Skip to comments.Who is a Natural Born Citizen?
Posted on 07/03/2011 7:26:19 PM PDT by sourcery
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:
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.
Is "Natural Born Citizen" Equivalent To "Natural Born Subject" As Defined By English Common Law?
The argument is made that "natural born citizen" means the same thing that "natural born subject" means in English common law, except for the differences in meaning between a subject and a citizen. That idea is false. The full proof of that assertion is presented below, in the section entitled "The Semantics Of Natural Born Subject In English Common Law." The short version (executive summary) is as follows:
The English common law did not distinguish between a "natural born subject" and a naturalized subject. Under English common law, once a person became naturalized, he or she was deemed to be a "natural born subject." Hence, under English common law a naturalized citizen was considered a "natural born subject." That's why, in English, the act of making someone a citizen by law or act of the sovereign is called "naturalization." Referring to that act as "naturalization" makes no sense otherwise.
Therefore, giving the "natural born Citizen" clause the same meaning as a "natural born subject" would have allowed a naturalized citizen to be eligible to be President of the United States. But Article II, Section 1, Clause 5 mandates that only a "natural born Citizen" is eligible to be President. The clause is written as "No person except . . . shall be eligible . . ." which means that one must be a "natural born Citizen" in order to be eligible to be President, with no exceptions other than for those who were citizens when the Constitution was adopted.
The way we in the US have interpreted the "natural born Citizen" clause since the beginning of the Republic, a naturalized citizen is not eligible to be President. But assuming the "natural born Citizen" clause had the same meaning as a "natural born subject," with the Constitution as written it would not have conveyed in any manner that a naturalized citizen was not eligible to be President. No where do we find in the Constitution any statement that a naturalized citizen is not eligible to be President. To reach this conclusion, we have always relied upon the "natural born Citizen" clause itself which we have compared with the fact that the Framers prescribed in Article I that naturalized citizens were eligible to be Senators ("nine Years a Citizen of the United States") and Representatives (seven Years a Citizen of the United States") . The manner in which the Framers provided that Senators and Representatives needed to be "Citizen of the United States" for only a certain amount of years shows that the naturalized citizen class was included within "Citizens of the United States" and not within "natural born Citizens." This shows that naturalized citizens were not part of "natural born Citizens."
So equating the meaning of a "natural born Citizen" to a "natural born subject" would have allowed naturalized persons to be President, a result that we have rejected from the beginning of the Constitutional Republic. Such a meaning would have created an exception to the "natural born Citizen" clause which would have eviscerated the clause itself. Additionally, since Congress has the power under Article I, Section 8, Clause 4 to make uniform the naturalization laws, such a meaning would have given Congress the power to decide who could be President by simply changing the naturalization requirements. The Framers, fearing that Congress would allow foreign influence to creep into the office of President if it were given the power to select the President, did not give Congress such power.
But the argument is also made that "natural born citizen" differs from "natural born subject" in two ways, not just one: 1) The difference in meaning between a subject and a citizen, and 2) "natural born citizen," unlike "natural born subject," excludes naturalized citizens. But this thesis also is easily falsified:
Firstly, as soon as a second difference is posited, the entire rationale for the argument collapses utterly. That rationale is based on the premise that US citizenship law derives directly from English common law regarding who is or is not a British subject. But if "natural born citizen" differs in meaning from "natural born subject" in any way other than is required by the fact that the US has citizens and Britain has subjects, that invalidates the only premise and justification for defining the US term based on the definition of the British term. It breaks the symmetry, and sets the precedent that the meaning can differ in other ways as well. In other words, if the meaning of the two terms differ in at least one respect other than the difference between subject and citizen, what prevents them from being different in yet a third way? Or a fourth? And so on, ad infinitum.
Secondly, the historical facts are clear and undeniable, and are strongly supported by Supreme Court rulings: 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 Virginias delegates to the Constitutional Convention.
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. So there was no common "common law" among the founding States!
The Founders had no choice but 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. In fact, they fought yet a second war 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 other than 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.
Finally, 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 meaning serve the purposes of those who use them, and old meanings no longer do. So that raises the question of the purpose or intent of the purely American term "natural born citizen," especially in the context of the new Constitutional Republic being created by those at the Constitutional Convention.
In Alexander Hamilton's first draft of the U.S. Constitution, a person had to be "born a citizen" of the United States in order to be eligible to serve as president. However, in July 1787, John Jay wrote a letter to George Washington, recommending that the presidential eligibility requirement be changed from "born a citizen" to "natural born citizen". The stated purpose of the change was to exclude "foreigners" from the presidency:
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.
From this information alone, we may infer that:
The wording change from "born a citizen" to "natural born citizen" doesn't make any sense—it would not have excluded anyone not already excluded by the "born a citizen" requirement—unless the term "natural born" is understood as more restrictive than "native born." To fully eliminate the possibility of someone who could possibly be classified as a foreigner becoming President, the meaning of "natural born citizen" would have to include only persons who, from birth, owed allegiance to the United States exclusively and did not acquire, since birth, any foreign allegiance or nationality.
The change from "born a citizen" to "natural born citizen" would not have provided any additional protection against foreign influence in the presidency—that is, Jay's wording change could not have barred from the presidency anyone who was not already barred by the "born a citizen" requirement—unless the term "natural born citizen" meant a person who was not a "foreigner" (a citizen or a subject of any foreign country) since birth.
John Jay's letter to Washington establishes 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" differs from "natural born subject" solely in the difference between a subject and a citizen? A British "natural born subject" could have multiple nationalities, and owe allegiance to multiple sovereigns. And 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.
Clearly, if both your parents are citizens (or subjects) of the same sovereign, and you were born in that same sovereign's territory, then and only then is it impossible for any foreign sovereign to have a claim to your allegiance under the law of nations as commonly understood. John Jay's request to Washington makes no sense otherwise.
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:
Why 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. Therefore, most people who were alive when the Constitution was adopted would have had parents who were not US citizens when they were born. That point is crucial, and decisive.
So, based on Madison's argument (which Congress accepted,) if "natural born citizen" means simply "native born," or means essentially the same as "natural born subject" (differing only to the extent that a citizen differs from a subject, and also excluding those whose citizenship was acquired by naturalization) then any citizen of the US at the time the Constitution was adopted would satisfy the "natural born citizen" requirement, so there would be no need for the exception, and its inclusion in the Constitution makes no sense. No sense at all.
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, George Washington would not have been eligible, nor would most of the Presidents after him until well into the 19th century.
The above is sufficient to establish the meaning of "natural born citizen" beyond any reasonable doubt. But there is yet more evidence that leaves no possibility of doubt whatsoever. We have 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 Revolutions 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.
Dr. Ramsay wrote an essay entitled "A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen" (1789,) 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.
Hence the need for the time-limited Constitutional exception that permitted those who were citizens when the Constitution was adopted to be President, since only those born after 4 July 1776 would have qualified as natural born citizens, and they 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. In giving us this definition, it is clear that Ramsay did not follow the English common law but rather natural law. Specifically, natural law with respect to questions of nationality and allegiance to a sovereign.
Note the 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 legal matters, not questions of "laws of nature" such as those investigated by physicists. But that was not at all true in the 18th century. 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. That tack 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. 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") citizenshipwith 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 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." And the only way the "natural born citizen" requirement can prevent a person from having allegiance to a foreign sovereign is if its meaning is the same as the one de Vattel defined and labeled "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 evidence from the historical record and from the text of the Constitution itself is clear, compelling and irrefutable:
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.
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 clause 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 clause 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:
We know from history that this clause of the 14th Amendment was intended to accomplish the following purposes:
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 clause 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 clause 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," but that issue is not relevant to the meaning of "natural born citizen," and so will not be addressed in this essay.
The previous 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 clause 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:
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 clause 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 clause of the 14th Amendment, then the principle of judicial restraint would 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 Amendment definitely did not deprive anyone of citizenship, there was no reason to rely on its first clause to determine citizenship, if it could be determined that the petitioner was a citizen based on the original text of the Constitution.
It is clear, therefore, we think, that the Constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted. This makes it proper to inquire whether suffrage was coextensive with the citizenship of the States at the time of its adoption. If it was, then it may with force be argued that suffrage was one of the rights which belonged to citizenship, and in the enjoyment of which every citizen must be protected. But if it was not, the contrary may with propriety be assumed. [pp. 171, 172]
The Court in Minor held that the petitioner was in fact a US citizen, and had been such from birth, before the ratification of the 14th Amendment. The reasoning the Court used to reach that holding is actually central to the question of the Supreme Court's definition of "natural born citizen," and so we will soon examine that reasoning (and the Court's definition of "natural born citizen") in more detail. But before we do, let us first consider another issue: Is what this essay asserts to be a holding in Minor that the petitioner was a US citizen based on the original (unamended) text of the Constitution (and in fact had been such since birth, before the ratification of the 14th Amendment) actually a precedent-setting holding? Or was it, as has been claimed elsewhere, merely dictum, and therefore not binding US Supreme Court precedent?
To answer that question, we first refer to the most recent Supreme Court precedent regarding the principles to be used to distinguish between dicta and holdings that establish binding precedents, which can be found in a case decided in 1996 known as Ogilvie Et Al., Minors v. United States, 519 U.S. 79 (1996). Justice Breyer's majority opinion in that case stated that when the Court discusses a certain reason as an independent ground in support of our decision, then that reasoning is not simply dictum:
Although we gave other reasons for our holding in Schleier as well, we explicitly labeled this reason an independent ground in support of our decision, id., at 334. We cannot accept petitioners claim that it was simply a dictum.
The syllabus of the Minor case lists the following as one of the holdings:
2. In that sense, women, of born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment to the Constitution as since.
The fact that that decision is listed in the syllabus of the case is evidence that the Court considered its decision on the citizenship question to be a precedent-setting holding, and not a dictum.
The fact that the Minor court used the fact that the petitioner was a US citizen without recourse to the first clause of the 14th Amendment as one of the independent grounds for their other principal holding regarding the right to vote makes that decision a precedent-setting holding, according the principles established in Ogilvie.
Therefore, the citizenship holding in Minor is binding US Supreme Court precedent. Although the second principal holding regarding the right to vote was later mooted by the 19th Amendment, the first principal holding regarding the basis for establishing US citizenship without any reliance on the 14th Amendment still stands as binding Supreme Court precedent which has never been overturned nor obviated by subsequent Amendments to the Constitution.
The reason this is so important is because in the Minor decision, the Supreme Court didn't just decide that a woman was a citizen, it made that decision by providing its official interpretation of the phrase "natural born citizen," specifically referencing the qualifications to be US President from Article II section 1, and then applying the definition of "natural born citizen" to the petitioner and coming to the conclusion that she satisfies all the conditions to be a "natural born citizen." Here's the text:
Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides [n6] that "no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President," [n7] and that Congress shall have power "to establish a uniform rule of naturalization." Thus new citizens may be born or they may be created by naturalization.
The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. ...
So there it is. In plain, unambiguous language. The Supreme Court defined "natural born citizens" as "all children born in a country of parents who were its citizens." It should be noted that, at the time, wives were deemed to automatically acquire the citizenship of their husbands, and out-of-wedlock births were relatively rare. So the issue of children born to parents who didn't share the same citizenship would have been uncommon. But the Court did not need to worry about that issue in Minor, because the petitioner was born in the US to parents both of whom were citizens. The Court, by finding that the petitioner was a "natural born citizen," necessarily also established that the petitioner was a citizen, without any need to consider the first clause of the 14th Amendment. For that reason, the fact that, even before the ratification of the 14th Amendment, there would be many who would have been citizens but not "natural born citizens," was not an issue before the Court, and so was not an issue that the Court needed to consider or resolve.
Note that the Court states that "natural born citizens" are distinct from "aliens or foreigners." That's actually a very important semantic distinction. The legal definition of alien is "a person who owes political allegiance to another country or is not a native or citizen of the land in which they live," and a foreigner is ""one who is from a foreign country or place." Note that someone who is a citizen of the United States could be also an alien, if he or she retains or acquires foreign citizenship, and could also be a foreigner if he or she was born outside the United States—even if the person no longer had any foreign citizenship. Note also that a US citizen born in the US could become an alien simply by acquiring foreign citizenship. So the fact that the Supreme Court has defined "natural born citizens" as distinct from "aliens or foreigners" excludes anyone who either has foreign citizenship or was not born in the United States from qualifying as a "natural born citizen."
The Court, in the interest of completeness, does continue to discuss the fact that yet other persons could be citizens who didn't qualify as "natural born citizens," but that discussion is dicta, because it was not used as grounds for any of their holdings in the case. But they also explicitly state that such questions have no relevance to the case before them. The issue on which the court was focusing was whether or nor the petitioner was a citizen regardless of the first clause of the 14th Amendment. The definition of "natural born subject" was relevant solely because a) Article II, section 1 establishes "natural born citizen" as the strictest class of citizenship, and b) anyone who qualifies as a "natural born citizen" necessarily qualifies as a citizen. So the Court immediately continued (starting with the next sentence following the immediately preceding quote from the Minor decision):
Some authorities go further and include as citizens [Note, not as "natural born citizens"] children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts [regarding citizenship, but not regarding "natural born citizenship"], but never as to the first [because anyone who qualifies as a "natural born citizen" is a citizen beyond dispute]. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words "all children" are certainly as comprehensive, when used in this connection, as "all persons," and if females are included in the last they must be in the first. That they are included in the last is not denied. In fact the whole argument of the plaintiffs proceeds upon that idea.
So the Supreme Court notes in passing (dicta) that those who satisfy some, but not all, of the qualifications of a "natural born citizen" may nevertheless qualify as citizens. But since the petitioner satisfied the definition of a "natural born citizen," there was no need to consider whether any lesser standards of citizenship could be used to assign citizenship, with our without recourse to the 14th Amendment. Therefore, they exercised proper judicial restraint and left those questions undecided.
Note also that, since the citizenship issue in Minor was decided by defining "natural born citizen" based on the text of Article II, section 1, but the citizenship issue in Wong Kim Ark was decided based on the first clause of the 14th Amendment, the two decisions do not conflict with each other. Therefore, Wong Kim Ark does not supersede Minor.
It is worth noting that, had the petitioner in Wong Kim Ark been a "natural born citizen," failure to simply use the precedent established in Minor to rule that Wong Kim Ark was a citizen would have been a failure to abide by judicial restraint. The fact that the Wong Kim Ark Court, unlike the Minor Court, decided that it was necessary to decide the citizenship issue using the first clause of the 14th Amendment, instead of using the "natural born citizen" clause, demonstrates that a person who satisfies the 14th Amendment's qualifications for citizenship does not necessarily qualify as a "natural born citizen." The only reason to make a "first instance" interpretation of the first clause of the 14th Amendment would be because the question could not be settled using any existing precedent, such as the one in Minor.
The settled law of the land is that the US President must be a natural born citizen, and that to be a natural born citizen, you must have been born in the United States to parents both of whom were US citizens when you were born.
You may disagree with the goal of the Constitutional Convention, and/or with the means they chose to achieve it. But it's not a technicality, not an anachronism no longer relevant in modern times, nor is it racist. Especially in modern times, it enables persons of any race or ethnic heritage to become President. And it's what the Constitution requires.
You may also disagree with binding precedent regarding the meaning of "natural born citizen" as established in Minor. But in our system, the Constitution, and the Supreme Court's interpretation of it, are the "supreme law of the land." And if one faction gets to disregard the Constitution and/or the Supreme Court because they disagree, then that sets a precedent where all other factions can do the same. And get away with it. Is that really what you want?
The Semantics Of Natural Born Subject In English Common Law
During the 17th and 18th centuries, the term "natural born" had a general meaning and a specific meaning (see below for substantiation.) In the general sense, all English subjects (except denizens) -- including foreign-born and naturalized subjects -- were called "natural-born," regardless of how or when they acquired their English subjecthood. Nearly all children born on English soil, including children of alien parents, were natural-born in the general sense. However, in the specific sense, "natural born" referred only to persons who were born within the sovereign's territory, of parents who were under the sovereign's actual obedience or allegiance (see below for substantiation). Such persons, at birth, owed natural allegiance to the English king exclusively, and did not (at birth) owe allegiance to any other sovereign.
The modern-day mainstream consensus is that "natural born" should be understood according to its general sense, which means that anyone born on U.S. soil is a natural born citizen. However, multiple historical sources (and the arguments and evidence I have already made and presented above) comprehensively and irrefutably indicate that, when the Constitution was written, "natural born," as used in "natural born citizen," was understood according to its specific sense, not its general sense.
What was an 18th-century English "subject"?
During the 18th century, the population of England and its colonies was divided into three categories: foreigners, aliens, and subjects. The difference among them was their allegiance. Subjects owed permanent allegiance to the English king; aliens owed temporary (local) allegiance; and foreigners did not owe any allegiance.
Allegiance—sometimes called ligeance and, at other times, also called obedience—was faith, loyalty and service that someone owed to the king, in return for the king's governance and protection.
Subjects and aliens were collectively referred to as the people of England. The people did not include foreigners.
Prior to the American Revolution, the words subject and citizen had separate and distinct meanings. The two were not synonymous. In 18th-century England and its colonies, some—but not all—English subjects were also English citizens.
Every English subject was either a denizen or a natural-born subject.
Subjects had property rights; aliens and foreigners did not. Subjects could acquire and hold real (non-movable) property such as land, and bequeath it to their heirs. Aliens and foreigners were not permitted to possess English real estate, other than a house or apartment for their own personal habitation.
Foreigners: Foreigners were foreign citizens or subjects who had no intention of making England their "home". They were living in England, but had no intention of becoming a part of English society. Foreigners included members of foreign-controlled religious orders, ambassadors from foreign countries, members of foreign royalty, and foreign merchants visiting English territory solely for trade or business. (Berry). Foreigners did not owe allegiance to the English king, and were not under his protection. Nevertheless, the king provided safe conduct for most foreigners.
Aliens: An alien was a foreign citizen or subject who had established residence, or domicile, on English soil (Berry). While living within the king's realm, alien friends owed temporary ("local") allegiance to the king and were under the king's protection. When an alien friend departed from English territory, her or his allegiance to the king automatically terminated. Alien enemies were citizens or subjects of a foreign country that was hostile towards England. They, like foreigners, did not owe any allegiance to the king and were not under the king's protection.
Denizens: During the early 1600s, the word "denizen" had a broad and general meaning. It referred to anyone who became an English subject by artificial means, such as a public or private act of Parliament, letters patent issued by the king, or military conquest:
[The] denization of an alien may be effected three manner of wayes: by Parliament, as it was in 3 Hen. 6. 55. in Dower; by letters patents, as the usual manner is; and by conquest, as if the King and his subjects should conquer another Kingdome or dominion ... (Coke(1608), p.178)
By the time the U.S. Constitution was written in 1787, the word "denizen" had acquired a more narrow and specific meaning. It referred only to persons who became English subjects by acts of the king (letters patent or military conquest). Persons who became subjects by parliamentary statute or naturalization were no longer called "denizens"; instead, they were called "natural born subjects."
Natural-Born Subjects: A natural-born subject was anyone who acquired subjecthood either by birth or by act of Parliament. When the U.S. Constitution was being written, all English subjects—except persons who were made denizens by the king—were called natural-born subjects. Actual natural-born subjects were subjects by "nature and birthright". They were born on English soil, to parents who were under the king's "actual obedience". All other natural-born subjects were naturalized; they acquired English subjecthood by a public or private act of Parliament; they were deemed to be natural-born subjects by law but were not natural-born subjects in fact.
This is authoritatively established by Francis Bacon (Case of the Post-Nati of Scotland, 1608. Also, James Spedding, Works of Francis Bacon, Volume XV.) In Bacon's view, there were four categories or "degrees" of persons: 1) alien enemies, 2) alien friends, 3) denizens, and 4) natural-born subjects. Persons became natural-born subjects either by birth or by acts of Parliament, but not by denization (first 3 definitions omitted as not relevant):
The fourth and last degree is a natural born subject, which is evermore by birth, or by act of parliament; and he is complete and entire.
So, just as we in the US have found it necessary to distinguish between Constitutional "natural born citizens" and statutory "natural born citizens", the Brithish found it necessary to distinguish between by birth or actual "natural born subjects" and statutory (by act of Parliament) "natural born subjects."
Ways of becoming a subject: A person became an English subject either naturally (by natural law) or artificially (by human action or man-made law). Persons who were subjects by natural law were called subjects born. Persons who received subjectood artificially (from Parliament or the king) were called subjects made.
Every subject is either natus, born, or datus, given or made (Coke (1608), p.206)
Except in special cases, a child was a subject born (a subject by natural law) if it met two requirements at the time of its birth: a birthplace requirement (the child had to be born within the king's realm), and a parental obedience requirement (the child's parents had to be under the "actual obedience" of the king):
There be regularly (unless it be in special cases) three incidents to a subject born. 1. That the parents be under the actual obedience of the King. 2. That the place of his birth be within the King's dominion. And, 3. The time of his birth is chiefly to be considered; for he cannot be a subject born of one kingdom that was born under the ligeance of a King of another kingdom, albeit afterwards one kingdom descend to the King of the other. (Coke (1608), p.208)
Statute: Parliament may enact laws which automatically naturalize certain children at birth. Such laws were sometimes called public acts of Parliament. By the time William Blackstone (1723-1780) wrote his Commentaries (1765-1769), Parliament had enacted laws which conferred subjecthood, at birth, to foreign-born children of English fathers:
...all children, born out of the king's ligeance [territory], whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain. (Blackstone)
A law, enacted in 1604, declared English-born children of alien parents to be "denizens" (in the general sense):
To place the Children, born within this Realm, of foreign Parents, in Degree for the first Birth or Descent only, as Aliens made Denizens, and not otherwise. (House of Commons Journal, Volume 1, 21 April 1604)
Foreign-born children of English fathers, and English-born children of alien parents, were naturalized at birth, by English law:
Furthermore as the law of England must favor naturalization as a branch of the law of nature, so it appears manifestly, that it doth favour it accordingly. For it is not much to make a subject naturalized by the law of England: it should suffice, either place or parents. If he be born in England it is no matter though his parents be Spaniards, or what you will: on the other side, if he be born of English parents it skilleth not though he be born in Spain, or in any other place of the world. In such sort doth the law of England open her lap to receive in people to be naturalized; which indeed sheweth the wisdom and excellent composition of our law ... (Bacon, Francis, pp.664-665)
Naturalization: An alien adult could become an English subject through a legal process called "naturalization," also called a private act of Parliament. Person who were naturalized in this manner acquired the same rights as subjects born, but could not hold public office. Subjecthood by naturalization was available only to Christians who took the Oath of Supremacy and Oath of Allegiance (see English Oaths, 1642). Naturalization had a retroactive effect. When someone became a naturalized subject, all of his children received property and inheritance rights, even if they were born prior to the act of naturalization:
Naturalization cannot be performed but by act of parliament: for by this an alien is put in exactly the same state as if he had been born in the king's ligeance; except only that he is incapable, as well as a denizen, of being a member of the privy council, or parliament, &c. No bill for naturalization can be received in either house of parliament, without such disabling clause in it. Neither can any person be naturalized or restored in blood, unless he hath received the sacrament of the Lord's supper within one month before the bringing in of the bill; and unless he also takes the oaths of allegiance and supremacy in the presence of the parliament. (Blackstone)
Aliens could earn naturalization by (a) serving two years on an English warship during time of war, (b) serving three years on an English whaling vessel, (c) residing seven years on an English-run plantation, or (b) serving two years in America (Cunningham, Law Dictionary, Volume 2, 1771, section titled "naturalization").
Denization by the King: The king had the authority to issue letters patent to aliens, thereby transforming them into denizens (in the specific sense). The rights of denizens were limited by the terms and conditions of the letters patent, which varied from person to person. Denization was not retroactive. It did not confer any rights to children which were born prior to their fathers' denization:
A denizen is an alien born, but who has obtained ex donatione regis letters patent to make him an English subject: a high and incommunicable branch of the royal prerogative. A denizen is in a kind of middle state between an alien, and natural-born subject, and partakes of both of them. He may take lands by purchase or devise, which an alien may not; but cannot take by inheritance: for his parent, through whom he must claim, being an alien had no inheritable blood, and therefore could convey none to the son. And, upon a like defect of hereditary blood, the issue [children] of a denizen, born before denization, cannot inherit to him; but his issue [children] born after, may. A denizen is not excused from paying the alien's duty, and some other mercantile burdens. And no denizen can be of the privy council, or either house of parliament, or have any office of trust, civil or military, or be capable of any grant from the crown. (Blackstone)
Summary: The population of England and its colonies was divided into three categories: foreigners, aliens and subjects. Subjects owed permanent allegiance to the king; aliens owed temporary (local) allegiance to the king; and foreigners did not owe any allegiance to the king.
There were two kinds of English subjects: subjects born and subjects made.
Subjects born were subjects "by nature and birthright". They were actual natural-born subjects. They were born on English soil, to parents who were under the "actual obedience" of the king.
Subjects made acquired subjecthood either from Parliament or from the king. Those who acquired subjecthood from the king were called denizens. Those who acquired subjecthood from public or private acts of Parliament were naturalized (as opposed to actual) natural-born subjects.
A public act of Parliament was a statute which granted subjecthood automatically to anyone who met certain criteria. Public acts included laws which conferred subjecthood, at birth, to foreign-born children of English fathers and to English-born children of alien parents.
A private act of Parliament, also called "naturalization," was a legal process which conferred subjecthood to a specific individual or group.
All English subjects, except persons made denizens by the king, were called "natural-born subjects". However, only subjects born were actual natural-born subjects. All other natural-born subjects were naturalized; they were deemed natural-born by law but were not so in fact.
All English subjects had property rights. They could acquire and possess English real estate and bequeath it to their heirs. Aliens and foreigners could own movable property, but could not hold unmovable property except a house or apartment for their own personal habitation.
From the above, it should be emphatically evident that the term of art in British law "natural born subject" has a very complex set of meanings that are very specific to the needs and realities of British culture and society. It's ostensive meaning in specific usages was dependent on context.
If "natural born citzen" is totally analogous to "natural born subject" other than for the difference between a subject and a citizen, then its meaning includes both subject born and subject made. In which case, the Constitutional grant of power to Congress to define uniform rules of naturalization would give them the power to make even naturalized citizens eligible to be President, in contradiction to the universal understanding of Article II, section 1, pa. 5 from the 1787 up to the present. Exactly as I argued above. So that cannot be the intended meaning.
However, if "natural born citizen" means a subject born, then that meaning matches exactly with the definition of "les naturels, ou indigenes" as defined by de Vattel.
Secondly, I in turn concede that it's impossible to know which proposed and/or working draft of the Constitution (or other document under discussion by the Committee of Detail) it was that prompted John Jay's letter to Washington. Recently, yet another draft of the Constitution was discovered, written by James Wilson.
Of course, John Jay must have been responding to something. The date of his letter to General Washington was 25 July 1787. He was not one of the delegates. He wrote the letter from New York, as evidenced in the text of the letter itself:
Virginia Plan (presented to the delegates on 29 May 1787), or to the text of the New Jersey Plan (presented to the delegates on 15 June 1787), or to the British (Hamilton) Plan (presented to the delegates on 18 June 1787), or to the Pinckney Plan (presented to the delegates on 29 May 1787.)
It is clear from the accounts of other members of the Convention that Pinckney's plan was sent on to the Committee of Detail that drafted the first copies of the Constitution, and many of his ideas and phrases are included in what we read today.
However, it was the British/Hamilton Plan that had most recently been submitted, and was the last such submission on 18 June.
The words "born a citizen" occur in Article I, section IX of the British/Hamilton Plan, which states:
No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States. Pryor, Jill A. "The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty". 97 Yale Law Journal 881, 889 (1988);
According to Madison's notes, discussion of the issues surrounding the selection and eligibility of the President commences on 17 July, and continues off and on for more than a week. Nothing is mentioned in Madison's notes regarding any requirements that the President be any sort of citizen. However, on 25 July (interesting date), Madison reports that he made the following comments to the Convention:
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. ...
So Madison and John Jay both state the same concerns regarding foreign influence on the President ("the Exective") on the same day, even though one is in Philadelphia and the other in New York. Is that just an amazing coincidence, or were discussions occurring for which he have no documentation?
In any case, the most reasonable assumption is that Jay was familiar with all of the proposed plans, and satisfied with none. If not, on what basis was he making any objection? As of 25 July, no one had any idea which proposal so far made, or yet to be made, would emerge from the Convention—if any. It is therefore evident that Jay's criticism can only be assumed to apply to all the proposals. Therefore, it applies just as strongly to the strictest eligibility requirement proposed at the time, just as much as it does to the most lenient. Therefore, it applies to Hamilton's "born a citizen" requirement.
Your objection is overruled.
So Jay could have been responding to the text of the Virginia Plan (presented to the delegates on 29 May 1787), or to the text of the New Jersey Plan (presented to the delegates on 15 June 1787), or to the British (Hamilton) Plan (presented to the delegates on 18 June 1787), or to the Pinckney Plan (presented to the delegates on 29 May 1787.)
Consider my posts #51 and #52 as my replies to your post.
What’s apparent is that you haven’t carefully read my essay. It categorically refutes every one of your points.
“What you did constitutes a concession that I am right on the original topic (the meaning of “natural born subject,) and that you were wrong (note the past test, in honor of your having conceded the point.)”
No, you are wrong. Natural born subject was used in colonial law. When the states became independent, they started replacing that phrase with NBC, making no other changes. Thus we see that NBC = NBS, as the US Supreme Court has said:
“It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.
In the early case of The Charming Betsy, (1804) it appears to have been assumed by this court that all persons born in the United States were citizens of the United States, Chief Justice Marshall saying:
Whether a person born within the United States, or becoming a citizen according to the established laws of the country, can divest himself absolutely of [p659] that character otherwise than in such manner as may be prescribed by law is a question which it is not necessary at present to decide.
2 Cranch 64, 119.
In Inglis v. Sailors’ Snug Harbor (1833), 3 Pet. 99, in which the plaintiff was born in the city of New York about the time of the Declaration of Independence, the justices of this court (while differing in opinion upon other points) all agreed that the law of England as to citizenship by birth was the law of the English Colonies in America. Mr. Justice Thompson, speaking for the majority of the court, said:
It is universally admitted, both in the English courts and in those of our own country, that all persons born within the Colonies of North America, whilst subject to the Crown of Great Britain, are natural-born British subjects.
3 Pet. 120. Mr. Justice Johnson said: “He was entitled to inherit as a citizen born of the State of New York.” 3 Pet. 136. Mr. Justice Story stated the reasons upon this point more at large, referring to Calvin’s Case, Blackstone’s Commentaries, and Doe v. Jones, above cited, and saying:
Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto. There are some exceptions which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine. Thus, a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance; for he is still deemed under the protection of his sovereign, and born in a place where he has dominion in common with all other sovereigns. So the children of an ambassador are held to be [p660] subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince.
3 Pet. 155. “The children of enemies, born in a place within the dominions of another sovereign, then occupied by them by conquest, are still aliens.” 3 Pet. 156.
Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto, are subjects by birth.
3 Pet. 164.
In Shanks v. Dupont, 3 Pet. 242, decided (as appears by the records of this court) on the same day as the last case, it was held that a woman born in South Carolina before the Declaration of Independence, married to an English officer in Charleston during its occupation by the British forces in the Revolutionary War, and accompanying her husband on his return to England, and there remaining until her death, was a British subject within the meaning of the Treaty of Peace of 1783, so that her title to land in South Carolina, by descent cast before that treaty, was protected thereby...
...Again, in Levy v. McCartee (1832), 6 Pet. 102, 112, 113, 115, which concerned a descent cast since the American Revolution, in the State of New York, where the statute of 11 & 12 Will. III had been repealed, this court, speaking by Mr. Justice Story, held that the case must rest for its decision exclusively upon the principles of the common law, and treated it as unquestionable that, by that law, a child born in England of alien parents was a natural-born subject, quoting the statement of Lord Coke in Co.Lit. 8a, that,
if an alien cometh into England and hath issue two sons, these two sons are indigenae, subjects born, because they are born within the realm,
and saying that such a child “was a native-born subject, according to the principles of the common law stated by this court in McCreery v. Somervlle, 9 Wheat. 354.”
In Dred Scott v. Sandford, (1857) 19 How. 393, Mr. Justice Curtis said:
The first section of the second article of the Constitution uses the language, “a natural-born citizen.” It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.
19 How. 576. And, to this extent, no different opinion was expressed or intimated by any of the other judges.
In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said:
All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion [p663] that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.
1 Abbott (U.S.) 28, 40, 41.
The Supreme Judicial Court of Massachusetts, speaking by Mr. Justice (afterwards Chief Justice) Sewall, early held that the determination of the question whether a man was a citizen or an alien was “to be governed altogether by the principles of the common law,” and that it was established, with few exceptions,
that a man born within the jurisdiction of the common law is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land, and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term “citizenship.”
Garder v. Ward (1805), 2 Mass. 244, note. And again:
The doctrine of the common law is that every man born within its jurisdiction is a subject of the sovereign of the country where he is born, and allegiance is not personal to the sovereign in the extent that has been contended for; it is due to him in his political capacity of sovereign of the territory where the person owing the allegiance as born.
Kilham v. Ward (1806), 2 Mass. 236, 265. It may here be observed that, in a recent English case, Lord Coleridge expressed the opinion of the Queen’s Bench Division that the statutes of 4 Geo. II, (1731) c. 1, and 13 Geo. III (1773), c. 21, (hereinafter referred to) “clearly recognize that to the King in his politic, and not in his personal, capacity is the allegiance of his subjects due.” Isaacson v. Durant, 17 Q.B.D. 54, 65.
The Supreme Court of North Carolina, speaking by Mr; Justice Gaston, said:
Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects; those born out of his allegiance were aliens. . . . Upon the Revolution, no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on an European King to a free and sovereign [p664] State; . . . British subjects in North Carolina became North Carolina freemen; . . . and all free persons born within the State are born citizens of the State. . . . The term “citizen,” as understood in our law, is precisely analogous to the term “subject” in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people, and he who before as a “subject of the king” is now “a citizen of the State.”
State v. Manuel (1838), 4 Dev. & Bat. 20, 24-26.
That all children born within the dominion of the United States of foreign parents holding no diplomatic office became citizens at the time of their birth does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution, when the matter was elaborately argued in the Court of Chancery of New York and decided upon full consideration by Vice Chancellor Sandford in favor of their citizenship. Lynch v. Clark, (1844) 1 Sandf.Ch. 583.”
Notice the last case mentioned said:
And the constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President. “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,” &c. The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not.
6. Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen.”
And again, the first draft approved by the Founders was done in Aug 1787, and it had NO requirement for the President to be born in the USA. It allowed naturalized citizens to become President. Further discussion in August resulted in major revisions to the section on the President, including a requirement for him to be a NBC - a legal phrase already in use prior to the Constitution.
What matters isn’t precisely who qualified as a “subject born” or as a “subject made,” but rather that there is in fact a distinction between “subject born” and “subject made,” and that BOTH were legally “natural born subjects.” Given that, to assert that “natural born citizen” is simply “natural born subject” with “subject” replaced by “citizen” fails for the reasons given in my essay.
The relevance is that in Minor the Court explicitly declined to resolve the doubts. Universal agreement that children born on U.S. soil to citizen parents are natural-born citizens does not imply that other classes are *not* natural-born citizens.
For the native-born, the doubts were decisively resolved in U.S. v. Wong Kim Ark (169 U.S. 649):
It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.Got that? The British rule that, with narrow exceptions, the native-born child of aliens is a natural-born subject continued to prevail under our original Constitution. Supreme Court said so.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.
You ignore the fact that Hamilton's "plan" was already voted against in its entirety. With Hamilton's proposals dismissed by the Convention, Jay could simply be reiterating Hamilton's proposed eligibility requirement in the legal language he was familiar with. If he was "objecting" to anything, it was most likely the idea the committee would meet to draft the Constitution without having agreed on any eligibility requirements for the Executive.
It cannot be assumed that Jay knew which plans had already been rejected. Technically, he wasn’t supposed to know about any of them. The Convention was operating under a veil of secrecy, which apparently wasn’t fully respected. But it does not follow that Jay knew all the key facts, not even after a week’s delay.
What matters is that what survived included the “natural born citizen” eligibility constraint, and all alternatives were rejected. Based on the comments made by Madison and others, that constraint was clearly included so as to prevent the spectre of “foreign” influence in the Office of the President.
However, I will revise my essay based on the fact that Jay may well have not been specifically objecting to the wording “born a citizen.”
If your out-of-context quote was actually a holding of the case, the court could have stopped right there. Why? Because as a “holding,” that statement would have been sufficient to find the petitioner was a citizen, without any need to make a “first instance” interpretation of the 14th Amendment.
The fact that it didn’t do any such thing proves your interpretation is wrong.
And the fact that Congress thought it could pass statutes that denied Citizenship based on race or nationality, and that such statutes had been on the books for many decades, proves that it was absolutely FALSE that “The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.”
If that was the prevaling, settled law, why was this case even in court?
The reasons found in your essay are false.
“The English common law did not distinguish between a “natural born subject” and a naturalized subject.”
“Therefore, giving the “natural born Citizen” clause the same meaning as a “natural born subject” would have allowed a naturalized citizen to be eligible to be President of the United States.”
Another false statement.
See the section in Lynch reviewing colonial law:
“But assuming the “natural born Citizen” clause had the same meaning as a “natural born subject,” with the Constitution as written it would not have conveyed in any manner that a naturalized citizen was not eligible to be President.”
Another false statement. A naturalized citizen was not interchangeable with a natural born citizen. The both were citizens, but the details varied with the colony with regard to what privileges were given, but the source of the privilege remained different.
Your essay ignores history and the law.
All those statements are true and correct. As the essay proves beyond any possibility of refutation.
A New York State court decision is irrelevant.
Your quote from Wong Kim Ark does not say what you claim it does. The phrase it uses is "natural born subject." It uses that phrase for the very good reason that it's not ruling (making a precedential holding) about US law, rather is making a dictum about British law (about which it has no authority to rule precedentially.)You seem to have stopped before the second paragraph of the quote. Yes, it started talking about the British rule, but here again is the part you seem to have missed:
The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.Got that? The same rule "continued to prevail under the Constitution". That's what the quote said, and that's what I said the quote said.
The actual holding is stated in final paragraph of the opinion:
The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.
The "reasons above stated" are:
All else is either dicta, or else justification for any need to make a "first instance" ruling on the meaning of the first clause of the 14th Amendment.
Worse, the very fact that laws had been on the books for decades, unchallenged, that denied citizenshp based on race flatly contradicts the statement the standard policy in the US was to grant citizenship to everyone born here.
That's not what the Court says:
"Natural-born British subject" means a British subject who has become a British subject at the moment of his birth. [U.S. v. Wong Kim Ark, quoting A.V. Dicey's Digest of the Law of England]Sourcery, I don't know what kind of work you do, but it's clearly not legal scholarship. I'm not a constitutional scholar either, but I know enough to see that your analysis warrants a big red X through it. You are fooling people who want to be fooled, including yourself, but that's it.
The term "citizen," as understood in our law, is precisely analogous to the term "subject" in the common law, and the change of phrase has entirely resulted from the change of government. [U.S. v. Wong Kim Ark, quoting State v. Manuel]
Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land. [U.S. v. Wong Kim Ark, quoting 2 Kent Com. (6th ed.)]
Chester Arthur was born in the US to a father who was a British subject at the time, and who had not yet become a naturalized US citizen. That fact did not become known until years after he left the Presidency.
It's more than just ironic that Wong Kim Ark was decided by Justice Gray. The SCOTUS may have no choice but to disregard Wong Kim Ark whenever they decide to either affirm or overturn Minor vs. Hapersett, in order to avoid logical contradictions.
If that means what you claim, why didn't the Court stop right there? What was that not sufficient to find the apellee a citizen?You seem to have answered your own question. Yes, the situation in the U.S. was more complex considering the laws and policies addressed by the 14'th Amendment, which pushed the Court to additional considerations.
Worse, the very fact that laws had been on the books for decades, unchallenged, that denied citizenshp based on race flatly contradicts the statement the standard policy in the US was to grant citizenship to everyone born here.
That said, I don't really understand why the WKA opinion needed to be as long as it was.
Your quote from Wong Kim Ark does not say what you claim it does. The phrase it uses is “natural born subject.” It uses that phrase for the very good reason that it’s not ruling (making a precedential holding) about US law, rather is making a dictum about British law (about which it has no authority to rule precedentially.)
The government went on to ask:
“Are Chinese children born in this country to share with the descendants of the patriots of the American Revolution the exalted qualification of being eligible to the Presidency of the nation, conferred by the Constitution in recognition of the importance and dignity of citizenship by birth? (p. 34).
The majority opinion in Wong did go on to say: ’Subject and citizen are, in a degree, convertible terms as applied to natives; and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land.”
Also, it must be noted, that nowhere in Wong Kim Ark does the Court even emit dicta to the effect that a "natural born citizen" is anyone born in the US, who was "subject to the jurisdiction thereof" at birth. In fact, the term "natural born citizen" occurs nowhere in the opinion.
Y'all seem to keep forgetting that the issue isn't whether anyone is a citizen (which was the only issue in Wong Kim Ark), but rather who is or is not a "natural born citizen."
“The validity of each and every Supreme Court decision issued wherein Chief Justice Gray either wrote the majority opinion, or which was a 5/4 decision, depends utterly on the whether or not the President who appointed him (Chester Arthur) was Constitutionally President.”
First, that’s a laughable bit of self-delusion. Second, U.S. v. Wong Kim Ark was decided 6 to 2.
The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution
The Court very correctly continues by never once uttering the phrase "natural born citizen" anywhere in the opinion.
But Justice Gray wrote the majority opinion. Which he could not Constitutionally do, if he was not actually appointed by an actual President.
“Go further connects the second sentence with the first, and explains that some authorities go further in their definition and include those born of non-citizen parents.” Nice try. What the second sentence is saying is, ‘some go further to declare as citizens ...’ It is really so simple you can’t even gnarl it up with your dissembling. ‘As to the definition of Natural Born Citizen, there can be no doubt’ ... even if the almighty obamanoid Rogers continues to strain at the gnats. Bwahahahaha
Yes, and the answer is that until the 14th Amendment was passed and then finally applied for the first time (on this particular question) by the Court in Wong Kim Ark, it was NOT the case that anyone born in the US was Constitutionally a citizen. What was true, and what the Court meant (read carefully, now) was that US law generally granted citizenshp to anyone born here. But the law that did that was Congressional statute, which Congress had the authority to make law solely by reason of the Constitutional grant of authority to "make uniform rules regarding naturalization."
If the Constitution directly granted citizenshp to whomever was born here before the passage of the 14th Amendment, then why was the Amendment passed in the first place with the citizenship clause? Of course, the 14th Amendment has more to say, and so has other effects. What's the reason for its first clause? Remember, Marbury vs. Madison requires that every clause in the Constitution must have substantive effect. We are not allowed to assume the first clause of the 14th is redundant or does not change the law in some way.
sourcery “It’s clear you have no law degree, or you’d understand the difference between dicta and a holding.”
What’s clear, sourcery, is that you are desperately grasping for anything that will let you deny that Obama is president. Neither you nor I are constitutional scholars. One of us is pretending to be.
What of the Court’s opinion WKA is dicta? Last I heard, legal scholars were still arguing that. Your pretension to such expertise is pure fantasy. Parts of WKA that I quoted here have been cited by other courts and real legal scholars.
The Court of Appeals of Indiana took WKA as “guidance”, if not binding precedent, on the very issue in question here. The three-judge panel unanimously agreed: “Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are ‘natural born Citizens’ for Article II, Section 1 purposes, regardless of the citizenship of their parents.” [Ankeny v. Daniels]
No. I sincerely hope that the SCOTUS does not take up this issue until after Obama leaves. Then, and only then, would it be safe for the SCOTUS to rule he never was President. I suspect the Conservatives on the Court have decided the same, probably for the same reasons.
Lawyers and judges disagree all the time regarding what is and is not dicta. And it's common for courts (and legal briefs) to cite dicta in support of their rulings or pleadings. If it's dicta, it's not binding, but it can still be persuasive—either because of who said it, or by the force of the words themselves.
What was true, and what the Court meant (read carefully, now) was that US law generally granted citizenshp to anyone born here. But the law that did that was Congressional statute, which Congress had the authority to make law solely by reason of the Constitutional grant of authority to "make uniform rules regarding naturalization."Can you show me one or more Congressional statutes from before the 14'th Amendment that that granted citizenship to those born in the U.S.? I'd like to see them, because I doubt your history here.
If the Constitution directly granted citizenshp to whomever was born here before the passage of the 14th Amendment, then why was the Amendment passed in the first place with the citizenship clause?Because before the 14'th Amendment, citizenship by birth on the soil was governed by the individual states. The Civil War Amendments, the 13'th, 14'th, and 15'th, shifted power from the states to the federal government.
sourcery wrote: “Ankeny v.s Daniels will be overruled as in contradiction to the controlling Supreme Court precedent in Minor”
Ah, so now you are citing *imaginary* court decisions.
No, just predicting. And even including some humor. Lighten up, man.
OK, then out of the dozen or more conservative constitutional law foundations, name one who supports this idea. There is a reason why birthers have no ‘credulity.’
The lower court used incorrect language. The Supreme Court corrected the error by restating the question before the court to be (beginning of the opinion):
The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution
The Court very correctly continues by never once uttering the phrase “natural born citizen” anywhere in the opinion.
Wong Kim Ark has been cited more than 1000 times in subsequent court decisions and as recently as 2009 concerning the natural born citizen status of Barack Obama.
The Indiana Court of Appeals ruled that it was constitutional for Obama to receive Indiana’s Electoral College votes as a natural born citizen and they based their decision, in part, on the precedent established in Wong Kim Ark.
At the Supreme Court, Justice Scalia has written in several concurrences that there are only two forms of US citizenship for all Americans: born citizenship and naturalized citizenship. There is no difference in the law between a Citizen of the United States at birth and a “natural born citizen.”
sourcery: “Actually, before the 14th Amendment, US citizenshp was limited to two classes: Those granted citizenshp by Congressional statute (which included some of those born on US soil, since there was in fact a statutory provision for that case,) and those who had natural citizenship without recourse to Congressional statute.”
I guess that means you read your own citations and found that you were wrong. On the other hand, when I wrote “before the 14’th Amendment” I overlooked the Amendment’s immediate predecessor, the Civil Rights Act of 1866.
N00b, having nothing to say is not the same as saying a negative on the issue. But we understand your need to push the current talking points strategy perhaps thought up by David Axelgreasy.
From that link:
Eligibility for office of President
According to the Constitution of the United States only natural born citizens are eligible to serve as President of the United States or as Vice President. The text of the Constitution does not define what is meant by natural born: in particular it does not specify whether there is any distinction to be made between persons whose citizenship is based on jus sanguinis (parentage) and those whose citizenship is based on jus soli (birthplace)
“No, just predicting. And even including some humor. Lighten up, man.”
Lighten up? In case you haven’t noticed, I think you guys are hilarious.
“All else is either dicta”
Yet you birthers quote Minor, which didn’t even try to determine citizenship, other than to note the woman was a citizen before the 14th Amendment passed!
The “dicta” in WKA is a recital of court cases starting from the time of the colonies, showing how NBC was used in the law. It isn’t making a decision, just showing why no one had questioned it before.
True. So everythng depends on the semantics of "natural born citizen." An issue for which the Constitutional authority to decide rests with the Supreme Court. Who decided in Minor that it means "born in the US to parents who were citizens."