By P.A.Madison
UPDATED 3/4/09
What might the phrase “natural-born citizen” of the United States
imply under the U.S. Constitution? The phrase has always been obscure
due to the lack of any single authoritative source to confer in order
to understand the condition of citizenship the phrase recognizes.
Learning what the phrase might have meant following the Declaration of
Independence, and the adoption of the Fourteenth Amendment, requires
detective work. As with all detective work, eliminating the usual
suspects from the beginning goes a long way in quickly solving a case.
What Natural-Born Citizen Could Not Mean
Could a natural-born citizen simply mean citizenship due to place of birth?
Unlikely in the strict sense because we know one can be native born
and yet not a native born citizen of this country prior to the year
1866. There were even disputes whether anyone born within the District
of Columbia or in the territories were born citizens of the United
States (they were generally referred to as “inhabitants” instead.)
National Government could make no “territorial allegiance” demands
within the several States because as Madison explained it, the “powers
reserved to the several States will extend to all the objects which, in
the ordinary course of affairs, concern the lives, liberties, and
properties of the people, and the internal order, improvement, and
prosperity of the State.”
Jurisdiction over citizenship via birth within the several States
was part of the “ordinary course of affairs” of the States that only
local laws could affect. Early acts of Naturalization recognized the
individual State Legislatures as the only authority who could make
anyone a citizen of a State. Framer James Wilson said, “a citizen of
the United States is he, who is a citizen of at least some one state in
the Union.” These citizens of each State were united together through
Article IV, Sec. II of the U.S. Constitution, and thus, no act of
Congress was required to make citizens of the individual States
citizens of the United States.
Prior to the Revolutionary War place of birth within the dominions
of the crown was the principle criterion for establishing perpetual
allegiance and citizenship. After independence each State was free to
establish their own maxims on the subject. James Madison’s own State of
Virginia adopted a birthright law authored by Thomas Jefferson that
recognized parentage (citizenship of father) in determining citizenship
of the child, as well as recognizing the right of expatriation –
something unheard of under the common law. States that were slow in
enacting laws over acquiring citizenship through birth forced courts to
adjudicate citizenship disputes under common law rules.
Congress was vested only with the power to make uniform rules
of naturalization in order to remove alienage from those who were
already born abroad (outside of the States) who had immigrated to any
one of the individual States. The best Congress could do is declare
children born abroad to fathers who were already a citizen of some
State to be a citizen themselves. In other words, naturalization only
provides for the removal of alienage and not for the creation of
citizens within individual States.
Additionally, if the framers merely intended for birth alone on U.S.
soil, or understood birth alone bestowing unconditional citizenship to
anyone, then all would had been necessary was to say the President
shall be “native born.” But whether someone might just be native born
or born a citizen only State law or custom could determine.
Could a natural-born citizen perhaps be synonymous with the British term “natural-born subject”?
It is very doubtful the framers adopted the doctrine found under the
old English doctrine of “natural-born subject.” The British doctrine
allowed for double allegiances, something the founders considered
improper and dangerous.
Framer Rufus King said allegiance to the United States depended on
whether a person is a “member of the body politic.” King says no nation
should adopt or naturalize a person of another society without the
consent of that person. The reason? Because “he ought not silently to be embarrassed with a double allegiance.”
The powers of the general government were limited and defined,
preventing Congress from exercising the same kind of sovereignty that
Britain had over its claimed dominions within established States of the
Union.
Under the old English common law doctrine of natural-born subject,
birth itself was an act of naturalization that required no prior
consent or demanded allegiance to the nation in advance. Furthermore,
birth was viewed as enjoining a “perpetual allegiance” upon all that
could never be severed or altered by any change of time or act of
anyone. England’s “perpetual allegiance” due from birth was extremely
unpopular in this country; often referred to as absurd barbarism, or
simply perpetual nonsense. America went to war with England over the
doctrine behind “natural-born subject” in June of 1812.
Because Britain considered all who were born within the dominions of
the crown to be its natural-born subjects even after becoming
naturalized citizens of the United States, led to British vessels
blockading American ports. Under the British blockade, every American
ship entering or leaving was boarded by soldiers in search of British
born subjects. At least 6,000 American citizens who were found to be
British natural-born subjects were pressed into military service on
behalf of the British Empire, and thus, the reason we went to war.
Fourteenth Amendment
Whatever might had been the correct understanding of “natural-born
citizen” prior to 1866, the adoption of the Fourteenth Amendment
certainly changes the view because for the first time we have a written
national rule declaring who are citizens through birth or
naturalization. Who may be born citizens is conditional upon being born
“subject to the jurisdiction” of the United States – a condition not
required under the common law. The legislative definition of “subject
to the jurisdiction thereof” was defined as “Not owing allegiance to
anybody else.”
This national
rule prevents us from interpreting natural-born citizen under common
law rules because it eliminates the possibility of a child being born
with more than one allegiance.
The primary author of the citizenship clause, Sen. Jacob M. Howard,
said the “word jurisdiction, as here employed, ought to be construed so
as to imply a full and complete jurisdiction on the part of the United
States, coextensive in all respects with the constitutional power of
the United States, whether exercised by Congress, by the executive, or
by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.”
United States Attorney General, George Williams, whom was a U.S.
Senator aligned with Radical Republicans during the drafting of the
Fourteenth Amendment in 1866, ruled in 1873 the word “jurisdiction”
under the Fourteenth Amendment “must be understood to mean absolute and
complete jurisdiction, such as the United States had over its citizens
before the adoption of this amendment.” He added, “Political and
military rights and duties” do not pertain to anyone else.
Essentially then, “subject to the jurisdiction thereof” means the
same jurisdiction the United States exercises over its own citizens,
i.e., only citizens of the United States come within its operation
since citizens of the United States do not owe allegiance to some other
nation at the same time they do the United States. This makes a great
deal of sense for the time because there was a great deal of
controversy over conflicts arising from double allegiances. In fact,
Congress issued a joint congressional report on June 22, 1874 that said
the “United States have not recognized a double allegiance.”
Just as a person cannot be naturalized and subject to the
jurisdiction of the United States while owing allegiance to another
nation, neither can anyone born. Why would “subject to the jurisdiction thereof” be any different with persons born since this jurisdiction equally applies to persons born or naturalized? In other words, the words do not exempt persons born from the same allegiance requirements of persons naturalized.
It is worth noting that wives and children were never naturalized separately but became naturalized through the father/husband.
Because “subject to the jurisdiction thereof” requires not owing
allegiance to any other nation, and because the nation does not
recognize double allegiances that can be created at common law, narrows
the possibilities to what “natural-born citizen” can mean.
Natural-Born Citizen Defined
One universal point most all early publicists agreed on was
natural-born citizen must mean one who is a citizen by no act of law.
If a person owes their citizenship to some act of law (naturalization
for example), they cannot be considered a natural-born citizen. This
leads us to defining natural-born citizen under the laws of nature –
laws the founders recognized and embraced.
Under the laws of nature, every child born requires no act of law to
establish the fact the child inherits through nature his/her father’s
citizenship as well as his name (or even his property) through birth.
This law of nature is also recognized by law of nations. Sen. Howard
said the citizenship clause under the Fourteenth Amendment was by
virtue of “natural law and national law.”
The advantages of Natural Law is competing allegiances between
nations are avoided, or at least with those nations whose custom is to
not make citizens of other countries citizens without their consent.
Any alternations or conflicts due to a child’s natural citizenship are
strictly a creature of local municipal law. In the year 1866, the
United States for the first time adopted a local municipal law under
Sec. 1992 of U.S. Revised Statutes that read: “All persons born in
the United States and not subject to any foreign power, excluding
Indians not taxed, are declared to be citizens of the United States.”
Rep. Bingham commenting on Section 1992 said it means “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.” (Cong. Globe, 39th, 1st Sess., 1291 (1866))
Bingham subscribed to the same view as most everyone in Congress at
the time that in order to be born a citizen of the United States one
must be born within the allegiance of the Nation. Bingham had explained
that to be born within the allegiance of the United States the parents,
or more precisely, the father, must not owe allegiance to some other
foreign sovereignty (remember the U.S. abandoned England’s “natural
allegiance” doctrine). This of course, explains why emphasis of not
owing allegiance to anyone else was the affect of being subject to the
jurisdiction of the United States.
Chairman of the House Judiciary Committee, James F. Wilson of Iowa,
added on March 1, 1866: “We must depend on the general law relating to
subjects and citizens recognized by all nations for a definition,
and that must lead us to the conclusion that every person born in the
United States is a natural-born citizen of such States, except …
children born on our soil to temporary sojourners or representatives of
foreign Governments.” The phrase “temporary sojourners” referred to
those in the country for purposes of work, visiting or business and who
had no intention of taking the steps to become citizens, or incapable
by law.
The constitutional requirement for the President of the United
States to be a natural-born citizen had one purpose according to St.
George Tucker:
That provision in the constitution which requires that the
president shall be a native-born citizen (unless he were a citizen of
the United States when the constitution was adopted,) is a happy means
of security against foreign influence, which, wherever it is capable of
being exerted, is to he dreaded more than the plague. The admission of
foreigners into our councils, consequently, cannot be too much guarded
against; their total exclusion from a station to which foreign nations
have been accustomed to, attach ideas of sovereign power, sacredness of
character, and hereditary right, is a measure of the most consummate
policy and wisdom. … The title of king, prince, emperor, or czar,
without the smallest addition to his powers, would have rendered him a
member of the fraternity of crowned heads: their common cause has more
than once threatened the desolation of Europe. To have added a member
to this sacred family in America, would have invited and perpetuated
among us all the evils of Pandora’s Box.
Charles Pinckney in 1800 said the presidential eligibility clause
was designed “to insure … attachment to the country.” President
Washington warned a “passionate attachment of one nation for another,
produces a variety of evils,” and goes on to say:
Sympathy for the favorite nation, facilitating the
illusion of an imaginary common interest, in cases where no real common
interest exists, and infusing into one the enmities of the other,
betrays the former into a participation in the quarrels and wars of the
latter, without adequate inducement or justification. It leads also to
concessions to the favorite nation, of privileges denied to others,
which is apt doubly to injure the nation making the concessions; by
unnecessarily parting with what ought to have been retained; and by
exciting jealousy, ill- will, and a disposition to retaliate, in the
parties from whom equal privileges are withheld.And it gives to ambitious, corrupted, or deluded citizens, (who
devote themselves to the favorite nation,) facility to betray or
sacrifice the interests of their own country, without odium, sometimes
even with popularity; gilding, with the appearance of a virtuous sense
of obligation, a commendable deference for public opinion, or a
laudable zeal for public good, the base or foolish compliances of
ambition, corruption, or infatuation.
What better way to insure attachment to the country then to require
the President to have inherited his American citizenship through his
American father and not through a foreign father. Any child can be born
anywhere in the country and removed by their father to be raised in his
native country. The risks would be for the child to return in later
life to reside in this country bringing with him foreign influences and
intrigues, thus, making such a citizen indistinguishable from a
naturalized citizen.
Therefore, we can say with confidence that a natural-born citizen of
the United States means those persons born whose father the United
States already has an established jurisdiction over, i.e., born to
father’s who are themselves citizens of the United States. A person who
had been born under a double allegiance cannot be said to be a
natural-born citizen of the United States because such status is not
recognized (only in fiction of law). A child born to an American mother
and alien father could be said to be a citizen of the United States by
some affirmative act of law but never entitled to be a natural-born
citizen because through laws of nature the child inherits the condition
of their father.
UPDATE:
I came across this interesting speech by the Speaker of the House of Representatives, Langdon Cheves, in February of 1814:
The children have a natural attachment to the society in
which they are born: being obliged to acknowledge the protection it has
granted to their fathers, they are obliged to it in a great measure for
their birth and education. … We have just observed that they have a
right to enter into the society of which their fathers were members.
But every man born free, the son of a citizen, arrived at years of
discretion, may examine whether it be convenient for him to join in the
society for which he was destined by his birth.
Cheves is obviously drawing on the works of Emer de Vattel, Law of
Nations. Not something you would expect from the Speaker of the House
of a Nation that supposedly adopted England’s common law.
UPDATE II:
Rep. A. Smyth (VA), House of Representatives, December 1820:
When we apply the term “citizens” to the inhabitants of
States, it means those who are members of the political community. The
civil law determined the condition of the son by that of the father. A
man whose father was not a citizen was allowed to be a perpetual
inhabitant, but not a citizen, unless citizenship was conferred on him.
Related:
What “Subject to the Jurisdiction Thereof” Really Means
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From reading all the material on the subject of natural born citizens I can’t help but conclude the following:
1) Citizens of united states was never properly defined by the
framers mainly because only state law could define whom were born a
citizen of the state which in return automatically made them a citizen
of the united states under article 4.2) Congress in 1866 recognized not all states recognized people of
color as citizens and set out to define who were citizens of the united
states through statute and amendment to the constitution.3) Congress decided to recognize all persons born or naturalized as
citizens of the united states as long as they could not be claimed as
subjects of another country.4) The 14th amendment was clearly designed to recognized only those politically attached to the nation (citizens) and no other.
5) Just as a naturalized citizen cannot be claimed by any other foreign power as their citizens, neither can anyone born.
Obama cannot be a citizen of the united states under the true
meaning behind born or naturalized subject to the jurisdiction of the
united states. Justice Gray himself confirmed this in Elk v Wilkins
writing for the majority in defining subject to the jurisdiction as
political attachment and not mere place of birth. This was in perfect
agreement with acts of congress of 1866, 1868 and 1874.This crazy notion that place of birth controls citizenship is so
contrary to written law makes you wonder how so many got carried away
with such an easily debunked belief.
Article II, Section 5, Clause 1 states:
“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.”
Pardoning the confusion of terms, a natural born Citizen was a native born citizen, born in the United Colonies under the Articles of Confederation or the United States under the Constitution of the United States, while a Citizen of the United States at the time of the adoption of the Constitution, was a person who was naturalized under the laws then existing under the Articles of Confederation.
A native born citizen then was one who was born with the territory of a government (country) and subject to its jurisdiction. In this case, the United Colonies or the United States.
This type of citizenship was based on jus soli, that is one who is born on the soil of the country of which he is a citizen.
Through the years following the adoption of the Constitution of the United States, a new class of citizens naturalized under the laws under the Constitution of the United States came into being. Being citizens of the United States, they were under the Constitution ineligible to be President of the United States. However, their offspring, that is their children were not in the same circumstances. As long as they were born in the United States of America, they could become President of the United States under the Constitution. This is because they were born to parents who were themselves citizens of the United States, even though they were ineligible to be President of the United States.
This type of citizenship was based on jus sanguinis, that is what his or her parents were, also known as right of blood.
So after the adoption of the Constitution of the United States, and the passing of the last citizen of the United States who was a citizen of the United States at the time of the adoption of the Constitution of the United States, the only citizens eligible to be President of the United States, were natural born citizens, that is native born citizens who citizenship was based on jus soli (soi) or jus sanguinis (blood).
This was essentially the situation before the Fourteenth Amendment. Did the Fourteenth Amendment change this?
In the Slaughterhouse Cases, (83 U.S. 36) the Supreme court held that because of the Fourteenth Amendment there were now two citizens under the Constitution of the United States (and not the Fourteenth Amendment), a citizen of the United States, under the Fourteenth Amendment and a citizen of the several States, under Article IV, Section 2, Clause 1. The last was later reaffirmed in Cole v. Cunningham:
“The intention of section 2, Article IV (of the Constitution), was to confer on the citizens of the several States a general citizenship.” Cole v. Cunningham: 133 U.S. 107, 113 thru 114 (1890).
So the Fourteenth Amendment created two citizens under the Constitution of the United States; a citizen of the several States, under Article IV, Section 2, Clause 1 and a citizen of the United States, under the first section of the Fourteenth Amendment.
The proper question to asked is if a citizen of the United States can be considered a native born citizen (natural born citizen) eligible to be President of the United States? A citizen of the United States is no longer a citizen of the Union but now is a citizen of the United States (Fourteenth Amendment), that is a citizen of the territories and possessions of the United States, whereas a citizen of the several States is a citizen of the Union:
“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States.” Article II, Section 2, Clause 1 Constitution of the United States.
Before the Fourteenth Amendment, Presidents of the United States were born in an individual state of the Union, that is the several States. After the Fourteenth Amendment, Presidents of the United States were and are born in an individual state of the Union, but claim to be a citizen of the United States. In the case of Barack Obama, however, being born in Hawaii could make him a citizen of the United States in the territory of Hawaii rather than the State of Hawaii.