Our First And Third Congress Defined Natural Born Citizen

Nationality Act of 1790-1795 ^ | January 8th, 2016 | Uncle Sham

[Uncle Sham]

For a five year period of time, the term “Natural Born Citizen” had a definition which differed from the “two-citizen parents, born under United States jurisdiction” description generally accepted for most of this nation’s existence. The Nationality Act of 1790 referred to those born to citizens beyond Sea or out of the limits of the United States as being “natural born citizens”. Because of the term “citizens” as it pertains to parentage, there is an argument to be made that this requires two citizen parents for this to be allowed. Below is a quote from the 1790 Act. Since this act would have been enforced on a case by case basis, the term “children” could just as easily be “child”.

United States Congress, “An act to establish an uniform Rule of Naturalization” (March 26, 1790).

”And the children of CITIZENS of the United States that may be born beyond 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: Provided also, that no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid, except by an Act of the Legislature of the State in which such person was proscribed.”

This Act was repealed in 1795 and the term “natural born citizens” was changed to read “citizens”. What this did was tell us that a location of birth WAS PART of being a “natural born citizen”, and in fact, the location was someplace OTHER THAN “out of the limits and jurisdiction of the United States”. This also told us exactly what someone was who was born to citizens of the United States outside the limits and jurisdiction of the United States, a ”citizen” Once again, even in this case, there appears to be a need for two citizen parents.

United States Congress, “An act to establish an uniform rule of Naturalization; and to repeal the act heretofore passed on that subject” (January 29, 1795).

”SEC. 3. And be it further enacted, that the children of persons duly naturalized, dwelling within the United States, and being under the age of twenty-one years, at the time of such naturalization, and the children of CITIZENS of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States: Provided, That the right of citizenship shall not descend to persons, whose fathers have never been resident of the United States: Provided also, That no person heretofore proscribed by any state, or who has been legally convicted of having joined the army of Great Britain during the late war, shall be admitted a citizen as foresaid, without the consent of the legislature of the state, in which such person was proscribed.”

The combination of these two Acts, passed when they were, in the order that they were passed, by many who helped form this nation, gives us a clear understanding of what they thought constituted a “natural born citizen”. The term did not disappear from the Constitution, nor has it ever been defined since this time so the category of “natural born citizen” still exists. Since it does still exist, it IS’NT someone born out of the limits and jurisdiction of the United States. That leaves only one location that is acceptable and it has to be within the limits and jurisdiction of the United States. It also seems that there is a requirement for two citizen parents.

Kenya, Canada. Neither one of them meet the standard.

[jpsb]

Does anyone really believe the founders would consider say an anchor baby with Chinese parents a natural born citizen that would be eligible to serve as POTUS? What about the children of all the trophy wives living in the middle east or Russia are those all natural born citizens and also eligible to serve as POTUS?

Some adult female gets infatuated with say an ISIS fighter and goes to Syria, gets knocked up and has a child. That child lives with his dad until he is an adult then the child comes to the USA and that child is a NBC and can run for president? This scenario is exactly why the founders put the NBC clause into the Constitution. Void it and you or your children will regret it.

[Cboldt]

-- what is the functional difference between being deemed Natural Born and being considered as natural Born? --

The functional difference is the same. Both terms create a legal fiction. If Valdimir Putin is deemed to be a natural born citizen of the US, then as a matter of legal function, he is a NBC.

[jpsb]

" There is only one condition of citizenship that is universally recognized and therefore never requires a statute of any kind: born on the soil, of two citizen parents. Every other condition requires statutes to establish citizenship. Natural-born seems pretty simple to reckon from that simple methodology."

It is mind boggling that so many here do not get that. Natural Born Citizen: born on soil, two citizen parents.

[bert]

for the sake of argument, argue this......

the word is citizens. Cruz is born of only one citizen

further “shall not descend to persons, whose fathers have never been resident of the United States: “ which seems to catch both Obama and Cruz if the fathers had never resided in the US prior to the birth.

so it can be argued on two points that Cruz is not natural born

[jpsb]

Trump supporters desperation to find anything on Ted Cruz to bring him down.

And Cruz supporters are willing to trash the Constitution in order to see Cruz elected POTUS.

[don-o]

Are you unaware that Cruz’s father did reside in the US prior to Ted’s birth?

[bert]

no...... i was making a hypothetical argument

That would appear to resolve the issue in his favor

[trebb]

The functional difference is the same. Both terms create a legal fiction. If Valdimir Putin is deemed to be a natural born citizen of the US, then as a matter of legal function, he is a NBC.

??????

Wow - a real stretch to try to justify/validate a false opinion. In order to be deemed such, he would have had to met the qualifications used in the determination.

Some folks just can't allow that they, or their arguments, might be a bit off the track...

Do something useful...

Now for a short public service announcement to all on FR:
We need to ensure we don't get another Obama-like America Hater as the next President.
The best way to ensure that is to actively support a candidate as the next President.
I prefer Cruz and my money goes to his campaign, hence the Cruz link. If you like someone else, donate to him/her (find your own link to do it) and if you use FR and don't donate, then please don't complain about the welfare leeches or those who have Obama Phones because, functionally, you are no different than any other who enjoys the fruits of others' work for your own benefit.

PS - If you are one of those who cannot afford even a small donation to FR or a candidate, God Bless and happy FReeping!.....

GO CRUZ!! Keep it up Trump!!

Donate to FR

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[Yosemitest]

You need to reconsider your position on TED CRUZ.
But on the ILLEGAL ALIEN IN CHIEF, you're correct.

The Naturalization Act of 1790, let's read it , too ( even though it DOES NOT APPLY) !

United States Congress, "An act to establish an uniform Rule of Naturalization" (March 26, 1790).

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled,
That any Alien being a free white person,
who shall have resided within the limits and under the jurisdiction of the United States for the term of two years,
may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States
wherein he shall have resided for the term of one year at least,
and making proof to the satisfaction of such Court  that
he is a person of good character,
and taking the oath or affirmation prescribed by law
to support the Constitution of the United States,
which Oath or Affirmation such Court shall administer,
and the Clerk of such Court shall record such Application, and the proceedings thereon;
and thereupon such person shall be considered as a Citizen of the United States. 


And the children of such person so naturalized,
dwelling within the United States,
being under the age of twenty one years at the time of such naturalization,
shall also be considered as citizens of the United States. 

And the children of citizens of the United States that may be born beyond 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: 
Provided also, that
no person heretofore proscribed by any States, shall be admitted a citizen as aforesaid,
except by an Act of the Legislature of the State in which such person was proscribed.

As Hans von Spakovsky wrote in his Commentary "An Un-Naturally Born Non-Controversy":

... The Constitution, federal law, and the historical understanding of the Framers, as well as prior British legal traditions and law, all support this view.
In a recent article in the Harvard Law Review, two former U.S. Solicitor Generals, Paul Clement (who served under President George W. Bush) and Neal Katyal (who served under President Barack Obama) stated:

All the sources routinely used to interpret the Constitution confirm that the phrase “natural born Citizen” has a specific meaning:
namely, someone who was a U.S. citizen at birth
with no need to go through a naturalization proceeding at some later time.
And Congress has made equally clear from the time of the framing of the Constitution to the current day that,
subject to certain residency requirements on the parents,
someone born to a U.S. citizen parent generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone, or the continental United States.

Thus, former California Gov. Arnold Schwarzenegger would not be eligible to run for president
because the Austrian native had to go through the naturalization process to become a U.S. citizen.

Certainly the Framers of the Constitution held this view of “natural born” citizen.
They had a deep understanding of British common law and applied its precepts, particularly as explained in Blackstone’s Commentaries, throughout the Constitution.
The U.S. Supreme Court in Smith v. Alabama (1888) recognized that
“the interpretation of the Constitution of the United States is necessarily influenced by the fact that
its provisions are framed in the language of the English common law,
and are to be read in the light of its history.”

Senator Cruz meets all three qualifications in the Constitution to be the president of the United States
if the American people make that choice.

One of those precepts of British law was
that children born to British citizens anywhere in the world,
even outside the dominions of the British Empire,
were “natural born” citizens of the Empire
who owed their allegiance to the Crown.
This historical understanding is explained in great detail by the Supreme Court in a well-known 1898 case, U.S. v. Wong Kim Ark.

The First Congress, which included many of the Framers of the Constitution, codified this view of a natural born citizen.
A mere three years after the Constitution was drafted, they passed the Naturalization Act of 1790,
which specified that the children of U.S. citizens born
“out of the limits of the United States, shall be considered as natural born Citizens.”
The modern version of this Act is found at 8 U.S.C. §1401.
It contains a list of all individuals who are considered “nationals and citizens of the United States at birth.”
Paragraph (g) includes:

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 five years,
at least two of which were after attaining the age of fourteen years. 

Ted Cruz was born in Canada in 1970;
his mother, who was a U.S. citizen by birth from Delaware, was in her 30s at the time.
She met Cruz’s father, who was born in Cuba, as a student at Rice University.
These facts show that
Cruz’s family background clearly meets the standard set out in the federal statute for being a natural born citizen who did not have to go through any naturalization process to become a citizen.;
That was also the case for Senator Barry Goldwater, who was born in Arizona before it became a state,
and Governor George Romney, who was born in Mexico.

The bottom line is that Senator Cruz meets all three qualifications in the Constitution to be the president of the United States if the American people make that choice.
The same is true of my wife, who was born in Manila.
Her father, whose family had been in America since shortly after the Pilgrims got to Massachusetts,
was temporarily working abroad for an American company—just like Ted Cruz’s father.

My wife is not likely to run for president,
but there is no question that she—like Ted Cruz, Barry Goldwater, George Romney, and John McCain—is eligible to be president
and to swear an oath to “preserve, protect and defend the Constitution of the United States.”


Hans A. von Spakovsky is a a former commissioner on the Federal Election Commission and Justice Department lawyer. 
He is the coauthor of “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk”(Encounter 2012)
and  “Obama’s Enforcer: Eric Holder’s Justice Department” (HarperCollins/Broadside 2014).



1st United States Congress, 21–26 Senators and 59–65 Representatives

[Cboldt]

-- In order to be deemed such, he would have had to met the qualifications used in the determination. --

You miss the point. The act of deeming establishes a legal fiction. If the law deems him to meet, then the law will treat his as though he meets, even if he doesn't, in fact, meet the qualifications. That's the legal function of "deeming" or "to be considered as."

You are reading a legal statute, use the tools of statutory construction.

Somebody asked what the functional difference was, between deeming and "be considered as," and in statutory construction, there is no difference.

There is plenty of material on the subject, in general. See for example, Deem Definition - Duhaime's Law Dictionary. I'm not saying this is the only use of the word "deem," but it's the use associated with "shall be considered as."

In The Queen (R) v Norfolk County, an 1891 case, Justice Cave wrote a judgment which contained a classic snippet of legalese:

"When you talk of a thing being deemed to be something, you do not mean to say that it is that which it is to be deemed to be. It is rather an admission that it is not what it is to be deemed to be, and that, notwithstanding it is not that particular thing, nevertheless it is to be deemed to be that thing."

[Uncle Sham]

"Because citizen is natural born. There was no reason to amend the constitution."

If this is so, please explain the repeated references to "natural born citizenship" made by folks who should know what they were talking about such as John Bingham, the author of the 14th Amendment, as well as those who argued over the natural born citizenship of Chester Arthur, as well as the Authors of Senate Resolution 511 which conferred natural born citizenship on John McCain.

If the term was eliminated as you imply back in 1795, how then does it still survive discussion? As far as I can see, it must still be in use and have some sort of legal attachment. The fact that it still exist in the Constitution should count for something.

Your claim that the change was made in order to eliminate confusion makes sense only if they had changed the description in the eligibility requirements as well. Do you have a source to back your claim? If so, can you please provide it.

[PJBankard]

The post that I was responding to stated it was defined in the Constitution. I asked to show it.

[dmz]

Gotcha. Trump is only helping a brother (Cruz) out by raising issues that might serve to derail his competition’s campaign. Because that’s the kind of guy Trump is.

Do you really believe that crap?

[PJBankard]

Thank you. Like I said in an earlier post, I like Ted Cruz, but him and Obama are setting a precedence that contradicts what the founders wanted.

[trebb]

I'm not saying this is the only use of the word "deem," but it's the use associated with "shall be considered as."

I guess we won't be in accord with who has actually missed the point - the language was "shall be considered" and the word "shall" indicates an absolute in legalese. Having spent 39 years in and with the military, and having been responsible for following all the relevant Regulations/Instructions, the word "shall" leaves no wriggle room - it must be considered (deemed) a direct order vs. something that one has discretion to interpret differently.

I can appreciate that folks would have opinions but we're barking up the wrong tree trying to find some way to make our most conservative option ineligible by playing our own word games (ala "It all depends on what the meaning of 'is' is").

[Uncle Sham]

So, according to your opinion, born anywhere to one citizen parent qualifies as being a citizen and that in 1795, Congress simply removed the term natural born citizen from the Act because it meant the same thing as citizen. Is this correct?

My problem with this is that the term natural born citizen was removed from the description of this condition in the Act of 1795 yet apparently remained untouched in the Constitution.

[Cboldt]

I agree with your application of the word "shall." But the phrase in play in the 1790 statute is "shall be considered."

I also agree that the function is mandatory. The legal fiction actually works, in law.

What I disagree with is the contention that "shall be considered to be" is the same as "[really] is."

-- I can appreciate that folks would have opinions but we're barking up the wrong tree trying to find some way to make our most conservative option ineligible --

Nothing we say in this chatroom will have any effect at all on how the question of NBC will be decided, if it gets the point of needing to be decided. The overwhelming weight of rhetoric out in public is that Cruz is a NBC. No court is going to touch the issue on the substance, and if Cruz wins the electoral vote, Congress will declare him eligible, even if he is not, in fact, eligible. He'll be deemed eligible.

[Uncle Sham]

What is your take on this?

[trebb]

What I disagree with is the contention that "shall be considered to be" is the same as "[really] is."

I believe that the language was deliberate to say that while there may be a couple different sets of circumstances, which will be delineated by "is" and "shall be considered", the functional reality is the same.

Many disagree, as is their right (like a runner crossing home plate on his feet or reaching it by sliding with out actually crossing it, and not being tagged out before the event, is deemed to have scored the run). Different circumstances but same functional outcome.

Perhaps a bit simplified and "apples to oranges" but still functionally relevant as an example.

Nothing says that legalese cannot consider two events, that it decides to differentiate between, to be/meet the same end condition.

If there were enforceable legal conditions showing Cruz to be ineligible, one must assume it would have been out there instead of being debated on FR or by some Dem that decided to make noise about it (or Trump mentioning it as a response to a reporter who was the one who actually brought it up - many who want Cruz to fail will not hesitate to try to take Trump out if Cruz falls and vice-versa.

[BfloGuy]

And the children of CITIZENS of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born citizens

There is no implication that both parents must be citizens. "Children" is plural and "parents" is plural. I could just as easily claim that the parents must have more than one child before qualifying for citizenship.