Free Republic
Browse · Search
News/Activism
Topics · Post Article

To: rudman
There is no part of Article II, Section 1 that says that a person is not natural born if one parent is a foriegner.

No, the actual definition of the term, "Natural Born Citizen" is not in the US Constitution, but neither is the definition of the word, "is".

You have to consult legal documents, letters, and writings of the period to ascertain the exact definition of the term, as used by the Framers of the Constitution. They exist, and they are voluminous.

Read this:

http://federalistblog.us/2008/11/natural-born_citizen_defined.html

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.”

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 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 a great deal of sense for the time because there was a great deal of controversy over conflicts arising from double allegiances. In fact, Congress issued a joint congressional report on June 22, 1874 that said the “United States have not recognized a double allegiance.”

Just as a person cannot be naturalized and subject to the jurisdiction of the United States while owing allegiance to another nation, neither can anyone born. Why would “subject to the jurisdiction thereof” be any different with persons born since this jurisdiction equally applies to persons born or naturalized? In other words, the words do not exempt persons born from the same allegiance requirements of persons naturalized.

It is worth noting that wives and children were never naturalized separately but became naturalized through the father/husband.

Because “subject to the jurisdiction thereof” requires not owing allegiance to any other nation, and because the nation does not recognize double allegiances that can be created at common law, narrows the possibilities to what “natural-born citizen” can mean.

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 avoided, 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. 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 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 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.

Chairman of the House Judiciary Committee, James F. Wilson of Iowa, added on March 1, 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 … children born on our soil to temporary sojourners or representatives of foreign Governments.” The phrase “temporary sojourners” referred to those in the country for purposes of work, visiting or business and who had no intention of taking the steps to become citizens, or incapable by law.

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, thus, making such a citizen indistinguishable from a naturalized citizen.

Therefore, we can say with confidence that a natural-born citizen of the United States means those persons born whose father the United States already has an established jurisdiction over, i.e., born to father’s who are themselves citizens of the United States. A person who had been born under a double allegiance cannot be said to be a natural-born citizen of the United States because such status is not recognized (only in fiction of law). A child born to an American mother and alien father could be said to be a citizen of the United States by some affirmative act of law but never entitled to be a natural-born citizen because through laws of nature the child inherits the condition of their father.

UPDATE: I came across this interesting speech by the Speaker of the House of Representatives, Langdon Cheves, in February of 1814:
The children have a natural attachment to the society in which they are born: being obliged to acknowledge the protection it has granted to their fathers, they are obliged to it in a great measure for their birth and education. … We have just observed that they have a right to enter into the society of which their fathers were members. But every man born free, the son of a citizen, arrived at years of discretion, may examine whether it be convenient for him to join in the society for which he was destined by his birth.

Cheves is obviously drawing on the works of Emer de Vattel, Law of Nations. Not something you would expect from the Speaker of the House of a Nation that supposedly adopted England’s common law.

UPDATE II: Rep. A. Smyth (VA), House of Representatives, December 1820: When we apply the term “citizens” to the inhabitants of States, it means those who are members of the political community. The civil law determined the condition of the son by that of the father. A man whose father was not a citizen was allowed to be a perpetual inhabitant, but not a citizen, unless citizenship was conferred on him.

395 posted on 07/28/2009 6:12:19 PM PDT by Windflier (To anger a conservative, tell him a lie. To anger a liberal, tell him the truth.)
[ Post Reply | Private Reply | To 339 | View Replies ]


To: Windflier

Interesting theory - as I read what is below - you are basically say since the father isn’t/wasn’t a citizen, and since citizenship is conferred by the father, then he can’t be a citzen.

But then we have the Minor case - where they clearly divide citizenship into two seperate buckets - native born and naturalized by law. That is then followed by Wong Kim - while the site you listed below says that isn’t settled law - it is still a precedent in defines native born as being born on american soil. On top of all that, you have three individuals : Chester Arthur, John Calhoun and Charles Curtis who all held the office of President and/or vice president with no better citizenship claim than the current occupant holds - as well as numerous individuals (including John McCain and the modern conservative wellspring - Barry Goldwater) who ran and fell short.

From the site: The claim that english common law is not american law also can’t fly - our courts have long used english common law as precedent when no american law supersedes it.

As to consulting the founders and the gentlemen around the time the 14th ammendment was passed, I’ll give you Thomas Jefferson, Alexander Hamilton, William Seward, John Adams, James Madison and Lincoln’s attorney general all arguing contrary to your quotes...

I’ll grant you this - i’d like to see, personally, the court battle contesting the Wong Kim decision, and the subsequent legislation that would supersede the Articles that currently define who is and is not a native born citizen. I think it’d be fun and informative. I’ll also grant that an argument can be made for a more restrictive interpretation for citizenship - this is precisely what you are arguing.

That being said, I still don’t think there is anything to the birth certificate controversy that started this whole discussion. Have a good night.


401 posted on 07/28/2009 10:32:22 PM PDT by rudman
[ Post Reply | Private Reply | To 395 | View Replies ]

Free Republic
Browse · Search
News/Activism
Topics · Post Article


FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson