Defining Natural-Born Citizen

Federalist Blog ^ | November 18, 2008 | P.A. Madison

[SeekAndFind]

What might the phrase “natural-born citizen” of the United States imply under the U.S. Constitution? The phrase has always been obscure due to the lack of any single authoritative source to confer in order to understand the condition of citizenship the phrase recognizes. Learning what the phrase might have meant following the Declaration of Independence, and the adoption of the Fourteenth Amendment, requires detective work. As with all detective work, eliminating the usual suspects from the beginning goes a long way in quickly solving a case.

What Natural-Born Citizen Could Not Mean

Could a natural-born citizen simply mean citizenship due to place of birth?

Unlikely in the strict sense because we know one can be native born and yet not a native born citizen of this country. There were even disputes whether anyone born within the District of Columbia or in the territories were born citizens of the United States (they were generally referred to as “inhabitants” instead.) National Government could make no “territorial allegiance” demands within the several States because as Madison explained it, the “powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

Jurisdiction over citizenship via birth within the several States was part of the “ordinary course of affairs” of the States that only local laws could affect. Early acts of Naturalization recognized the individual State Legislatures as the only authority who could make anyone a citizen of a State. Framer James Wilson said, “a citizen of the United States is he, who is a citizen of at least some one state in the Union.” These citizens of each State were united together through Article IV, Sec. II of the U.S. Constitution, and thus, no act of Congress was required to make citizens of the individual States citizens of the United States.

Prior to the Revolutionary War place of birth within the dominions of the crown was the principle criterion for establishing perpetual allegiance and citizenship. After independence perpetual allegiance was abandoned for expatriation and, as Madison stated, citizenship was strictly left to the individual States to define.

Could a natural-born citizen perhaps be synonymous with the British term “natural-born subject”?

It is very doubtful the framers adopted the doctrine found under the old English doctrine of “natural-born subject.” The British doctrine allowed for double allegiances, something the founders considered improper and dangerous. The American naturalization process required all males to twice renounce all allegiances with other governments and pledge their allegiance to this one before finally becoming a citizen.

House Report No. 784, dated June 22, 1874, stated, “The United States have not recognized a ‘double allegiance.’ By our law a citizen is bound to be ‘true and faithful’ alone to our government.” It wouldn’t be practical for the United States to claim a child as a citizen when the child’s natural country of origin equally claims him/her because doing so would leave the child with competing legal obligations.

Under the old English common law doctrine of natural-born subject, birth itself was an act of naturalization that required no prior consent or demanded allegiance to the nation in advance. Furthermore, birth was viewed as enjoining a “perpetual allegiance” upon all that could never be severed or altered by any change of time or act of anyone. England’s “perpetual allegiance” due from birth was extremely unpopular in this country; often referred to as absurd barbarism, or simply perpetual nonsense. America went to war with England over the doctrine behind “natural-born subject” in June of 1812.

Because Britain considered all who were born within the dominions of the crown to be its natural-born subjects even after becoming naturalized citizens of the United States, led to British vessels blockading American ports. Under the British blockade, every American ship entering or leaving was boarded by soldiers in search of British born subjects. At least 6,000 American citizens who were found to be British natural-born subjects were pressed into military service on behalf of the British Empire, and thus, the reason we went to war.

Fourteenth Amendment

Whatever might had been the correct understanding of “natural-born citizen” prior to 1866, the adoption of the Fourteenth Amendment certainly changes the view because for the first time we have a written national rule declaring who are citizens through birth or naturalization. Who may be born citizens is conditional upon being born “subject to the jurisdiction” of the United States - a condition not required under the common law. The legislative definition of “subject to the jurisdiction thereof” was defined as “Not owing allegiance to anybody else,” which is vastly different from local jurisdiction due to physical location alone.

This national rule prevents us from interpreting natural-born citizen under common law rules because it eliminates the possibility of a child being born with more than one claim for allegiance.

The primary author of the citizenship clause, Sen. Jacob M. Howard, said the “word jurisdiction, as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.”

United States Attorney General, George Williams, whom was a U.S. Senator aligned with Radical Republicans during the drafting of the Fourteenth Amendment in 1866, ruled in 1873 the word “jurisdiction” under the Fourteenth Amendment “must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment.” He added, “Political and military rights and duties do not pertain to anyone else.”

Essentially then, “subject to the jurisdiction thereof” means the same jurisdiction the United States exercises over its own citizens, i.e., only citizens of the United States come within its operation since citizens of the United States do not owe allegiance to some other nation at the same time they do the United States. This makes arguing the physical presence of being subject to laws silly because being subject to another countries laws while visiting makes no change to an aliens allegiance to their native country.

Natural-Born Citizen Defined

One universal point most all early publicists agreed on was natural-born citizen must mean one who is a citizen by no act of law. If a person owes their citizenship to some act of law (naturalization for example), they cannot be considered a natural-born citizen. This leads us to defining natural-born citizen under the laws of nature - laws the founders recognized and embraced.

Under the laws of nature, every child born requires no act of law to establish the fact the child inherits through nature his/her father’s citizenship as well as his name (or even his property) through birth. This law of nature is also recognized by law of nations. Sen. Howard said the citizenship clause under the Fourteenth Amendment was by virtue of “natural law and national law.”

The advantages of Natural Law is competing allegiances between nations are not claimed, or at least with those nations whose custom is to not make citizens of other countries citizens without their consent. Any alternations or conflicts due to a child’s natural citizenship are strictly a creature of local municipal law. In the year 1866, the United States for the first time adopted a local municipal law under Sec. 1992 of U.S. Revised Statutes that read: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.”

Rep. John A. Bingham commenting on Section 1992 said it means “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.” (Cong. Globe, 39th, 1st Sess., 1291 (1866))

Bingham had asserted the same thing in 1862 as well:

Does the gentleman mean that any person, born within the limits of the Republic, and who has offended against no law, can rightfully be exiled from any State or from any rood of the Republic? Does the gentleman undertake to say that here, in the face of the provision in the Constitution, that persons born within the limits of the Republic, of parents who are not the subjects of any other sovereignty, are native-born citizens, whether they be black or white? There is not a textbook referred to in any court which does not recognise the principle that I assert. (Cong. Globe, 37th, 2nd Sess., 407 (1862))

Bingham subscribed to the same view as most everyone in Congress at the time that in order to be born a citizen of the United States one must be born within the allegiance of the Nation. Bingham had explained years earlier that to be born within the allegiance of the United States the parents, or more precisely, the father, must not owe allegiance to some other foreign sovereignty (remember the U.S. abandoned England’s “natural allegiance” doctrine). This of course, explains why emphasis of not owing allegiance to anyone else was the affect of being subject to the jurisdiction of the United States.

It should be noted this allegiance due under England’s common law and American law are of two different species. Under the common law one owed a personal allegiance to the King as an individual upon birth. Under the American system there was no individual ruler to owe a personal allegiance to.

The constitutional requirement for the President of the United States to be a natural-born citizen had one purpose according to St. George Tucker:

That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence, which, wherever it is capable of being exerted, is to he dreaded more than the plague. The admission of foreigners into our councils, consequently, cannot be too much guarded against; their total exclusion from a station to which foreign nations have been accustomed to, attach ideas of sovereign power, sacredness of character, and hereditary right, is a measure of the most consummate policy and wisdom. …The title of king, prince, emperor, or czar, without the smallest addition to his powers, would have rendered him a member of the fraternity of crowned heads: their common cause has more than once threatened the desolation of Europe. To have added a member to this sacred family in America, would have invited and perpetuated among us all the evils of Pandora’s Box.

Charles Pinckney in 1800 said the presidential eligibility clause was designed “to insure … attachment to the country.” President Washington warned a “passionate attachment of one nation for another, produces a variety of evils,” and goes on to say:

Sympathy for the favorite nation, facilitating the illusion of an imaginary common interest, in cases where no real common interest exists, and infusing into one the enmities of the other, betrays the former into a participation in the quarrels and wars of the latter, without adequate inducement or justification. It leads also to concessions to the favorite nation, of privileges denied to others, which is apt doubly to injure the nation making the concessions; by unnecessarily parting with what ought to have been retained; and by exciting jealousy, ill- will, and a disposition to retaliate, in the parties from whom equal privileges are withheld.

And it gives to ambitious, corrupted, or deluded citizens, (who devote themselves to the favorite nation,) facility to betray or sacrifice the interests of their own country, without odium, sometimes even with popularity; gilding, with the appearance of a virtuous sense of obligation, a commendable deference for public opinion, or a laudable zeal for public good, the base or foolish compliances of ambition, corruption, or infatuation.

What better way to insure attachment to the country then to require the President to have inherited his American citizenship through his American father and not through a foreign father. Any child can be born anywhere in the country and removed by their father to be raised in his native country. The risks would be for the child to return in later life to reside in this country bringing with him foreign influences and intrigues, and thus, making such a citizen indistinguishable from a naturalized citizen.

Conclusion

Extending citizenship to non-citizens through birth based solely upon locality is nothing more than mere municipal law that has no extra-territorial effect as proven from the English practice of it. On the other hand, citizenship by descent through the father is natural law and is recognized by all nations (what nation doesn’t recognize citizenship of children born to their own citizens?). Thus, a natural-born citizen is one whose citizenship is recognized by law of nations rather than mere local recognition.

Chairman of the House Judiciary Committee, James F. Wilson of Iowa, confirmed this in 1866: “We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except that of children born on our soil to temporary sojourners or representatives of foreign Governments.”

When a child inherits the citizenship of their father they become a natural-born citizen of the nation their father belongs regardless of where they might be born. It should be pointed out that citizenship through descent of the father was recognized by U.S. Naturalization law whereby children became citizens themselves as soon as their father had become a naturalized citizen.

In a nation that has abandoned the English tradition of “perpetual allegiance” to the King upon birth for the principal of expatriation, the requirement of preexisting allegiance of the father can be the only method for a child to be born into the allegiance of the nation, and thus, a natural-born citizen.

[EDINVA]

The only entity that can interpret the Framers’ intent in drafting the Constitution with any authority is the Supreme Court. So far, they have refused to do that. Their job is only to interpret what was meant at the time of its framing, not what’s popular today.

IF the SCOTUS were to interpret ‘natural born’ in its strictest meaning, as was likely the Framers’ intent, and it isn’t popular in the USA today, we have a mechanism called Amendments to change it to something more acceptable in the 21st Century. But the SCOTUS can’t just run a poll on what is or isn’t popular.

[faucetman]

Not chasing theories, but the FACTS. His LEGAL father is who it says on his long form BC. We don’t care who the sperm doner was.

If it turns out Obama indeed is a natural born citizen, then so be it. The truth will set you free.

[StonyBurk]

Agreed with this only added— Neither the 0’s mother— nor his father were citizens of the US at the time of his birth. The only way he can claim to even be native born is if he was actually born in the USA that he HATES so much (or hated until he became President)

[StonyBurk]

I hear the plan is to have Major Malik Hasan run for the Office instead of th eO that we could have our first anti-American PResident followed by our first Islamic Terrorist President—and th e) can go on to be that head honcho for the global caliphate.

[SeekAndFind]

RE: Neither the 0’s mother— nor his father were citizens of the US

Barack Obama’s mother was Stanley Ann Dunham (who would name a girl, Stanley?, but I digress ). She was born in Wichita, Kansas. Why would she not be a citizen of the US (unless of course, she ACTIVELY and LEGALLY renounced her US citizenship ).

[SeekAndFind]

RE: This is bs

Kindly elaborate.

[SeekAndFind]

RE: McCain was born at the public hospital in Colon, Panama

You seem to be saying that someone born of AMERICAN PARENTS overseas is not a natural born citizen....

Here’s a theoretical example -— If Benjamin Franklin married an American woman, then went to France with her to be our Ambassador ( which he did ) and had a male child by her, born in Paris named Ben Jr. Is Ben Jr. a Natural Born Citizen?

[bjorn14]

That is my current understanding of NBC because Ben Jr. would not meet the Jus Soli (Born of Soil) requirement. Just saying...

[kabar]

Yes, yes, I’ve heard the speculation and theories that perhaps his dad is Frank Marshall Davis or maybe it’s Malcolm X, or maybe it’s his grandfather, Stanley Dunham! Do you even realize that you’re arguing for his natural born status? If either of these men are his dad, and he is born in Hawaii, he’s natural born and he’s eligible.

I'm not arguing for anything except the truth. Let the chips fall where they may.

I tend to take him at his word; that his dad is the foreign-born and non-U.S.-citizen Obama Sr. From Obama’s own mouth, he has already told us that he is not eligible.

Sorry, but his word is not good enough. Even the Pope's word wouldn't be good enough. You need to verify it using the primary source. We need real proof availble to the public, not assurances from government officials who have seen the documents. We already have former Hawaii officials stating that they have seen the long form birth certificate and that Obama was born in Hawaii.

The Hawaiian state health official who personally reviewed Barack Obama's original birth certificate has affirmed again that the document is "real" and denounced "conspiracy theorists" in the so-called "birther" movement for continuing to spread bogus claims about the issue. "It’s kind of ludicrous at this point," Dr. Chiyome Fukino, the former director of Hawaii's Department of Health, said in a rare telephone interview with NBC.

"The first is that the original so-called "long form" birth certificate — described by Hawaiian officials as a "record of live birth" — absolutely exists, located in a bound volume in a file cabinet on the first floor of the state Department of Health. Fukimo said she has personally inspected it — twice. The first time was in late October 2008, during the closing days of the presidential campaign, when the communications director for the state's then Republican governor, Linda Lingle (who appointed Fukino) asked if she could make a public statement in response to claims then circulating on the Internet that Obama was actually born in Kenya.

"Before she would do so, Fukino said, she wanted to inspect the files — and did so, taking with her the state official in charge of vital records. She found the original birth record, properly numbered, half typed and half handwritten, and signed by the doctor who delivered Obama, located in the files. She then put out a public statement asserting to the document's validity. She later put out another public statement in July 2009 — after reviewing the original birth record a second time."

[kabar]

What in the world makes you think a BC contains such information, particularly in the case of a married woman?

We have the mother's divorce papers, but there is no proof that I am aware of that they were married. Here is a copy of the alleged COLB. Notice it names a father.

Here is a copy of a 1963 long form birth certificate from Hawaii. Don't you think it would be interesting to see these data on Obama and his father?

Assuming the BC does list the birth father, as opposed to the legal father, which it doesn't in any state, AFAIK, where could they possibly get such information except from the mother? And what makes you think she would tell the truth? Or possibly that she even knew who the "real father" was?

I am not assuming anything. I want to see the primary document and what is in it. Here is what Fukino said,

Before she would do so, Fukino said, she wanted to inspect the files — and did so, taking with her the state official in charge of vital records. She found the original birth record, properly numbered, half typed and half handwritten, and signed by the doctor who delivered Obama, located in the files. She then put out a public statement asserting to the document's validity. She later put out another public statement in July 2009 — after reviewing the original birth record a second time.

I am curious as to what was handwritten and what was typed. Perhaps the part about the father was amended or some other portion. And obviously, the handwritten part could be done after the fact, i.e., many years after the fact.

As far as the real father is concerned, that is not the issue. I am only interested in who is listed legally and when it was done.

[kabar]

This has never been tested in the courts. My daughter was born overseas. My wife and I were Amcits and I was serving as a diplomat. My daughter was automatically given American citizenship under the law. The only real question is would she be eligible to be President under the definition of natural born citizen under the Constitution. IMO, the courts would have to decide should it be challenged. I am confident that she would be eligible given our status overseas and the fact that both of us are US citizens.

[bjorn14]

This was part of the Naturalization Act of 1790 which was in part repealed in 1796 and the rest in 1802.

“And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States,”

You’re right I believe the USSC needs to succintly define NBC status so we don’t have to go through this again.

Ever since my 8th grade civics class I always believed NBC status meant 1. Born in the US. 2. Born of citizen parents.

BTW, I see the DoS is redisigning the foreign birth certificates. Maybe too many were counterfeit.

[Sherman Logan]

You don’t consider divorce papers proof of a marriage? Don’t you have to show proof of marriage to the court when starting divorce proceedings?

[bjorn14]

They were divorced but page 11 is missing from the divorce cree. I am also interested to know where the newspaper announcments for their wedded bliss are?. At least what the vital records sent.

[kabar]

I was upbraided a few months ago because I thought that divorce proceedings were proof of marriage. Someone who at least claimed that she had a legal background and experience in such matters said that a marriage license was not necessary to get a divorce. I am not a lawyer so someone else will have to opine on it.

[kabar]

Or where they were married.

[TheOldLady]

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[Mr Rogers]

“Could a natural-born citizen perhaps be synonymous with the British term “natural-born subject”?

It is very doubtful the framers adopted the doctrine found under the old English doctrine of “natural-born subject.”

-— SeekAndFind

“The 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.” In 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...

...The Supreme Court of North Carolina, speaking by Mr; Justice Gaston, said:

Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens. . . . Upon the Revolution, no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on an European King to a free and sovereign [p664] State; . . . British subjects in North Carolina became North Carolina freemen; . . . and all free persons born within the State are born citizens of the State. . . . The term “citizen,” as understood in our law, is precisely analogous to the term “subject” in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before as a “subject of the king” is now “a citizen of the State.”

-— US Supreme Court

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZO.html

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You can argue for anything you want, but the US Supreme Court has already disagreed with you. And the courts will follow the US Supreme Court, not you.

[FreedomPoster]

As a citizen adopted as an infant by an American military family, I took keen interest in citizenship issues in grade school in the 60s and 70s. This was an era when “anyone could become President”, but I knew I could not. There is no doubt that the Civics classes in that era taught that NBC meant A) born in the U.S. and B) of two people who were American citizens.

[SeekAndFind]

RE: There is no doubt that the Civics classes in that era taught that NBC meant A) born in the U.S. and B) of two people who were American citizens.

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Well, if that definition is correct, John McCain should not have been the GOP candidate because he did not meet criteria A.