of This Commonwealth: May 1779

Papers 2:476--78

Be it enacted by the General Assembly, that all white persons born within the territory of this commonwealth and all who have resided therein two years next before the passing of this act, and all who shall hereafter migrate into the same; and shall before any court of record give satisfactory proof by their own oath or affirmation, that they intend to reside therein, and moreover shall give assurance of fidelity to the commonwealth; and all infants wheresoever born, whose father, if living, or otherwise, whose mother was, a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this commonwealth, until they relinquish that character in manner as herein after expressed: And all others not being citizens of any the United States of America, shall be deemed aliens…. And in order to preserve to the citizens of this commonwealth, that natural right, which all men have of relinquishing the country, in which birth, or other accident may have thrown them, and, seeking subsistance and happiness wheresoever they may be able, or may hope to find them: And to declare unequivocably what circumstances shall be deemed evidence of an intention in any citizen to exercise that right, it is enacted and declared, that whensoever any citizen of this commonwealth, shall by word of mouth …openly declare to the same court, that he relinquishes the character of a citizen,…such person shall be considered as having exercised his natural right of expatriating himself, and shall be deemed no citizen of this commonwealth from the time of his departure. The free white inhabitants of every of the states, parties to the American confederation, paupers, vagabonds and fugitives from justice excepted, shall be intitled to all rights, privileges, and immunities of free citizens in this commonwealth, and shall have free egress, and regress, to and from the same, and shall enjoy therein, all the privileges of trade, and commerce, subject to the same duties, impositions and restrictions as the citizens of this commonwealth…. " His citizenship law of 1783 was similar to his 1779.

As we can see from his law, Jefferson provided different criteria for two different classes of citizens. For the first class, who were adults and already in existence, he provided one requirement (jus soli would be sufficient). He grandfathered these adults to be the first citizens. But for those who were infants and to be born in the future, he provided a different requirement. For this latter group, only jus sanguinis tied to both parents would be sufficient to make them citizens. It is important to understand the historical context in which Jefferson wrote his citizenship law because the Framers wrote within the same historical context when they drafted the grandfather clause in Article II, Section 1, Clause 5. This historical context was one of a new state rising from revolution. It is the historical context of the “infant state” (Jefferson in the 1783 citizenship laws) which is the genesis for the Framers distinction in Article II and other sections of the Constitution between a “Citizen of the United States” and a “natural born Citizen,” a distinction that our United States Supreme Court carried forward throughout American history. It is only because Jefferson and the other Founders were creating citizenship for a new state having just emerged from revolution that they had the need to first identify who were the first citizens and who were going to be the future citizens. The Framers also grandfathered the first citizens as did Jefferson. They called these persons “citizens of the United States.” These would have been the adults already in being at the time that the Constitution was adopted in 1787. These were adults who were either born or naturalized in the colonies or states or simply inhabiting there and adhered to the Revolution. But the Framers provided that for those persons who were infants after 1787, they would have to be “natural born Citizens” in order to be eligible to be President. The historical evidence, United States Supreme Court cases, and Congressional Acts show that this second generation citizens, like Jefferson’s second generation citizens, would come into being as “natural born Citizens” but only if they descended from persons already citizens of the United States.

English statutes also considered children born abroad to parents who were “natural born subjects” to be themselves “natural born subjects.” Again, Blackstone explained that by some modern English statutes: “[A]ll children, born out of the king's ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.” As can be seen, these statutes granted “natural born subject” status to such children regardless of, with the exceptions noted, in which type of service the parents were engaged. Jefferson wrote for citizenship in Virginia and so in his 1779 law he did not require that the child be born in the State. The Framers wrote for national citizenship and they did require birth in the United States to be considered an Article II “natural born Citizen.” Note that the Naturalization Act of 1790 (Act of March 26, 1790, ch. 3, Sec. 1, 1 Stat. 103, 103-04 (1790)), itself a naturalization act passed by the First Congress under its naturalization powers of Article I, Section 8, Clause 4, only provided that “children of citizens of the United States” born “out of the limits of the United States” were “considered as natural-born citizens . . . .” By passing this law and using this language, the First Congress, which included twenty members who had been delegates to the Constitutional Convention eight of whom were members of the Committee of Eleven that drafted the “natural born Citizen” clause, told us that these children were not in fact “natural born Citizens” but rather only made such through Congress’s naturalization powers. The Constitution only gave Congress the power to make uniform the naturalization laws which did not include the power to define a “natural born Citizen.” These children were only given the rights of “natural born Citizens” and were not actually “natural born Citizens.” The Third Congress confirmed that these children born abroad to United States citizen parents did not have actual Article II “natural born Citizen” status (to be distinguished from such status being granted by a naturalization act of Congress) when in 1795 it changed their status from being “natural born citizens” to “citizens of the United States.” If these children were Article II “natural born Citizens,” Congress would not have had the power to take away through any statute their constitutional “natural born” status. Unlike the Fourteenth Amendment which contains the jurisdiction and the necessary and proper clauses, Article II does not provide Congress with any way to define a “natural born Citizen.” It should be noted that a valid constitutional argument can be made that a child born abroad to United States citizen parents who are serving the armies of the state or even in some other government service are Article II “natural born Citizens,” for they “are reputed born in the country.” Vattel, Sec. 217. Children born abroad under such circumstances will most likely not attach their allegiance to the foreign country in which they may be born and rather through their relationship with their United States citizen mother and father become loyal only to the United States.

A “natural born subject” under English common law could never renounce his or her allegiance. Mannie Brown explained the “old common-law doctrine Nemo potest exuere patriam by quoting Lord Coke in Calvin’s Case: “Ligeance is a true and faithful obedience of the subject due to his Sovereign. This ligeance and obedience is an incident inseparable to every subject; for as soon as he is born he oweth by birth-right ligeance and obedience to his Sovereign.” Mannie Brown, Expatriation of Infants, University of Toronto Press 97 (1939). But as we have seen above, in his 1799 citizenship law Jefferson wrote that a person could exercise his “natural right of expatriating himself” “whensoever” he saw fit to do so. Jefferson included in his law a right in a person to relinquish his citizenship in a manner prescribed by law. This right was known as the right to expatriate which was not only alien to English common law but forbidden by it. Jefferson’s idea that a person could renounce allegiance to the country of his or her birth was so accepted by early Congresses and society that Congress codified this right by passing the Naturalization Act of 1795 (1 Stat. 414, c. 20), which provided persons naturalizing in the United States to absolutely renounce and abjure all allegiance to any foreign prince or state and to support the Constitution. Over the years, there continued a debate in the courts whether an American citizen could expatriate himself or herself. The matter was finally settled in 1868, when Congress passed the Expatriation Act of 1868 and Representative Woodward of Pennsylvania proclaimed that by doing so Congress had driven feudalism from our shores.

Jefferson’s views on a person having a right to expatriate reveal that he looked to natural law and the law of nations and Vattel rather than the English common law on questions of citizenship. In a letter dated June 12, 1817, to Dr. John Manners, Jefferson made his views on whether the English common law applied to such questions well known:

"To Doctor John Manners.

Monticello, June 12, 1817.


Your favor of May 20th has been received some time since, but the increasing inertness of age renders me slow in obeying the calls of the writing table, and less equal than I have been to its labors.

My opinion on the right of Expatriation has been, so long ago as the year 1776, consigned to record in the act of the Virginia code, drawn by myself, recognizing the right expressly, and prescribing the mode of exercising it. The evidence of this natural right, like that of our right to life, liberty, the use of our faculties, the pursuit of happiness, is not left to the feeble and sophistical investigations of reason, but is impressed on the sense of every man. We do not claim these under the charters of kings or legislators, but under the King of kings. If he has made it a law in the nature of man to pursue his own happiness, he has left him free in the choice of place as well as mode; and we may safely call on the whole body of English jurists to produce the map on which Nature has traced, for each individual, the geographical line which she forbids him to cross in pursuit of happiness. It certainly does not exist in his mind. Where, then, is it? I believe, too, I might safely affirm, that there is not another nation, civilized or savage, which has ever denied this natural right. I doubt if there is another which refuses its exercise. I know it is allowed in some of the most respectable countries of continental Europe, nor have I ever heard of one in which it was not. How it is among our savage neighbors, who have no law but that of Nature, we all know. . . . " We can see how Jefferson was clear in stating the right to expatriate, like the right to life, liberty, and to pursue happiness, was a natural right that came from God and not from the English common law. He also explained that the English common law was adopted by the states and was applied by them on local issues. But when it came to the national government, he stated that no such law was adopted. Hence, the right to expatriate could have come only from natural law rather than the English common law. As Jefferson applied natural law to the question of expatriation, he would have also applied it to defining a “natural born Citizen.” These historical writings show that Jefferson surely would not have considered a “natural born Citizen” to have the same meaning as an English common law “natural born subject.”

All this leads us to the inescapable conclusion that the Founders and Framers did not give the “natural born Citizen” clause the same meaning that the English common law gave to a “natural born subject.” For further information explaining that the Framers did not rely upon English common law but rather natural law, the law of nations, and Vattel to define a “natural born Citizen,” see my essay entitled, 'The Law of Nations or Principles of Natural Law' as U.S. Federal Common Law Not English Common Law Define What an Article II Natural Born Citizen Is.

Mario Apuzzo, Esq.
May 19, 2010

P.S. For more on natural born Citizenship to constitutional standards, see my essay:
Obama - Maybe a Citizen of the United States but Not a "natural born Citizen"


Anonymous said...

To me this entire argument comes down to allegiance. In your very well written essay you write that allegiance is derived from natural law pertaining to the sovereign. Well, there we have it. The English feudal common law placed sovereignty soley with the king, prince or monarch while the framers rightfully gave the sovereignty back to the individual person. Therefore, allegiance can not be passed onto children if it is has not 1st been retained by the parent. An alien possesses no allegiance to a foreign sovereign and thus can not pass it on to their descedents. Allegiance comes either through birth or naturalization and until & uness an alien is naturalized, their children remain aliens per the laws of nature and laws of nations.

jayjay said...


Truly a superb essay putting the lie to the almost universal statement by the Flying Monkeys that English Common Law governed Obama's birth and that Wong Kim Ark "proves" it.

WKA, of course, does nothing of the sort and is merely an instance of the SCOTUS justice authoring the opinion contradicting his earlier opinion.

But, let's face it, the 14th Amendment, WKA, ECL, etc. are indeed very slim reeds by which the current eligibility hangs. I believe that will soon be ruled upon by more rational minds.

Great essay!!

cfkerchner said...

Excellent essay Mario.

And Obama definitely is NOT a "natural born Citizen" of the USA since Obama's father was not a Citizen of the USA, not even an immigrant to the USA, not even a permanent resident.

However, Obama is a "natural born subject" of Great Britain.

Obama, as a person who was not born with sole allegiance and unity of Citizenship at birth to the USA, he is NOT eligible to be the President and Commander-in-Chief of our military.

Obama is a usurper in the Oval Office and must be removed. Our liberties are in danger by his usurpation of office and continued trampling on the Constitution of the United States. This is a national security issue.


Unknown said...

Excellent presentation of the mind set of the founding fathers. Shows that they were critical thinkers and not reactionaries. They were revolutionaries with a purpose, not a party.

Thank you Mr. Apuzzo for such an excellent essay and lesson in American history.

Larry said...

Obots try to pretend the law changes like the weather. The definition of "natural born Citizen" has been so well known and accepted throughout history that the Founding Fathers saw no need to write the definition into the Constitution. Doing so would have been as needless as Waffle House writing the definition of "egg" on their menus.

Mario Apuzzo, Esq. said...

Here is more nonsense reporting by our nation’s newspaper editors on the question of Obama’s birthplace:

“Proving the power of the Internet, mistaken belief and conspiracy theorists in every ZIP code, “birthers” believe Obama was born in Kenya, not Hawaii. This even though Hawaiian officials repeatedly have confirmed the president’s citizenship; his birth certificate has been made public; and two Honolulu newspapers published his birth announcement.

The New York Times, the country’s “newspaper of record,” on Friday published a copy of Obama’s “Certification of Live Birth” from Aug. 4, 1961, naming Honolulu as his hometown, his parents and that he was born at 7:24 p.m.”


“ ‘Enough is enough; the state of Hawaii is saying ‘no’ to birthers,’ ” said one state official. “ ‘We have more pressing demands of our workers’ time. The question has been answered,’ ” said Dr. Chiyonne Fukino, the state’s health director. “ ‘Mr. Obama was born in Hawaii and is a natural born American citizen.’ ”

Montrose Daily Press, May 20, 2010

This editorial raises a much more important message which lies hidden. This is an editorial and one would think that the editor would mount an all-out attack to prove his or her point. What is important to ponder is that after almost two years of public trashing of the Obama birthplace issue, the 2008 alleged electronic on-line image of an alleged 2007 Certification of Live Birth (a COLB which is not a Certificate of Live Birth that contains the name of the birth hospital and delivery doctor), the two 1961 newspaper announcements, and what some Hawaii officials say in 2009 and 2010 is the only evidence provided by our nation’s editors and political leaders on the question of where Obama was born. So let us review. What evidence do we currently have which sufficiently proves where Obama was born? We have an unconfirmed 2008 computer image of an inconclusive COLB which some experts maintain is a forgery, two unsubstantiated 1961 newspaper announcements which do not tell us the source of the birth information stated therein, and some hearsay statements made by Hawaii officials in 2009 and 2010 which all together and by themselves do not conclusively prove that Obama was born in Hawaii. We also have a desperate appeal to the authority of the New York Times thrown in as “evidence” to boot.

What our editors and many political leaders fail to understand (unwittingly or intentionally) is that this evidence does not tell us who with personal knowledge and/or what (some physical piece of evidence) existing in 1961 (called contemporaneous evidence) says or shows that Obama was born in Hawaii at that time. What makes matters worse is that these same leaders have not taken Obama to task for his hiding his personal papers from the American public (original 1961 birth certifiate and travel, work, and education documents). That is a lot to think about. What ever happened to America’s intelligence? The manner in which our nation’s leaders have addressed the Obama birthplace issue is shocking given that we are supposed to be concerned with properly vetting and identifying the to-be President of the United States and Commander in Chief of the Military before we entrust him or her with the survival and preservation of our nation and the free world.

Mario Apuzzo, Esq.
May 20, 2010

Mick said...

To Constitutionally speaking,
And don't forget even Lawrence Tribe defined it in the Resolution 511 hearings as "Those born w/in a country's territory AND ALLEGIANCE".

Anonymous said...

"Mick said to Constitutionally speaking: And don't forget even Lawrence Tribe"

Mick, unlike most, I am very well educated as to Tribe. I didn't leave any stone unturned into Tribe's intentions regarding S Res 511. You might like to check it out.

cfkerchner said...

This was written by me and posted in another forum a year plus ago. I will add it here as a comment to Mario's excellent essay.

A Citizen is Not a Subject & a Subject is Not a Citizen!

I have said this in other forums but I thought I'd write it here too. The subject line and statement is in regards to those that argue that a "natural born Subject" under English Common Law is the same thing as a "natural born Citizen" in Article II in our Constitution in 1787. But the terms are not the same. The term "natural born citizen" was defined literally and specifically in the 1797 English translation of the legal treatise written in French by Emer de Vattel in 1758 when he codified Natural Law in his preeminent legal treatise, the Law of Nations of Principles of Natural Law. The O-Bots then go on from arguing that the terms mean the same thing to saying that the term in our Constitution came from British Common Law and not Vattel and therefore the term is defined by English Common Law and not by the Natural Law as was codified by Vattel. Again, not true. The term and meaning of "natural born citizen" came solely from the Natural Law handed down over the millenniums as universal truths and were codified by Vattel.

A citizen is not a subject and a subject is not a citizen! Any "natural born Citizen" of the USA can be come the President and Commander in Chief of our military under Article II of our Constitution and the leader of the nation. However, not any "natural born Subject" can become the King of England. In addition, the pool of Citizens from whom a President and Commander in Chief can be chosen in the USA is the largest group or pool of citizen groups. "natural born Citizens" are the largest category of citizens in the nation. They are those born in the country to two Citizens of the country. They are the "three leaf clovers" of the Citizens of the nation. But a King can only be chosen from one of the smallest, rarest groups of persons in that nation, i.e., the Royal Blood Line, a "a four leaf clover" by analogy. Such is the nature of the difference between a Constitutional Republic and a Monarchy. And such is the difference between the rights of being a Citizen of a nation and a Subject of the King.

Thus it is clear that the term Citizen and Subject are definitely not interchangeable, nor synonymous, and any attempt by anyone to do such is engaging in deception and obfuscation of reality. And simply putting the same two adjectives, i.e, "natural born" in front of two completely different nouns does not change the fundamental character of those two different nouns. A Citizen is NOT a Subject and a Subject is NOT a Citizen. A "natural born Citizen" is NOT a "natural born Subject" and a "natural born Subject" is is NOT a "natural born Citizen"! Only an Obot playing their typical deceptive words games would tell you otherwise.

CDR Kerchner

cpanon said...

Can someone from HI get a CLOB or someone who has one, apply for a passport and use a printout of the digital scan? When the process fails for not "showing your papers", can they then sue for unfair treatment. (Notice how texting morons will conflate CertificatE with CertificatION, one is a primary irrefutable document the other is the claim, a pointer to a otherwise claimed primary document. I know it has been said much more elegantly and deterministically here)

This would be perfect negative proof to the claims of the fabricated legitimacy primary putative "evidence". This should be able to be done quickly and in parallel. It would make one hell of an impact.

Mario Apuzzo, Esq. said...


Send me your email so that I can respond to your private request.

Mario Apuzzo, Esq.

Mick said...

To Constitutionally Speaking,

I read your blog post--- excellent. You can add people like Volokh (who probably has personal reasons, since he is a naturalized citizen) and Althouse to the list of supposed Constitutional Scholar Law Profs that are simply frauds. How can one be a Constitutional Scholar and not know the meaning of NBC? I think Tribe unintentionally told the truth with his "territory and allegiance"

batazoid said...

So the question is, why did Dr. Matthew Spalding, Ph.D. of the Heritage Foundation, in his essay: "Making Citizens: The Case for Patriotic Assimilation", 2006, state: "The Continental Congress, at the behest of Thomas Jefferson and John Adams, had promulgated a decree of not employing any but 'native-born citizens' as consuls in foreign countries"*?

ex animo
* Source: