Support Free Republic!
Donate Now!
Posted on 04/17/2011 8:07:19 PM PDT by SeekAndFind
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. 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 perpetual allegiance was abandoned for expatriation and, as Madison stated, citizenship was strictly left to the individual States to define.
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. The American naturalization process required all males to twice renounce all allegiances with other governments and pledge their allegiance to this one before finally becoming a citizen.
House Report No. 784, dated June 22, 1874, stated, “The United States have not recognized a ‘double allegiance.’ By our law a citizen is bound to be ‘true and faithful’ alone to our government.” It wouldn’t be practical for the United States to claim a child as a citizen when the child’s natural country of origin equally claims him/her because doing so would leave the child with competing legal obligations.
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,” which is vastly different from local jurisdiction due to physical location alone.
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 claim for 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 arguing the physical presence of being subject to laws silly because being subject to another countries laws while visiting makes no change to an aliens allegiance to their native country.
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 not claimed, 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. John A. 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 had asserted the same thing in 1862 as well:
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 recognise the principle that I assert. (Cong. Globe, 37th, 2nd Sess., 407 (1862))
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 years earlier 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.
It should be noted this allegiance due under England’s common law and American law are of two different species. Under the common law one owed a personal allegiance to the King as an individual upon birth. Under the American system there was no individual ruler to owe a personal allegiance to.
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, and thus, making such a citizen indistinguishable from a naturalized citizen.
Conclusion
Extending citizenship to non-citizens through birth based solely upon locality is nothing more than mere municipal law that has no extra-territorial effect as proven from the English practice of it. On the other hand, citizenship by descent through the father is natural law and is recognized by all nations (what nation doesn’t recognize citizenship of children born to their own citizens?). Thus, a natural-born citizen is one whose citizenship is recognized by law of nations rather than mere local recognition.
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.”
When a child inherits the citizenship of their father they become a natural-born citizen of the nation their father belongs regardless of where they might be born. It should be pointed out that citizenship through descent of the father was recognized by U.S. Naturalization law whereby children became citizens themselves as soon as their father had become a naturalized citizen.
In a nation that has abandoned the English tradition of “perpetual allegiance” to the King upon birth for the principal of expatriation, the requirement of preexisting allegiance of the father can be the only method for a child to be born into the allegiance of the nation, and thus, a natural-born citizen.
THE MAIN ISSUE IS THE CITIZENSHIP OF OBAMA's FATHER AT THE TIME OF HIS BIRTH REGARDLESS OF WHERE HE WAS BORN.
Comments/Disagreements welcome
“harping on this issue ( especially Obama’s birth certificate, which I personally think is irrelevant )”
We could tell that already, by your use of the word “harping”...
It’s obvious and clear what it means. It means born a citizen, not a naturalized citizen. That’s why McBain can’t be president, but his kids could. Everyone knows that.
What were the circumstances behind McCain’s birth that disqualifies him?
sorry - McBain = easier to type than Schwarzenegger.
But, then you have to begin the questioning of who Stanley Anne Dunham opened her legs for that fateful evening when she conceived a child?
Was it Mr. Obama, Mr. Soerto, Mr. Davis, or who knows, or if she even knew?
McCain’s parents, both of them, are U.S born and he was born in American jurisdiction. He’s eligible.
Obama, on the other hand, is not.
It’s what I’ve been saying repeatedly; WE DON’T NEED TO SEE HIS BIRTH CERTIFICATE to already know that he’s not eligible. His dad is not a citizen of the U.S., therefore, O is ineligible.
I really wish some in the electorate can differentiate between U.S. citizen and natural born. And I really was hoping millions would stop falling for this birth certificate nonsense.
AGAIN, WE ALREADY KNOW, AND WE KNEW BACK IN 2008, THAT OBAMA IS NOT ELIGIBLE BECAUSE HIS DAD’S STATUS IS THAT OF A FOREIGNER. His stinking birth certificate does not change that fact.
Yes, I would love to see his college records, only because my gut tells me his grades stink. But I don’t need his stupid birth certificate because I already know that this President got away with the whole enchilada. The media and the Democrats just pulled a huge scam over all of us, and instead of focusing like a laser beam on the natural born issues, people are screaming about “Obama - U.S. citizen and a birth certificate”.
Unreal.
Support Free Republic!
Donate Now!
RE: sorry - McBain = easier to type than Schwarzenegger.
Arnold isn’t running and we know that he is ineligible.
Also to those fans of Gov. Bobby Jindal out there, we ought to ask ourselves if he is eligible also.
What were the citizenship of his parents at his time of birth?
If BOTH were not US Citizens, he is merely a NATIVE BORN American, NOT a NATURAL BORN Citizen.
Which (sadly) makes him ineligible to be POTUS.
The first is the issue of natural born as raised by the author of the article. It has never been tested in the courts, especially SCOTUS. I feel strongly that it should be based on the citizenship of Obama's alleged father.
The second issue revolves around Obama's long form birth certificate to verify exactly who his birth father really was and to determine if he was born abroad. In order to challenge whether Obama was "natural born," we would have to verify from a primary source document that Barack Obama Sr. was his real father. And if there is an indication that Obama was born abroad (COLBs in Hawaii have been issued to children born abroad) then he would clearly not be eligible to be President unless his mother was unmarried and she alone conveyed citizenship abroad. A Consular certification would be used to do that. There is no doubt that Obama is a citizen and presumably had a US passport when he travelled to Indonesia when he was six years old. If he had been born overseas, he would have been added to his mother's passport in order to enter the US for the first time.
RE: The second issue revolves around Obama’s long form birth certificate to verify exactly who his birth father really was
Something just struck me as I read the above, which is this — why is Obama being so secretive about his Long Form Birth Certificate ? Could it be that it does not show that who he said his father is, isn’t really his father?
Curiouser and curiouser it’s becoming.
Until we see the long form birth certificate, we really don't know who his father was.
We really need to see the original, long form birth certificate to confirm it. There is no doubt in my mind that Obama is hiding something or he would have released the long form BC long ago.
This is a great summary, but confused me at the end with this quote: “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.”
Unlike Bingham’s formulation, which clearly required birth in the U.S. to citizen parents, the Wilson formulation could be construed to mean that a U.S.-born child of alien parents permanently residing in the U.S. (even if they had not yet attained U.S. citizenship or even had plans to) could be considered natural born citizens. That is, if the parents are permanent U.S. residents, they can’t be characterized as “temporary sojourners.” This would seem to undercut the clarity of the author’s argument up until the Conclusion in which the Wilson quote appears.
Yes, yes, I’ve heard the speculation and theories that perhaps his dad is Frank Marshall Davis or maybe it’s Malcolm X, or maybe it’s his grandfather, Stanley Dunham! Do you even realize that you’re arguing for his natural born status? If either of these men are his dad, and he is born in Hawaii, he’s natural born and he’s eligible.
I tend to take him at his word; that his dad is the foreign-born and non-U.S.-citizen Obama Sr. From Obama’s own mouth, he has already told us that he is not eligible. I don’t need to chase theories and connect speculative dots; I’m connecting the two dots of facts I have, and from that, he is ineligible.
But by all means, go ahead and make this more difficult. I don’t need the chase to know this guy is a fraud (ineligible), a liar, and his sympathies are severely unAmerican.
The author appears to be unaware that distinctions between those rights derived from the father and from the mother are unlikely to be accepted in today's America.
I realize things were different in the 18th century, but if it is intended to maintain them today, an argument should be made why this is appropriate, rather than just ignoring the issue.
What in the world makes you think a BC contains such information, particularly in the case of a married woman?
Assuming the BC does list the birth father, as opposed to the legal father, which it doesn't in any state, AFAIK, where could they possibly get such information except from the mother? And what makes you think she would tell the truth? Or possibly that she even knew who the "real father" was?
Prior to modern DNA testing, such as in the early 60s, there was NO WAY to prove who the "real father" was.
Even if it were to be proven the "real father" was some other guy, what makes you think the Constitution's provision would apply to the "sperm donor" rather than the legal father, the mother's husband?
This is bs
Bump for later.
The long form BC is paramount because on it we will see who his father is. Before you can rule out Obama because his father was not a citizen, you have to be SURE who his LEGAL father is. What PROOF do you have to show that Barrack Obama was the father of Barack Obama? The same COLB that we know to be photo-shopped and forged?
First things first. Let's get the official, LEGAL, Birth Certificate that includes ALL the birth information. If he can't produce one, then it's over for him.
McCain was born at the public hospital in Colon, Panama which is located about a mile from the PCZ. (The U.S. Naval Hospital wasn’t built until a few years later) The PCZ was only leased from Panama and did not carry U.S. territorial status. IMHO, Mccain is not an NBC. He could have allegiance to Panama.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.