1790 First Congress, Act of March 26th, 1790, 1 Stat. 103.
"And the children of citizens of the United States that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States".
I wonder, how many FFs participated in the construction and passing of this law? First Congress, just a few years after the COTUS was ratified. Seems the meaning was clear enough then.
This law has been superceeded, dropping the redundant term 'natural born' and becoming gender neutral (citizen parent rather than citizen father), and was this in 1961:
1952 The Immigration and Nationality Act of June 27, 1952, 66 Stat. 163, 235, 8 U.S. Code Section 1401 (b). (Section 301 of the Act).
"Section 301. (a) The following shall be nationals and citizens of the United States at birth:
"(1) a person born in the United States, and subject to the jurisdiction thereof;
"(7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States, who prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years."
Note the phrase 'citizen at birth' meaning 'having citizenship from birth' or 'natural born' that is used. Note also the section where it discusses the residency requirements for the citizen parent when the other parent is an alien: ten years a resident, five after the age of fourteen. This is where Obama may fail to qualify. His mother was only 18 years 8 months and 6 days old, meaning that without taking into consideration all the travel and other time out of the US she could have, at most, been a resident after the age of 14 for 4 years 8 months and 6 days. Several months short.
It is much simpler. A baby is born. Is that baby a legal U.S. Citizen at the time of birth? If so, he is a natural born citizen. If he is not a citizen at birth and obtains citizenship at a later date, he’s a naturalized citizen. Since Obama did not do the latter, he’s either a natural born citizen or he’s an illegal alien.
After reading through the statute a couple of times, and reading historical references posted by others, it's apparent to me that what's wrong here, is that the US is lacking clarity in its citizenship laws and definitions. Not to mention the fact that the Natural Born Citizen phrase and intent is not agreed upon by all.
We obviously need some clarity on all of this. Thankfully, this may finally be taken up by the Supreme Court and sorted out. The sooner, the better too. Times a'tickin' and January 20th looms.
Am I reading too much into this, or does this law mean that Obama is not even a citizen of the US?
Thanks for the excellent history lesson and documentation.
I notice than none of Move One bsers have challenged your reply. They are waiting for Zer0’s lawyers to come up with some lawyerese bs.
If you were being honest, you would note that the 1790 law you cited was cancelled and replaced in 1792, specifically because the issue of natural born citizen needed better definition.
From Leo's excellenet explanation [http://naturalborncitizen.wordpress.com/ LEO DONOFRIO COMMENTS ON JUDAH BENJAMIN ARTICLE CONCERNING NATURAL BORN CITIZEN AND THE COMMON LAW] :
Congress having repealed the”natural born provision” leads to the core problem ... Naturalization only concerns people who were, “at birth” not US citizens.
People born in other countries as citizens of foreign powers, but who immigrate to the USA are naturalized. Naturalization has nothing to do with citizens like McCain who are born abroad to American citizens and are US Citizens by statute “at birth”.
Naturalization also could not cover Obama who was (we assume) born on United States soil (Hawaii).
But at the common law, naturalized citizens WERE considered to be “NATURAL BORN SUBJECTS”. At the common law, the act of naturalization returns them to birth and they are effectively reborn to the allegiance of the King.
The best case which explains this concept is “United States vs. Rhodes” :
...
‘All persons born in the Allegiance of the King are Natural- Born Subjects, and all persons born in the Allegiance of the United States are Natural-Born Citizens. Birth and Allegiance go together. Such is the Rule of the Common Law, and it is the Common Law of this country…since as before the Revolution.’
...
The common law is not our national law. Our national law is the Constitution. We do not follow the common law, we follow the Constitution.
And this is important to note because the common law, which may also bear out that Obama isn’t eligible, at the same time provides Obama with his best argument that he is eligible. The reason for this lies on that part of Justice Swayne’s opinion ... Here is Justice Swayne’s relevant quote:
“An alien naturalized is “to all intents and purposes a natural born subject.” Co. Litt. 129. “Naturalization takes effect from birth; denization from the date of the patent.” Vin. Abr. tit. “Alien,” D. …The power is applicable only to those of foreign birth. Alienage is an indispensable element in the process. To make one of domestic birth a citizen is not naturalization, and cannot be brought within the exercise of that power. There is a universal agreement of opinion upon this subject. [**26] Scott v. Sanford, 19 How. [60 U.S.] 578; 2 Story, Const. 44.
United States v. Rhodes, 27 F. Cas. 785, at 790 (1866)
The status of the candidate “at birth” is relevant to Article 2, Section 1. For somebody to be a “natural born citizen” and therefore eligible to be President, they must have the status “at birth”.
If the common law were applied in the USA, then all naturalized citizens would be eligible to be President since the common law understanding was that, as quoted by Swayne, “Naturalization takes effect from birth”. If we followed that today, then all naturalized citizens would be returned to birth to be reborn and could therefore claim “natural born citizen” status.
... naturalized citizens like Arnold Schwarzenegger can NOT be President since they are naturalized and the US doesn’t recognize those persons as “natural born citizens”.
But Mr. Benjamin also argues that this idea comes from the common law and he is wrong about that. The common law holds that Arnold Schwarzenegger, having been naturalized, would have been a “natural born subject”. And if we then apply the common law concept and understanding of “natural born subject” to “natural born citizen” then Arnold Schwarzenegger would be eligible to be President since, at common law, his birth status could change upon naturalization.
But Arnold Schwarzenegger is not eligible to be President because the United States doesn’t follow common law. The United States follows national law, and our national law is the CONSTITUTION.
Obama was not naturalized, and I do not make the argument above to say that naturalization laws apply to Obama - although they might if he were not born in Hawaii- but let’s assume he was. I make the argument above to show that the United States is not following common law and the Constitution will not be interpreted as if it were controlled by common law. There is enough evidence in our history and other laws to bear this out.
The first of which is precedent. In our history as a nation, every President we have ever had was born in the United States to parents who were both US Citizens.
And it’s very important, especially in light of Justice Scalia’s very recent comments to the Federalist Society of November 22, 2008 wherein he said that the common law is dead and does not control in the USA:
“The common law is gone. The federal courts never applied the common law and even in the state courts it’s codified now.”
You might want to hear Justice Scalia’s entire presentation: http://www.fed-soc.org/publications/pubid.1193/pub_detail.asp
Furthermore, it is very clear that the those who wrote the 14th Amendment believed that only those so qualified as all previous Presidents were eligible to be President under Article 2, section 1, Clause 5. This was made clear by Madison’s article:
“Why U.S. v. Wong Kim Ark Can Never Be Considered Settled Birthright Law” Dec 10, 2006
“John A. Bingham, chief architect of the 14th Amendments first section, considered the proposed national law on citizenship as “simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen…” If this law was simply to reaffirm the common law doctrine then the condition of the parents would be totally irrelevant.”
Article 2, Section 1, Clause 5, must also be read in light of the 14th Amendment which is just as much a part of the Constitution as any other part.