Natural Born Citizen
There is much evidence, despite contrary claims by "expert" lawyers, judges and professors of history and law, that the founders were quite familiar with Vattel. I will provide many of those sources through this page. Lets start by dispelling the idea, that the founders did not 'read' Vattel because, as some claim, it was not translated into English at the time of the Conventions.
A memorial from the honble. the Minister of France was read, accompanied with the plan of a convention for regulating the powers and duties of consuls and vice consuls.
Philadelphia, July 26, 1781
Les consuls et vice consuls respectifs ne pourront être pris que parmi les sujets naturels de la puissance qui les nommera. Tous seront appointés par leur souverain respectif, et ils ne pourront en conséquence faire aucun trafic ou commerce quelconque ni pour leur propre compte, ni pour le compte d'autrui.
The founders appear to have made us look like bumbling fools. Many spoke multiple languages, were trained in the sciences, Math, were quite familiar with the History of government far into the past. This is 6 years prior to John Jays Letter below.
|"The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society can not 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. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as a matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children."|
In an Essay published in 1772, Samuel Adams says, “Vattel tells us plainly and without hesitation, that `the supreme legislative cannot change the constitution”;' that 'their authority does not extend so far.
June 18th, 1787 – Alexander Hamilton suggests that the requirement be
“No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States.” Works of Alexander Hamilton (page 407).
July 25, 1787 (~5 weeks later) – John Jay writes a letter to General
Washington (president of the Constitutional Convention): “Permit me to
hint, whether it would be wise and seasonable to provide a strong check
to the admission of Foreigners into the administration of our national
Government; and to declare expressly that the Commander in Chief of the
American army shall not be given to nor devolve on, any but a natural
born Citizen.” [the word born is underlined in Jay's letter which
signifies the importance of allegiance from birth.]
September 2nd, 1787 George Washington pens a letter to John Jay. The
last line reads: “I thank you for the hints contained in your letter”
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 be 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.
Blackstone's Commentaries by St. George Tucker
DEBATES IN THE LEGISLATURE AND IN CONVENTION OF THE STATE OF SOUTH CAROLINA, ON THE ADOPTION OF THE FEDERAL CONSTITUTION. HOUSE OF REPRESENTATIVES. IN THE LEGISLATURE, WEDNESDAY,
January 16, 1788. Gen. CHARLES COTESWORTH PINCKNEY
They were as much the law of the land under that Confederation, as they are under this Constitution; and we shall be unworthy to be ranked among civilized nations if we do not consider treaties in this view. Vattel , one of the best writers on the LAW OF NATIONS, says, “There would be no more security, no longer any commerce between mankind, did they not believe themselves obliged to preserve their faith, and to keep their word. Nations, and their conductors, ought, then, to keep their promises and their treaties inviolable. This great truth is acknowledged by all nations. Nothing adds so great a glory to a prince, and the nation he governs, as the reputation of an inviolable fidelity to his engagements. By this, and their bravery, the Swiss have rendered themselves respectable throughout Europe. This national greatness of soul is the source of immortal glory; upon it is founded the confidence of nations, and it thus becomes a certain instrument of power and splendor.”
The Federalist Papers
The Federalist Papers (Oct 1787-May 1788) are 85 essays written by Alexander Hamilton, John Jay, and James Madison. The main focus of essays 2-5, written by Jay, and titled “Concerning Dangers from Foreign Force and Influence" is on
|the need for a strong central government to protect a nation from foreign military action, they also suggest that a strong central government can help protect a nation from "foreign influence." Concern about foreign influence also appears in essay number 20, written by Hamilton and Madison; essay number 43 by Madison; and essays number 66 and 75 by Hamilton. Moreover, the role of the presidential selection mechanism in limiting foreign influence is explicitly discussed by Hamilton in essay number 68.|
|Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors.|
Art1:2:2;.........No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.
Art. 1:3:3; ..................No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.
Art. 2:1:5;............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; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
Notice that the Constitution here makes the distinction between, "a natural born Citizen, or a Citizen of the United States". If these terms were the same "citizenship", it would be redundant and a tautology to use both phrases in the same sentence.
Clearly whatever "citizen" means, it is something LESS than "natural born".
If this were not true, the 14th amendment was not necessary for the 'freedmen' to become citizens, they were "born" in America, and would have been automatically 'Natural born' citizens. See President Andrew Johnson say this very thing in his veto of the 'Civil Rights act of 1866'
Indians would not have needed the Indian Citizenship act of 1924 to become citizens, they were "native Americans" and born in America, automatically making them "Natural Born" citizens.
Among those citing Vattel in legal cases and government documents, were Benjamin Franklin, John Adams, James Wilson, Alexander Hamilton, James Madison, John Jay, and John Marshall. Later, John Marshall, during his thirty-four years as Chief Justice of the U.S. Supreme Court, quoted Vattel by far the most among all authors on the law of nations.
|I am much obliged by the kind present you
have made us of your edition of Vattel. It came to us
in good season, when the circumstances of a rising state make it
necessary frequently to consult the law of nations.
Accordingly that copy, which I kept, (after
depositing one in our own public library here, and sending the other to
the College of Massachusetts Bay, as you directed,) has
been continually in the hands of the members of our Congress, now
sitting, who are much pleased with your notes and preface, and have
entertained a high and just esteem for their author. Your
manuscript "Idee sur le Gouvernement et la Royaute" is also well
relished, and may, in time, have its effect. I thank you, likewise, for
the other smaller pieces, which accompanied Vattel. "Le court Expose de
ce qui s'est passe entre la Cour Britannique et les Colonies," bc. being
a very concise and clear statement of facts, will be reprinted here for
the use of our new friends in Canada. The translations of the
proceedings of our Congress are very acceptable. (From a letter, Benjamin Franklin to Charles
9, 1775.) http://etext.virginia.edu/etcbin/toccer-new2?id=DelVol02.xml&images=images/modeng&data=/texts/english/modeng/parsed&tag=public&part=459&division=div1
For those who would argue that the Founders could not have used
Vattel, because it was not translated into English
until later, please notice that Mr. Franklin has just written in
French in his letter, and like many of his time, was fluent in multiple
Le droit des gens: Translation of the edition of 1758, by Charles G. Fenwick, with an introduction by Albert de Lapradelle
"Vattel " says, "The country of the father is that of the children, and these become citizens merely by their tacit consent."
(William Loughton Smith, as quoted in The Documentary history of the first Federal elections, 1788-1790, Volume 1, pp.178)
Naturalization act of 1790
|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.|
1794, Ambassador of France, Citizen
Edmond-Charles Genêt wrote to
Naturalization act of 1802
|a. Section 4 of this Act (2 Stat. 153,155) stated, in part, that: ―the children of persons who now are, or have been citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States: Provided, That the right of citizenship shall not descend to persons whose fathers have never resided within the United States.‖|
In the 1814 Supreme Court Case, The Venus, Chief Justice Marshall:
“The whole system of decisions applicable to this subject rests on the
law of nations as its base. It is therefore of some importance to
inquire how far the writers on that law consider the subjects of one
power residing within the territory of another, as retaining their
original character or partaking of the character of the nation in which
Vattel , who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says”:
“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 indigenes are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights..........
"The inhabitants, as distinguished from citizens, are strangers who are permitted to settle and stay in the country. Bound by their residence to the society, they are subject to the laws of the state while they reside there, and they are obliged to defend it because it grants them protection, though they do not participate in all the rights of citizens. They enjoy only the advantages which the laws or custom gives them.
The perpetual inhabitants are those who have received the right of perpetual residence. These are a kind of citizens of an inferior order, and are united and subject to the society, without participating in all its advantages." "The domicile is the habitation fixed in any place with an intention of always staying there............. A man does not, then, establish his domicile in any place unless he makes sufficiently known his intention of fixing there, either tacitly or by an express declaration.
However, this declaration is no reason why, if he afterwards changes his mind, he may not remove his domicile elsewhere. In this sense, he who stops, even for a long time, in a place for the management of his affairs has only a simple habitation there, but has no domicile."
A domicile, then, in the sense in which this term is used by Vattel , requires not only actual residence in a foreign country, but "an intention of always staying there." Actual residence without this intention amounts to no more than "simple habitation."
Here Justice Marshall is clearly referring to "Vattel , Law of Nations" , 212,215.
Joseph Story, Commentaries on the Constitution 3:§§ 1472--73
|§ 1473. It is indispensable, too, that the president should be a
natural born citizen of the United States; or a citizen at the adoption
of the constitution, and for fourteen years before his election. This
permission of a naturalized citizen to become president is an exception
from the great fundamental policy of all governments, to exclude foreign
influence from their executive councils and duties. It was doubtless
introduced (for it has now become by lapse of time merely nominal, and
will soon become wholly extinct) out of respect to those distinguished
revolutionary patriots, who were born in a foreign land, and yet had
entitled themselves to high honours in their adopted country. A positive
exclusion of them from the office would have been unjust to their
merits, and painful to their sensibilities. But the
general propriety of the exclusion of foreigners, in common cases, will
scarcely be doubted by any sound statesman.
It cuts off all chances for ambitious
foreigners, who might otherwise be intriguing for the office; and
interposes a barrier against those corrupt interferences of foreign
governments in executive elections, which have inflicted
the most serious evils upon the elective monarchies of Europe. Germany,
Poland, and even the pontificate of Rome, are sad, but instructive
examples of the enduring mischiefs arising from this source.
In 1820, Virginia Representative A. Smyth:
|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. (Rep. A. Smyth (VA), House of Representatives, December 1820, in Abridgment of the Debates of Congress, from 1789 to 1856, Vol VII, 1858, p.30)|
James Bayard - 1833
|It is not necessary that a man should be born in this country, to be " a natural born citizen." It is only requisite he should be a citizen by birth, and that is the case with all the children of citizens who have ever resided in this country, though born in a foreign country. A brief exposition of the Constitution of the United States [citizen by BIRTH includes BIRTH in other countries to CITIZENS]|
In 1845, an article entitled "Massachusetts and South Carolina", appearing in The New Englander, explained that, in the U.S. Constitution, the term "natural born citizen" means a American citizen not owing allegiance, at birth, to any foreign state. According to the article, all citizens are presumed to owe allegiance to the United States exclusively, but a natural born citizen owes exclusive allegiance from the time of her or his birth:
|The expression 'citizen of the United States' occurs in the clauses prescribing qualifications for Representatives, for Senators, and for President. In the latter the term 'natural born citizen' is used, and excludes all persons owing allegiance by birth to foreign states; in the other cases the word 'citizen' is used without the adjective, and excludes persons owing allegiance to foreign states, unless naturalized under our laws. ("Massachusetts and South Carolina", The New Englander, Volume 3, 1845, p.414). [It also mentions Vattel ]|
Naturalization act of 1855
|b. It stated, in part, that: ―persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered and are hereby declared to be citizens of the United States: Provided, however, that the rights of citizenship shall not descend to persons whose fathers never resided in the United States.|
| Vattel , in his chapter the the general principles of the laws
of nations, section 15th, tells us, that 'nations being free and
independent of each other in the same manner that men are naturally free
and independent, the second general law of their society is, that each
nation should be left in the peaceable enjoyment of that liberty which
she inherits from nature.'........................
'The laws of nations are but the natural rights of man applied to nations.' (Vattel .)
If each State may make such persons its citizens, they became, as such, entitled to the benefits of this article, if there be a native-born citizenship of the United States distinct from a native-born citizenship of the several States.
My own opinion is, that a calm comparison of these assertions of universal abstract truths, and of their own individual opinions and acts, would not leave [60 U.S. 393, 575] these men under any reproach of inconsistency; that the great truths they asserted on that solemn occasion, they were ready and anxious to make effectual, wherever a necessary regard to circumstances, which no statesman can disregard without producing more evil than good, would allow; and that it would not be just to them, nor true in itself, to allege that they intended to say that the Creator of all men had endowed the white race, exclusively, with the great natural rights which the Declaration of Independence asserts. But this is not the place of vindicate their memory. As I conceive, we should deal here, not with such disputes, if there can be a dispute concerning this subject, but with those substantial facts evinced by the written Constitutions of States, and by the notorious practice under them. And they show, in a manner which no argument can obscure, that in some of the original thirteen States, free colored persons, before and at the time of the formation of the Constitution, were citizens of those States.
At the Declaration of Independence, and ever since, the received general doctrine has been, in conformity with the common law, that free persons born within either of the colonies were subjects of the King; that by the Declaration of Independence, and the consequent acquisition of sovereignty by the several States, all such persons ceased to be subjects, and became citizens of the several States, except so far as some of them were disfranchised by the legislative power of the States, or availed themselves, seasonably, of the right to adhere to the British Crown in the civil contest, [60 U.S. 393, 577] and thus to continue British subjects. (McIlvain v. Coxe's Lessee, 4 Cranch, 209; Inglis v. Sailors' Snug Harbor, 3 Peters, p. 99; Shanks v. Dupont, Ibid, p. 242.) ..........It has been often asserted that the Constitution was made exclusively by and for the white race. It has already been shown that in five of the thirteen original States, colored persons then possessed the elective franchise, and were among those by whom the Constitution was ordained and established..............A naturalized citizen cannot be President of the United States, nor a Senator till after the lapse of nine years, nor a Representative till after the lapse of seven years, from his naturalization. Yet, as soon as naturalized, he is certainly a citizen of the United States. Nor is any inhabitant of the District of Columbia, or of either of the Territories, eligible to the office of Senator or Representative in Congress, though they may be citizens of the United States........
In 1858, Lynch v. Clarke, (1 Sand. Ch. R. 583,) the question was precisely as here, whether a child born in the city of New York of alien parents, during their temporary sojourn there, was a native born citizen or an alien; and the conclusion was, that being born within the dominion and allegiance of the United States, he was a native born citizen, whatever was the situation of the parents at the time of the birth. That case, if law, would seem to be decisive of the present question, But, admitting the plaintiff to be an alien, the cases already cited show that the terms "heirs or assigns," in the 9th article of the treaty, is not to be confined to the immediate descendants, but is to be extended indefinitely till the title comes to a citizen. (Munro v. Merchant, Reports of cases in law and equity in the Supreme Court of the State of New York, 1858, p.400)
In 1859, Attorney General Jeremiah Sullivan Black clarified the distinction between a native and a naturalized citizen. All U.S. citizens are presumed to owe allegiance to the United States exclusively. The native is a citizen who never owed allegiance to any sovereignty other than the United States.
|There can be no doubt that naturalization does, pro facto, place the native and adopted citizen in precisely the same relations with the Government under which they live, except so far as the express and positive law of the country has made a distinction in favor of one or the other. ... Here none but a native can be President. ... A Native and a Naturalized American can go forth with equal security over every sea and through every land under heaven, including the country in which the latter was born. ... They are both of them American citizens,............ and their exclusive allegiance is due to the Government of the United States................... One of them never did owe fealty elsewhere,.............................. and the other, at the time of his naturalization, solemnly and rightfully, in pursuance of public law........... and municipal regulations, threw off, renounced and abjured forever all allegiance to every foreign prince, potentate, State and sovereignty whatever, and especially to that sovereign whose subject he had previously been. (New York Times: Attorney General Black's Opinion upon Expatriation and Naturalization, July 20, 1859)|
Hillary Clinton acknowledges Vattel 's Influence on the Country.
Statement On the Occasion of Switzerland’s National Day
Press StatementHillary Rodham Clinton
Secretary of StateWashington, DCJuly 29, 2011
America’s Founders were inspired by the ideas and values of early Swiss philosophers like...................Emer de Vattel , and the 1848 Swiss Constitution was influenced by our own U.S. Constitution. Swiss commitment to democracy is an example for nations and people everywhere who yearn for greater freedoms and human rights.
Chief Justice Gray in Kim Ark Wong:
"It is evident from the proviso in the act of 10th February, 1855, viz., 'that the rights of citizenship shall not descend to persons whose fathers never resided in the United States,' that the lawmaking power not only had in view this limit to the efficiency of its own municipal enactments in foreign jurisdiction, but that it has conferred only a qualified citizenship upon the children of American fathers born without the jurisdiction of the United States, and has denied to them what pertains to other American citizens -- the right of transmitting citizenship to their children -- unless they shall have made themselves residents of the United States or, in the language of the Fourteenth Amendment of the Constitution, have made themselves 'subject to the jurisdiction thereof.'"10 stat 604
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."
In 1868, the 14th amendment was proclaimed ratified. Sec. 1 states: "All persons born or naturalized in the United States, and "subject to the jurisdiction" thereof, are citizens of the United States and of the State wherein they reside.
IF it means that "all persons born in America are citizens regardless of parentage, why add subject to the 'Jurisdiction' thereof", if all that is 'required' is birth in America?
Obviously it means MORE than simply being birthed on US soil. It includes being "subject to the jurisdiction".
What exact does "subject to the jurisdiction" mean here?
John Bingham stated in the House of Representatives in 1862, pg. 1639:
The Constitution leaves no room for doubt upon this subject. The words 'natural born citizen of the United states' appear in it, and the other provision appears in it that, "Congress shall have power to pass a uniform system of naturalization." To naturalize a person is to admit him to citizenship. Who are natural born citizens but those born within the Republic? Those born within the Republic, whether black or white, are citizens by birth--natural born citizens. There is no such word as white in your Constitution. Citizenship, therefore, does not depend on complexion any more than it depends on the rights of election or of office. All from other lands, who, by the terms of your laws and a compliance with their provisions, become naturalized, are adopted citizens of the United States; all other persons born within the Republic, of parents owing allegiance to no other sovereignty , are natural born citizens. Gentleman can find no exception to this statement touching natural-born citizens except what is said in the Constitution relating to Indians.?
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 recognize the principle that I assert. I do not stand here to cavil with men who are not read in the horn-books of the law; but I assert that every man born within the limits if the Republics ,or under its flag at sea, of parents who were not subjects of any other sovereignty are, in the very words of the Constitution, Natural born citizens; and I want to know whence comes the power which the gentleman speaks of, to drive them from the land of their nativity, I care not their what their color? (Cong. Globe, 37th, 2nd Sess., 407 (1862)) http://memory.loc.gov/ll/llcg/058/0400/04710407.tif
Here John Bingham, has just identified the proper application of Natural born in American Jurisprudence. Birth (Jus soli, within one of the states of the Union OR on US territory in foreign countries), AND, Descent (Jus Sanguine, Blood right, I.E., citizenship of parents), as stated earlier By Justice Marshall, and Vattel .
Aliens were required to renounce all allegiance as a condition to being accepted for naturalization.
James Spratt, a native of Ireland, aged about twenty-six years, bearing allegiance to the king of Great Britain and Ireland, who emigrated from Ireland and arrived in the United States on the 1st of June 1812, and intends to reside within the jurisdiction and under the government of the United States, makes report of himself for naturalization according to the acts of congress in that case made and provided, the 14th of April anno domini 1817, in the clerk’s office of the circuit court of the district of Columbia, for the county of Washington: and on the 14th of May 1817, the said James Spratt personally appeared in open court, and declared on oath, that it is his intention to become a citizen of the United States, and to renounce all allegiance and fidelity to every foreign prince, &c.
[United States Supreme Court reports, Volumes 26-29]
The record of the proceedings of the circuit court on the naturalization of James Spratt is in the following terms: 'At a circuit court of the district of Columbia, begun and held in and for the county of Washington, at the city of Washington, on the first Monday of October, being the 1st day of the same month, in the year of our lord 1821, and of the independence of the United States the forty-sixth. 'James Spratt, a native of Ireland, aged about thirty years, having heretofore, to wit, on the 14th of May 1817, declared, on oath, in open court, that it was bona fide his intention to become a citizen of the United States, and to renounce for ever all allegiance and fidelity to every foreign prince, potentate, state or sovereignty whatever, and particularly to the king of the united kingdom of Great Britain and Ireland. 'And it now appearing to the satisfaction of the court by the testimony of two witnesses, citizens of the United States, to wit, Samuel N. Smallwood, and Jonathan Prout, that the said James Spratt hath resided within the limits and under the jurisdiction of the United States for five years at least last past, and within the county of Washington one year at least last past, and that during the whole of that time he hath behaved as a man of good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same-the said James Spratt is thereupon admitted a citizen of the United States; having taken the oath 'that he will support the constitution of the United States, and that he doth absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state or sovereignty whatever; and particularly to the king of the united kingdom of Great Britain and Ireland, to whom he was before a subject.' 11th of October 1821.'
"If there are to be citizens of the United States entitled everywhere to the character of citizens of the United States, there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States." Sen. Johnson, Cong. Globe, 39th Cong. 1st Sess. 2893 (1866)
Representative John Bingham of Ohio, considered the father of the 14th Amendment, confirms the understanding and construction the framers used in regards to birthright and jurisdiction while speaking on civil rights of citizens in the House on March 9, 1866:
“I find no fault with the introductory clause [S 61 Bill], which is
simply declaratory of what is written in the Constitution, that every
human being born within the jurisdiction of the United States of
NOT OWING ALLEGIANCE TO ANY FOREIGN SOVEREIGNTY is, in the language of
your Constitution itself, a NATURAL BORN CITIZEN”
http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=071/llcg071.db&recNum=332 (location: top center column)
The 'bill' he was referring to, was the Civil Rights Act of 1866 which states:
“Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That all persons born in the
United States and not subject to any foreign power, excluding Indians
not taxed, are hereby declared to be citizens of the United States;”
In 1866 while introducing bill H.R. 127 (14th Amendment) Jacob M. Howard (Author of the Citizenship clause) states:
amendment which I have offered is simply declaratory of what I regard as
the law of the land already, that every person born within the limits of
the United States, AND SUBJECT TO THE JURISDICTION THEREOF, is by virtue
of natural law and national law a citizen of the United States.”
|"The senator from Missouri and myself desire to arrive at the same point precisely, and that is to make citizens of everybody born in the United States who owe allegiance to the United States. We cannot make a citizen of the child of a foreign minister who is temporarily residing here. There is a difficulty in framing the amendment so as to make citizens of all the people born in the United States, and who owe allegiance to it. I thought that might, perhaps, be the best form in which to put the amendment at one time, 'that all persons born in the United States, and owing allegiance thereto, are hereby declared to be citizens;'........... but, upon investigation, it was found that a sort of allegiance was due to the country from persons temporarily residing in it whom we would have no right to make citizens,............. and that that form would not answer. Then it was suggested that we should make citizens of all persons born in the United States not subject to any foreign power or tribal authority. The objection to that was, that there were Indians not subject to tribal authority, who yet were wild and untamed in their habits, who had by some means or other become separated from their tribes, and were not under the laws of any civilized community, and of whom the authorities of the United States took no jurisdiction. . . . Then it was proposed to adopt the amendment as it now stands,—that all persons born in the United States, not subject to any foreign power, excluding Indians not taxed, shall be citizens."|
"As matter of law, does anybody deny here, or anywhere, that the native-born is a citizen, and a citizen by virtue of his birth alone ... Sir, he has forgotten the grand principle both of nature and nations, both of law and politics, that birth gives citizenship of itself. this is the fundamental principle running through all modern politics both in this country and in Europe. Everywhere where the principle of law have been recognized at all, birth by its inherent energy and force gives citizenship. There for the founders of this government made no provision - of course they made none - for the naturalization of natural born citizens.... Therefore, sir, this amendment, although it is a grand enunciation, although it is a lofty and sublime declaration, has no force or efficiency as an enactment. I hail it and accept it simply as a declaration...." Senator Morrill, Cong. Globe, 1st Sess. 39th Congress, pt. 1, pg. p. 570 (1866).
Luckily we have Sen. Lyman Trumbull, Chairman of the Judiciary Committee, author of the Thirteenth Amendment, and the one who inserted the phrase:
“The provision is, that ‘all persons born in the United States, and
subject to the jurisdiction thereof, are citizens.’ That means ‘subject
to the complete jurisdiction thereof.’ What do we mean by ‘complete
jurisdiction thereof?’ NOT OWING ALLEGIANCE TO ANYBODY ELSE. That is
what it means.”
http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=14 (location: left center column)
“I concur entirely with the honorable Senator from Illinois [Trumbull],
in holding that 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, 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
William Wetmore Story, Edmund Hatch Bennett - 1871
The children of aliens, born in America or in England, are entitled to all the privileges of natural-born citizens. Bl. Comm. 374 [Notice is does not say 'they ARE natural born]
The Slaughter-House Cases, 83 U.S. 36, 73 (1872).
|“The phrase, 'subject
to its jurisdiction' was intended to exclude from its
operation children of ............. subjects of foreign States
born within the United States.”
The United States Attorney General in 1873 ruled the word “jurisdiction” under the Fourteenth Amendment to mean:
The word “jurisdiction” must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment… Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them. (14 Op. Atty-Gen. 300.)
In Minor v. Happersett, 88 U.S. 21 Wall. 162 162 (1874), the court said:
Constitution does not in words say who shall be natural-born citizens. Resort
must be had elsewhere to ascertain that.
At common law, with the nomenclature of which the
framers of the Constitution were familiar,
it was never doubted that
all children born in a country of parents who
were its citizens became themselves, upon their
birth, citizens also. These were
natives or natural-born citizens, as distinguished from aliens or foreigners.
Under the power to adopt a uniform system of naturalization Congress, as early as 1790, provided 'that any alien, being a free white person,' might be admitted as a citizen of the United States, and that the children of such persons so naturalized, dwelling within the United States, being under twenty-one years of age at the time of such naturalization, should also be considered citizens of the United States, and that the children of citizens of the United States that might be born beyond the sea, or out of the limits of the United States, should be considered as natural-born citizens [88 U.S. 162, 168]
In 1855, however, the last provision was somewhat extended, and all persons theretofore born or thereafter to be born out of the limits of the jurisdiction of the United States, whose fathers were, or should be at the time of their birth, citizens of the United States, were declared to be citizens also.
The "natural born Citizen" clause pertains
to the civic status required to be eligible for
public office, whereas the 14th Amendment specifically confers the political status of
membership in the nation.
Notice the Hierarchy the court has just established: Aliens become, by naturalization, 'citizens of the United States', and their 'minor' children, dwelling within the United States of America, under 21, shall be 'considered', 'citizens of the United States', and then by descent, 'children' OF 'citizens of the United States', are "natural born" citizens.
A dictionary of American and English law: (1883) The fourteenth amendment would seem, however, to confer citizenship on a child of Chinese Parents born here. A person may be a CITIZEN of a state WITHOUT being a 'citizen of the United States', (19 How. (U.S.) 393), and , Conversely, he may be a citizen of the United States and NOT of any particular State, e.g. residents of the territories or the District of Columbia.
In Elk v. Wilkins (1884), 112 U.S. 94, Chief Justice Gray was specifically asked to address “subject to the jurisdiction thereof,” and held it meant:
|The persons declared to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them (U.S.) direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.|
Sen. Lyman Trumbull, Chairman of the Judiciary Committee
That means ‘subject
to the complete jurisdiction thereof.’ What do we mean by ‘complete
NOT OWING ALLEGIANCE TO ANYBODY ELSE. That is
what it means.”
In 1894, The Nation magazine reported an opinion by Thomas Bayard, who was U.S. Secretary of State under Grover Cleveland. In Bayard's opinion, the U.S.-born child of alien parents was not subject to U.S. jurisdiction at the time of its birth, therefore was not a U.S. citizen at birth:
In 1885, Secretary Bayard decided that the son of a German subject, born in Ohio, was not a citizen under the statute or the Constitution, because "he was on his birth 'subject to a foreign power,' and 'not subject to the jurisdiction of the United States'" (The Nation, Vol.59, No.1521, August 23, 1894, p.134, near bottom of right-most column)
American encyclopædic dictionary, Volume 12 (1897)
Citizens may be divided Into two classes : natural born and alien born.
Natural-born citizens are of two kinds: native born — those born of
either American or alien parents WITHIN the
Jurisdiction of the
And what does "jurisdiction' mean?
Sen. Lyman Trumbull, Chairman of the Judiciary Committee, and the one who inserted the phrase:
“The provision is, that ‘all persons born in the United States, and
subject to the jurisdiction thereof, are citizens.’ That means ‘subject
to the complete jurisdiction thereof.’ What do we mean by ‘complete
NOT OWING ALLEGIANCE TO ANYBODY ELSE. That is
what it means.”
http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=14 (location: left center column)
|"It is evident from the proviso in the act of 10th February, 1855, viz., 'that the rights of citizenship shall not descend to persons whose fathers never resided in the United States,' that the lawmaking power not only had in view this limit to the efficiency of its own municipal enactments in foreign jurisdiction, but that it has conferred only a qualified citizenship upon the children of American fathers born without the jurisdiction of the United States, and has denied to them what pertains to other American citizens -- the right of transmitting citizenship to their children -- unless they shall have made themselves residents of the United States or, in the language of the Fourteenth Amendment of the Constitution, have made themselves 'subject to the jurisdiction thereof.'" 10 stat 604|
MR. Justice Gray, Wong Kim Ark, after stating the case, delivered the opinion of the court:
|The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States (Birlingame-Seward Treaty of 1868, supra), and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution. [note: if Wong had been a "natural born", the court would not have had to reach the 14th amendment as shown in Minor v Happersett]|
MR. Justice Gray continues:
|"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. Minor v. Happersett, (see above) 21 Wall. 162; Ex parte Wilson, 114 U. S. 417, 114 U. S. 422; Boyd v. United States, 116 U. S. 616, 116 U. S. 624, 116 U. S. 625; Smith v. Alabama, 124 U. S. 465. The language of the Constitution, as has been well said, could not be understood without reference to the common law. Kent Com. 336; Bradley, J., in Moore v. United States, 91 U. S. 270, 91 U. S. 274.|
Dissenting opinion by Chief Justice Fuller:
Before the Revolution, the view of the publicists had been thus put by Vattel:
"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. The society is supposed to desire this in consequence of what it owes to its own preservation, and it is presumed as matter of course that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children, and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country." Vattel Law of Nations Book I, c.19, § 212.
"The true bond which connects the child with the body politic is not the matter of an inanimate piece of land, but the moral relations of his parentage. . . . The place of birth produces no change in the rule that children follow the condition of their fathers, for it is not naturally the place of birth that gives rights, but extraction."
And to the same effect are the modern writers, as for instance, Bar, who says:
"To what nation a person belongs is by the laws of all nations closely dependent on descent; it is almost an universal rule that the citizenship of the parents determines it -- that of the father where children are lawful, and, where they are bastards, that of their mother, without regard to the place of their birth, and that must necessarily be recognized as the correct canon, since nationality is, in its essence, dependent on descent."
Int.Law. § 31.
The framers of the Constitution were familiar with the distinctions between the Roman law and the feudal law, between obligations based on territoriality and those based on the personal and invisible character of origin, and there is nothing to show that, in the matter of nationality, they intended to adhere to principles derived from regal government, which they had just assisted in overthrowing.
Manifestly, when the sovereignty of the Crown was thrown off and an independent government established, every rule of the common law and every statute of England obtaining in the Colonies in derogation of the principles on which the new government was founded was abrogated.
The States, for all national purposes embraced in the Constitution, became one, united under the same sovereign authority and governed by the same laws, but they retained their jurisdiction over all persons and things within their territorial limits except where surrendered to the General Government or restrained by the Constitution, and protection to life, liberty and property rested primarily with them. So far as the jus commune, or folk-right, relating to the rights of persons was concerned, the Colonies regarded it as their birthright, and adopted such parts of it as they found applicable to their condition. Van Ness v. Pacard, 2 Pet. 137.
As to the jura corona, including therein the obligation of allegiance, the extent to which these ever were applicable in this country depended on circumstances, and it would seem quite clear that the rulemaking locality of birth, the criterion of citizenship because creating a permanent tie of allegiance, no more survived the American Revolution than the same rule survived the French Revolution.
Doubtless, before the latter event, in the progress of monarchical power, the rule which involved the principle of liege homage may have become the rule of Europe; but that idea never had any basis in the United States.
The General Principles of Constitutional Law in the United States of America Thomas Cooley (1898)
How Citizenship is acquired. — The fourteenth amendment indicates the two methods in which one may become a citizen: first, by birth in the United States;2 and, second, by naturalization therein.
But a citizen by birth must not only be born within the United States, but he must also be subject to the jurisdiction thereof; and by this is meant that full and complete jurisdiction to which citizens generally are subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government. The amendment, therefore, affirms the citizenship of children born within the United States of all persons, of whatever race or color; but it does not affirm the citizenship "of children of foreign sovereigns" or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory." 1
1 United States v. Wong Kim Ark, 169 U. S. 649, 693.
2 This would include, also, birth abroad of children of American citizens temporarily residing or travelling in other countries. Key. Stat. U. S., § 1993.
That the Courts were fully aware of these conditional 'citizenships' is beyond reproach. Here 'diversity jurisdiction' has been invoked by 'citizens' of different states of the Union. STEIGLEDER v. MCQUESTEN, 198 U.S. 141 (1905):
"The bill filed in the circuit court by the plaintiff, McQuesten, alleged her to be 'a citizen of the United States and of the state of Massachusetts, and residing at Turner's Falls, in said state,' while the defendants, Steigleder and wife, were alleged to be 'citizens of the state of Washington, and residing at the city of Seattle, in said state.'"
Notice that the court clearly accepted the statement that Mrs. McQuesten was BOTH a 'citizen of the United States' AND 'of the state of Massachusetts', compared to Steigleder's averring 'State citizenship', specifically 'Washington'. The court goes on:
It is to be observed that the grounds assigned for the motion to dismiss the cause, taken alone, did not distinctly raise any question concerning the absence of diverse citizenship; for the motion only stated that the plaintiff and the defendants were, respectively, residents of the state of Washington..................... But it has long been settled that residence and citizenship were wholly different things within the meaning of the Constitution and the laws defining and regulating the jurisdiction of the circuit courts of the United States; and that a mere averment of residence in a particular state is not an averment of citizenship in that state for the purposes of jurisdiction. Parker v. Overman, 18 How. 137, 15 L. ed. 318; Robertson v. Cease, 97 U.S. 646 , 24 L. ed. 1057; Everhart v. Huntsville Female College, 120 U.S. 223 , 30 L. ed. 623, 7 Sup. Ct. Rep. 555; Timmons v. Elyton Land Co. 139 U.S. 378 , 35 L. ed. 195, 11 Sup. Ct. Rep. 585; Denny v. Pironi, 141 U.S. 121, 123 , 35 S. L. ed. 657, 658, 11 Sup. Ct. Rep. 966; Wolfe v. Hartford Life & Annuity Ins. co. 148 U.S. 389 , 37 L. ed. 493, 13 Sup. Ct. Rep. 602.
In 1916, attorney Breckinridge Long argued that Republican presidential candidate Charles Evans Hughes was not eligible to serve as president. Hughes was born in the United States, but at the time of his birth, his father was not a U.S. citizen. In Long's Legal Analysis, a U.S.-born child of a non-citizen father is not a natural born citizen of the United States:
It must be admitted that a man born on this soil, of alien parents, enjoys a dual nationality and owes a double allegiance. A child born under these conditions has a right to elect what nationality he will enjoy and to which of the two conflicting claims of governmental allegiance he will pay obedience. Now if, by any possible construction, a person at the instant of birth, and for any period of time thereafter, owes, or may owe, allegiance to any sovereign but the United States, he is not a "natural born" citizen of the United States. If his sole duty is not to the United States Government, to the exclusion of all other governments, then, he is not a "natural born" citizen of the United States.
In his report to Congress (1967 regarding Mitt Romney's father, George), Dowdy recognized a difference between natural-born subjects in fact and natural-born subjects by law by quoting Honorable Pinckney G. McElwee, of the bar of the District of Columbia. Only those persons who were born within the king's realm were "true" natural-born subjects; all other natural-born subjects were "naturalized" by Parliament, either by statute or by private acts of naturalization:
No child born outside of the dominion of the King was ever a true "natural-born subject." They were naturalized subjects. It is true that by the naturalization acts under which they had become naturalized subjects had "deemed" them to be natural-born subjects (despite the fact that they were not so in fact), and the very fact that these were "deemed" to be natural-born by the naturalization act reveals that the true "natural-born" subjects were those born within the dominion of the King without the necessity of a naturalization law to "deem" them to be in law what they were not in fact.
According to information furnished to me, which I have no reason to doubt, facts regarding the birth and citizenship of Mr. Romney are as follows. His grandfather was Miles Park Romney. In 1885 he left his family In Arizona and moved to Chihuahua, Mexico. One of his children was Gaskel R. Romney, born in the United States in 1871. He did not accompany his father to Mexico, but followed and with the family Joined him in 1887, Gaskel R. Romney being then 16 years old. Gaskel R. Romney was married to Anna Aurelia Pratt in Mexico about 1898. They had 4 children, born in the State of Chihuahua, Mexico: George, the 4th Child, being born there on July 8, 1907. This family then moved to El Paso, Texas, where the 5th, 6th and 7th children were born.
It will be seen from the foregoing that Mr. George Romney was born in Chihuahua, Mexico of an American born father and by virtue of the birth and citizenship of his father in the United States, George was born with dual citizenship, being a citizen of Mexico by birth and becoming a citizen of the United States at birth automatically by naturalization pursuant to the Act of Congress granting automatic naturalization in such circumstances. This type of American citizenship is a qualified one and requires an election on his part upon arriving at his majority, or within a reasonable time thereafter. In re Reed, 6 F S 800, State v. Jackson, 65 A 661, Ludlam v. Ludlam, 26 NY 371, Van Dyne on Cit. 38. Mr. Romney appears probably to be a citizen of the United States. But, the question under consideration is not one of simple citizenship but rather, whether he is a “natural born citizen” as prescribed in the Constitution of the United States for the Presidency.
What was the original public meaning of the phrase that establishes the eligibility for the office of President of the United States? There is general agreement on the core of its meaning. Anyone born on American soil whose parents are citizens of the United States is a "natural born citizen." http://www.michiganlawreview.org/articles/originalism-and-the-natural-born-citizen-clause
Wong Kim Ark Briefs.
question at issue is not one that affects American-born Chinese only, but every
American-born son of a foreign-born father who did not become a naturalized
citizen of this country prior to the time arrived at maturity. In this view of
the case one sees at a glance that many thousands of voters all over the United
States are deeply interested in the knotty legal problem, though of course
should the United States Supreme Court reverse the ruling of Judge Morrow, as it
is confidently expected that it will, the American-born Chinese will be the only
ones ultimately deprived of citizenship. Sons of non-naturalized Caucasians will
merely have to secure naturalization in the ordinary way. But the Mongolians,
while the existing Chinese restriction laws are in force, will be forever barred
San Francisco Call, Feb. 8, 1896
The Correct application of English Common Law "natural subject"
Cunningham's definition of "natural-born subject": Timothy Cunningham's Law Dictionary (1771) was the law dictionary that James Madison ordered for the Continental Congress. It was one of the popular English dictionaries of the late eighteenth century (1700's), and was found in many personal libraries, including those of Thomas Jefferson and John Adams. It was contemporaneously used by various American Supreme Courts for clarification of legal terms. (Berry, pp.347-8).
Vol 1 of Cunningham’s law dictionary states the following under the Alien section (page 96 of the pdf, 3rd column, 3rd paragraph from the bottom) :
“All those are natural born subjects whose PARENTS, at the time of their birth, were under the actual obedience of our King, and whose place of birth was within his dominions.
In Cunningham's Law Dictionary, other categories of persons were deemed or taken to be natural-born subjects. They were natural-born subjects by law but were not natural-born subjects in fact.By the 7 Ann. it is enacted that "the children of all natural-born subjects, born out of the ligeance [territory] of her majesty, her heirs and successors, shall be deemed, adjudged and taken to be natural-born subjects of this kingdom, to all intents, constructions and purposes whatsoever. (Cunningham, p.96, in section entitled "Aliens")He that is born within the King's ligeance, is called sometimes a denizen, quasi deins nee, viz. born within, and thereupon in latin is called indigena, the king's liegeman, for ligeus is ever taken for a natural-born subject; ... (Cunningham, p.97, in section entitled "Aliens")
The same quote is also found in Thomas Bacon’s law book “A New Abridgment of the Law” on Page 77 of Vol. 1. Also owned by John Adams and scanned into the archives here:
This is from the appellant brief in Kim Wong Ark explaining the correct application of 'English' Common law subject-ship. Bear in mind that this is the United States Government arguing that Kim is NOT a citizen of the United States.
We are aware that it is generally supposed to be the law that a person born within the United States is ipso facto a citizen thereof, irrespective of the nationality of his parents; but that doctrine never did have any justification , and is not sustained by any principle of international or constitutional law. It is apparently originated in a misunderstanding of the nature and province of the English common -law rule that birth with the allegiance of the King made the person a subject, even though he were born of alien parents, and was applied by our people more as a traditionary dogma than as a rule of law. For that reason the doctrine has escaped investigation or examination of the higher judicial tribunals of the land and THUS HAS A VERY DANGEROUS ERROR been perpetuated by acquiescence and repetition.
In this connection the remarks of Lord Chief Justice Denman in the case of Queen v. O'Connell (11 Clark & Fin., 372) are very pertinent. He there delivered the prevailing opinion of the court, overruling the judges of the law courts on what by common consent was DEEMED to be law. He said:
" I am tempted to take this opportunity of observation that a large portion of that legal opinion which has passed current for laws falls within the description of "law taken for granted." If a statistical table of legal propositions should be drawn out, and the first column headed "Law by statute," and the second "Law by decision," a third column under the heading of "Law taken for granted" would comprise as much as both the others combined. But when in pursuit of truth we are obliged to investigate the grounds of the law it is plain, and has often been proved by recent experience, that the mere statement of a doctrine--the mere repetition of the cantilena of lawyers--can not make it law unless it can be traced to some competent authority and if it be irreconcilable to some clear principle.
We proceed to the argument of the great question presented by this appeal: Citizenship under a republican form of government appertains to political sovereignty, and therein essentially differs from the status of "subject" in a monarchical form of Government. The government (appellant ) brief provides a completely explanation of British common law "natural born subject", Appellant Brief
U.S. Department of State Foreign Affairs Manual Volume 7 - Consular Affairs
7 FAM 1131.6-2 Eligibility for Presidency
a. It has never been determined definitively by a court whether a person who acquired U.S. citizenship by birth abroad to U.S. citizens is a natural-born citizen within the meaning of Article II of the Constitution and, therefore, eligible for the Presidency.
b. Section 1, Article II, of the Constitution states, in relevant part that ―No Person except a natural born Citizen...shall be eligible for the Office of President.
c. The Constitution does not define "natural
born". The ―Act to establish an Uniform Rule of Naturalization‖,
enacted March 26, 1790, (1 Stat. 103,104) provided that, ―...the children of
citizens of the United States, that may be born ... 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
the United States.
d. This statute is no longer operative, however, and its formula is not included in modern nationality statutes. In any event, the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes.
A citizen of any one of the States of the union, is
held to be, and called a citizen of the
Parte Knowles, 5
When the U.S. Constitution was being written, Giles Jacob's New Law Dictionary (1 (1782) was "the most widely used English Law dictionary" (Berry, pp.350-1).
Jacob defined "subject born" (a natural-born subject by birth, as opposed to a natural-born subject by act of Parliament) as anyone born within the king's realm, of parents who are under the king's "actual obedience":
There are two incidents regularly that are necessary to make a subject born: first, that his parents, at the time of his birth, be under the actual obedience of the king; Secondly, that the place of his birth be within the king's dominions. (Jacob, p.40)
Both Cunningham and Jacob understood that the English-born children of alien parents were statutory denizens . They were deemed to be natural-born by law, but were not natural-born in any factual or natural-law sense:
...if one born out of the king's allegiance, come and dwell in England, his children begotten here, are not aliens, but denizens. (Cunningham, p.95, in section entitled "Aliens")
During the eighteenth century, you were called a "natural-born subject" if :
Since denization by the king did not have a retroactive effect, denizens (by royal charter) were English subjects but were not regarded as natural-born subjects.
Persons who were called "natural-born subjects" fell into two categories: actual and naturalized.
In 1884, an article by George Collins, appearing in the American Law Review (1884), criticized the Lynch v. Clark ruling:
In Lynch v. Clark, the vice-chancellor held that the common-law doctrine -- that the place of birth and not the nationality of the father determined the political status of the child -- was applicable to the United States, constituted a part of the jurisprudence thereof, and that accordingly a person born within the United States, whose father at the time of such birth was an alien, was a citizen of the United States. This case, aside from its fallacious and unsound reasoning, can not be upheld upon principle. It is well settled that the common law is not part of the jurisprudence of the United States. ... Birth [in the United States] ... does not ispo facto confer citizenship, and it is essential in order that a person be a native or natural born citizen of the United States, that his father be at the time of the birth of such person a citizen thereof, on in case he be illegitimate, that his mother be a citizen thereof at the time of such birth.
In 1896, an article by Percy A. Bridgham, appearing in the Boston Daily Globe, defined native born as "born within the United States," and natural born as "born of parents who are U.S. citizens". In Bridgham's opinion, one did not need to be native-born in order to be natural-born. His understanding, at the time, was that all post-1787-born Presidents were both native-born and natural-born; the United States has never had a President who was strictly natural-born (natural-born only, without also being native-born).
The fact that the Constitution says "natural" instead of native shows to my mind that the distinction was thought of and probably discussed. A natural born citizen would be one who by nature, that is by inheritance, so to speak, was a citizen, as distinguished from one who was by nativity or locality of birth a citizen. ...
It seems to me that if the founders of the government had meant to confine the the presidency to such of its citizens as were born upon the soil of the country, they would have used the word "native," which is a much more apt word than natural. ...
A comparison of the meanings of native and natural as given by Webster bears me out in my opinion of the intent of the constitution. The very first definition of natural is "fixed or determined by nature," the nationality of a child born abroad of American parents is fixed by the nature of things and not by the locality of birth. I do not find that our courts have ever passed upon the meaning of the word natural in connection with citizenship, so we must take its ordinary meaning. (Percy A. Bridgham, People's Lawyer, Boston Daily Globe, N, November 9, 1896. S)
Also in 1896, the New York Tribune published an article, questioning the eligibility of Mr. Shurmann, the Labor Party presidential candidate. Mr. Schurmann was born in the United States, of non-U.S.-citizen parents:
Is he [Mr. Shurmann], under these circumstances, "a natural-born citizen" in the sense implied by the fifth clause of Art. II. of the Constitution? Various Attorney-Generals of the United States have expressed the opinion that a child born in this country of alien parents, who have not been naturalized, is, by the fact of birth, a native-born citizen entitled to all rights and privileges as such, and the State Department has always acted on this presumption in deciding upon questions of this nature brought before it. There is, however, no United States statute containing any provision on the subject [of natural born citizenship], nor have any judicial decisions ever been made in regard to it. It is at best an open question, and one which should have made Mr. Schurmann's nomination under any circumstances an impossibility.
In the case of United States vs. Wong Kim Ark (169. U. S., 649),Mr. Chief Justice Fuller and Justice Harlan dissent from the conclusions of the majority, and maintain that the English common-law rule as to natural-born citizens was never In force in this country. In support of these views, the dissenting Justices cite Story, 'Conflict of Laws," sec. 48, "Persons who are born in a country are generally deemed to be citizens and subjects of that country. A reasonable qualification of the rule would seem to be that it should not apply to the children of parents who were in itintre in the country, or who were abiding there for temporary purposes." To the same effect Justice Miller says ('Lectures on the Constitution,' p. 279), "If a stranger or traveller passing through, or temporarily residing In, this country, who has not himself
The case turns upon the interpretation of the phrase, "subject to the Jurisdiction thereof," and the weight of the argument seems to be with the dissenting Justices. Jurisdiction is of two kinds—territorial and political. All persons within the bounds of the United States, whether natural-born, naturalized, domiciled aliens, or aliens in itinerr, are subject to the territorial Jurisdiction of the United States. But the same cannot be said as to its political jurisdiction. This Is particularly true of Chinese subjects, because the laws expressly exclude them from American citizenship. As they are not subject to the political Jurisdiction of the United States, and cannot become so, it would seem to follow that their children are not born "subject to the jurisdiction thereof."
The Supreme Court In previous decisions has admitted the validity of this argument. In the case of Elk vs. Wlikins (112 U. S. 94, 102), the court said, with respect to the phrase, "subject to the jurisdiction thereof":
"The evident meaning of these last words Is, not merely subject in some respect or degree to tho jurisdiction of the United States, but completely subject to their political Jurisdiction, and owing them direct and Immediate allegiance. . . . Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although In a geographical sense born in the United States, are no more 'born In the United States and subject to the jurisdiction thereof,' within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign Government born within the domain of that Government, or the children born within the United States of ambassadors or other public ministers of foreign nations."
Furthermore, In the practice of the United States as to naturalization, the common law rule of citizenship has been disregarded. An essential part of the common-law rule is the doctrine of Indelible allegiance, which has been summed up in the phrase, "Once an Englishman, always an Englishman." This doctrine has been denied by the United States ever since the Declaration of Independence. The naturalization act of January 29, 1795. required that applicants for citizenship should not only take an oath to support the Constitution of the United States, but should also renounce all other allegiance; and although Lord Grenville protested that such a renunciation would be highly criminal on the part of a British citizen, the United States held fast to Its position, and In 1868 Congress declared that "the right of expatriation Is a natural and Inherent right of all people." This attitude toward the subject of expatriation, which has been so long and consistently maintained, would seem sufficient to show that the common-law rule of citizenship has never been recognized by this Government.
This decision. If It remains the authoritative Interpretation of the fourteenth amendment, cannot fall to have Important consequences. Its first effect is pointed out by Chief Justice Fuller, who says: "If the conclusion of the majority opinion is correct, then the children of citizens of the
United States who have been born abroad since July 28, 1868, when the amendment was declared ratified, were, and are, aliens, unless they have, or shall, on attaining majority, become citizens by naturalization in the United States; and no statutory provision to the contrary is of any force or effect." More Important consequences would follow In case of the annexation of Hawaii or the Philippines. Unless the natives of those islands are organized in tribes to which their first allegiance Is due, all those born after the annexation of the islands to the United States would be citizens by birth, entitled by law to all the privileges and immunities of citizens of the United States.
From the point of view of public policy, the present decision of the Supreme Court seems to be a distinct retrogression. In this age of rapid transit and of large migratory populations, citizenship should have a more substantial basis than the ancient feudal doctrine of birth within the allegiance. Napoleon, with the progressive spirit which characterized him In the formation of his Code, discarded the jus soli in favor of the jus sanguinis as the determining principle in citizenship. Great Britain has abandoned the doctrine of indelible allegiance. Almost all nations now accord to their citizens the privilege of expatriation. In view of these considerations, the wisdom of the Supreme Court in giving to a doubtful clause a construction which is contrary to the manifest tendency of nations may well be questioned; and if the matter is again brought before the court, it will not be surprising if the present decision Is reversed.
Between 2002 and 2008 No less than 8 attempts were made to alter the "natural born" requirements for the Office of President.