Lasted edited by Andrew Munsey, updated on June 14, 2016 at 10:06 pm.
Citizenship - Natural Born Birth - John Jay - War of 1812
posted by Congress:Member:Leslie R. Pastor
Excellent Article On Natural Born Citizenship and LOTS of related bits
By “sourcery” posted on FreeRepublic.
The following is a fantastic and comprehensive breakdown.
Source Link: https://myveryownpointofview.wordpress.com/excellent-article-on-natural-born-citizenship/
:The Constitution requires that the President of the United States must be a natural born citizen: Article II, section 1, pa. 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.”
:If “natural born citizen” is a synonym for “citizen,” then there is no reason for adding the exception “or a Citizen of the United States, at the time of the Adoption of this Constitution.” None at all. Being a citizen is not sufficient, unless you happened to be alive when the Constitution was adopted.
:So what, then, is a “natural born citizen”? To answer that question definitively will require a full examination of the concepts and history of citizenship.
:Types Of Citizenship: Jus Soli, Jus Sanguinis, Natural Born, Native Born, Naturalized
:Jus soli citizenship: “Jus soli” is a Latin phrase meaning “law of the soil.” Jus soli citizenship is any citizenship that inheres in a person based on the location of his or her birth.
:Jus sanguinis citizenship: “Jus sanguinis” is a Latin phrase meaning “law of the blood.” Jus sanguinis citizenship is any citizenship that inheres in a person based on his or her ancestry.
:Native born citizenship: A native born citizen is one whose citizenship derives from the facts of his birth, and who becomes a citizen at the moment of birth. In both US and British law, those born within the sovereign territory of the country or born to parents who are citizens (subjects) of the country when the person is born are native citizens (subjects.) Native born persons are said to have “birthright citizenship.” Note that one can be “native born” either by the “jus soli” principle or by the “jus sanguinis” principle.
:Naturalized citizenship: A naturalized citizen is one whose citizenship is granted by statute or by the decision or act of a sovereign.
:Natural born citizenship: A natural born citizen is one whose citizenship is beyond dispute, not synthetic, not subject to conflicting claims, not granted by statute or by any act of a sovereign, but inheres naturally in the person according to principles that don’t depend on laws or decisions of a sovereign. [The rest of this essay will fully justify this definition]
:The 14th Amendment created an implicit distinction among 14th Amendment native-born citizens, and statutory native-born citizens. A 14th Amendment native-born citizen is any person who (a) was born in the United States, and (b) was subject to U.S. jurisdiction at the time of his or her birth. In contrast, a statutory native-born citizen is a person who does not qualify for birthright citizenship under the 14th Amendment, but receives U.S. citizenship, at birth, by laws enacted by Congress. For example, foreign-born children of American parents do not receive citizenship from the 14th Amendment such children acquire U.S. citizenship, at birth, by statute.
:So those born outside the United States to parents who are US citizens at the time of the person’s birth are both native citizens and also naturalized citizens, since their citizenship is a) granted to them by an Act of Congress (based on Congress’ Constitutional authority “To establish an uniform Rule of Naturalization,”) and b) effective from the instant of their birth, based on the fact that the person’s parents were US citizens at that moment. Similarly, it is necessary to distinguish between Constitutional and statutory natural born citizens:
:::“Constitutional natural born citizen” refers to the term “natural born citizen” when it appears in the Constitution or in a Constitution-related document such as a Supreme Court decision. It refers to the meaning of “natural born citizen” in the Constitution.
:::“Statutory natural born citizen” refers to someone who is deemed a “natural born citizen” by Federal or State law.
:These distinctions are not my invention. The U.S. Department of State Foreign Affairs Manual—7 FAM 1130 (page 9) says:
:::....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
:If we were to define “natural born citizen” to mean anyone who is a “citizen at birth”, our definition of “natural born citizen” would be statutory because it would depend on the statute or law which defines “citizen at birth”. Under existing law, all children born in the United States (except the children of foreign diplomats) are “citizens at birth”. Therefore, under existing law, almost all children born in the U.S.—including children of illegal immigrants—could be regarded as statutory natural born citizens.
:H.R.1940, also known as the Birthright Citizenship Act of 2007, would change the existing law so that it would no longer grant “citizenship at birth” to children of illegal immigrants. If Congress were to pass H.R.1940, it would alter the meaning of “citizen at birth”, and therefore would alter our statutory definition of natural born citizen. If H.R.1940 were enacted, the U.S.-born children of illegal immigrants could no longer be regarded as statutory natural born citizens.
:On 25 July 1787, John Jay wrote a letter to George Washington, recommending that the new Constitution should require that the President be a “natural born citizen”. The stated purpose of this requirement for eligibility was to exclude “foreigners” from exercising Presidential powers:
:“Permit me to hint whether it would not 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 command in chief of the American army shall not be given to, nor devolve on any but a natural born citizen.”
:Also on 25 July 1987 (the very same day,) James Madison made the following comment to the delegates of the Constitutional Convention then in progress in Philadelphia (the topic of the debate was whether or not it would be a good idea to have Congress , State legislatures, the Governors of the States or courts—Federal or State—choose the President):
:::Mr. MADISON. …Besides the general influence of that mode on the independence of the Executive, 1.  the election of the Chief Magistrate would agitate & divide the legislature so much that the public interest would materially suffer by it. Public bodies are always apt to be thrown into contentions, but into more violent ones by such occasions than by any others. 2.  the candidate would intrigue with the Legislature, would derive his appointment from the predominant faction, and be apt to render his administration subservient to its views. 3.  The Ministers of foreign powers would have and  make use of, the opportunity to mix their intrigues & influence with the Election. Limited as the powers of the Executive are, it will be an object of great moment with the great rival powers of Europe who have American possessions, to have at the head of our Governmt. a man attached to their respective politics & interests. No pains, nor perhaps expense, will be spared, to gain from the Legislature an appointmt. favorable to their wishes. Germany & Poland are witnesses of this danger. In the former, the election of the Head of the Empire, till it became in a manner hereditary, interested all Europe, and was much influenced by foreign interference. In the latter, altho’ the elective Magistrate has very little real power, his election has at all times produced the most eager interference of forign princes, and has in fact at length slid entirely into foreign hands. The existing authorities in the States are the Legislative, Executive & Judiciary. The appointment of the Natl. Executive by the first, was objectionable in many points of view, some of which had been already mentioned. He would mention one which of itself would decide his opinion. The Legislatures of the States had betrayed a strong propensity to a variety of pernicious measures. One object of the Natl. Legislre. was to controul this propensity. One object of the Natl. Executive, so far as it would have a negative on the laws, was to controul the Natl. Legislature, so far as it might be infected with a similar propensity. Refer the appointmt. of the Natl. Executive to the State Legislatures, and this controuling purpose may be defeated. The Legislatures can & will act with some kind of regular plan, and will promote the appointmt. of a man who will not oppose himself to a favorite object. Should a majority of the Legislatures at the time of election have the same object, or different objects of the same kind, The Natl. Executive would be rendered subservient to them. — An appointment by the State Executives, was liable among other objections to this insuperable one, that being standing bodies, they could & would be courted, and intrigued with by the Candidates, by their partizans, and by the Ministers of foreign powers. The State Judiciarys had not  & he presumed wd. not be proposed as a proper source of appointment. The option before us then lay between an appointment by Electors chosen by the people — and an immediate appointment by the people. He thought the former mode free from many of the objections which had been urged agst. it, and greatly preferable to an appointment by the Natl. Legislature. As the electors would be chosen for the occasion, would meet at once, & proceed immediately to an appointment, there would be very little opportunity for cabal, or corruption. As a farther precaution, it might be required that they should meet at some place, distinct from the seat of Govt. and even that no person within a certain distance of the place at the time shd. be eligible.
:With one exception to be noted shortly, it was only after Jay’s letter to General Washington, and Madison’s comment at the convention, that the Convention began to mention citizenship requirements for any Constitutional officers, even though they had begun to consider eligibility issues about a week previously. It should be noted, however, that during the early days of the Convention several very different initial drafts of proposed Constitutions were presented, all but one of which were rejected. The last one to be presented, by Alexander Hamilton, is known as the British Plan (because it was modeled closely after the British governmental architecture.) Although that proposal was totally rejected, it also happens to have been the only one whose text included any eligibility requirements for the Chief Executive. That plan required that that person be “born a citizen.”
:The Convention’s “committee of the whole” went into recess from 27 July through 5 August. When it resumed on August 6, the “committee of detail” presented the first draft of the Constitution that included eligibility requirements for any Constitutional officers: the members of the House and Senate had to be citizens for specified periods prior to serving (thus implicitly allowing naturalized citizens to serve, a point that was actually discussed in detail in the “committee of the whole.”) But the only constraint on who could be President was that he “shall not be elected a second time.”
:Finally, on 4 September, the Convention considered proposed changes from one of the sub-committees where the “natural born citizen” eligibility requirement for the President was introduced to the “committee of the whole.” The differences between the initial language and what later became the text of the ratified Constitution are minor and of no bearing on the meaning of “natural born citizen”:
:::(5) ‘Sect. 2. No person except a natural born citizen or a Citizen of the U. S. at the time of the adoption of this Constitution shall be eligible to the office of President nor shall any person be elected to that office, who shall be under the age of thirty five years, and who has not been in the whole, at least fourteen years a resident within the U. S.’
:Based on the above evidence, we can conclude that John Jay’s letter to Washington, and the comments of Madison and later others at the Convention, establish the fact that the Framers were worried about the undivided loyalty of the President, and thought that the requirement that he be a “natural born citizen” would be sufficient to prevent anyone with foreign allegiance (anyone who could be claimed as a subject or citizen of a foreign sovereign) from serving as President. But how could that be, if “natural born citizen” means what many claim it does, namely “a person born in the United States, with parents who aren’t employed in any official capacity by a foreign sovereign”?
:Some nations claim you as their citizen or subject based on where your were born, some based on who your parents were (father and/or mother,) and some based on both together. By requiring that the President be born at a location where the US is sovereign, any foreign “natural law” or “law of nations” claim on the President to allegiance based on his place of birth is precluded. By requiring that the President be born to parents who are solely US citizens, any foreign “natural law” or “law of nations” claim on the President to allegiance based on his parentage is precluded.
:There is no denying the fact that a person born in the United States could have multiple nationalities, and owe allegiance to multiple sovereigns, since either parent could have multiple citizenships, any of which could by the law of that nation transfer to the child by the principle of jus sanguinis. Many nations claim anyone with at least one parent (sometimes it must be the father, sometimes it must be the mother, sometimes both) who is a citizen or subject of that nation as a citizen/subject also. However, if both your parents are citizens (or subjects) of the same sovereign, and if you were born in that same sovereign’s territory, then and only then is it impossible for any other sovereign to have a birthright claim to your allegiance under the law of nations as commonly understood. Of course, a person can become a citizen or subject by naturalization, and not just by birth.
:Therefore, it should be evident that if the purpose of the requirement to be a “natural born citizen” is to prevent anyone with foreign citizenship from serving as President, it cannot achieve that end unless, by definition, the phrase “natural born citizen” excludes anyone who might have acquired foreign citizenship by means of any one of the three modalities recognized by the law of nations: 1) jus soil (born on foreign soil), 2) jus sanguinis (born to a parent with foreign citizenship), or 3) naturalization by a foreign country. John Jay’s request to Washington makes no sense otherwise, since in that case his suggested eligibility requirement would not preclude what he was seeking to prevent.
:Consider again Article II, section 1, pa. 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.” That limits who may be President to persons who meet the following requirements:
:::Those who are 35 years old or older, AND
:::Those who have been a resident of the US for 14 years or longer, AND
::::Those who are natural born citizens, OR
::::Those who were US citizens at the time the Constitution was adoptedWhy did the Constitutional Convention include that last exception, allowing those who were citizens at the time the Constitution was adopted to be President?
::::Before answering that question, consider the case of Congressman Smith. He was born in South Carolina before the American Revolution. At the time of the Revolution, he was not yet an adult. His parents were British loyalists, and fought against the Revolution. But after the Revolution and the adoption of the Constitution in 1787, he was elected to Congress. But his right to be seated was challenged on the basis that he was not a citizen, due to the actions of his parents.
::::James Madison himself spoke in defense of the fact that Mr. Smith was a citizen. The reasoning he used is decisive with respect to understanding the reason for the exception in the Constitution to the “natural born citizen” requirement.
::::Madison essentially argued that Mr. Smith was a citizen because of where he was born, and because he was a minor when his parents sided with the British loyalists against the American Revolutionaries. He focused on that point, because he obviously felt that any adults who sided with the British loyalists would not qualify as citizens, regardless of where they were born (he explains the reason for that.) Bear in mind that the Constitution allows naturalized citizens to serve in Congress, there is no requirement that one have “birthright citizenship” (whose normative definition means either “jus soli” OR “jus sanguinis” citzenship (OR, not AND.)) But Madison nevertheless argued that Mr. Smith was a citizen from birth, by reason of his place of birth alone, and explicitly not due to his parentage, because (as Madison argues) his parents never were US citizens at all.
::::Madison’s argument prevailed, and Mr. Smith was seated as a Congressman. The Congress accepted Madison’s argument that Mr. Smith had birthright citizenship solely due to the location of his birth in South Carolina—when South Carolina was a British Colony, and not yet a State of the United States. By that same logic, most residents of the US at the time the Constitution was adopted were native citizens of the US by their place of birth alone.
::::Note that, according to Madison’s argument, those who were citizens of any State became citizens of the US instantly, automatically and by operation of natural law and the law of nations the moment two events occurred: 1) The society in which they were citizens came under the sovereignty of the United States, and 2) they were adults who accepted, and did not reject, allegiance to the United States. However, their status as US citizens began only at that moment, and not before. By Madison’s rule, anyone born on soil where the United States is currently sovereign, and who has not denounced or rejected US citizenship, is a citizen of the United States (although he didn’t say what kind.). However, most people who were alive when the Constitution was adopted would have had parents who were not US citizens when they were born, because the United States did not exist until 1776 at the earliest. Whether the United States that came into existence in 1776 is the same nation as the one whose government was constituted in 1787 by the current US Constitution is an interesting question, but there is no need to answer it here.
::::The only persons who were indisputably born on soil in which the United States was sovereign when the current US Constitution was adopted and whose parents were US citizens at the very moment when those persons were born would, under the most lenient possible interpretation, have been no older than 13 years of age in 1789 when the US Constitution was ratified. Under the strictest interpretation, they would have been mere infants. In contrast, most of those who were citizens when the Constitution was ratified would have satisfied the requirement to have been born on US soil— because the soil on which they were born would have become US soil no later than the moment the Constitution was ratified, if not before (per Madison’s rule.)
::::So, based on Madison’s argument (which Congress accepted,) if “natural born citizen” means simply “native born” or “born a citizen” or “born on soil where the United States is currently sovereign” then any citizen of the US at the time the Constitution was adopted would satisfy the “natural born citizen” requirement, so there would have been no need for the exception, and its inclusion in the Constitution makes no sense, especially in historical context, where no small number of residents of the US were at least potentially British subjects per British law, and the undivided loyalty of many of them to the United States was under serious suspicion (as demonstrated by the case of Congressman Smith.)
::::But if “natural born citizen” means “born on US soil, with parents who were US citizens when their child was born,” then it would in fact be true that no one older than 13 years of age (at most) could have satisfied the “natural born citizen” requirement in 1789 (when the Constitution was ratified,) in which case there is a good reason for the exception. Without that exception, and assuming a semantic for “natural born citizen” as stated, George Washington would not have been eligible, nor would most of the Presidents after him until well into the 19th century.
::::In addition to the debates at the Constitutional Convention, John Jay’s letter to General Washington, and the text of the Constitution itself, there is also the testimony of Founder and historian David Ramsay (April 2, 1749 to May 8, 1815,) who was an American physician, patriot, and historian from South Carolina and a delegate from that state to the Continental Congress in 1782-1783 and 1785-1786. He was the Acting President of the United States in Congress Assembled. He was one of the American Revolution’s first major historians. A contemporary of Washington, Ramsay writes with the knowledge and insights one acquires only by being personally involved in the events of the Founding period.
::::In 1789 (the same year the Constitution was ratified,) Dr. Ramsay published an essay entitled “A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen,” a very important and influential essay on defining a “natural born Citizen.” In his 1789 article, Ramsay first explained who the “original citizens” were and then defined the “natural born citizens” as the children born in the country to citizen parents. He said concerning the children born after the declaration of independence, “[c]itizenship is the inheritance of the children of those who have taken part in the late revolution but this is confined exclusively to the children of those who were themselves citizens….” Id. at 6. He added that “citizenship by inheritance belongs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring….” Id. at 7. He continued that citizenship “as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776….” Id. at 6.
::::Based on Dr. Ramsay’s definition of “natural born citizen,” there can be no doubt why it was necessary to include the time-limited Constitutional exception that permitted those who were citizens when the Constitution was adopted to be President. Without that exception, those who would have qualified as natural born citizens, and so been Constitutionally eligible to be President, would have been no older than 13 years of age in 1789.
::::Given Dr. Ramsay’s position of influence and especially given that he was a highly respected historian, Ramsay would have had the contacts with other influential Founders and Framers and would have known how they too defined “natural born Citizen.” Ramsay, being of the Founding generation and being intimately involved in the events of the time would have known how the Founders and Framers defined a “natural born Citizen” and he told us that definition was one where the child was born in the country of citizen parents.
::::Note Dr. Ramsay’s phrase “as a natural right.” Modernly, it seems strange to us to associate questions of citizenship with “natural rights.” We consider questions of citizenship to be purely political matters, not questions of “laws of nature” such as those investigated by physicists. But that was not at all true in 18th century European culture, nor had it been the case in English common law for many hundreds of years prior. At the time, science was still in its infancy, and its stunning and then-very-recent success inspired those who lived through the initial scientific revolution to seek “natural laws” to explain and justify their hypotheses, theories, concepts and policies. And the tradition of English common law was grounded quite firmly in rendering decisions based on what was “true by nature,” as opposed to what was true by political decree. That attitude was especially strong among those who founded the United States and wrote its Constitution. They were determined to throw off the chains of tradition and arbitrary authority, and to establish their society and government based on invariant, self-evident principles arrived at by reason and conformance with objective reality. They used the term “natural” in a way similar to the way we modernly use the term “scientific,” in the sense of “justified by reason and the way the world works, not by tradition or arbitrary human policy” (which isn’t quite the formally correct definition, but is nevertheless what most people mean when they use the term.)
::::That’s why the political writings of the time constantly and incessantly refer to “natural law.” The point was to claim that the concepts, principles, rules or laws under discussion were derived by reason and logic from objective facts, and not merely the remnants of irrational cultural traditions or political edicts. It was the Age Of Reason, and naturalness was its standard of validity and truth.
::::When the US Constitution was written, the “natural law” that dealt with issues such as nationality and allegiance to a sovereign was called “the law of nations.” Modernly, we call this “international law.” In 1789, the preeminent codification, description and explanation of “the law of nations” was a work written by Emerich de Vattel, entitled THE LAW OF NATIONS, or principles of the law of nature applied to the conduct and affairs of nations and sovereigns. The Founders were not only familiar with de Vattel’s treatise, they relied on it extensively when they wrote laws and Constitutions (of their respective States, not just the Federal one.)
::::In Section 212 of de Vattel’s treatise, he states the following:
:::::§ 212. Of the citizens and natives.“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 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.”
::::Note that de Vattel defines “natural born citizen” as the purest form of citizenship, requiring both jus soli (“law of the soil”) citizenship and jus sanguinis (“law of the blood”) citizenship—with BOTH parents being citizens.
::::But de Vattel wrote in French, not in English. In French, the words he used instead of the English “natural born citizens” were “les naturels, ou indigenes.” Literally, “les naturels, ou indigenes” translates as “the naturals, or citizens.” Note that “les naturels” does not translate as “natives.” For “naturel” to mean native the word would need to be used as an adjective. In the quoted section, it is used as a noun. In fact, when de Vattel defines “natural born citizens” in the second sentence of section 212 after defining general or ordinary citizens in the first sentence, you see that he uses the word “indigenes” for natives along with “Les naturels” in that sentence. He used the word “naturels” to emphasize clearly who he was defining as those who were born in the country of two citizens of the country. Also, when we read Vattel, we must understand that Vattel’s use of the word “natives” in 1758 is not to be read with modern day various alternative usages of that word. You must read it in the full context of sentence 2 of section 212 to fully understand what Vattel was defining from natural law, i.e., natural born citizenship of a country. Please see the photograph of the original French for Chapter 19, Section 212, here in the original French if you have any doubts.
::::The text of de Vattel’s treatise was translated into English more than once, some of those translations being published well before the American Revolution. None of those pre-Revolutionary translations rendered “les naturels, ou indigenes” into English as “natural born citizens” The first that did so was published in 1797, 10 years following the Constitutional Convention, 8 years following the adoption of the Constitution, and 8 years following the publication of Dr. Ramsay’s essay on US citizenship—where “natural born citizen” is defined by the Founder/historian to have precisely the same meaning as the one de Vattel establishes for “les naturels, ou indigenes.”
::::We can reasonably assume that the other Founders and Framers would have defined a “natural born Citizen” the same way that Ramsay did, for being a meticulous historian he would have gotten his definition from the general consensus that existed at the time.
::::And we can also reasonably conclude that the professional translator who rendered “les naturels, ou indigenes” into American English in 1798 for an edition of the book to be published and distributed in the United Sates as “natural born citizens” would have been fully aware of the occurrence of that phrase in the brand-new US Constitution, and that he had the same reasons as Dr. Ramsay to use the same definition of “natural born citizens” as was generally accepted among speakers of American English at the time.
::::Based on the facts and reasoning presented above, there can be no other sound conclusion but that “natural born citizen” must have been intended to have the same meaning as de Vattel defined for his term-of-art phrases “les naturels, ou indigenes.” It cannot be coincidence that Dr. Ramsay’s 1789 definition of “natural born citizen” is the same as the one de Vattel gives for his French phrase “les naturels, ou indigenes,” and which a professional translator translated into English as “natural born citizen” just a few short years after the “natural born citizen” requirement was written and ratified in the new US Constitution. The fact that that semantics for the term is very consistent with the stated purpose of the “natural born citizen” requirement to prevent a person from having allegiance to a foreign sovereign provides the confirming motive and original intent.
::::The evidence from the historical record and from the text of the Constitution itself is clear and compelling, as regards to both semantics and intent:
:::::The reason the Constitutional Convention required that the President (and later, by Amendment, the Vice President) be a “natural born citizen” is that they wanted to minimize the possibility that the person who would be head of State, chief executive and Commander-In-Chief of the US armed forces might be subject to conflicts of interest, legal obligations or loyalties with respect to any foreign sovereigns or foreign powers
:::::Whatever the Founders meant by “natural born citizen,” it was more restrictive than “citizen,” and so restrictive that it was necessary to add an exception to the Constitution allowing those who were citizens when the Constitution was adopted to be eligible to be President, provided they satisfied all the other constraints
:::::The only explicit definition of “natural born citizen” in the historical record that was provided by one of the Founders defines it as meaning a person born in the country to citizen parents. No testimony from any other Founder or delegate of the Constitutional Convention exists that claims any other definition.
::::However, in spite of all the foregoing evidence, there remain those unconvinced. Why is that?
::::The Core Of The Controversy
::::In 1891, Prentiss Webster (1851-1898) published A Treatise On the Law Of Citizenship In The United States. The author makes the argument that there are two schools of thought regarding the philosophical and conceptual basis for the Declaration of Independence and the United States Constitution. The controversy over the meaning of “natural born citizen” is but one aspect of this larger disagreement.
::::It should be noted that the 1891 publication of A Treatise On the Law Of Citizenship In The United States happened 23 years after the ratification of the 14th Amendment, and seven years before the Supreme Court decided the Wong Kim Ark case (which used the English common law definition of “natural born subject” to justify its interpretation of the phrase “subject to the jurisdiction thereof” that occurs in the first sentence of the 14th Amendment.) The difference of opinion between the two factions is starkly evident in the majority and minority opinions in that case. We will examine the Wong Kim Ark case in greater detail later.
::::According to one school of thought identified by Webster, the principal philosophical and conceptual foundation of the United States founding documents was English common law. According to the other school, the US founding documents were based on pan-European “natural law” theory, as exemplified by what the US Constitution refers to as the “law of nations” (which refers to a theory of international law based on natural law concepts, not to any particular publication.)
::::Modernly at least, the proponents of neither school are absolutists. Those who favor English common law as the principal foundational seed don’t deny at least some influence of pan-European political theory based on natural law principles. And those who believe that pan-European “natural law” theory was the principal framework the Founders used to establish the governmental architecture of the United States generally agree that there were some principles, concepts and terms also borrowed from English common law. The crux of the disagreement is focused primarily on whether the terms and concepts involving citizenship are based on English common law or on the “law of nations” developed in Europe based on natural law principles.,
::::Those who reject the idea that “natural born citizen” means “born in the country, to parents both of whom are citizens of that country” argue that the term “natural born citizen” is simply the Americanized form of the term “natural born subject” as defined in English common law. They argue that the term was Americanized by substituting the word “citizen” for “subject”—because the US has citizens, not subjects—and that no other semantic or legal change was intended.
::::Both those who believe that US citizenship concepts and terms derive from English common law and those who believe they are based on the pan-European “law of nations” have written many articles, books, legal briefs and court decisions based on their point of view. So it’s easy to find citations in support of either thesis. Nevertheless, it is possible to determine which faction has de jure won the argument.
::::Was English Common Law The Foundation Or Basis For The US Constitution?
::::English common law was the basis for the common law of the original British colonies, and then of the original States of the Union, but was not the basis for the common law of the United States Federal government. The framers rejected the notion that the United States was under English Common Law, “The common law of England is not the common law of these States.” —George Mason, one of Virginia’s delegates to the Constitutional Convention.
::::James Madison wrote a letter to George Washington, shortly after the end of the Constitutional Convention (Oct 18, 1787). The letter was in defense of the work of the Constitutional Convention against criticisms by George Mason. One such criticism was that the “the common law was not secured” by the proposed Constitution. Madison’s response to that charge (text [enclosed within square brackets] has been added as clarification):
:::::The common law is nothing more than the unwritten law, and is left by all the constitutions [of the several States] equally liable to legislative alterations. I am not sure that any notice is particularly taken of it in the Constitutions of the States. If there is, nothing more is provided than a general declaration that it shall continue along with other branches of law to be in force till legally changed. The Constitution of Virga. [Virginia] drawn up by Col Mason himself, is absolutely silent on the subject. An ordinance passed during the same Session, declared the Common law as heretofore & all Statutes of prior date to the 4 of James I. to be still the law of the land, merely to obviate pretexts that the separation from G. Britain threw us into a State of nature, and abolished all civil rights and Obligations. Since the Revolution every State has made great inroads & with great propriety in many instances on this monarchical code. The “revisal of the laws” by a Committee of wch. Col. Mason was a member, though not an acting one, abounds with such innovations. The abolition of the right of primogeniture, which I am sure Col. Mason does not disapprove, falls under this head. What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they wd. have done more, they would have brought over from G.B. a thousand heterogeneous & antirepublican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law. If they had undertaken a discrimination, they must have formed a digest of laws, instead of a Constitution.
::::That should make it abundantly clear why in Wheaton v. Peters, 33 U.S. (Pet. 8) 591 (1834), the Supreme Court held: “It is clear there can be no common law of the United States. The Federal government is composed of twenty-four sovereign and independent states, each of which may have its local usages, customs and common law. There is no principle which pervades the Union and has the authority of law, that is not embodied in the constitution or laws of the Union. The common law could be made a part of our Federal system only by legislative adoption.”
::::In a recent speech to the Federalist Society, Supreme Court Justice Antonin Scalia confirmed that English common law did not “control” at the national or Federal level after the United States gained its independence from Great Britain:
:::::The common law is gone. The federal courts never applied the common law and even in the state courts it’s codified now. (Audio/Video: Justice Scalia speech, Nov 22, 2008)
::::Is “Natural Born Citizen” Equivalent To “Natural Born Subject” As Defined By English Common Law?
::::If so, it would have to be an exception to the clear words of the Founders and the controlling Supreme Court precedents that deny that Federal law is based on the English common law. Could that be?
::::One reason that English common law was rejected as the basis for US Federal common law is because the US was founded as a Constitutional Republic, not as a monarchy. The founding principles were different, and in fact were an explicit rejection of key foundational principles of English law and English government. Another reason was simply that each colony was founded at a different time, adopted English common law as its own at the moment of its founding, but then evolved its own common law going forward, independently of Great Britain and the other colonies. There was no common “common law” among the founding States—not even concerning matters of citizenship.
::::Words and terms of art have the meanings they do because of their utility in the culture and society that uses them. New words and phrases are created with particular meanings, and existing words and phrases are given new meanings, because those new meanings serve the purposes of those who use them, and old meanings no longer do. The Founders of the United States undeniably wanted and needed to start a brand new legal tradition, based on the principles of government in which they believed, and not based on those of the nation whose government and political traditions they had fought and died to repudiate and discard.
::::Breaking their allegiance to the King, severing the ties of community and nationality, establishing a new anti-monarchist Republic based on a new political philosophy cannot fail to require new principles, new words and new meanings for old words. So, even if English common law served as the foundational seed for the US Constitution, there would still be every reason to assume that the Founders would have made any necessary and proper changes to the legal principles and to the semantics of any terms of art they they may have incorporated from English common law (which, of course, they may have done even if they used the pan-European “law of nations” as the foundational framework for the new nation they created.)
::::Questions of citizenship are inextricably linked to the relationship between a state and its people, which depends fundamentally on the political theory according to which the people of a nation constitute and operate their government. English common law evolved to fit a political theory according to which it was a natural law that a nation would be ruled by a sovereign who was a single human being (a king or queen,) and a natural law that, in exchange for the protection of the sovereign and his permission to reside in the territory the sovereign rules by divine right a person must from the moment of birth onward be “in allegiance to the king,” which means to demonstrate loyalty and obedience to him (or to her, if the sovereign is the Queen.)
::::Under English common law, any child born on English soil (except the child of a foreign ambassador or alien enemy) was a natural-born subject, and English natural-born subjects owed perpetual allegiance to the king. Therefore, if you believe that English common law guided the formation of the U.S. national government, you are likely to also believe that U.S. citizenship was based on the jus soli principle, and that U.S. citizens did not have the right of expatriation.
::::On the other hand, European political and natural law theorists, such as de Vattel, taught that children, at birth, acquire citizenship by descent from their fathers, and that expatriation is a basic human right. Thus, if you believe that European theorists influenced the Founding Fathers as they wrote the Declaration of Independence and the U.S. Constitution, you are likely to also believe that the Founding Fathers’ understanding of citizenship included the jus sanguinis principle and the right of expatriation.
::::After gaining independence, the original thirteen States retained aspects of English common law, including the “rule” which granted citizenship to children of alien parents who, though not yet citizens, had sworn an oath of allegiance to the State and had established permanent legal residence, or domicile, within the State:
:::::While all States could be said to have recognized birth within the State as a means of conferring State citizenship to all persons, it is important to realize these States also required of aliens who desired to become domiciled within their limits to first renounce any allegiances to other governments and pledge their allegiance solely to the State. Therefore, a child born to domiciled parents was “born within the allegiance” of the State even if the parents had not yet been naturalized. (What ‘Subject to the Jurisdiction Thereof’ Really Means ~ Madison(2007))
::::However, the early framers of the Federal government seemed disinclined to follow the English understanding of sovereignty and allegiance. For example, Thomas Jefferson rejected the English common law notion of perpetual allegiance, and affirmed each individual’s right of expatriation:
:::::That our citizens are certainly free to divest themselves of that character, by emigration and other acts manifesting their intention and may then become the subjects of another power and be free to do whatever the subjects of that power do. (Thomas Jefferson, as quoted by Webster, p.76)
::::If the Framers of the Constitution were guided by English common law, it’s likely that the original meaning of “natural born citizen” was also based on English common law which included the jus soli principle. This would mean that anyone born in the United States (except the child of an ambassador or alien enemy) is at least a U.S. citizen at birth, if not a natural born citizen.
::::On the other hand, if the Founding Fathers were guided by European political and natural law theorists, such as de Vattel, the original meaning of “natural born citizen” probably included the jus sanguinis principle in which case, you cannot be a U.S. natural born citizen unless your father was a U.S citizen at the time of your birth.
::::In 1884, an article was published in The American Law Review written by George D. Collins, Esq. Attorney Collins was the Secretary of the California Bar Association. His name was recognized nationally for cases in the federal courts, and also due to his regular publishing of articles via The American Law review. The article was entitled “ARE PERSONS BORN IN THE UNITED STATES IPSO FACTO CITIZENS THEREOF?“, and was an in depth discussion and review of the legalities of US citizenship. Attorney Collins states:
:::::There is nothing in the constitution to indicate that the term “citizen” was used in reference to the common-law definition of “subject,” nor is there any act of Congress declaratory of the common-law doctrine, and the subject of citizenship being national, questions relating to it are to be determined by the general principles of the law of nations.
::::The Founders not only rejected the idea that English common law in general was the basis of the US Constitution, they also specifically objected to the use of the British definition of “natural born subject.” They actually fought yet a second war against the British over precisely the issue of whether or not the British definition of “natural born subject” applied to US citizens: The War of 1812!
::::One of they key disagreements between the US and Britain that led to the War of 1812 was the practice of the British Navy of impressing into British naval service sailors (and even passengers) they found on ships at sea. “Drafting” people into military service (to use the modern term) was predicated on the British definition of “natural born subject.” Under British law then and now, anyone either born on British soil or born to parents who were British subjects was also a British “natural born subject,” and hence owed allegiance to the British Crown, and so could be “impressed” (drafted) into British military service.
::::In the late 18th and early 19th centuries, many US citizens had either been born on British soil according to British law (the American colonies were British soil according to British law until the Crown signed the peace treaty with its former colonies,) or else had parents who were British subjects at the time of their birth. The US government strenuously objected to having its citizens kidnapped from ships at sea in order to be impressed into the British Navy, rejected the argument that Britain had any right to do this based on the British definition of “natural born subject,” and insisted that on US ships at sea, only US law applied, and on non-British ships, only the “law of nations” applied. And this objection by the US would only have been logically consistent if the US had categorically rejected the British definition of “natural born subject,” and if that rejection involved issues in addition to the difference between a subject and a citizen.
::::In addition to going to war, the US took other measures to deal with the problem of having its sailors impressed into the British Navy: On February 9, 1813, the US House of Representatives passed a law that required that all the officers and three fourths of the seamen on a ship of the United States be natural born citizens. Whatever “natural born citizen” meant to the founding generation (many of whom were still alive and serving in Congress at the time,) the US Congress of 1813 thought that requiring a person to be such would prevent the British definition of “natural born subject” from applying to such a person—which means that a “natural born citizen” of the US could not have been born on British soil, nor could a “natural born citizen” of the US have even one British parent.
::::US Supreme Court Decisions Concerning Citizenship and “Natural Born Citizens”
::::The Constitution vests the judicial power of the United States with the US Supreme Court. By definition, “judicial power” is the power to judge questions of law, both with respect to what the law means in general and with respect to how the law should apply to a particular set of facts and circumstances. The US Constitution names itself as a law, and therefore the Supreme Court has the power to judge its meaning and application pursuant to the Constitutional grant of judicial power to the courts of the United States. The Supreme Court ruled in 1803 that the judicial power that the US Federal courts were granted in the Constitution necessarily included the power to use the Constitution as a “meta-law” governing the meaning and validity of the actions of the President, the Congress and lower courts. That ruling is referred to as “Marbury vs. Madison,” and the ruling in that case set the precedent of what has come to be called “judicial review,” which is the principle that Federal courts have the power to retroactively invalidate Congressional statues by finding them in violation of the superior law known as the US Constitution.
::::One of the precedent-setting holdings of Marbury vs. Madison was the following:
:::::It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it. ~ Marbury v. Madison, 5 U.S. 137
::::That each clause of the Constitution must be consequential, and not superfluous, is one of the foundational principles of exegesis that the Supreme Court uses in interpreting the Constitution. One consequence of this principle is that the Supreme Court will not interpret a later Amendment in such a way so as to render any clauses present before that Amendment was added impotent or irrelevant, unless it is abundantly clear that such was the intent of the later Amendment—perhaps because the later Amendment explicitly states that an earlier clause is repealed, or perhaps because the later Amendment contradicts an earlier clause, and the conflict can only be resolved by assuming the implied intent was to repeal or nullify the other clause.
::::With that interpretive principle in mind, consider what the first sentence of the Fourteenth Amendment has to say regarding US citizenship:
:::::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.
::::Firstly, note that the sentence says nothing about “natural born citizens”—that term does not appear. Nor does it say anything about who is or is not eligible to serve as President of the United States. It does not take away from or add to the power of Congress with respect to making naturalization rules (it does prevent Congress from denying citizenship to anyone “born in the United States, and subject to the jurisdiction thereof,” but that leaves unchanged the power of Congress to naturalize whomever it pleases.). Nor does the Amendment state that it is repealing any clause in the original Constitution or in any of the subsequent Amendments. Instead, it specifies the following rules regarding Federal and State citizenship:
:::::1. Any person born in the United States who is also “subject to the jurisdiction thereof” is Constitutionally defined as a US citizen.
:::::2. Any person naturalized in the United States who is also “subject to the jurisdiction thereof” is Constitutionally defined as a US citizen.
:::::3. A citizen of the United States is Constitutionally defined as also a citizen of the State in which he or she resides.
::::We know from history that this sentence of the 14th Amendment was intended to accomplish the following purposes:
:::::1. To retroactively define as US citizens those who had recently been slaves, but whose citizenship was not recognized by the States in which they resided.
:::::2. To prevent States from claiming that such persons were not citizens of the State in which they lived, even if they were US citizens.
::::There is no evidence that the 14th Amendment was intended in any way to change the Constitutional qualifications for serving as US President.
::::Many at the time argued that the freed slaves were already citizens by natural law. Nevertheless, the Amendment was proposed and ultimately ratified because the natural law argument was not accepted by some of the States with respect to former slaves. Nevertheless, those who accepted the natural law argument did not view the 14th Amendment as granting citizenship to those who had not had it, but rather as affirming the citizenship of the former slaves in a way that could not be contested by those opposed. The point is that the Amendment was not proposed and ratified because the nation had concluded that the previous citizenship rules needed to be changed (obviously, those opposed to the idea that the former slaves should be recognized as citizens wanted no such “change”), but rather because there was such strong disagreement with respect to what the rules actually were, and how they should be applied. Note, for example, that the 14th Amendment defines anyone naturalized as a citizen pursuant to Congress’ authority to make naturalization rules as a Constitutional citizen. But such persons were already “Constitutional citizens,” because the Constitution grants Congress the power to grant citizenship. So in the case of naturalized citizens, the only possible effect of the 14th Amendment was to prevent States from claiming that US citizens residing in that State were not citizens of the State.
::::Although the Fourteenth Amendment ended the argument regarding the citizenship of the former slaves, it did not end it for other cases. Why not? Because in addition to the clear jus soli requirement established by the 14th Amendment that a person must be born in the United States in order to be a citizen, the Amendment additionally required that the person be “subject to the jurisdiction” of the United States. What does “subject to the jurisdiction” mean? That became the next disputed issue, and its resolution required a Supreme Court decision.
::::In 1898, the Supreme Court had to decide whether a petitioner was or was not a US citizen. It was the first such case the Court considered following the ratification of the 14th Amendment where the question of citizenship could not be decided by any means other than interpreting the first sentence of the 14th Amendment. Interestingly, the text of the decision itself falsely claims that there was a prior case that had already done the same, but that claim is provably false. That’s actually a crucial point, as will be shown later.
::::The 1898 case involved the citizenship status of Mr. Wong Kim Ark, who was born in the United States to Chinese parents who never acquired US citizenship. His citizenship was challenged both because neither of his parents were US citizens, and also because of a law restricting Chinese immigration and prohibiting immigrants from China from becoming naturalized U.S. citizens. The court decided that Wong Kim Ark was a citizen based on the first sentence of the 14th Amendment, and that “subject to the jurisdiction of the United States” means a) physically present on United States soil, AND b) the person was born to parents who were private individuals not employed in any official capacity by a foreign sovereign.
::::The court’s interpretation of “subject to the jurisdiction” has been strongly criticized on a number of grounds by those who argue that the intended meaning was “not subject to any foreign power.”
::::In the majority’s Opinion of the Court, English common law was “in force” when the United States was founded, “continued to prevail” under the Constitution, and controlled the Constitutional meaning of “subject to the jurisdiction.” According to the jus soli principle of English common law, U.S.-born children of “domiciled” (permanent legal resident) alien parents are citizens by birth.
::::In the minority’s Dissenting Opinion, the law of nations controlled the Constitutional meaning of citizenship. According to the jus sanguinis principle promoted by European natural law theorists, a child is naturally a citizen at birth only if its parents were citizens at the time of its birth, regardless of the child’s place of birth.
::::In the Wong Kim Ark case, the difference of opinion among the justices was rooted in their differing understandings of America’s history and founding principles. The split decision in Wong Kim Ark illustrated Prentiss Webster’s main point: that one’s understanding of Constitutional citizenship reflects one’s belief as to which philosophical system — English common law, or European political and natural law theory — guided the framers of the U.S. Constitution—at least in so far as questions of citizenship zre concerned.
::::Original Intent of the 14th Amendment: In delivering the majority opinion in U.S. v. Wong Kim Ark, Justice Gray admitted that he had “presumed” that, in the 14th Amendment, the word “jurisdiction” means territorial and legal jurisdiction only. Evidence regarding the Framers’ original intent, as expressed during the Congressional debates over the 14th Amendment, was deemed “not admissible”:
:::::The words ‘in the United States, and subject to the jurisdiction thereof,’ in the first sentence of the fourteenth amendment of the constitution, must be presumed to have been understood and intended by the congress which proposed the amendment … as the equivalent of the words ‘within the limits and under the jurisdiction of the United States’… Doubtless, the intention of the Congress which framed and of the States which adopted this Amendment of the Constitution must be sought in the words of the Amendment, and the debates in Congress are not admissible as evidence to control the meaning of those words. (Wong Kim Ark, 1898).
::::The Supreme Court did not consider evidence showing that the originally intended meaning of “jurisdiction” was sole and complete jurisdiction. The Court’s refusal to consider such evidence was “inexcusable“:
:::::A refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge’s refusal to consider legislative intent. (Justice John Paul Stevens, as quoted by Madison(2006))
::::The Supreme Court Defines “Natural Born Citizen
::::The earlier Supreme Court decision, which was wrongly referenced in the Wong Kim Ark decision as having used the 14th Amendment to decide a person’s citizenship, is known as Minor vs. Hapersett, 88 U.S. 162. That decision did in fact use the 14th Amendment as the basis for its second principal holding concerning the right to vote, but not for its first principal holding concerning whether or not the petitioner was a US citizen (court decisions can involve multiple holdings, which are the precedent-setting decisions the court makes in order to decide the legal and/or factual issues before the court in a particular case.)
::::In Minor, the court held that the 14th Amendment granted no one at all any right to vote, regardless of sex, age or citizenship. Previous cases had already held that there was no Federal right to vote. The second principal holding in Minor, as well as the holdings in previous cases, are the reason that the 15th, 19th, 24th and 26th Amendments were later proposed and adopted, the language of which forbids the denial of the privilege of voting based on race, previous condition of servitude, sex or age (for those 18-years of age or older.) The 19th Amendment, for example, requires that if one sex is granted the privilege to vote, the other sex must be granted that same privilege equally.
::::But the court in Minor determined that before it could decide the issue of whether the petitioner (who was an adult White woman) had any Federal right to vote based on the 14th Amendment, it first had to decide whether or not she was a citizen, and if so on what basis? Understanding why the court approached the issue that way is crucial: Firstly, if women as a class be not US citizens, then the second sentence of the 14th Amendment that forbids States from denying citizens any privileges of US citizens would not apply to them, since it only applies to those who are US citizens. Secondly, the court was concerned with whether or not the citizenship of women as a class depended on the 14th Amendment. In other words, the question was whether or not, in the absence of the 14th Amendment, would any women at all be citizens? That second issue mattered for two reasons:
:::::1. The legal principle known as judicial restraint:
::::::If women as a class were not citizens before the adoption of the 14th Amendment, then the Court would have to decide whether the first sentence of the 14th Amendment granted women “born in the US and subject to the jurisdiction thereof” US citizenship. But if the woman who was the petitioner in the case at hand could be held to be a US citizen even without applying the first sentence of the 14th Amendment, then the principle of judicial restraintwould behoove the Court to avoid deciding whether or not the 14th Amendment grants any women US citizenship. Judicial restraint requires that courts not make precedent-setting holdings when the issues in a case do not require it.The court has always interpreted the principle of judicial restraint as sufficient reason to use the original (unamended) text of the Constitution before relying on the text of any subsequent Amendments, if such is possible. That’s especially true in the absence of any prior precedents based on a particular clause of the Constitution. They seek to avoid making a “first instance” interpretation of any clause when there are other precedents that can be used instead (where it can be shown that no reasonable meaning of the unused clause could possibly change the outcome.) In this case, since the 14th