Skip to comments.The Constitutional Meaning Of "Natural Born Citizen"
Posted on 01/31/2012 4:03:01 PM PST 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 as a political act—by law or by the decision or act of a sovereign.
Natural born citizenship: A natural born citizen is one whose citizenship is not granted by law or by any act of a sovereign, but inheres naturally in the person from birth 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 Constitution of the United States did not originally explicitly define who did or did not not qualify as citizens. It originally had clauses where the general term citizen occurs, and had one clause where the specific term natural born citizen occurs (quoted above.) But the Constitution does grant Congress the power to define by law who shall be citizens:
Congress shall have power .To establish an uniform Rule of Naturalization [Article I, Section 8]
Why did the Constitution limit the power it granted Congress over matters of citizenship to naturalization? Because Citizenship acquired solely by any law passed by Congress cannot logically be anything other than naturalized citizenship—by definition of naturalization. It's logically impossible for any act of Congress to make anyone a citizen by natural law. At most, such a law would be declaratory of natural law—because a citizen by natural law is a citizen no matter what laws Congress may or may not enact.
In fact, given the Founders' understanding of natural law versus man-made law, it would have been a logical contradiction to grant Congress the power to change or define natural law on any subject, not just regarding citizenship—because natural law, by late 18th-century definition, cannot be made by a legislature or head of state. That's why Congress was granted no such powers in any domain at all. Such a power could be used, among other things. to change the meaning of words, including those in the Constitution itself. The dangers of that should be obvious.
If Congress had the power to make anyone a natural citizen, it would also necessarily have the power to strip citizenship from anyone it chose. The fact it cannot logically have any such power—and is granted no such power by the Constitution—is one of the fundamental protections against tyranny. The power to revoke even natural law citizenship by law is the power to commit any act against anyone that the sovereign power of war permits.
So why didn't the Constitution define the term natural born citizen? For the same reason it could only grant Congress the power to define naturalized citizens. For the Constitution to actually define the term "natural born citizen" would necessarily mean that that status would be granted by man-made law, and not by natural law. That's why the Constitution provides no definition, and why it must be a court that decides who is and who is not a natural born citizen by applying natural law principles—which is exactly how English common law handled questions of natural citizenship.
But the ratification of the 14th Amendment introduced into the Constitution a rule of citizenship that declared anyone who (a) was born in the United States, and (b) was subject to U.S. jurisdiction at the time of his or her birth, to be a citizen. Since the 14th Amendment is a man-made law, and is not natural law, the 14th Amendment logically cannot make anyone be a natural citizen. Nor does it create the logical contradiction of attempting to do so, since it makes no mention of natural citizenship of any kind, and does not use the term "natural born citizen."
The 14th Amendment created an implicit distinction among 14th Amendment native-born citizens, and statutory native-born citizens. 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, and b) effective from the instant of their birth, based on the fact that the person's parents were US citizens at that moment.
Even those born in the United States, if they qualify as a citizen per the 14th Amendment, but do not also qualify as natural born citizens without reliance of the 14th Amendment, are naturalized citizens. Why? Because the US Constitution is a law whose formulation and adoption are political acts of man. The Constitution is the supreme law of the land, but it is not natural law. So it does not matter that the law that grants citizenship happens to be a clause of the Constitution—the grant of citizenship is nevertheless an act of naturalization, because it's a grant made by law—a political act, not one based on natural law.
Those who were not citizens up until the moment of the ratification of the 14th Amendment, but who instantly became citizens upon ratification, cannot possibly have ever been native-born citizens. They were not citizens from the moment of their birth. And their grant of citizenship was a political act effected by the passage of a law, and not based on principles of natural law. The 14th Amendment naturalizes anyone who does not also qualify as a natural born citizen. And that's true by definition of the term naturalization, as will be fully and comprehensively shown later.
Therefore, to handle all the possible classes of citenship in the US, it is necessary to distinguish between natural law citizens, Constitutional citizens and statutory citizens, and also to distinguish between native citizens and non-native citizens:
Native (from birth) Non-native (post birth) Natural Law Native citizen per natural law
Natural born citizen
Non-native citizen per natural law
(Those who become citizens of a newly-created nation)
Constitutional Law Naturalized native citizen per Constitutional definition Naturalized non-native citizen per Constitutional definition
—Does not (currently) exist—
Statutory Law Naturalized native citizen per statutory definition Naturalized non-native citizen per statutory definition
Of course, in other countries, other classes of citizenship may exist, and classes of citizenship that exist in the US may not. For example, some countries don't have Constitutions or even legislatures, and others have monarchs who may have the power to grant citizenship (a power the US President lacks.)
We can use the term "Constitutional natural born citizen" to refer to someone who is a "natural born citizen" according to the natural-law based definition intended by those who wrote and ratified the Constitution. The term must be understood in that sense when it appears in the Constitution or in a Constitution-related document such as a Supreme Court decision.
We canl use the term "statutory natural born citizen" to refer to someone who is deemed a "natural born citizen" by Federal or State law.
These distinctions are not my invention. The U.S. Department of State Foreign Affairs Manual—7 FAM 1130 (page 9) says:
...the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes
If we were to define "natural born citizen" to mean anyone who is a "citizen at birth", our definition of "natural born citizen" would be statutory because it would depend on the statute or law which defines "citizen at birth." Under existing law, all children born outside the United State to parents who are citizens are "citizens at birth". Therefore, using our hypothetical definition of "natural born citizen" as anyone who is a citizen at birth, all those born abroad to US-citizen parents would be statutorily defined as "natural born citizens" because their status as citizens at birth would be granted by statute. So that definition of "natural born citizen" would mean that Congress could change the meaning of "natural born citizen" by changing the rules of naturalization. It would also mean that Congress, simply by changing the naturalization rules, could also change who was or was not eligible to be President.
That cannot be what the Founders intended. Had it been, they would simply have granted Congress the power to dictate who shall or shall not be a citizen (or any sort,) and who could or could not be President. But they pointedly did not grant Congress any power to determine who would or would not naturally be citizens, nor who would be eligible to be President. The only power they granted Congress regarding citizenship was to make rules regarding naturalization of citizens (the making of citizens who would not be citizens naturally.) And they granted Congress no power to determine Presidential eligibility rules at all.
It may be—and this essay so argues—that all natural born citizens are also native born citizens. But the reverse cannot be true without not only creating logical contradictions, but without granting Congress powers that were clearly intended to be denied to them.
On 25 July 1787, John Jay wrote a letter to George Washington, recommending that the new Constitution should require that the President be a "natural born citizen". The stated purpose of this requirement for eligibility was to exclude "foreigners" from exercising Presidential powers:
Permit me to hint whether it would not be wise and seasonable to provide a strong check to the admission of foreigners into the administration of our national government; and to declare expressly that the command in chief of the American army shall not be given to, nor devolve on any but a natural born citizen.
Also on 25 July 1787 (the very same day,) James Madison made the following comment to the delegates of the Constitutional Convention then in progress in Philadelphia (the topic of the debate was whether or not it would be a good idea to have Congress , State legislatures, the Governors of the States or courts—Federal or State—choose the President):
Mr. MADISON. ...Besides the general influence of that mode on the independence of the Executive, 1.  the election of the Chief Magistrate would agitate & divide the legislature so much that the public interest would materially suffer by it. Public bodies are always apt to be thrown into contentions, but into more violent ones by such occasions than by any others. 2.  the candidate would intrigue with the Legislature, would derive his appointment from the predominant faction, and be apt to render his administration subservient to its views. 3.  The Ministers of foreign powers would have and  make use of, the opportunity to mix their intrigues & influence with the Election. Limited as the powers of the Executive are, it will be an object of great moment with the great rival powers of Europe who have American possessions, to have at the head of our Governmt. a man attached to their respective politics & interests. No pains, nor perhaps expense, will be spared, to gain from the Legislature an appointmt. favorable to their wishes. Germany & Poland are witnesses of this danger. In the former, the election of the Head of the Empire, till it became in a manner hereditary, interested all Europe, and was much influenced by foreign interference. In the latter, altho' the elective Magistrate has very little real power, his election has at all times produced the most eager interference of forign princes, and has in fact at length slid entirely into foreign hands. The existing authorities in the States are the Legislative, Executive & Judiciary. The appointment of the Natl. Executive by the first, was objectionable in many points of view, some of which had been already mentioned. He would mention one which of itself would decide his opinion. The Legislatures of the States had betrayed a strong propensity to a variety of pernicious measures. One object of the Natl. Legislre. was to controul this propensity. One object of the Natl. Executive, so far as it would have a negative on the laws, was to controul the Natl. Legislature, so far as it might be infected with a similar propensity. Refer the appointmt. of the Natl. Executive to the State Legislatures, and this controuling purpose may be defeated. The Legislatures can & will act with some kind of regular plan, and will promote the appointmt. of a man who will not oppose himself to a favorite object. Should a majority of the Legislatures at the time of election have the same object, or different objects of the same kind, The Natl. Executive would be rendered subservient to them.—An appointment by the State Executives, was liable among other objections to this insuperable one, that being standing bodies, they could & would be courted, and intrigued with by the Candidates, by their partizans, and by the Ministers of foreign powers. The State Judiciarys had not  & he presumed wd. not be proposed as a proper source of appointment. The option before us then lay between an appointment by Electors chosen by the people—and an immediate appointment by the people. He thought the former mode free from many of the objections which had been urged agst. it, and greatly preferable to an appointment by the Natl. Legislature. As the electors would be chosen for the occasion, would meet at once, & proceed immediately to an appointment, there would be very little opportunity for cabal, or corruption. As a farther precaution, it might be required that they should meet at some place, distinct from the seat of Govt. and even that no person within a certain distance of the place at the time shd. be eligible. ...
With one exception to be noted shortly, it was only after Jay's letter to General Washington, and Madison's comment at the convention, that the Convention began to mention citizenship requirements for any Constitutional officers, even though they had begun to consider eligibility issues about a week previously. It should be noted, however, that during the early days of the Convention several very different initial drafts of proposed Constitutions were presented, all but one of which were rejected. The last one to be presented, by Alexander Hamilton, is known as the British Plan (because it was modeled closely after the British governmental architecture.) Although that proposal was totally rejected, it also happens to have been the only one whose text included any eligibility requirements for the Chief Executive. That plan required that that person be "born a citizen."
The Convention's "committee of the whole" went into recess from 27 July through 5 August. When it resumed on August 6, the "committee of detail" presented the first draft of the Constitution that included eligibility requirements for any Constitutional officers: the members of the House and Senate had to be citizens for specified periods prior to serving (thus implicitly allowing naturalized citizens to serve, a point that was actually discussed in detail in the "committee of the whole.") But the only constraint on who could be President was that he "shall not be elected a second time."
Finally, on 4 September, the Convention considered proposed changes from one of the sub-committees where the "natural born citizen" eligibility requirement for the President was introduced to the "committee of the whole." The differences between the initial language and what later became the text of the ratified Constitution are minor and of no bearing on the meaning of "natural born citizen":
(5) 'Sect. 2. No person except a natural born citizen or a Citizen of the U. S. at the time of the adoption of this Constitution shall be eligible to the office of President; nor shall any person be elected to that office, who shall be under the age of thirty five years, and who has not been in the whole, at least fourteen years a resident within the U. S.'
Based on the above evidence, we can conclude that John Jay's letter to Washington, and the comments of Madison and later others at the Convention, establish the fact that the Framers were worried about the undivided loyalty of the President, and thought that the requirement that he be a "natural born citizen" would be sufficient to prevent anyone with foreign allegiance (anyone who could be claimed as a subject or citizen of a foreign sovereign) from serving as President. But how could that be, if "natural born citizen" means what many claim it does, namely "a person born in the United States, with parents who aren't employed in any official capacity by a foreign sovereign"?
Some nations claim you as their citizen or subject based on where your were born, some based on who your parents were (father and/or mother,) and some based on both together. By requiring that the President be born at a location where the US is sovereign, any foreign "natural law" or "law of nations" claim on the President to allegiance based on his place of birth is precluded. By requiring that the President be born to parents who are solely US citizens, any foreign "natural law" or "law of nations" claim on the President to allegiance based on his parentage is precluded.
There is no denying the fact that a person born in the United States could have multiple nationalities, and owe allegiance to multiple sovereigns, since either parent could have multiple citizenships, any of which could by the law of that nation transfer to the child by the principle of jus sanguinis. Many nations claim anyone with at least one parent (sometimes it must be the father, sometimes it must be the mother, sometimes both) who is a citizen or subject of that nation as a citizen/subject also. However, if both your parents are citizens (or subjects) of the same sovereign, if neither parent has any foreign citizenship, and if you were born in that same sovereign's territory, then and only then is it impossible for any other sovereign to have a birthright claim to your allegiance under the law of nations as commonly understood.
Therefore, it should be evident that if the purpose of the requirement to be a "natural born citizen" is to prevent anyone with foreign citizenship from serving as President, it cannot achieve that end unless, by definition, the phrase "natural born citizen" excludes anyone who might have acquired foreign citizenship by means of any one of the three modalities recognized by the law of nations: 1) jus soli (born on foreign soil), 2) jus sanguinis (born to a parent with foreign citizenship), or 3) naturalization by a foreign country. John Jay's request to Washington makes no sense otherwise, since in that case his suggested eligibility requirement would not preclude what he was seeking to prevent.
It should be noted that a person can become a citizen or subject of a foreign country by naturalization after one has has been born. To be logically consistent with the intent of the Founders, those US citizens—even if born in the US to parents who were both US citizens—who have any foreign citizenship, no matter when or how acquired, should not be eligible to be President. This issue has nothing to do with race or ethnicity. It's a question of loyalty and avoidance of even the appearance of conflict of interest. Nothing more, and nothing less.
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 clause 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 1788, he was elected to Congress. But his right to be seated was challenged on the basis that he was not a citizen, due to the actions of his parents.
James Madison himself spoke in defense of the fact that Mr. Smith was a citizen. The reasoning he used is decisive with respect to understanding the reason for the exception in the Constitution to the "natural born citizen" requirement.
Madison essentially argued that Mr. Smith was a citizen because of where he was born, and because he was a minor when his parents sided with the British loyalists against the American Revolutionaries. He focused on that point, because he obviously felt that any adults who sided with the British loyalists would not qualify as citizens, regardless of where they were born (he explains the reason for that.) Bear in mind that the Constitution allows naturalized citizens to serve in Congress, there is no requirement that one have "birthright citizenship" (whose normative definition means either "jus soli" OR "jus sanguinis" citzenship (OR, not AND.)) But Madison nevertheless argued that Mr. Smith was a citizen from birth, by reason of his place of birth alone, and explicitly not due to his parentage, because (as Madison argues) his parents never were US citizens at all.
Madison's argument prevailed, and Mr. Smith was seated as a Congressman. The Congress accepted Madison's argument that Mr. Smith had birthright citizenship solely due to the location of his birth in South Carolina—when South Carolina was a British Colony, and not yet a State of the United States. By that same logic, most residents of the US at the time the Constitution was adopted were native citizens of the US by their place of birth alone.
Note that, according to Madison's argument, those who were citizens of any State became citizens of the US instantly, automatically and by operation of natural law and the law of nations the moment two events occurred: 1) The society in which they were citizens came under the sovereignty of the United States, and 2) they were adults who accepted, and did not reject, allegiance to the United States. However, their status as US citizens began only at that moment, and not before. By Madison's rule, anyone born on soil where the United States is currently sovereign, and who has not denounced or rejected US citizenship, is a citizen of the United States (although he didn't say what kind.). However, most people who were alive when the Constitution was adopted would have had parents who were not US citizens when they were born, because the United States did not exist until 1776 at the earliest. Whether the United States that came into existence in 1776 is the same nation as the one whose government was constituted in 1788 by the current US Constitution is an interesting question, but there is no need to answer it here.
The only persons who were indisputably born on soil in which the United States was sovereign when the current US Constitution was adopted and whose parents were US citizens at the very moment when those persons were born would, under the most lenient possible interpretation, have been no older than 12 years of age in 1788 when the US Constitution was ratified. Under the strictest interpretation, they would have been mere infants. In contrast, most of those who were citizens when the Constitution was ratified would have satisfied the requirement to have been born on US soil— because the soil on which they were born would have become US soil no later than the moment the Constitution was ratified, if not before (per Madison's rule.)
So, based on Madison's argument (which Congress accepted,) if "natural born citizen" means simply "native born" or "born a citizen" or "born on soil where the United States is currently sovereign" then any citizen of the US at the time the Constitution was adopted would satisfy the "natural born citizen" requirement, so there would have been no need for the exception, and its inclusion in the Constitution makes no sense, especially in historical context, where no small number of residents of the US were at least potentially British subjects per British law, and the undivided loyalty of many of them to the United States was under serious suspicion (as demonstrated by the case of Congressman Smith.)
But if "natural born citizen" means "born on US soil, with parents who were US citizens when their child was born," then it would in fact be true that no one older than 12 years of age (at most) could have satisfied the "natural born citizen" requirement in 1788 (when the Constitution was ratified,) in which case there is a good reason for the exception. Without that exception, and assuming a semantic for "natural born citizen" as stated, George Washington would not have been eligible, nor would most of the Presidents after him until well into the 19th century.
In addition to the debates at the Constitutional Convention, John Jay's letter to General Washington, and the text of the Constitution itself, there is also the testimony of Founder and historian David Ramsay (April 2, 1749 to May 8, 1815,) who was an American physician, patriot, and historian from South Carolina and a delegate from that state to the Continental Congress in 1782-1783 and 1785-1786. He was the Acting President of the United States in Congress Assembled. He was one of the American 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.
In 1789 (the year after the Constitution was ratified,) Dr. Ramsay published an essay entitled "A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen," a very important and influential essay on defining a natural born Citizen. In his 1789 article, Ramsay first explained who the original citizens were and then defined the natural born citizens as the children born in the country to citizen parents. He said concerning the children born after the declaration of independence, [c]itizenship is the inheritance of the children of those who have taken part in the late revolution; but this is confined exclusively to the children of those who were themselves citizens . Id. at 6. He added that citizenship by inheritance belongs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring . Id. at 7. He continued that citizenship as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776 . Id. at 6.
Based on Dr. Ramsay's definition of "natural born citizen," there can be no doubt why it was necessary to include the time-limited Constitutional exception that permitted those who were citizens when the Constitution was adopted to be President. Without that exception, those who would have qualified as natural born citizens, and so been Constitutionally eligible to be President, would have been no older than 12 years of age in 1788.
Given Dr. Ramsay's position of influence and especially given that he was a highly respected historian, Ramsay would have had the contacts with other influential Founders and Framers and would have known how they too defined natural born Citizen. Ramsay, being of the Founding generation and being intimately involved in the events of the time would have known how the Founders and Framers defined a natural born Citizen and he told us that definition was one where the child was born in the country of citizen parents.
Note Dr. Ramsay's phrase as a natural right." Modernly, it seems strange to us to associate questions of citizenship with "natural rights." We consider questions of citizenship to be purely political matters, not questions of "laws of nature" such as those investigated by physicists. But that was not at all true in 18th century European culture, nor had it been the case in English common law for many hundreds of years prior. At the time, science was still in its infancy, and its stunning and then-very-recent success inspired those who lived through the initial scientific revolution to seek "natural laws" to explain and justify their hypotheses, theories, concepts and policies. And the tradition of English common law was grounded quite firmly in rendering decisions based on what was "true by nature," as opposed to what was true by political decree. That attitude was especially strong among those who founded the United States and wrote its Constitution. They were determined to throw off the chains of tradition and arbitrary authority, and to establish their society and government based on invariant, self-evident principles arrived at by reason and conformance with objective reality. They used the term "natural" in a way similar to the way we modernly use the term "scientific," in the sense of "justified by reason and the way the world works, not by tradition or arbitrary human policy" (which isn't quite the formally correct definition, but is nevertheless what most people mean when they use the term.)
That's why the political writings of the time constantly and incessantly refer to "natural law." The point was to claim that the concepts, principles, rules or laws under discussion were derived by reason and logic from objective facts, and not merely the remnants of irrational cultural traditions or political edicts. It was the Age Of Reason, and naturalness was its standard of validity and truth.
When the US Constitution was written, the "natural law" that dealt with issues such as nationality and allegiance to a sovereign was called "the law of nations." Modernly, we call this "international law." In 1788, 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 natural ones, or original inhabitants." 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" meaning "natives" (in the sense of "original inhabitants") along with "Les naturels" in that sentence. He used the noun "naturels" to emphasize clearly who he was defining as those who were born in the country of two citizens of the country, because if your parents were indigenes ("original inhabitants," "natives") then your status of being a member of their society, of their nation, would devolve upon you by the jus sanguinis principle of natural law—making you a natural inhabitant, citizen and member of the society. Also, when we read Vattel, we must understand that Vattel's use of the word "natives" in 1758 is not to be read with modern day various alternative usages of that word. You must read it in the full context of sentence 2 of section 212 to fully understand what Vattel was defining from natural law, i.e., natural born citizenship of a country. Please see the photograph of the original French for Chapter 19, Section 212, here in the original French if you have any doubts.
The text of de Vattel's treatise was translated into English more than once, some of those translations being published well before the American Revolution. None of those pre-Revolutionary translations rendered "les naturels, ou indigenes" into English as "natural born citizens" The first that did so was published in 1797, 10 years following the Constitutional Convention, 8 years following the adoption of the Constitution, and 8 years following the publication of Dr. Ramsay's essay on US citizenship—where "natural born citizen" is defined by the Founder/historian to have precisely the same meaning as the one de Vattel establishes for "les naturels, ou indigenes."
We can reasonably assume that the other Founders and Framers would have defined a natural born Citizen the same way that Ramsay did, for being a meticulous historian he would have gotten his definition from the general consensus that existed at the time.
And we can also reasonably conclude that the professional translator who rendered "les naturels, ou indigenes" into American English in 1798 for an edition of the book to be published and distributed in the United Sates as "natural born citizens" would have been fully aware of the occurrence of that phrase in the brand-new US Constitution, and that he had the same reasons as Dr. Ramsay to use the same definition of "natural born citizens" as was generally accepted among speakers of American English at the time.
Based on the facts and reasoning presented above, there can be no other sound conclusion but that "natural born citizen" must have been intended to have the same meaning as de Vattel defined for his term-of-art phrases "les naturels, ou indigenes." It cannot be coincidence that Dr. Ramsay's 1789 definition of "natural born citizen" is the same as the one de Vattel gives for his French phrase "les naturels, ou indigenes," and which a professional translator translated into English as "natural born citizen" just a few short years after the "natural born citizen" requirement was written and ratified in the new US Constitution. The fact that that semantics for the term is very consistent with the stated purpose of the "natural born citizen" requirement to prevent a person from having allegiance to a foreign sovereign provides the confirming motive and original intent.
The evidence from the historical record and from the text of the Constitution itself is clear and compelling, as regards to both semantics and intent:
However, in spite of all the foregoing evidence, there remain those unconvinced. Why is that?
The Core Of The Controversy
In 1891, Prentiss Webster (1851-1898) published A Treatise On the Law Of Citizenship In The United States. The author makes the argument that there are two schools of thought regarding the philosophical and conceptual basis for the Declaration of Independence and the United States Constitution. The controversy over the meaning of "natural born citizen" is but one aspect of this larger disagreement.
It should be noted that the 1891 publication of A Treatise On the Law Of Citizenship In The United States happened 23 years after the ratification of the 14th Amendment, and seven years before the Supreme Court decided the Wong Kim Ark case (which used the English common law definition of "natural born subject" to justify its interpretation of the phrase "subject to the jurisdiction thereof" that occurs in the first sentence of the 14th Amendment.) The difference of opinion between the two factions is starkly evident in the majority and minority opinions in that case. We will examine the Wong Kim Ark case in greater detail later.
According to one school of thought identified by Webster, the principal philosophical and conceptual foundation of the United States founding documents was English common law. According to the other school, the US founding documents were based on pan-European "natural law" theory, as exemplified by what the US Constitution refers to as the "law of nations" (which refers to a theory of international law based on natural law concepts, not to any particular publication.)
Modernly at least, the proponents of neither school are absolutists. Those who favor English common law as the principal foundational seed don't deny at least some influence of pan-European political theory based on natural law principles. And those who believe that pan-European "natural law" theory was the principal framework the Founders used to establish the governmental architecture of the United States generally agree that there were some principles, concepts and terms also borrowed from English common law. The crux of the disagreement is focused primarily on whether the terms and concepts involving citizenship are based on English common law or on the "law of nations" developed in Europe based on natural law principles.
Those who reject the idea that "natural born citizen" means "born in the country, to parents both of whom are citizens of that country" argue that the term "natural born citizen" is simply the Americanized form of the term "natural born subject" as defined in English common law. They argue that the term was Americanized by substituting the word "citizen" for "subject"—because the US has citizens, not subjects—and that no other semantic or legal change was intended.
Both those who believe that US citizenship concepts and terms derive from English common law and those who believe they are based on the pan-European "law of nations" have written many articles, books, legal briefs and court decisions based on their point of view. So it's easy to find citations in support of either thesis. Nevertheless, it is possible to determine which faction has de jure won the argument.
Was English Common Law The Foundation Or Basis For The US Constitution?
English common law was the basis for the common law of the original British colonies, and then of the original States of the Union, but was not the basis for the common law of the United States Federal government. The framers rejected the notion that the United States was under English Common Law: The common law of England is not the common law of these States. —George Mason, one of Virginias delegates to the Constitutional Convention.
James Madison wrote a letter to George Washington, shortly after the end of the Constitutional Convention (Oct 18, 1787). The letter was in defense of the work of the Constitutional Convention against criticisms by George Mason. One such criticism was that the "the common law was not secured" by the proposed Constitution—meaning that the Congress could enact statutes that would override the common law. Madison's response to that charge (text [enclosed within square brackets] has been added as clarification):
The common law is nothing more than the unwritten law, and is left by all the constitutions [of the several States] equally liable to legislative alterations. I am not sure that any notice is particularly taken of it in the Constitutions of the States. If there is, nothing more is provided than a general declaration that it shall continue along with other branches of law to be in force till legally changed. The Constitution of Virga. [Virginia] drawn up by Col Mason himself, is absolutely silent on the subject. An ordinance passed during the same Session, declared the Common law as heretofore & all Statutes of prior date to the 4 of James I. to be still the law of the land, merely to obviate pretexts that the separation from G. Britain threw us into a State of nature, and abolished all civil rights and Obligations. Since the Revolution every State has made great inroads & with great propriety in many instances on this monarchical code. The "revisal of the laws" by a Committee of wch. Col. Mason was a member, though not an acting one, abounds with such innovations. The abolition of the right of primogeniture, which I am sure Col. Mason does not disapprove, falls under this head. What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they wd. have done more, they would have brought over from G.B. a thousand heterogeneous & antirepublican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law. If they had undertaken a discrimination, they must have formed a digest of laws, instead of a Constitution.
Nevertheless, the claim began to be made not long after the Constitution was ratified that English common law was "in force" at the Federal level. The Founders strongly objected:
Of all the doctrines which have ever been broached by the federal government, the novel one, of the common law being in force & cognizable as an existing law in their courts, is to me the most formidable. All their other assumptions of un-given powers have been in the detail. The bank law, the treaty doctrine, the sedition act, alien act, the undertaking to change the state laws of evidence in the state courts by certain parts of the stamp act, &c., &c., have been solitary, unconsequential, timid things, in comparison with the audacious, barefaced and sweeping pretension to a system of law for theU S, without the adoption of their legislature, and so infinitively beyond their power to adopt. If this assumption be yielded to, the state courts may be shut up, as there will then be nothing to hinder citizens of the same state suing each other in the federal courts in every case, as on a bond for instance, because the common law obliges payment of it...
Before the revolution there existed no such nation as the U S; they then first associated as a nation, but for special purposes only. They had all their laws to make, as Virginia had on her first establishment as a nation. But they did not, as Virginia had done, proceed to adopt a whole system of laws ready made to their hand. As their association as a nation was only for special purposes, to wit, for the management of their concerns with one another & with foreign nations, and the states composing the association chose to give it powers for those purposes & no others, they could not adopt any general system, because it would have embraced objects on which this association had no right to form or declare a will. It was not the organ for declaring a national will in these cases. In the cases confided to them, they were free to declare the will of the nation, the law; but till it was declared there could be no law. So that the common law did not become, ipso facto, law on the new association; it could only become so by a positive adoption, & so far only as they were authorized to adopt. ["COMMON LAW AND THE WILL OF THE NATION" ~Thomas Jefferson, Letter To Edmund Randolph Monticello, Aug. 18, 1799; Jefferson, Thomas, 1743-1826. Letters; Electronic Text Center, University of Virginia Library]
James Madison argued forcefully against the idea that the English common law had been Constitutionally or otherwise incorporated into the Constitution or Federal law:
Did then the principle or operation of the great event which made the colonies independent states, imply or introduce the common law as a law of the Union?
The fundamental principle of the Revolution was, that the colonies were co-ordinate members with each other, and with Great Britain, of an empire, united by a common executive sovereign, but not united by any common legislative sovereign. The legislative power was maintained to be as complete in each American parliament, as in the British parliament. And the royal prerogative was in force in each colony, by virtue of its acknowledging the king for its executive magistrate, as it was in Great Britain, by virtue of a like acknowledgment there. A denial of these principles by Great Britain, and the assertion of them by America, produced the Revolution.
There was a time, indeed, when an exception to the legislative separation of the several component and coequal parts of the empire obtained a degree of acquiescence. The British parliament was allowed to regulate the trade with foreign nations, and between the different parts of the empire. This was, however, mere practice without right, and contrary to the true theory of the Constitution. The conveniency of some regulations, in both those cases, was apparent; and as there was no legislature with power over the whole, nor any constitutional pre-eminence among the legislatures of the several parts, it was natural for the legislature of that particular part which was the eldest and the largest, to assume this function, and for the others to acquiesce in it. This tacit arrangement was the less criticised, as the regulations established by the British parliament operated in favour of that part of the empire which seemed to bear the principal share of the public burdens, and were regarded as an indemnification of its advances for the other parts. As long as this regulating power was confined to the two objects of conveniency and equity, it was not complained of, nor much inquired into. But, no sooner was it perverted to the selfish views of the party assuming it, than the injured parties began to feel and to reflect; and the moment the claim to a direct and indefinite power was ingrafted on the precedent of the regulating power, the whole charm was dissolved, and every eye opened to the usurpation. The assertion by Great Britain of a power to make laws for the other members of the empire in all cases whatsoever, ended in the discovery that she had a right to make laws for them in no cases whatsoever.
Such being the ground of our Revolution, no support nor colour can be drawn from it, for the doctrine that the common law is binding on these states as one society. The doctrine, on the contrary, is evidently repugnant to the fundamental principle of the Revolution.
It is readily admitted, that particular parts of the common law may have a sanction from the Constitution, so far as they are necessarily comprehended in the technical phrases which express the powers delegated to the government; and so far also, as such other parts may be adopted by Congress as necessary and proper for carrying into execution the powers expressly delegated. But, the question does not relate to either of these portions of the common law. It relates to the common law beyond these limitations.
The only part of the Constitution which seems to have been relied on in this case is the 2d Sect. of Art. III. "The judicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority."
There are two passages in the Constitution, in which a description of the law of the United States is found. The first is contained in Art. III. sect. 2, in the words following: "This Constitution, the laws of the United States, and treaties made, or which shall be made under their authority." The second is contained in the second paragraph of Art. VI. as follows: "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." The first of these descriptions was meant as a guide to the judges of the United States; the second, as a guide to the judges in the several states. Both of them consists of an enumeration, which was evidently meant to be precise and complete. If the common law had been understood to be a law of the United States, it is not possible to assign a satisfactory reason why it was not expressed in the enumeration. [James Madison, principal author, REPORT OF 1799. VIRGINIA. HOUSE OF DELEGATES.]
That should make it abundantly clear why in Wheaton v. Peters, 33 U.S. (Pet. 8) 591 (1834), the Supreme Court held:
"It is clear there can be no common law of the United States. The Federal government is composed of twenty-four sovereign and independent states, each of which may have its local usages, customs and common law. There is no principle which pervades the Union and has the authority of law, that is not embodied in the constitution or laws of the Union. The common law could be made a part of our Federal system only by legislative adoption."
In a recent speech to the Federalist Society, Supreme Court Justice Antonin Scalia confirmed that English common law did not "control" at the national or Federal level after the United States gained its independence from Great Britain:
The common law is gone. The federal courts never applied the common law and even in the state courts it's codified now. (Audio/Video: Justice Scalia speech, Nov 22, 2008)
Is "Natural Born Citizen" Equivalent To "Natural Born Subject" As Defined By English Common Law?
If so, it would have to be an exception to the clear words of the Founders and the controlling Supreme Court precedents that deny that Federal law is based on the English common law. Could that be? And what was the English common law definition of a "natural born subject," in any case?
In Britain, there are only two types of law: "common law" and Acts of Parliament. In the absence of an Act of Parliament, the common law applies. But any Act of Parliament overrides the common law. Britain has no Constitution as a separate and distinct document. In the British system there is no higher written law superior to an Act of Parliament, although core legal principles such as the rule of law are considered to be superior even to Parliament. Some laws and court rulings have attained an informal, but nevertheless quite strong, status as forming part of the British Constitution.
Every decision of any British court could potentially establish a new precedent in the common law—even decisions based solely on statutes. Conversely, Parliament could and did enact statutes that were intended to canonically declare and codify the common law as it already existed. However, it was not always clear whether that was or was not the intent (or legal effect) of a statute (or of one of its clauses or provisions.) Similarly, an Act of Parliament or court decision could evolve over time to have the weight and authority of a Constitutional provision, and so become a part of the informal British Constitution.
The legal rules regarding English (and then British) citizenship ("subjecthood") originally evolved exclusively as common law, as there were no Acts of Parliament on the topic.
The term "natural" in "natural born subject" refers to the fact that common law in theory was based on principles of what was naturally true, right or just. Of course, "in theory, there is no difference between theory and practice, but in practice, there is." So in practice, common law and natural law were not always the same. Natural law was entirely theoretical, whereas the common law was actual, enforceable law. Natural law was the ideal, but common law is what was real.
The relationship between the British concept of natural law and the body of English common law would be analogous to the the relationship between the text of the US Constitution and the decisions of the Supreme Court which interpret that text. Caveat: few analogies are perfect, and this one is no exception.
"Natural born subject" originally meant a person whose status as a subject was due to a) the application of "natural" law, and b) acquired as a direct and immediate consequence of the facts of a person's birth. So anyone whose status as a British "natural born subject" was due solely to either a) an Act of Parliament, or b) an order of the King or Queen, was therefore a "naturalized" subject. The term "naturalization" referred to the fact that the person was transferred artificially by political decision into a status which others had "by nature" without any need to rely on political edicts. So those made "natural born subjects" by statutory definition were said to be naturalized, but anyone whose status as a "natural born subject" was based on the "common law" (which was theoretically based on natural principles) was not a "naturalized" subject, but rather an actual "natural born subject." So that's the reason that the act of making someone a subject (or citizen) by either an act of the legislature or by order of the sovereign is called "naturalization" in English. "Naturalization" is simply shorthand for "defining someone as a natural born subject" by order of political authority—as opposed to using "natural law" principles theoretically based on what is true by nature (which, in practice, meant using natural law's actual realization, the common law.) Referring to that act as "naturalization" makes no sense otherwise.
Common law evolves over time. So did the English common law definition of a subject born (an "actual" natural born subject.)
Original Meaning Of "Natural Born Subject" In English Common Law
It is common and natural for the meanings of terms to change over time, as new circumstances make old meanings less useful, and motivate new meanings that have greater utility in new environments and situations. Originally, there were no statutes defining "natural born subject," and so there was no statutory meaning, and the term only had a common law definition.
A commentary by John Rastell (c.1475-1536) states that the original common law defined anyone born on English soil, regardless of whether his parents were English or alien, as an Englishman:
Alien is he of whom the father is born, and he himself also born, out of the ligeance [territory] of our lord the king; but if an alien come and dwell in England which is not of the king's ememies and here has issue [child], this issue [child] is not alien but English; also if an Englishman go over the sea with the king's license and there has issue [child], this issue [child] is not alien. (Expositiones terminorum (1527), as quoted by Kim (1996), spelling modernized for readability)
According to Thomas de Littleton (1407-1481), birthplace alone determined whether someone was a subject or alien by birth:
In his Tenures (c. 1450-60), [Littleton] defined aliens as those 'born out of the liegance of our lord the king...'. He further elaborated that 'born out of the liegance' meant 'born in such country as is out the king's liegeaunce...' Statutes enacted in the Tudor years [1485-1603] were in complete agreement with Littleton's definition in that alien status was defined by birthplace only. (Kim (2000), p.149).
It was common for Parliament to eventually codify the common law by statute. That's one reason it's so easy to be quite wrong regarding what was true according to the common law and what was not. The fact that there was a statute asserting the law did not necessarily mean that common law had not reached the same conclusions earlier. And of course, different factions could disagree that a court's ruling was a fair determination of natural law—just as different factions in the United States disagree whether a Supreme Court ruling is a fair interpretation of the text of the Constitution. Occasionally, a faction whose point of view does not prevail in an initial court decision later succeeds in getting an adverse decision reversed.
In 1628, Sir Edward Coke (1552-1634) wrote a commentary on Littleton's work. Coke's commentary, often referred to as Coke upon Littleton, reiterated Littleton's viewpoint that all children born on English soil were "subjects born", regardless of whether their parents were subjects or aliens:
If an Alien commeth into England and hath issue two sonnes, these two sonnes are Indigenae subjects borne, because they are borne within the Realme. (Coke (1628), p.630)
For much of English history, the English Channel kept England isolated from the rest of the world. English subjects rarely gave birth overseas, and aliens rarely gave birth in England. In general, birth on English soil was synonymous with birth to English parents. However, as travel, commerce and immigration increased, the simplistic "rule"—that birthplace alone determined nationality—became impractical and unrealistic:
The rule [that every person born within the dominions of the Crown was an English subject], when originally established, was not unsuited to the isolated position of this island, and the absence of intercourse with foreign nations in Saxon times. No children of English parents being born abroad, or children of foreign parents being born within the realm, the simple rule that to be born within the dominions of the Crown constituted an Englishman answered every purpose. But when the foreign possessions of our kings and the increase of commerce had led to greater intercourse with the Continent, and children of English parents were sometimes born abroad, the inconvenience of the rule which made place of birth the sole criterion of nationality soon became felt. (Cockburn, p.7)
Calvin's Case: New Court Precedent Changes Common Law Definition Of "Natural Born Subject"
In Calvin's Case (1608), allegiance, rather than birthplace, became the new criterion of English nationality at birth. The justices ruled that parental allegiance, not the place of one's birth, determined one's legal status at birth. Regardless of where you were born, you were not an English subject by birth unless your parents were within the king's allegiance (obedience) at the time of your birth:
...any place within the king's dominions may make a subject born, but any place within the king's dominions without obedience can never produce a natural subject. (Coke(1608), p.208)
it is nec coelum, nec solum [neither sky nor soil], but ligeantia [allegiance] and obedientia [obedience] that make the subject born (Coke(1608), p.179)
Most children born on English soil were English subjects, only because most children born on English soil were born of parents who were within the king's allegiance. One consequence of the new common law precedent established by the decision in Calvin's Case was that if parents did not owe allegiance (obedience) to the king, there was no way—either by natural law or by man-made law—that their children could acquire English subjecthood at birth, regardless of the children's birthplace:
Et si desit obedientia non adjuvet locus [And, if obedience is lacking, the place does not help]. (Coke(1608), p.224)
So what was meant by "allegiance"? Allegiance (also called ligeance) was a relationship between an individual and the king. In this relationship, the individual was obligated to serve and obey the king, and the king, in turn, was expected to govern and protect the individual:
...ligeance is the mutual bond and obligation between the King and his subjects, whereby subjects are called his liege subjects, because they are bound to obey and serve him; and he is called their liege lord, because he should maintain and defend them. (Coke(1608), p.176)
After the court decision in Calvin's Case, when children were born on English soil, their legal status, at birth, was based on their parents' allegiance (ligeance). Parental allegiance was determined as follows:
L. 1. B. 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
The jus soli principle: At first glance, the English common law "rule" appears to have been jus soli—subjecthood determined by birthplace alone. Almost all children born on English soil were, at birth, natural-born subjects, regardless of whether their parents were subjects or aliens. But the underlying principle of Calvin's Case was that parental allegiance, not the place of one's birth, was the primary criterion of one's legal status at birth:
The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "ligealty," "obedience," "faith," or "power" of the King. The principle embraced all persons born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual—as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem—and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects because [they were] not born within the allegiance ... of the King. (U.S. v. Wong Kim Ark, 1898)
As a general rule, children born on English soil were English natural-born subjects (whether by common law or by statute.) But there were exceptions to this rule. While characterizing these exceptions as "unimportant", Albert Venn Dicey (1835-1922) acknowledged that the underlying reason for these exceptions was that birthright subjecthood stemmed from allegiance, not the place of one's birth:
The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, though at common law nationality or allegiance in substance depended on the place of a person's birth, it in theory at least depended, not upon the locality of a man's birth, but upon his being born within the jurisdiction and allegiance of the king of England; and it might occasionally happen that a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of the crown. (Albert Dicey, The Conflict of Laws, 1896, as quoted in U.S. v. Wong Kim Ark, 1898)
The meaning of ligeance is inseparably intertwined with the meaning of "natural-born subject". According to the majority opinion in Calvin's Case, ligeance ("allegiance") is the defining characteristic that separates subjects from aliens. Ligeance is "the onely mark to distinguish a subject from an alien" (Coke(1608), pp.197-8). A subject has natural or acquired ligeance; an alien does not.
As a general rule, anyone born within the ligeance of the king is a "natural subject" of the king:
... they that are born under the obedience, power, faith, ligealty, or ligeance of the King, are natural subjects, and no aliens. (Coke(1608), p.177)
But what does the phrase "born within the ligeance" mean?
Prior to 1608, the meaning of ligeance was ambiguous. In some contexts, it meant the king's territory. In other contexts, it referred to an individual's (or an individual's parents') faith, loyalty and obedience:
Before ligeance was employed to refer to a tract of land, the term had already been used to refer to a certain quality of interpersonal relationship. Glanvill, for instance, used the term to explain the pre-eminent relationship between a tenant and his 'liege' lord. Also, the treaty between Henry II and William, king of Scots (the Treaty of Falaise, 1174) ... indicates that the term was used to refer to the relationship of fidelity rather than a piece of land. ... Bracton also uses the term to refer to something other than a geographical tract.
But in the late thirteenth century, we begin to see that the territorial extent of the King's legitimate power is also called ligeance. According to fourteenth century legal terminology, out of the ligeance (hors de la ligeance) could mean 'out of England'. Likewise, within the ligeance (deinz la ligeance) often meant 'within England'. ... It appears that the term was used in an ambivalent manner by the early fourteenth century. In other words, the term carried a certain amount of ambiguity with it. (Kim (2000), pp.137-139)
Two examples illustrate the confusing dual meaning of ligeance:
Serjeant Shardlow, the attorney for the defense, argued that Philip's father's parents (Philip's grandparents) were married in England, did homage to the English king, and died in the king's homage. Therefore, Philip's father was born within the king's ligeance (loyalty and obedience).
Shardlow used the dual meaning of ligeance to circumvent English inheritance laws. His strategy worked, but only temporarily. The judge ruled in Philip's favor, but the ruling was overturned on appeal. Philip eventually forfeited his inheritance to the king. (Kim (2000), p.139).
All children heirs who will from henceforth be born out of the ligeance [territory] of the king, provided that, at the time of the birth, their fathers and mothers are, and will be, of the faith and ligeance [loyalty and obedience] of the King of England, [shall] have and enjoy the same benefits and advantages of having and carrying the inheritance within the said ligeance ... (Statue De natis ultra mare, 1351, as quoted by Kim (2000), p.121)
By the fifteenth century, it appears (as documented above) that ligeance had come to mean territorial extent only.
But the meaning of ligeance underwent a transformation during the late sixteenth-century Elizabethan succession debates (words tend to acquire whatever meaning that society, or those in power, need them to mean.) The controversy over who would succeed Queen Elizabeth to the throne (she had no children) helped to forge a consensus of legal opinion that a child's personal status at birth—whether subject or alien—was properly based on the faith, obedience and loyalty of the parents at the time of the child's birth, not the territory in which the child was born. The English word allegiance (a variation of ligeance) first appeared in the Elizabethan Succession Tracts. Even today, "allegiance" implies loyalty, not a geographical location:
By the time Calvin's Case was decided in 1608, the English legal community had already reached a consensus of opinion that the allegiance of your parents, not the place of your birth, determined whether you were a subject or alien when you were born:
By the time of Calvin's Case, it was no longer sensible to doubt that allegiance was the decisive criterion of a person's legal status. ... The bond of faith thus became the pivotal element of legal reasoning. (Kim (2000), p.178)
The ruling in Calvin's Case reflected the prevailing viewpoint that one's birthplace, by itself, did not confer subjecthood; that without some measure of parental obedience or allegiance, it was impossible (by natural law or man-made law) for a child to be an English subject at birth, even if such child was born on English soil. In his Report on Calvin's Case, Lord Coke quoted—often word-for-word—directly from the Elizabethan Succession Tracts:
...any place within the king's dominions may make a subject born, but any place within the king's dominions without obedience can never produce a natural subject. (Coke(1608), p.208)
...it is nec coelum, nec solum [neither sky nor soil], but ligeantia [allegiance] and obedientia [obedience] that make the subject born (Coke(1608), p.179)
In 1608, the English court (in Calvin's Case) defined "ligeance" as a personal relationship between a king and his subjects, whereby the king governs and protects his subjects, and his subjects give the king their faith, loyalty and obedience:
...ligeance is the mutual bond and obligation between the King and his subjects, whereby subjects are called his liege subjects, because they are bound to obey and serve him; and he is called their liege lord, because he should maintain and defend them. (Coke(1608), p.176)
... This word ligeance is well expressed by divers several names or synonymia which we find in our books. Sometimes it is called the obedience or obeisance of the subject to the King... Sometimes ligeance is called faith... (Coke(1608), p.176)
...ligeance, and faith and truth which are her members and parts, are qualities of the mind and soul of man... (Coke(1608), p.182)
...it followeth, that seeing the King's power, command, and protection extendeth out of England, that ligeance cannot be local, or confined within the bounds thereof. (Coke(1608), p.188)
...ligeance is a quality of the mind, and not confined within any place... (Coke(1608), p.188)
According to Lord Coke's Report on Calvin's Case, there were four kinds of ligeance: natural, acquired, local, and legal. Anyone who was born with "natural" ligeance was subject born. Persons who owed "acquired" ligeance were subjects made. Alien friends owed "local" ligeance to the king. Alien enemies, and foreigners, did not owe any ligeance to the king.
One's ligeance affected the legal status of one's children. Children born on English soil were subjects (subjects born or subjects made) at birth only if their parents were within the king's natural, acquired or local ligeance. Children born in a foreign country were English subjects only if their fathers owed natural ligeance to the king (but were still subjects made, since the status of subjecthood in such cases was conferred by an Act of Parliament, known as De Natis ultra Mare (1351))
Lord Coke often used "obedience" as a synonym of ligeance. By itself, the word ligeance (therefore the word "obedience") generally implied subjecthood. Lord Coke defined ligeance as a relationship between a subject and his king:
...ligeance is the mutual bond and obligation between the King and his subjects, whereby subjects are called his liege subjects, because they are bound to obey and serve him; and he is called their liege lord, because he should maintain and defend them. (Coke(1608), p.176)
Ligeance was "the onely mark to distinguish a subject from an alien" (Coke(1608), pp.197-8). Those who were within the king's ligeance were subjects. Those who were outside of the king's ligeance were aliens. The exception to this rule was local ligeance. Persons who owed local ligeance to the king were aliens. Local ligeance conferred subjecthood to the children of aliens, but did not confer subjecthood to the aliens themselves.
Every English subject owes either "natural" or "acquired" ligeance to the king. "Natural" and "acquired" ligeance (obedience) are "actual" in the sense that they confer actual property rights to the individual and impose actual life-long obligations of service to the king.
In contrast, aliens owe "local" ligeance (obedience) to the king. Local ligeance (obedience) is "wrought by the law" (Coke(1608), p.177). In general, the term "by law" is a contradistinction of "actual". Something which is so "by law" is not necessarily so "in fact".
Persons who owe local ligeance (obedience) to the king are aliens. They do not receive subjecthood, they do not acquire real property rights, and they do not owe permanent (perpetual) allegiance to the king. Their obligation of allegiance is only temporary; it expires as soon as they depart from the king's territory.
Lord Coke characterized local ligeance as "extremely uncertain":
localis ligeantia est ligeantia infima et minima, et maxime incerta [local allegiance is something mean and small, and extremely uncertain]. (Coke(1608), p.179)
The English Common Law Definition Of Natural Born Subject In The 18th-Century
Following the decision in Calvin's Case, other than in special cases, a child was a common law 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. any place within the King's dominion without obedience can never produce a natural subject. (Coke (1608), p.208)
So, per Lord Coke, to be a subject born:
Timothy Cunningham's Law Dictionary (1771) was the only law dictionary that James Madison ordered for the Continental Congress. It was one of the most popular comprehensive English dictionaries of the late eighteenth century, and was found in many personal libraries, including those of Thomas Jefferson and John Adams. It was contemporaneously used by various American Supreme Courts for clarification of legal terms. (Berry, pp.347-8). Under the "Aliens" section of his Law Dictionary, Cunningham defined "natural-born subject" as one who is born within the king's realm, of parents who are under the king's "actual obedience":
All those are natural born subjects, whose parents, at the time of their birth, were under the actual obedience of our king, and whose place of birth was within his dominions. (Cunningham, p.95, in section entitled "Aliens")
The exact same definition of "natural-born subject" is found in Matthew Bacon's A New Abridgment of the Law, Volume 1, published in 1736. (Bacon, Matthew, p.77).
When the U.S. Constitution was being written, Giles Jacob's New Law Dictionary (1782) was "the most widely used English Law dictionary" (Berry, pp.350-1). Jacob defined "subject born" (an actual natural-born subject) as anyone born within the king's realm, of parents who are under the king's "actual obedience":
There are two incidents regularly that are necessary to make a subject born: first, that his parents, at the time of his birth, be under the actual obedience of the king; Secondly, that the place of his birth be within the king's dominions. (Giles Jacob, A New Law Dictionary, 1782., p.40)
Actual natural-born subjects (subjects born) were subjects by natural law. They were born on English soil, to parents who were under the "actual obedience" of the king. They were born with natural allegiance to the king.
Similarly, those who were under ("subject to") the King's "actual obedience" owed allegiance to the King (or Queen) according to natural law (as the British viewed it.) Natural law, per the British, held that those who were subjects of the King owed him obedience, submission, loyalty, and faith. They were his subjects, because they subjected themselves to his authority and jurisdiction as their liege lord. So, according to 18th-century English common law, an actual natural-born subject, a subject born, was someone born on British soil to parents who were loyal British subjects (whether "subjects born" or "subjects made") at the time of birth.
Those born on British soil to parents who were "alien friends" (permanent legal residents) were naturalized "natural born subjects," made so by Act of Parliament. So they were subjects made, not subjects born. According to the House of Commons Journal Volume 1, 21 April 1604, said statute was enacted in 1604:
L. 1. B. 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.
Both Cunningham and Jacob understood that the English-born children of alien parents were statutory denizens. They were deemed to be natural-born by statute, but were not natural-born in any factual or natural-law sense:
...if one born out of the king's allegiance, come and dwell in England, his children begotten here, are not aliens, but denizens. (Cunningham, p.95, in section entitled "Aliens")
... And if one born out of the king's obedience come and reside in England, his children, begotten and born here, are not aliens but denizens. (Giles Jacob, A New Law Dictionary, 1782.)
The word denizens in both of the above citations removes all doubt that the subjecthood of those born in England to alien parents from the 17th-century onward is an act of naturalization granted by statute.
In 1608, Francis Bacon wrote that English law "naturalized," at birth, English-born children of alien parents, as well as foreign-born children of English parents. In both cases, the children were, at birth, natural-born subjects. But their natural-born subjecthood was conferred by statutory law, not natural 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)
In de Vattel's understanding, English-born children of foreign parents were "naturalized" at birth. These children became English natural-born subjects, not by natural law, but by a naturalization statute enacted by Parliament:
Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner. (de Vattel, § 214)
English-born children of alien parents were natural-born subjects in the sense that they had property rights. But such children did not have the same economic and municipal rights as did English-born children of English parents. Prior to 1737, English-born children of alien parents could not become "citizens" (freemen) of an English city or town.
When someone was born in England and both of his parents were aliens at the time of his birth, he was deemed a natural-born subject, but nevertheless had to pay aliens' duties:
There is a curious passage in Hale's Treatise Concerning the Customs concerning aliens' customs [duties] in the 17th century. He says "If an alien come into England and have issue [child] here, he [the child] is a natural-born subject. Yet ... such a natural-born subject hath been decreed heretofore to pay aliens' duties..." Hargrave, Tracts, vol. I (1787) 210. Cf. the similar tendency to treat the native members of the foreign Protestant congregations as aliens.... The statute 12 & 14 Car. 2, c. 11 furthered the policy by disabling infant children of aliens from trade. (Parry, footnote 327).
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)
The British Nationality Act of 1730 states:
...That all Children born out of the Ligeance of the Crown of England, or of Great Britain, or which shall hereafter be born out of such Ligeance, whose Fathers were or shall be natural-born Subjects of the Crown of England, or of Great Britain, at the Time of the Birth of such Children respectively, shall and may, by virtue of the said recited Clause in the said Act of the seventh Year of the Reign of her said late Majesty, and of this present Act (7 Ann. c. 5. s. 3.), be adjudged and taken to be, and all such Children are hereby declared to be natural-born Subjects of the Crown of Great Britain, to all Intents, Constructions and Purposes whatsoever.
The British Nationality Act of 1772 states:
...That all Persons born, or who hereafter shall be born, out of the Ligeance of the Crown of England, or of Great Britain, whose Fathers were or shall be, by virtue of a Statute made in the Fourth Year of King George the Second, to explain a Clause in an Act made in the Seventh Year of the Reign of Her Majesty Queen Anne, for naturalizing Foreign Protestants, which relates to the natural-born Subjects of the Crown of England, or of Great Britain, intitled to all the Rights and Privileges of natural-born Subjects of the Crown of England or of Great Britain, shall and may be adjudged and taken to be, and are hereby declared and enacted to be, natural-born Subjects of the Crown of Great Britain, to all Intents, Constructions, and Purposes whatsoever, as if he and they had been and were born in this Kingdom: ...
When the U.S. Constitution was written, the law "on the books" was that English-born children of alien parents were denizens, and those born in foreign lands to fathers who where "natural born subjects" (whether born or made) were deemed by statute (legal fiction) to be "natural born subjects." Both classes of persons—those born in England to alien parents and those born to British subjects in a foreign land—were subjects made not subjects born, because they were not natural-born subjects in fact based on either natural law principles or English common law.
So if it were intended by the Founders that US citizenship law be modeled after British citizenship law, then the foregoing evidence allows for one and only one system of translation between the two legal ontologies of citizenship:
English common law term American Law term Explanation Natural born subject Citizen Because of the way terminology and practice evolved, English law used natural born subject as its general term for citizen. The term naturalization was coined because the Acts of Parliament that first overrode common law regarding citizenship declared persons to be "natural born subjects" by legislative edict instead of by common law. So naturalization was the act of legally declaring someone to be a natural born subject as a legal fiction. Subject born Natural born citizen These terms clearly and undeniably are excellent analogs of each other Subject made Naturalized citizen These terms clearly and undeniably are excellent analogs of each other
However, in spite of the strong correspondence that the analysis above has revealed between the semantics of the 18th-century English common law definition of "natural born subject" and the definition of "natural born citizen" as given by Dr. Ramsay (where the parents must have been citizens,) that does not prove that the only difference between the two terms is the one between a citizen and a subject. It doesn't even prove that it was the intent of the Founders to define "natural born citizen" based in any way on English common law.
The Founders' Rejection Of British Citizenship Principles
There can be no question that the Framers of the US Constitution strongly believed in natural law principles. Nor can there be any question that the concept of natural law is at least one foundational concept that was shared by both English common law and by pan-European concepts of natural law and the law of nations. The disagreements between English common law and pan-European natural law theories involved what was held to be true by nature and reason. Also, most European societies had no common law tradition—their courts typically operated on what is called civil law, which is a body of codified laws generally created initially as a unified whole, and not one that evolves incrementally over time based on court decisions. In a civil law system, any changes to the law are made by some authority other than the civil courts.
The legal systems of each of the American States operated originally based not just according to the mechanics of common law, where court decisions make new law with every precedential holding of a court, but also by incorporating the precedential holdings of British courts. And it's true that the US Federal courts operate as a common law system, in that precedential court holdings make new law. However, as proven above, the US Federal government and the US Constitution did not incorporate the past precedential holdings of British courts—because the Founders of the United States disagreed with the British on fundamental issues regarding what was true by nature and reason.
One reason that the Founders disagreed with British tradition regarding the principles of natural law is because the US was founded as a Constitutional Republic, not as a monarchy. The foundational principles were different, and in fact were an explicit rejection of key foundational principles of English law and English government. That was one very strong reason that the US Founders rejected the body of English common law, even though they did not reject common law as a system of evolving the law incrementally by means of court decisions. And as a practical matter, each colony was founded at different times, adopted English common law as its own at different times, and 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—not even concerning matters of citizenship.
Words and terms of art have the meanings they do because of their utility in the culture and society that uses them. New words and phrases are created with particular meanings, and existing words and phrases are given new meanings, because those new meanings serve the purposes of those who use them, and old meanings no longer do. The Founders of the United States undeniably wanted and needed to start a brand new legal tradition, based on the principles of government in which they believed, and not based on those of the nation whose government and political traditions they had fought and died to repudiate and discard.
Breaking their allegiance to the King, severing the ties of community and nationality, establishing a new anti-monarchist Republic based on a new political philosophy cannot fail to require new principles, new words and new meanings for old words. So, even if English common law terminology served as the foundational seed for the US Constitution, there would still be every reason to assume that the Founders would have made any necessary and proper changes to the legal principles and to the semantics of any terms of art they they may have incorporated from English common law (which, of course, they may have done even if they used the pan-European theories of natural law, and the "law of nations." as the foundational framework for the new nation they created.)
Questions of citizenship are inextricably linked to the relationship between a state and its people, which depends fundamentally on the political theory according to which the people of a nation constitute and operate their government. English common law evolved to fit a political theory according to which it was a natural law that a nation would be ruled by a sovereign who was a single human being (a king or queen,) and a natural law that, in exchange for the protection of the sovereign and his permission to reside in the territory the sovereign rules by divine right a person must from the moment of birth onward be "in allegiance to the king," which means to demonstrate loyalty and obedience to him (or to her, if the sovereign is the Queen.)
English natural-born subjects owed perpetual allegiance to the king based on the circumstance of their birth, regardless of their own self-determination. Therefore, if you believe that English common law guided the formation of the U.S. national government, to be consistent you should also believe that U.S. citizenship was based on the principle of owing allegiance to the sovereign based on the circumstances of one's birth regardless of one's own will, and that U.S. citizens therefore do not have the right of expatriation.
On the other hand, European political and natural law theorists, such as de Vattel, taught that children, at birth, acquire citizenship by descent from their fathers, and that expatriation is a basic human right. Thus, if you believe that European theorists influenced the Founding Fathers as they wrote the Declaration of Independence and the U.S. Constitution, to be consistent you should also believe that the Founding Fathers' understanding of citizenship included the jus sanguinis principle and the right of expatriation.
After gaining independence, the original thirteen States retained aspects of English common law, including the statutory rule which granted citizenship to children of alien parents who, though not yet citizens, had sworn an oath of allegiance to the State and had established permanent legal residence, or domicile, within the State:
While all States could be said to have recognized birth within the State as a means of conferring State citizenship to all persons, it is important to realize these States also required of aliens who desired to become domiciled within their limits to first renounce any allegiances to other governments and pledge their allegiance solely to the State. Therefore, a child born to domiciled parents was "born within the allegiance" of the State even if the parents had not yet been naturalized. (What 'Subject to the Jurisdiction Thereof' Really Means ~ Madison(2007))
However, the early framers of the Federal government seemed disinclined to follow the English understanding of sovereignty and allegiance. For example, Thomas Jefferson rejected the English common law notion of perpetual allegiance, and affirmed each individual's right of expatriation:
That our citizens are certainly free to divest themselves of that character, by emigration and other acts manifesting their intention and may then become the subjects of another power and be free to do whatever the subjects of that power do. (Thomas Jefferson, as quoted by Webster, p.76)
If the Framers of the Constitution intended to closely follow English common law with regards to matters of citizenship, then of course the ontological model of US citizenship would be intentionally analogous to that of British law at the time the Constitution was drafted If so, then anyone born in the United States to parents who are US citizens would have a citizenship status analogous to a subject born, and their status as citizens would be beyond possibility of dispute.
However, the Constitutional status (per original intent, not per current court precedent) of those born in the United States to parents who are permanent legal residents would be far less clear, simply because of the uncertainties regarding the distinctions between common and statutory law, between declaratory and non-declaratory statutes, and regarding the meaning of "actual obedience." Some would qualify as naturalized citizens (subjects made), but some would not.
What would be irrefutable, however, is that those born to parents who were mere "foreigners" (as opposed to "alien friends,") or who were "alien enemies," would not qualify even as citizens if the meaning of that term is in fact intended to be analogous to the semantics of "natural born subject" as defined in 18th-century British law. That would exclude persons whose fathers were not legal permanent residents of the United States (except in cases where the person's father was unknown.)
On the other hand, if the Founding Fathers were guided by European political and natural law theorists, such as de Vattel, the original meaning of "natural born citizen" probably included the jus sanguinis principle; in which case, you cannot be a U.S. natural born citizen unless your father was a U.S citizen at the time of your birth.
In 1884, an article was published in The American Law Review written by George D. Collins, Esq. Attorney Collins was the Secretary of the California Bar Association. His name was recognized nationally for cases in the federal courts, and also due to his regular publishing of articles via The American Law review. The article was entitled "ARE PERSONS BORN IN THE UNITED STATES IPSO FACTO CITIZENS THEREOF?", and was an in depth discussion and review of the legalities of US citizenship. Attorney Collins states:
There is nothing in the constitution to indicate that the term "citizen" was used in reference to the common-law definition of "subject," nor is there any act of Congress declaratory of the common-law doctrine, and the subject of citizenship being national, questions relating to it are to be determined by the general principles of the law of nations.
The Founders not only rejected the idea that English common law in general was the basis of the US Constitution, they also specifically objected to the use of the British definition of "natural born subject." They actually fought yet a second war against the British over precisely the issue of whether or not the British definition of "natural born subject" applied to US citizens: The War of 1812!
One of they key disagreements between the US and Britain that led to the War of 1812 was the practice of the British Navy of impressing into British naval service sailors (and even passengers) they found on ships at sea. "Drafting" people into military service (to use the modern term) was predicated on the British definition of "natural born subject." Under British law then and now, anyone either born on British soil or born to parents who were British subjects was also a British "natural born subject," and hence owed allegiance to the British Crown, and so could be "impressed" (drafted) into British military service.
In the late 18th and early 19th centuries, many US citizens had either been born on British soil according to British law (the American colonies were British soil according to British law until the Crown signed the peace treaty with its former colonies,) or else had parents who were British subjects at the time of their birth. The US government strenuously objected to having its citizens kidnapped from ships at sea in order to be impressed into the British Navy, rejected the argument that Britain had any right to do this based on the British definition of "natural born subject," and insisted that on US ships at sea, only US law applied, and on non-British ships, only the "law of nations" applied. And this objection by the US would only have been logically consistent if the US had categorically rejected the British definition of "natural born subject," and if that rejection involved issues in addition to the difference between a subject and a citizen.
In addition to going to war, the US took other measures to deal with the problem of having its sailors impressed into the British Navy: On February 9, 1813, the US House of Representatives passed a law that required that all the officers and three fourths of the seamen on a ship of the United States be natural born citizens. Whatever "natural born citizen" meant to the founding generation (many of whom were still alive and serving in Congress at the time,) the US Congress of 1813 thought that requiring a person to be such would prevent the British definition of "natural born subject" from applying to such a person—which means that a "natural born citizen" of the US could not have been born on British soil, nor could a "natural born citizen" of the US have even one British parent.
US Supreme Court Decisions Concerning Citizenship and "Natural Born Citizens"
The Constitution vests the judicial power of the United States with the US Supreme Court. By definition, "judicial power" is the power to judge questions of law, both with respect to what the law means in general and with respect to how the law should apply to a particular set of facts and circumstances. The US Constitution names itself as a law, and therefore the Supreme Court has the power to judge its meaning and application pursuant to the Constitutional grant of judicial power to the courts of the United States. The Supreme Court ruled in 1803 that the judicial power that the US Federal courts were granted in the Constitution necessarily included the power to use the Constitution as a "meta-law" governing the meaning and validity of the actions of the President, the Congress and lower courts. That ruling is referred to as "Marbury vs. Madison," and the ruling in that case set the precedent of what has come to be called "judicial review," which is the principle that Federal courts have the power to retroactively invalidate Congressional statutes 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.
Note that it is logically impossible for a clause to have substantive, material and consequential effect unless each clause also has unique effect: If the effect of a clause were not unique, then it could be removed without substantive effect or consequence.
With that interpretive principle in mind, consider what the first sentence of the Fourteenth Amendment has to say regarding US citizenship:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
Firstly, note that the sentence says nothing about "natural born citizens"—that term does not appear. Nor does it say anything about who is or is not eligible to serve as President of the United States. It does not take away from or add to the power of Congress with respect to making naturalization rules (it does prevent Congress from denying citizenship to anyone "born in the United States, and subject to the jurisdiction thereof," but that leaves unchanged the power of Congress to naturalize whomever it pleases.). Nor does the Amendment state that it is repealing any clause in the original Constitution or in any of the subsequent Amendments. Instead, it specifies the following rules regarding Federal and State citizenship:
Secondly, the interpretive rule established by Marbury vs. Madison (requiring each clause to have both unique and substantive, non-superfluous effect) prevents the word "citizen" from being a synonym for "natural born citizen." Since the 14th Amendment explicitly and specifically defines "citizen" (the word occurs with no prefix,) the Constitutional meaning of "natural born citizen" must be different. Which, as will be shown, is what the Supreme Court has repeatedly held.
We know from history that the first sentence 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. That said, it should also be noted that any children of those who were naturalized by the 14th Amendment, if born on US soil, would be natural born citizens, and so eligible to be 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 1873, the Supreme Court said that the U.S.-born children of foreign citizens are not subject to U.S. jurisdiction, therefore are not U.S. citizens under the 14th Amendment:
'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.' ... The phrase, 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States. (Slaughter-House Cases, 1873)
In 1884, the Supreme Court reiterated that an individual is a 14th Amendment citizen only if the United States has complete jurisdiction over such individual at the time of her or his birth or naturalization:
The persons declared to be citizens are "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized... (Elk v. Wilkins, 1884)
Then in 1898, the Supreme Court had to decide yet again 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 first sentence of the 14th Amendment was used to hold that a person was in fact a citizen. Interestingly, the text of the decision itself falsely claims that there was a prior case that had already done the same, but that claim is provably false. That's actually a crucial point, as will be shown later.
The 1898 case involved the citizenship status of Mr. Wong Kim Ark, who was born in the United States to Chinese parents who never acquired US citizenship. His citizenship was challenged both because neither of his parents were US citizens, and also because of a law restricting Chinese immigration and prohibiting immigrants from China from becoming naturalized U.S. citizens. The court decided that Wong Kim Ark was a citizen based on the first sentence of the 14th Amendment, and that "subject to the jurisdiction of the United States" means a) physically present on United States soil, AND b) the person was born to parents who were private individuals not employed in any official capacity by a foreign sovereign.
The court's interpretation of "subject to the jurisdiction" has been strongly criticized on a number of grounds by those who argue that the intended meaning was "not subject to any foreign power."
Firstly, in delivering the majority opinion in U.S. v. Wong Kim Ark, Justice Gray admitted that he had "presumed" that, in the 14th Amendment, the word "jurisdiction" means territorial and legal jurisdiction only. Evidence regarding the Framers' original intent, as expressed during the Congressional debates over the 14th Amendment, was deemed "not admissible":
The words 'in the United States, and subject to the jurisdiction thereof,' in the first sentence of the fourteenth amendment of the constitution, must be presumed to have been understood and intended by the congress which proposed the amendment ... as the equivalent of the words 'within the limits and under the jurisdiction of the United States'... Doubtless, the intention of the Congress which framed and of the States which adopted this Amendment of the Constitution must be sought in the words of the Amendment, and the debates in Congress are not admissible as evidence to control the meaning of those words. (Wong Kim Ark, 1898).
So the Supreme Court in Wong Kim Ark did not consider evidence showing that the originally intended meaning of "jurisdiction" was sole and complete jurisdiction. The Court's refusal to consider such evidence was "inexcusable":
A refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge's refusal to consider legislative intent. (Justice John Paul Stevens, as quoted by Madison(2006))
Secondly, the decision violated the principle of stare decisis, because it flatly contradicted its decisions in the Slaughter-House Cases and in Elk v. Wilkins. Justice Gray tried to argue that the circumstances in the Wong Kim Ark case were sufficiently different that a different decision was justified, but his reasoning is specious and violates the Law of Non-Contradiction.
Thirdly, Justice Gray's majority opinion violates the rule that it is inadmissible to presume that any clause of the Constitution is without effect. That is easily proven by an examination of the Court's definition of "subject to the jurisdiction":
The words "in the United States, and subject to the jurisdiction thereof" in the first sentence of the Fourteenth Amendment of the Constitution must be presumed to have been understood and intended by the Congress which proposed the Amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall in the well known case of The Exchange and as the equivalent of the words "within the limits and under the jurisdiction of the United States," and the converse of the words "out of the limits and jurisdiction of the United States" as habitually used in the naturalization acts.
Justice Gray used the conjunction (logical operator) and to connect the two predicate clauses "within the limits of the United States" and "under the jurisdiction of the United States." Use of the conjunction and requires that both clauses must apply as constraint predicates. He said "within the limits and subject to the jurisdiction of the United States." If "subject to the jurisdiction" means only "within the (territorial) limits," then it is redundant to say "within the (territorial) limits and subject to the jurisdiction." But if the two predicate clauses denote distinct constraints, then "subject to the jurisdiction" must mean something other than "within the (territorial) limits."
The Court also claimed that its formulation "within the limits and under the jurisdiction of the United States" was quoted from Justice Marshall's opinion in The Exchange. But no such quote appears anywhere in the text of THE EXCHANGE V. MCFADDON, 11 U. S. 116 (1812). In fact, the opinion of Justice Marshall clearly and emphatically distinguishes between being in the territory of a sovereign and being subject to the jurisdiction of a sovereign. A person or object can be subject to the jurisdiction of a sovereign even when not in that sovereign's territory, and can also fail to be subject to the jurisdiction of a sovereign even when in that sovereign's territory—and there are also gray areas, where an object or person is partially but not fully subject to the jurisdiction of the sovereign of the territory where the person or object is located. But in any case, nothing said by Justice Marshall in The Exchange pertains directly to whatever the Framers of the 14th Amendment meant by "subject to the jurisdiction," nor does that case involve questions of citizenship.
All persons are subject to U.S. legal and territorial jurisdiction while they are in the United States, although not all to the same extent. A visiting head of state, a foreign ambassador, a visiting warship, a foreign merchant on a business trip, a foreign tourist, an alien with legal US residency, a naturalized US citizen with additional foreign citizenships and a US citizen without any foreign citizenships may be all be "subject to the jurisdiction of the United States" while within the territory of the United States, but certainly not all to the same extent or degree! However, if the word "jurisdiction" in the 14th Amendment is interpreted to mean territorial and legal jurisdiction only, regardless of extent or exclusivity, then all persons born or naturalized in the United States are automatically under U.S. jurisdiction at the time of their birth or naturalization. But this would mean that the phrase, "subject to the jurisdiction thereof" is redundant and without any unique effect (remember, Marbury vs. Madison requires that every clause in the Constitution must have substantive and unique, non-redundant effect):
In the Fourteenth Amendment, there are two requirements: birth or naturalization in the United States and within the jurisdiction of the United States. If all persons who are born in the United States were ipso facto born within its jurisdiction, then the jurisdiction clause would be rendered superfluous. But a singular requirement of a written constitution is that no interpretation can render any part of the constitution to be without force or meaning. (Edward J. Erler, "From Subjects to Citizens: The Social Compact Origins of American Citizenship", in Ronald Pestritto and Thomas West, eds., The American Founding and the Social Compact, 2003., pp.191-192)
Finally, in the majority's Opinion of the Court, English common law was "in force" when the United States was founded, "continued to prevail" under the Constitution, and controlled the Constitutional meaning of "subject to the jurisdiction." According to the jus soli principle of English common law, U.S.-born children of "domiciled" (permanent legal resident) alien parents are citizens by birth.
In the minority's Dissenting Opinion, the law of nations controlled the Constitutional meaning of citizenship. According to the jus sanguinis principle promoted by European natural law theorists, a child is naturally a citizen at birth only if its parents were citizens at the time of its birth, regardless of the child's place of birth.
In the Wong Kim Ark case, the difference of opinion among the justices was rooted in their differing understandings of America's history and founding principles. The split decision in Wong Kim Ark illustrated Prentiss Webster's main point: that one's understanding of Constitutional citizenship reflects one's belief as to which philosophical system—English common law, or European political and natural law theory — guided the framers of the U.S. Constitution—at least in so far as questions of citizenship are concerned.
Until the 14th Amendment was passed and its citizenship rule was finally applied for the first time by the Court in Wong Kim Ark in order to define someone as a citizen who otherwise would not have been, it was not the case that anyone born in the US was Constitutionally a citizen. What was in fact true, and therefore what the Court must have meant when it claimed that English common law was "in force" when the United States was founded, was that Congressional statute and State law granted citizenship to people born here whose parents were not US citizens at the time of birth. However, the fact that the naturalization statutes passed by Congress excluded non-Whites until after the Wong Kim Ark decision, and the fact that the various State laws universally limited citizenship by race, generally excluding anyone but Europeans, proves that English common law regarding citizenship was absolutely not in force even in the laws of the States, let alone at the Federal level.
Yes, the grant of citizenship to some, but not all, persons born in the US to non-citizen parents has some similarity to the English common law definition of "natural born subject," but there were three major differences:
Firstly, the State laws and Congressional statutes granting citizenship asserted race-based exclusions, which English common law never did. That fact is mentioned by Justice Gray in Wong Kim Ark. For example, Title 2, Chapter 3, Section 1 of the Code of Virginia, Section 1:
All free white persons born in this state, all free white persons born in any other state of this Union, who may be or become residents of this state, all aliens being free white persons naturalized under the laws of the United States, who maybe or become residents of this state; all persons who have obtained a right to citizenship under former laws, and all children, wherever born, whose father, or if he be dead, whose mother shall be a citizen of this state, at the time of the birth of such children, shall be deemed citizens of this state.
Secondly, although the State laws didn't require that the parents be citizens, they did require that the parents must have formally renounced all foreign citizenship and allegiance in order for their US-born children to become citizens, which also was never required of "natural born subjects" under British law. That fact is also mentioned by Justice Gray in Wong Kim Ark.
Thirdly, English common law denied the status of "natural born subject" to anyone whose parents were not Christians no matter where they were born. In his Report on Calvin's Case, Lord Coke asserted that non-Christians—including Muslims and Jews—were "perpetual enemies" of the king, therefore their children, even if born in England, were not natural-born subjects:
Christianity being part and parcel of the law of England, those who did not profess it could not have the rights of Englishmen but, whether born within the king's allegiance or not, must be aliens, nor could they be alien friends, but must be regarded as alien enemies, even though they might be here under the special permission of the king. Lord Coke, in his report of the judgment of the Exchequer Chamber in Calvin's case, thus lays down the law: "All infidels are in law perpetui inimici, perpetual enemies (for the law presumes not that they will be converted, that being remota potentia, a remote possibility), for between them, as with the devils, whose subjects they be, and the Christian there is a perpetual hostility, and can be no peace ..." (Henry Straus Quixano Henriques, The Jews and the English law, 2005. p.186)
So interpreting Justice Gray's opinion in Wong Kim Ark as holding that the term citizen in the 14th Amendment must have the semantics of natural born subject as defined in English common law would require excluding non-Christians from being citizens, no matter where born. That is simply an absurd proposition given United States history and tradition, and given the clear and compelling language of the First Amendment. So either Justice Gray didn't mean to define the term citizen as used in the 14th Amendment to have the same semantics as natural born subject in English common law (other than the semantic difference between citizen and subject,) or else the opinion is so shockingly wrong that it must be reversed.
Finally, if the Constitution directly granted citizenship to whomever was born here "subject to the jurisdiction" of the United States (regardless of what that means) before the passage of the 14th Amendment, then why was the Amendment passed with a tripartite clause asserting citizenship rules as its first sentence whose import was identical to pre-existing Constitutional rules of citizenship? It cannot be the case that any clause of the 14th Amendment makes no change to Constitutional law. Again: Marbury vs. Madison requires that every clause in the Constitution must have substantive and unique, non-redundant effect. We are not allowed to assume that any clause of the 14th Amendment is redundant or does not change Constitutional law in some way. Since each clause in an Amendment to the Constitution regarding citizenship must make some substantive change to the Constitutional citizenship rules that was not previously true at the level of Constitutional law, it therefore follows that each clause of the 14th Amendment that defines who is a Constitutional citizen must either be changing the Constitutional definition of citizen from some previous, but different definition—or else it must be asserting a de novo definition of a citizenship term not previously defined by the Constitution.
Of course, the 14th Amendment has more to say, and so has other effects. Nevertheless, what's the effective change to the Constitutional law made by each clause of the 14th Amendment, especially for each clause defining who shall be Constitutionally a citizen? What were the Constitutional rules regarding citizenship before the ratification of the Amendment, and what additions or changes to Constitutional law were made by each of its clauses that pertain to citizenship? What was changed by requiring that a citizen be born or naturalized "in the United States"? What was changed by requiring that such persons must also be "subject to the jurisdiction" of the United States? What would be the effect of removing the "born subject to the jurisdiction of the Unite States" clause? And what would be the effect of removing the "born in the United States" clause?
Suppose that the first sentence of the 14th Amendment said "All persons born or naturalized subject to the jurisdiction of the United States, are citizens of the United States and of the State wherein they reside." Would that still limit US citizenship only to those born on US soil? Or would it then include those born beyond the borders of the United States to parents who were United States citizens? If "subject to the jurisdiction" under that hypothetical wording includes persons born beyond the borders of the United States based on the principle of jus sanguinis, then the phrase should have the same meaning and effect when it occurs in the conjunctive clause "subject to the jurisdiction of the United States and born in the territory thereof." And inverting the order of the clauses should make no difference, since and is commutative.
One resolution to the conundrum of what Justice Gray meant when he said that English common law was "in effect" when the Constitution was adopted is to assume that he viewed the 14th Amendment as intended to raise to the level of Constitutional law the same rules of citizenship which had generally prevailed in the several States and in Congressional naturalization statutes. That is in fact what the Framers of the 14th Amendment themselves said was their intent. If so, then the only real disagreement between the majority and minority opinions in Wong Kim Ark involved solely the question of what those Congressional and State citizenship laws entailed, and the import and effect of the rules of citizenship they mandated.
But in any case, the fact remains that controlling Supreme Court precedent regarding the first sentence of the 14th Amendment carefully and judiciously avoids any holding that the definition of citizen therein specified pertains to the term "natural born citizen."
And, even if the intent of the 14th Amendment were in fact to use the English common law definition of "natural born subject" as the Constitutional definition of "citizen," the following would still be true:
Political Code of the State of New York: The citizens of the state are:1. All persons born in this state and domiciled within it, except the children of transient aliens and of alien public ministers and consuls."
California Government Code Sections 240-245 Article 1. General: "The citizens of the State are: (a) All persons born in the State and residing within it, except the children of transient aliens and of alien public ministers and consuls."
The Supreme Court Defines "Natural Born Citizen"
The earlier Supreme Court decision, which was wrongly referenced in the Wong Kim Ark decision as having used the 14th Amendment to decide a person's citizenship, is known as Minor vs. Hapersett, 88 U.S. 162. That decision did in fact use the 14th Amendment as the basis for its second principal holding concerning the right to vote, but not for its first principal holding concerning whether or not the petitioner was a US citizen (court decisions can involve multiple holdings, which are the precedent-setting decisions the court makes in order to decide the legal and/or factual issues before the court in a particular case.)
In Minor, the court held that the 14th Amendment granted no one at all any right to vote, regardless of sex, age or citizenship. Previous cases had already held that there was no Federal right to vote. The second principal holding in Minor, as well as the holdings in previous cases, are the reason that the 15th, 19th, 24th and 26th Amendments were later proposed and adopted, the language of which forbids the denial of the privilege of voting based on race, previous condition of servitude, sex or age (for those 18-years of age or older.) The 19th Amendment, for example, requires that if one sex is granted the privilege to vote, the other sex must be granted that same privilege equally.
But the court in Minor determined that before it could decide the issue of whether the petitioner (who was an adult White woman) had any Federal right to vote based on the 14th Amendment, it first had to decide whether or not she was a citizen, and if so on what basis? Understanding why the court approached the issue that way is crucial: Firstly, if women as a class be not US citizens, then the second sentence of the 14th Amendment that forbids States from denying citizens any privileges of US citizens would not apply to them, since it only applies to those who are US citizens. Secondly, the court was concerned with whether or not the citizenship of women as a class depended on the 14th Amendment. In other words, the question was whether or not, in the absence of the 14th Amendment, would any women at all be citizens? That second issue mattered for two reasons:
If women as a class were not citizens before the adoption of the 14th Amendment, then the Court would have to decide whether the first sentence of the 14th Amendment granted women "born in the US and subject to the jurisdiction thereof" US citizenship. But if the woman who was the petitioner in the case at hand could be held to be a US citizen even without applying the first sentence of the 14th Amendment, then the principle of judicial 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 sentence to determine citizenship, if it could be determined that the petitioner was a citizen based on the original text of the Constitution.
In the words of the court in Minor:
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 that reasoning (and the Court's definition of "natural born citizen") needs to be examined 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 holding in Minor that the appellant, Mrs. Minor, did not have any Federal right to vote was based on the following facts, all of which must be true for the primary holding to be valid:
The chain of reasoning was that a) if voting were a right that any and all citizens have, then it should be apparent that all those recognized as citizens are granted suffrage; b) women generally had not been granted suffrage, either because they were not citizens prior to the ratification of the 14th Amendment or because not all citizens have the right to vote—so the question presented by the case can be decided by determining whether women were citizens even before the ratification of the 14th Amendment; c) women whose circumstances of birth are the same as those of Mrs. Minor are citizens, and have always been citizens even before the ratification of the 14th Amendment; d) therefore, voting is not a right of all citizens, since women have always been citizens and yet denied the right to vote (as are others who are citizens.)
Per Ogilvie, if the Court uses any finding or decision as "independent grounds" for any of its precedential holdings, then these findings or decisions are also precedential holdings—and that rule is transitive: any finding or decision used as "independent grounds" for a later holding is itself a holding, recursively back to ever earlier findings and decisions. That makes it undeniable that the court's definition in Minor of the term 'natural born citizen' is in fact a precedential holding.
The syllabus of the Minor case lists the following as one of the holdings:
2. In that sense, women, if 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.
FInally, there are other Supreme Court cases that cite the definition given in Minor as controlling precedent regarding the meaning of 'natural born citizen.' One such is EX PARTE LOCKWOOD, 154 U.S. 116 (1894):
In Minor v. Happersett, 21 Wall. 162, this court held that the word 'citizen' is often used to convey the idea of membership in a nation, and, in that sense, women, if 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 of the constitution as since; but that the right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the fourteenth amendment, and that amendment did not add to these privileges and immunities. Hence, that a provision in a state constitution which confined the right of voting to male citizens of the United States was no violation of the federal constitution.
Wong Kim Ark also cites the holding in Minor regarding the definition of natural born citizen and does so favorably, not using any language that could possibly be construed as intended to change or overturn the definition of natural born citizen as given in Minor.
So the citizenship holding in Minor is binding US Supreme Court precedent, beyond any possibility of denial. 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 or any other law (e.g. a Congressional naturalization statute) still stands as binding Supreme Court precedent which has never been overturned nor obviated by subsequent Amendments to the Constitution.
In Minor, the Supreme Court held that the petitioner was and had been from birth a citizen 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 satisfied 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.
The Court concluded that, since the term "natural born citizen" was used in the Constitution as one of the qualifications to be President, that anyone who qualified as a "natural born citizen" necessarily was named by the Constitution as a citizen. So the Court proceeded to research the meaning of "natural born citizen" to see whether it could rule the petitioner to be a citizen based on the definition of that term. Pursuant to its research, it then defined "natural born citizens" as "all children born in a country of parents who were its citizens."
Note that the Court in Minor states in its definition that "natural born citizens" are distinct from "aliens or foreigners." That's actually a very important semantic distinction. To see why, it is necessary to understand the 18th-century common law meanings of the words alien and foreigner:
According to Black's Law Dictionary, the word "foreigner" can be used in a municipal context and in an international context. In a municipal context, anyone who is not a member of a community is a "foreigner" in that community. In an international context, anyone owing allegiance to a foreign state or sovereign is a "foreigner":
FOREIGNER. In old English law, this term, when used with reference to a particular city, designated any person who was not an inhabitant of that city. According to later usage, it denotes a person who is not a citizen or subject of the state or country of which mention is made, or any one owing allegiance to a foreign state or sovereign. (Henry Campbell Black, A Dictionary of Law, First Edition, 1891, p.506)
In 2009, the Berkeley Journal of International Law published a comprehensive historical analysis of the words "foreigner" and "alien", as used in English and American legal writings during the late eighteenth century. Research by Anderson Berry found that the word "foreigner", when used in an international context, has a general meaning and a specific meaning. In the general sense, anyone who was born in a foreign country or is a citizen or subject of a foreign country is a "foreigner". But in the specific sense, "foreigner" is used in contradistinction to "alien".
...the overwhelming majority of sources available to the drafters of the judicial bill [of 1789] define an "alien" as an individual who: 1) is foreign-born, and 2) resides in a sovereign's territory other than the one where he was born. A "foreigner" is defined as an individual who: 1) is foreign-born, or more specifically, is a foreign citizen or subject, or 2) is a foreign-born individual residing extraterritorially [outside the sovereign's territory]. (Berry, pp.337-8)
"Aliens" are persons who relocate permanently to one country, while they are still citizens or subjects of some other country. Presumably, aliens intend to renounce their allegiance to their country of origin and become naturalized citizens of the country of their new permanent residence. In contrast, "foreigners" are temporary visitors who retain citizenship and permanent residence in their home country and intend to someday return to their home country.
In the general sense, the eighteenth-century meaning of "foreigner" was not limited to persons born in a foreign country. If you are a citizen or subject of a foreign country, you are a "foreigner," regardless of your residence or place of birth.
So someone who is a citizen of the United States could also be a foreigner, if he or she retains or acquires foreign citizenship. Even if born in the US, a US citizen could be or become a foreigner simply by also having or later acquiring foreign citizenship. A US citizen—even from birth—could also have foreign citizenship from birth—either by having been born outside the US, or by having even one parent who is an alien or foreigner. So the fact that the Supreme Court has defined "natural born citizens" as distinct from "aliens or foreigners" excludes anyone from qualifying as a "natural born citizen" who has foreign parentage (because of the jus sanguinis principle of natural law, which by definition of natural law applies regardless of the laws of any country,) anyone who has foreign citizenship, or anyone who was not born in the United States.
Starting with the very next sentence following the first quote from the case given above, the Court then continues to discuss the fact that yet other persons could be citizens who don't qualify as "natural born citizens." To understand the message the Court intends to convey, it is important to remember that the issue on which the court was focusing was whether or nor the petitioner was a citizen regardless of the first sentence of the 14th Amendment. The definition of "natural born citizen" 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:
Some authorities go further and include as 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.
The Court notes in passing that those born in the United States, regardless of the citizenship status of their parents, may nevertheless qualify as citizens. The fact it uses the word "citizens" in that clause instead of using the phrase "natural born citizens" categorically falsifies any claim that the Court intended to convey the idea that anyone born of non-citizen parents might possibly be "natural born citizens." The doubt the Court was expressing concerned whether or not such persons might even be citizens at all.
The Minor Court provided no name for the class of citizens "born within the jurisdiction without reference to the citizenship of their parents," but did refer to them using the general term "citizens." Based on the legal principle of interpretation known as generalia specialibus non derogant ("the general does not detract from the specific,") the use of the general term "citizen" must not be conflated with the use of the specific term "natural born citizen," unless the text makes it explicit that such was intended.
The text in Minor not only states no such thing, it in fact states precisely the opposite. In addition to defining "natural born citizen," the opinion also separately defines the term "citizen," giving a different definition:
The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association
For convenience it has been found necessary to give a name to this membership. The object is to designate by a title the person and the relation he bears to the nation. For this purpose the words subject, inhabitant, and citizen have been used, and the choice between them is sometimes made to depend upon the form of the government. Citizen is now more commonly employed, however, and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the States upon their separation from Great Britain, and was afterwards adopted in the Articles of Confederation and in the Constitution of the United States. When used in this sense it is understood as conveying the idea of membership of a nation, and nothing more. [pg. 166]
It cannot be the case that any court that provides one definition for "citizen" but a different definition for "natural born citizen" intended to use those terms interchangeably. Nor can the fact be challenged that the Minor decision defines the term citizen as 'member of a nation, and nothing more,' but defines natural born citizen as 'born in the US, to parents who were US citizens—distinguished from aliens and foreigners.' The two definitions are not the same at all. One is general. The other is specific. Per generalia specialibus non derogant, the general must not detract from the specific.
In the above quoted paragraphs from the Minor opinion, the Court explicitly distinguishes two classes of native-born citizenship:
There is also obviously (at least) yet a third class: Persons naturalized after birth, who cannot be "native born."
The Minor Court's opinion doesn't explicitly say whether the second class—those who are native-born but have at least one parent who was not a citizen—are naturalized citizens. There are and were laws that define such persons as citizens—for example, the 14th Amendment. But unless such persons are citizens by natural law, and not just by Constitutional or statutory law, they cannot be natural-born by definition.
But in any case, the Minor decision categorically excludes anyone who can be considered an alien or foreigner from being a natural born citizen. And, as shown above, anyone not born in the US, or anyone who has foreign citizenship, is either an alien, a foreigner, or both. And so are their children, because the natural law citizenship principle of jus sanguinis endows any such children with whatever citizenship either one of their parents has—unless the parent has renounced and relinquished any and all foreign citizenships, as all those who become naturalized US citizens are required to do. So that excludes anyone with an alien or foreign parent, where such parent has not become naturalized as a US citizen before the child's birth, from being a "natural born citizen" of the United States.
Of course, the Court's discussion regarding the doubtful status as citizens of those born in the US to non-citizen parents is dicta, because it was not used as grounds for any of their holdings in the case. They actually state that "doubts" regarding the citizenship of those without two citizen parents have no relevance to the case before them—thereby explicitly labeling their discussion of any hypothetical class of citizens beyond the class "born in the US of citizen parents" as dicta.
After defining natural born citizen and mentioning the unresolved issue of those born in the country with at least one non-citizen parent, the court continues by comparing the facts of the petitioner's birth against the definition of "natural born citizen" that it determined to be Constitutionally and historically correct, and concludes that, since the petitioner was born in the US to parents who were US citizens at the time of her birth, she was in fact a "natural born citizen"—and so also necessarily a citizen—of the United States.
Since the petitioner was born in the US, and since both her parents were US citizens when she was born, there was no need to consider whether any alternative definitions or theories of citizenship could be used to assign citizenship. The Court saw no need to concern itself with citizenship acquired by naturalization, nor with any other classes or types of citizenship based on any other theories, "natural law" and/or English common law definitions or other Constitutional clauses, such as the first sentence of the 14th Amendment. Therefore, they exercised proper judicial restraint and left those questions undecided.
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 sentence 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 sentence 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 sentence 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?
I may not respond immediately to comments. I have other business to which I must attend. I also may not respond if others have already done so adequately, or if I think no response is necessary for some other reason.
This would matter if anyone actually gave a Cr@p about the Constitution, but they don’t, at least not the people that have the power to do anything that doesn’t involve a revolution.
marking to read later.
I believe the only part applicable is "must be a natural born citizen, and that to be a natural born citizen, you must have been born in the United States".
I will read your essay and if anything I read alters that belief I will respond again.
Yep, in Obama’s mind he has set a precedence. Now anyone from any nation can be president. Even Imanutjob or some Somali warlord. It would more than likely be another sleeper like Obama, backed by Saudi dollahs again.
Yep, in Obama’s mind he has set a precedence. Now anyone from any nation can be president. Even Imanutjob or some Somali warlord. It would more than likely be another sleeper like Obama, backed by Saudi dollahs again.
Thanks for putting this up.
it would be helpful if the essay were “fleshed out” so that we have more than a skeletal outline.
If it is down to Romney vs Obama, we’ll have TWO candidates who are not NBC.
I. In construing any act of legislation, whether a statute enacted by the legislature or a constitution established by the people as the supreme law of the land, regard is to be had not only to all parts of the act itself, and of any former act of the same lawmaking power of which the act in question is an amendment, but also to the condition and to the history [p654] of the law as previously existing, and in the light of which the new act must be read and interpreted.
The Constitution of the United States, as originally adopted, uses the words “citizen of the United States,” and “natural-born citizen of the United States.” By the original Constitution, every representative in Congress is required to have been “seven years a citizen of the United States,” and every Senator to have been “nine years a citizen of the United States.” and “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.” The Fourteenth Article of Amendment, besides declaring that
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,
also declares that
no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
And the Fifteenth Article of Amendment declares that
the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color or previous condition of servitude.
The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. Minor v. Happersett, 21 Wall. 162; Ex parte Wilson, 114 U.S. 417, 422; Boyd v. United States, 116 U.S. 616, 624, 625; Smith v. Alabama, 124 U.S. 465. The language of the Constitution, as has been well said, could not be understood without reference to the common law. Kent Com. 336; Bradley, J., in Moore v. United States, 91 U.S. 270, 274. [p655]
In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 167.
In Smith v. Alabama, Mr. Justice Matthews, delivering the judgment of the court, said:
There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.
124 U.S. 478.
II. The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem — and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.
This fundamental principle, with these qualifications or [p656] explanations of it, was clearly, though quaintly, stated in the leading case, known as Calvin’s Case, or the Case of the Postnati, decided in 1608, after a hearing in the Exchequer Chamber before the Lord Chancellor and all the Judges of England, and reported by Lord Coke and by Lord Ellesmere. Calvin’s Case, 7 Rep. 1, 4b-6a, 18a, 18b; Ellesmere on Postnati, 62-64; S.C., 2 Howell’s State Trials, 559, 607, 613-617, 639, 640, 659, 679.
The English authorities ever since are to the like effect. Co.Lit. 8a, 128b, Lord Hale, in Hargrave’s Law Tracts, 210, an in 1 Hale P.C. 61, 62; 1 Bl.Com. 366, 369, 370, 374; 4 Bl.Com. 74, 92; Lord Kenyon, in Doe v. Jones, 4 T.R. 300, 308; Cockburn on Nationality, 7; Dicey Conflict of Laws, p. 173-177, 741.
In Udny v. Udny, (1869) L.R. 1 H.L. Sc. 441, the point decided was one of inheritance, depending upon the question whether the domicil of the father was in England or in Scotland, he being in either alternative a British subject. Lord Chancellor Hatherley said: “The question of naturalization and of allegiance is distinct from that of domicil.” P. 452. Lord Westbury, in the passage relied on by the counsel for the United States, began by saying:
The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions: one, by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status; another by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status.
And then, while maintaining that the civil status is universally governed by the single principle of domicil, domicilium, the criterion established by international law for the purpose of determining civil status, and the basis on which
the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy or intestacy, [p657] must depend,
he yet distinctly recognized that a man’s political status, his country, patria, and his “nationality, that is, natural allegiance,” “may depend on different laws in different countries.” Pp. 457, 460. He evidently used the word “citizen” not as equivalent to “subject,” but rather to “inhabitant,” and had no thought of impeaching the established rule that all persons born under British dominion are natural-born subjects.
Lord Chief Justice Cockburn, in the same year, reviewing the whole matter, said:
By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.
Cockburn on Nationality, 7.
Mr. Dicey, in his careful and thoughtful Digest of the Law of England with reference to the Conflict of Laws, published in 1896, states the following propositions, his principal rules being printed below in italics:
“British subject” means any person who owes permanent allegiance to the Crown. “Permanent” allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien who, because he is within the British dominions, owes “temporary” allegiance to the Crown. “Natural-born British subject” means a British subject who has become a British subject at the moment of his birth.” “Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality.
The exceptions afterwards mentioned by Mr. Dicey are only these two:
1. Any person who (his father being an alien enemy) is born in a part of the British dominions, which at the time of such [p658] person’s birth is in hostile occupation, is an alien.
2. Any person whose father (being an alien) is at the time of such person’s birth an ambassador or other diplomatic agent accredited to the Crown by the Sovereign of a foreign State is (though born within the British dominions) an alien.
And he adds:
The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, though at common law nationality or allegiance in substance depended on the place of a person’s birth, it in theory, at least, depended not upon the locality of a man’s birth, but upon his being born within the jurisdiction and allegiance of the King of England, and it might occasionally happen that a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of, the Crown.
Dicey Conflict of Laws, pp. 173-177, 741.
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. It was of such a case that Mr. Justice Story, delivering the opinion of the court, said:
The incapacities of femes covert, provided by the common law, apply to their civil rights, and are for their protection and interest. But they do not reach their political rights, nor prevent their acquiring or losing a national character. Those political rights do not stand upon the mere doctrines of municipal law, applicable to ordinary transactions, but stand upon the more general principles of the law of nations.
3 Pet. 248. This last sentence was relied on by the counsel for the United States as showing that the question whether a person is a citizen of a particular country is to be determined not by the law of that country, but by the principles of international law. But Mr. Justice Story certainly did not mean to suggest that, independently of treaty, there was any principle of international law which could defeat the operation of the established rule of citizenship by birth within the United States; for he referred (p. 245) to the contemporaneous opinions in Inglis v. Sailors’ Snug Harbor, [p661] above cited, in which this rule had been distinctly recognized, and in which he had said (p. 162) that “each government had a right to decide for itself who should be admitted or deemed citizens,” and, in his Treatise on the Conflict of Laws, published in 1834, he said that, in respect to residence in different countries or sovereignties, “there are certain principles which have been generally recognized by tribunals administering public law” [adding, in later editions “or the law of nations”] “as of unquestionable authority,” and stated, as the first of those principles, “Persons who are born in a country are generally deemed citizens and subjects of that country.” Story, Conflict of Laws, § 48.
The English statute of 11 & 12 Will. III (1700). c. 6, entitled
An act to enable His Majesty’s natural-born subjects to inherit the estate of their ancestors, either lineal or collateral, notwithstanding their father or mother were aliens,
enacted that “all and every person or persons, being the King’s natural-born subject or subjects, within any of the King’s realms or dominions,” might and should thereafter lawfully inherit and make their titles by descent to any lands
from any of their ancestors, lineal or collateral, although the father and mother, or father or mother, or other ancestor, of such person or persons, by, from, through or under whom
title should be made or derived, had been or should be “born out of the King’s allegiance, and out of is Majesty’s realms and dominions,” as fully and effectually, as if such parents or ancestors “had been naturalized or natural-born subject or subjects within the King’s dominions.” 7 Statutes of the Realm, 90. It may be observed that, throughout that statute, persons born within the realm, although children of alien parents, were called “natural-born subjects.” As that statute included persons born “within any of the King’s realms or dominions,” it, of course, extended to the Colonies, and, not having been repealed in Maryland, was in force there. In McCreery v. Somerville, (1824) 9 Wheat. 354, which concerned the title to land in the State of Maryland, it was assumed that children born in that State of an alien who was still living, and who had not been naturalized, were “native-born citizens of the [p662] United States,” and, without such assumption, the case would not have presented the question decided by the court, which, as stated by Mr. Justice Story in delivering the opinion, was
whether the statute applies to the case of a living alien ancestor, so as to create a title by heirship where none would exist by the common law if the ancestor were a natural-born subject.
9 Wheat. 356.
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.
The same doctrine was repeatedly affirmed in the executive departments, as, for instance, by Mr. Marcy, Secretary of State, in 1854, 2 Whart.Int.Dig. (2d ed.) p. 394; by Attorney General Black in 1859, 9 Opinions, 373, and by Attorney General Bates in 1862, 10 Opinions, 328, 382, 394, 396.
Chancellor Kent, in his Commentaries, speaking of the “general division of the inhabitants of every country under the comprehensive title of aliens and natives,” says:
Natives are all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are in theory born within the allegiance of the foreign power they represent. . . . To create allegiance by birth, the party must be born not only within the territory, but within the ligeance of the government. If a portion of the country be taken and held by conquest in war, the conqueror acquires the rights of the conquered as to its dominion and government, and children born in the armies of a State, while [p665] abroad and occupying a foreign country, are deemed to be born in the allegiance of the sovereign to whom the army belongs. It is equally the doctrine of the English common law that, during such hostile occupation of a territory, and the parents be adhering to the enemy as subjects de facto, their children, born under such a temporary dominion, are not born under the ligeance of the conquered.
2 Kent Com. (6th ed.) 39, 42. And he elsewhere says:
And if, at common law, all human beings born within the ligeance of the King, and under the King’s obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary. . . . 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.
2 Kent Com. 258, note.
Mr. Binney, in the second edition of a paper on the Alienigenae of the United States, printed in pamphlet at Philadelphia, with a preface bearing his signature and the date of December 1, 1853, said:
The common law principle of allegiance was the law of all the States at the time of the Revolution and at the adoption of the Constitution, and, by that principle, the citizens o the United States are, with the exceptions before mentioned,
(namely, foreign-born children of citizens, under statutes to be presently referred to)
such only as are either born or made so, born within the limits and under the jurisdiction of the United States or naturalized by the authority of law, either in one of the States before the Constitution or, since that time, by virtue of an act of the Congress of the United States.
The right of citizenship never descends in the legal sense, either by the common law or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle. [p666]
P. 22, note. This paper, without Mr. Binney’s name and with the note in a less complete form and not containing the passage last cited, was published (perhaps from the first edition) in the American Law Register for February, 1854. 2 Amer.Law Reg.193, 203, 204.
IV. It was contended by one of the learned counsel for the United States that the rule of the Roman law, by which the citizenship of the child followed that of the parent, was the true rule of international law, as now recognized in most civilized countries, and had superseded the rule of the common law, depending on birth within the realm, originally founded on feudal considerations.
But at the time of the adoption of the Constitution of the United States in 1789, and long before, it would seem to have been the rule in Europe generally, as it certainly was in France, that, as said by Pothier, “citizens, true and native-born citizens, are those who are born within the extent of the dominion of France,” and
mere birth within the realm gives the rights of a native-born citizen, independently of the origin of the father or mother, and of their domicil;
and children born in a foreign country, of a French father who had not established his domicil there nor given up the intention of returning, were also deemed Frenchmen, as Laurent says, by “a favor, a sort of fiction,” and Calvo, “by a sort of fiction of exterritoriality, considered as born in France, and therefore invested with French nationality.” Pothier Trait des Personnes, pt. 1, tit. 2, sect. 1, nos. 43, 45; Walsh-Serrant v. Walsh-Serrant, (1802) 3 Journal du Palais, 384; S.C., S. Merlin, Jurisprudence, (5th ed.) Domicile, § 13; Prefet du Nord v. Lebeau, (1862) Journal du Palais, 1863, 312 and note; 1 Laurent Droit Civil, no. 321; 2 Calvo Droit International, (5th ed.) § 542; Cockburn on Nationality, 13, 14; Hall’s International Law, (4th ed.) § 68. The general principle of citizenship by birth within French territory prevailed until after the French Revolution, and was affirmed in successive constitutions from the one adopted by the Constituent Assembly in 1791 to that of the French Republic in 1799. Constitutions et Chartes, (ed. 1830) pp. 100, 136, 148, 186. [p667] The Code Napoleon of 1807 changed the law of France and adopted, instead of the rule of country of birth, jus soli, the rule of descent or blood, jus sanguinis, as the leading principle; but an eminent commentator has observed that the framers of that code
appear not to have wholly freed themselves from the ancient rule of France, or rather, indeed, ancient rule of Europe — de la vielle regle francaise, ou plutot meme de la vielle regle europienne — according to which nationality had always been, in former times, determined by the place of birth.
1 Demolombe Cours de Code Napoleon (4th ed.) no. 146.
The later modifications of the rule in Europe rest upon the constitutions, laws or ordinances of the various countries, and have no important bearing upon the interpretation and effect o the Constitution of the United States. The English Naturalization Act of 33 Vict. (1870) c. 14, and the Commissioners’ Report of 1869, out of which it grew, both bear date since the adoption of the Fourteenth Amendment of the Constitution; and, as observed by Mr. Dicey, that act has not affected the principle by which any person who, whatever the nationality of his parents, is born within the British dominions, acquires British nationality at birth and is a natural-born British subject. Dicey, Conflict of Laws 41. At the time of the passage of that act, although the tendency on the continent of Europe was to make parentage, rather than birthplace, the criterion of nationality, and citizenship was denied to the native-born children of foreign parents in Germany, Switzerland, Sweden and Norway, yet it appears still to have been conferred upon such children in Holland, Denmark and Portugal, and, when claimed under certain specified conditions, in France, Belgium, Spain, Italy, Greece and Russia. Cockburn on Nationality, 14-21.
There is, therefore, little ground for the theory that, at the time of the adoption of the Fourteenth Amendment of the Constitution of the United States, there as any settled and definite rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion. [p668]
Nor can it be doubted that it is the inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship.
Both in England and in the United States, indeed, statutes have been passed at various times enacting that certain issue born abroad of English subjects or of American citizens, respectively, should inherit, to some extent at least, the rights of their parents. But those statutes applied only to cases coming within their purport, and they have never been considered in either country as affecting the citizenship of persons born within its dominion.
The earliest statute was passed in the reign of Edward III. In the Rolls of Parliament of 17 Edw. III (1343), it is stated that,
before these times, there have been great doubt and difficulty among the Lords of this realm, and the Commons, as well men of the law as others, whether children who are born in parts beyond sea ought to bear inheritance after the death of their ancestors in England, because no certain law has been thereon ordained;
and by the King, Lords and Commons, it was unanimously agreed that
there was no manner of doubt that the children of our Lord the King, whether they were born on this side the sea or beyond the sea, should bear the inheritance of their ancestors; . . . and in regard to other children, it was agreed in this Parliament that they also should inherit wherever they might be born in the service of the King;
but, because the Parliament was about to depart, and the business demanded great advisement and good deliberation how it should be best and most surely done, the making of a statute was put off to the next Parliament. 2 Rot.Parl. 139. By reason, apparently, of the prevalence of the plague in England, no act upon the subject was passed until 5 Edw. III, (1350), when Parliament passed an act entitled “A statute for those who are born in parts beyond sea,” by which — after reciting that
some people be in doubt if the children born in the parts beyond the sea, out of the ligeance of England, should be able to demand any inheritance within the same ligeance, or not, whereof a petition was put [p669] in the Parliament
of 17 Edw. III, “and as not at the same time wholly assented” — it was (1) agreed and affirmed
that the law of the Crown of England is, and always hath been such, that the children of the Kings of England, in whatsoever parts they be born, in England or elsewhere, be able and ought to bear the inheritance after the death of their ancestors;
(2) also agreed that certain persons named,
which were born beyond the sea, out of the ligeance of England, shall be from henceforth able to have and enjoy their inheritance after the death of their ancestors, in all parts within the ligeance of England, as well as those that should be born within the same ligeance:
(3) and further agreed
that all children inheritors, which from henceforth shall be born without the ligeance of the King, whose fathers and mothers at the time of their birth be and shall be at the faith and ligeance of the King of England, shall have and enjoy the same benefits and advantages to have and bear the inheritance within the same ligeance as the other inheritors aforesaid, in time to come; so always, that the mothers of such children do pass the sea by the licence and wills of their husbands.
2 Rot. Parl. 231; 1 Statutes of the Realm, 310.
It has sometimes been suggested that this general provision of the statute of 25 Edw. III was declaratory of the common law. See Bacon, arguendo, in Calvin’ Case, 2 Howell’s State Trials, 585; Westlake and Pollock, arguendo, in De Geer v. Stone, 22 Ch.D. 243, 247; 2 Kent Com. 50, 53; Lynch v. Clarke,1 Sandf.Ch. 583, 659, 660; Ludlam v. Ludlam, 26 N.Y. 356. But all suggestions to that effect seem to have been derived, immediately or ultimately, from one or the other of these two sources: the one, the Year Book of 1 Ric. III, (1483) fol. 4, pl. 7, reporting a saying of Hussey, C.J.,
that he who is born beyond sea, and his father and mother are English, their issue inherit by the common law, but the statute makes clear, &c.,
— which, at best, was but obiter dictum, for the Chief Justice appears to have finally rested his opinion on the statute. The other, a note added to the edition of 1688 of Dyer’s Reports, 184a, stating that, at Trinity Term, 7 Edw. III, Rot. 2 B.R., it was adjudged that children of subjects born [p670] beyond the sea in the service of the King were inheritable — which has been shown, by a search of the roll in the King’s Bench so referred to, to be a mistake, inasmuch as the child there in question did not appear to have been born beyond sea, but only to be living abroad. Westlake’s Private International Law (3d ed.) 324.
The statute of 5 Edw. III recites the existence of doubts as to the right of foreign-born children to inherit in England; and, while it is declaratory of the rights of children of the King, and is retrospective as to the persons specifically named, yet, as to all others, it is, in terms, merely prospective, applying to those only “who shall be born henceforth.” Mr. Binney, in his paper above cited, after a critical examination of the statute and of the early English cases, concluded:
There is nothing in the statute which would justify the conclusion that it is declaratory of the common law in any but a single particular, namely in regard to the children of the King; nor has it at any time been judicially held to be so. . . . The notion that there is any common law principle to naturalize the children born in foreign countries, of native-born American father and mother, father or mother, must be discarded. There is not, and never was, any such common law principle.
Binney on Alienigenae, 14, 20; 2 Amer.Law Reg.199, 203. And the great weight of the English authorities, before and since he wrote, appears to support his conclusion. Calvin’s Case, 7 Rep. 17a, 18a; Co.Lit. 8a, and Hargrave’s note 36; 1 Bl.Com. 33; Barrington on Statutes, (5th ed.) 268; Lord Kenyon, in Doe v. Jones, 4 T.R. 300, 308; I: ord Chancellor Cranworth, in Shedden v. Patrick, 1 Macq. 535, 611; Cockburn on Nationality, 7, 9; De Greer v. Stone, 2 Ch.D. 243, 252; Dicey Conflict of Laws, 17, 741. “The acquisition,” says Mr. Dicey, (p. 741) “of nationality by descent is foreign to the principles of the common law, and is based wholly upon statutory enactments.”
It has been pertinently observed that, if the statute of Edward III had only been declaratory of the common law, the subsequent legislation on the subject would have been wholly unnecessary. Cockburn on Nationality 9. By the [p671] statute of 29 Car. II, (1677) c. 6, § 1, entitled “An act for the naturalization of children of His Majesty’s subjects born in foreign countries during the late troubles,” all persons who, at any time between June 14, 1641, and March 24, 1660, “were born out of His Majesty’s dominions, and whose fathers or mothers were natural-born subjects of this realm” were declared to be natural-born subjects. By the statute of 7 Anne, (1708) c. 5, § 3, “the children of all natural-born subjects, born out of the ligeance of Her Majesty, her heirs and successors” — explained by the statute of 4 Geo. II, (1731) c. 21, to mean all children born out of the ligeance of the Crown of England
whose fathers were or shall be natural-born subjects of the Crown of England, or of Great Britain, at the time of the birth of such children respectively . . . . shall be deemed, adjudged and taken to be natural-born subjects of this kingdom, to all intents, constructions and purposes whatsoever.
That statute was limited to foreign-born children of natural-born subjects, and was extended by the statute of 13 Geo. III, (1773) c. 21, to foreign-born grandchildren of natural-born subjects, but not to the issue of such grandchildren; or, as put by Mr. Dicey, “British nationality does not pass by descent or inheritance beyond the second generation.” See DeGeer v. Stone, above cited; Dicey, Conflict of Laws 742.
Moreover, under those statutes, as is stated in the Report in 1869 of the Commissioners for inquiring into the Laws of Naturalization and Allegiance,
no attempt has ever been made on the part of the British Government, (unless in Eastern countries where special jurisdiction is conceded by treaty) to enforce claims upon, or to assert rights in respect of, persons born abroad, as against the country of their birth whilst they were resident therein, and when by its law they were invested with its nationality.
In the appendix to their report are collected many such cases in which the British Government declined to interpose, the reasons being most clearly brought out in a dispatch of March 13, 1858, from Lord Malmesbury, the Foreign Secretary, to the British Ambassador at Paris, saying:
It is competent to any country to confer by general or special legislation the privileges of nationality upon those [p672] who are born out of its on territory; but it cannot confer such privileges upon such persons as against the country of their birth, when they voluntarily return to and reside therein. Those born in the territory of a nation are (as a general principle) liable when actually therein to the obligations incident to their status by birth. Great Britain considers and treats such persons as natural-born subjects, and cannot therefore deny the right of other nations to do the same. But Great Britain cannot permit the nationality of the children of foreign parents born within her territory to be questioned.
Naturalization Commission Report, pp. viii, 67; U.S. Foreign Relations, 1873-1874, pp. 1237, 1837. See also Drummond’s Case (1834), 2 Knapp 295.
By the Constitution of the United States, Congress was empowered “to establish an uniform rule of naturalization.” In the exercise of this power, Congress, by successive acts, beginning with the act entitled “An act to establish an uniform rule of naturalization,” passed at the second session of the First Congress under the Constitution, has made provision for the admission to citizenship of three principal classes of persons: First. Aliens, having resided for a certain time “within the limits and under the jurisdiction of the United States,” and naturalized individually by proceedings in a court of record. Second. Children of persons so naturalized, “dwelling within the United States, and being under the age of twenty-one years at the time of such naturalization.” Third. Foreign-born children of American citizens, coming within the definitions prescribed by Congress. Acts of March 26, 1790, c. 3; January 29, 1795, c. 20; June 18, 1798, c. 54; 1 Stat. 103, 414, 566; April 14, 1802, c. 28; March 26, 1804, c. 47; 2 Stat. 153, 292; February 10, 1854, c. 71; 10 Stat. 604; Rev.Stat. §§ 2165, 2172, 1993.
In the act of 1790, the provision as to foreign-born children of American citizens was as follows:
The children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural-born citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been [p673] resident in the United States.
1 Stat. 104. In 1795, this was reenacted in the same words, except in substituting for the words “beyond sea, or out of the limits of the United States” the words “out of the limits and jurisdiction of the United States.” 1 Stat. 415.
In 1802, all former acts were repealed, and the provisions concerning children of citizens were reenacted in this form:
The children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject by the Government of the United States, may have become citizens of any one of the said States under the laws thereof, being under the age of twenty-one years at the time of their parents’ being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States, and the children of persons who now are, or have been citizens of the United States shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States: Provided, that the right of citizenship shall not descend to persons whose fathers have never resided within the United States.
Act of April 14, 1802, c. 28, § 4; 2 Stat. 155.
The provision of that act concerning “the children of persons duly naturalized under any of the laws of the United States,” not being restricted to the children of persons already naturalized, might well be held to include children of persons thereafter to be naturalized. 2 Kent Com. 51, 52; West v. West, 8 Paige, 433; United States v. Kellar, 11 Bissell, 314; Boyd v. Thayer, 143 U.S. 135-177.
But the provision concerning foreign-born children, being expressly limited to the children of persons who then were or had been citizens, clearly did not include foreign-born children of any person who became a citizen since its enactment. 2 Kent.Com. 52, 53; Binney on Alienigenae 20, 25; 2 Amer.Law Reg. 203, 205. Mr. Binney’s paper, as he states in his preface, was printed by him in the hope that Congress might supply this defect in our law.
In accordance with his suggestions, it was enacted by the [p674] statute of February 10, 1855, c. 71, that
persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered and are hereby declared to be citizens of the United States: Provided, however, that the rights of citizenship shall not descend to persons whose fathers never resided in the United States.
10 Stat. 604; Rev.Stat. § 1993.
It thus clearly appears that, during the half century intervening between 1802 and 1855, there was no legislation whatever for the citizenship of children born abroad, during that period, of American parents who had not become citizens of the United States before the act of 1802, and that the act of 1855, like every other act of Congress upon the subject, has, by express proviso, restricted the right of citizenship, thereby conferred upon foreign-born children of American citizens, to those children themselves, unless they became residents of the United States. Here is nothing to countenance the theory that a general rule of citizenship by blood or descent has displaced in this country the fundamental rule of citizenship by birth within its sovereignty.
So far as we are informed, there is no authority, legislative, executive or judicial, in England or America, which maintains or intimates that the statutes (whether considered as declaratory or as merely prospective) conferring citizenship on foreign-born children of citizens have superseded or restricted, in any respect, the established rule of citizenship by birth within the dominion. Even those authorities in this country, which have gone the farthest towards holding such statutes to be but declaratory of the common law have distinctly recognized and emphatically asserted the citizenship of native-born children of foreign parents. 2 Kent Com. 39, 50, 53, 258 note; Lynch v. Clarke, 1 Sandf.Ch. 583, 659; Ludlam v. Ludlam, 26 N.Y. 356, 371.
Passing by questions once earnestly controverted, but finally put at rest by the Fourteenth Amendment of the Constitution, it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional [p675] Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States.
V. In the forefront both of the Fourteenth Amendment of the Constitution and of the Civil Rights Act of 1866, the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms.
The Civil Rights Act, passed at the first session of the Thirty-ninth Congress, began by enacting that
all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States, and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains and penalties, and to none other, any law, statute, ordinance, regulation or custom to the contrary notwithstanding.
Act of April 9, 1866, c. 31, § 1; 14 Stat. 27.
The same Congress, shortly afterwards, evidently thinking it unwise, and perhaps unsafe, to leave so important a declaration of rights to depend upon an ordinary act of legislation, which might be repealed by any subsequent Congress, framed the Fourteenth Amendment of the Constitution, and, on June 16, 1866, by joint resolution, proposed it to the legislatures of the several States, and on July 28, 1868, the Secretary of State issued a proclamation showing it to have been ratified by the legislatures of the requisite number of States. 14 Stat. 358; 1 Stat. 708.
The first section of the Fourteenth Amendment of the Constitution [p676] begins with the words,
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of he State wherein they reside.
As appears upon the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States who would thereby have become citizens according to the law existing before its adoption. It is declaratory in form, and enabling and extending in effect. Its main purpose doubtless was, as has been often recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Dred Scott v. Sandford, (1857) 19 How. 393, and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States are citizens of the United States. The Slaughterhouse Cases (1873), 16 Wall. 36, 73; Strauder v. West Virginia (1879), 100 U.S. 303, 306.; Ex parte Virginia (1879). 100 U.S. 339, 35; Neal v. Delaware (1880), 103 U.S. 370, 386; Elk v. Wilkins (1884), 112 U.S. 94, 101. But the opening words, “All persons born,” are general, not to say universal, restricted only by place and jurisdiction, and not by color or race — as was clearly recognized in all the opinions delivered in The Slaughterhouse Cases, above cited.
In those cases, the point adjudged was that a statute of Louisiana granting to a particular corporation the exclusive right for twenty-five years to have and maintain slaughterhouses within a certain district including the City of New Orleans, requiring all cattle intended for sale or slaughter in that district to be brought to the yards and slaughterhouses of the grantee, authorizing all butchers to slaughter their cattle there, and empowering the grantee to exact a reasonable fee for each animal slaughtered, was within the police powers of the State, and not in conflict with the Thirteenth Amendment of the Constitution as creating an involuntary servitude, nor with the Fourteenth Amendment as abridging the privileges or immunities of citizens of the United States, [p677] or as depriving persons of their liberty or property without due process of law, or as denying to them the equal protection of the laws.
Mr. Justice Miller, delivering the opinion of the majority of the court, after observing that the Thirteenth, Fourteenth and Fifteenth Articles of Amendment of the Constitution were all addressed to the grievances of the negro race, and were designed to remedy them, continued as follows:
We do not say that no one else but the negro can share in this protection. Both the language and spirit of these Articles are to have their fair and just weight in any question of construction. Undoubtedly, while negro slavery alone was in the mind of the Congress which proposed the Thirteenth Article, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this Amendment may safely be trusted to make it void. And so if other rights are assailed by the States, which properly and necessarily fall within the protection of these Articles, that protection will apply, though the party interested may not be of African descent.
16 Wall. 72. And, in treating of the first clause of the Fourteenth Amendment, he said:
The distinction between citizenship of the United States and citizenship of a State is clearly recognized and established. Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union.
16 Wall. 73, 74.
Mr. Justice Field, in a dissenting opinion, in which Chief Justice Chase and Justices Swayne and Bradley concurred, said of the same clause:
It recognizes in express terms, if it does not create, citizens of the United States, and it makes their citizenship dependent upon the place of their birth, or the fact of their adoption, and not upon the constitution or laws of any State or the condition of their ancestry.
16 Wall. [p678] 95, 111. Mr. Justice Bradley also said:
The question is now settled by the Fourteenth Amendment itself, that citizenship of the United States is the primary citizenship in this country, and that state citizenship is secondary and derivative, depending upon citizenship of the United States and the citizen’s place of residence. The States have not now, if they ever had, any power to restrict their citizenship to any classes or persons.
16 Wall. 112. And Mr. Justice Swayne added:
The language employed is unqualified in its scope. There is no exception in its terms, and there can be properly none in their application. By the language “citizens of the United States” was meant all such citizens, and by “any person” was meant all persons within the jurisdiction of the State. No distinction is intimated on account of race or color. This court has no authority to interpolate a limitation that is neither expressed nor implied. Our duty is to execute the law, not to make it. The protection provided was not intended to be confined to those of any particular race or class, but to embrace equally all races, classes and conditions of men.
16 Wall. 128, 129.
Mr. Justice Miller, indeed, while discussing the causes which led to the adoption of the Fourteenth Amendment, made this remark:
The phrase, “subject to its jurisdiction” was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.
16 Wall. 73. This was wholly aside from the question in judgment and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to authorities, and that it was not formulated with the same care and exactness as if the case before the court had called for an exact definition of the phrase is apparent from its classing foreign ministers and consuls together — whereas it was then well settled law, as has since been recognized in a judgment of this court in which Mr. Justice Miller concurred, that consuls, as such, and unless expressly invested with a diplomatic character in addition to their ordinary powers, are not considered as entrusted with authority to represent their sovereign in his intercourse [p679] with foreign States or to vindicate his prerogatives, or entitled by the law of nations to the privileges and immunities of ambassadors or public ministers, but are subject to the jurisdiction, civil and criminal, of the courts of the country in which they reside. 1 Kent Com. 44; Story Conflict of Laws § 48; Wheaton International Law (8th ed.) § 249; The Anne (1818), 3 Wheat. 435, 445, 446; Gittings v. Crawford (1838), Taney 1, 10; In re Baiz (1890), 135 U.S. 403, 424.
In weighing a remark uttered under such circumstances, it is well to bear in mind the often quoted words of Chief Justice Marshall:
It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.
Cohens v. Virginia (1821), 6 Wheat. 264, 399.
That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment is manifest from a unanimous judgment of the Court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench, in which Chief Justice Waite said: “Allegiance and protection are, in this connection” (that is, in relation to citizenship),
reciprocal obligations. The one is a compensation for the other: allegiance for protection, and protection for allegiance. . . . 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 [p680] 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. Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class, there have been doubts, but never as to the first. 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.
Minor v. Happersett (1874), 21 Wall. 162, 166-168. The decision in that case was that a woman born of citizen parents within the United States was a citizen of the United States, although not entitled to vote, the right to the elective franchise not being essential to citizenship.
The only adjudication that has been made by this court upon the meaning of the clause, “and subject to the jurisdiction thereof,” in the leading provision of the Fourteenth Amendment is Elk v. Wilkins, 112 U.S. 94, in which it was decided that an Indian born a member of one of the Indian tribes within the United States, which still existed and was recognized as an Indian tribe by the United States, who had voluntarily separated himself from his tribe and taken up his residence among the white citizens of a State but who did not appear to have been naturalized, or taxed, or in any way recognized or treated as a citizen either by the United States or by the State, was not a citizen of the United States, as a “person born in the United States and subject to the jurisdiction thereof” within the meaning of the clause in question.
That decision was placed upon the grounds that the meaning of those words was
not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance;
that, by the Constitution, as originally established, “Indians not taxed” were excluded from the persons according to whose numbers representatives in Congress and direct taxes were apportioned among the [p681] several States, and Congress was empowered to regulate commerce not only “with foreign nations” and among the several States, but “with the Indian tribes;” that the Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign States, but were alien nations, distinct political communities, the members of which owed immediate allegiance to their several tribes and were not part of the people of the United States; that the alien and dependent condition of the members of one of those tribes could not be put off at their own will without the action or assent of the United States, and that they were never deemed citizens except when naturalized, collectively or individually, under explicit provisions of a treaty, or of an act of Congress; and therefore that
Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more “born in the United States, and subject to the jurisdiction thereof” within the meaning of the first section of the Fourteenth Amendment than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations.
And it was observed that the language used in defining citizenship in the first section of the Civil Rights Act of 1866, by the very Congress which framed the Fourteenth Amendment, was “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.” 112 U.S. 99-103.
Mr. Justice Harlan and Mr. Justice Woods, dissenting, were of opinion that the Indian in question, having severed himself from his tribe and become a bona fide resident of a State, had thereby become subject to the jurisdiction of the United States within the meaning of the Fourteenth Amendment; and, in reference to the Civil Rights Act of 1866, said:
Beyond question, by that act, national citizenship was conferred directly upon all persons in this country, of whatever race (excluding only “Indians not taxed”), who were born within [p682] the territorial limits of the United States, and were not subject to any foreign power.
And that view was supported by reference to the debates in the Senate upon that act, and to the ineffectual veto thereof by President Johnson in which he said:
By the first section of the bill, all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States. This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called Gypsies, as well as the entire race designated as blacks, persons of color, negroes, mulattoes, and persons of African blood. Every individual of those races, born in the United States, is, by the bill, made a citizen of the United States.
112 U.S. 1114.
The decision in Elk v. Wilkins concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents of Caucasian, African or Mongolian descent not in the diplomatic service of a foreign country.
The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, “All persons born in the United States” by the addition “and subject to the jurisdiction thereof,” would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases — children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State — both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. Calvin’s Case, 7 Rep. 1, 18b; Cockburn on Nationality, 7; Dicey Conflict of Laws, 177; Inglis v. Sailors’ Snug Harbor, 3 Pet. 99, 155; 2 Kent Com. 39, 42.
The principles upon which each of those exceptions rests were long ago distinctly stated by this court. [p683]
In United States v. Rice (1819), 4 Wheat. 246, goods imported into Castine, in the State of Maine, while it was in the exclusive possession of the British authorities during the last war with England, were held not to be subject to duties under the revenue laws of the United States because, as was said by Mr. Justice Story in delivering judgment:
By the conquest and military occupation of Castine, the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender, the inhabitants passed under a temporary allegiance to the British Government, and were bound by such laws, and such only, as it chose to recognize and impose. From the nature of the case, no other laws could be obligatory upon them, for, where there is no protection or allegiance or sovereignty, there can be no claim to obedience.
4 Wheat. 254.
In the great case of The Exchange (1812), 7 Cranch 116, the grounds upon which foreign ministers are, and other aliens are not, exempt from the jurisdiction of this country were set forth by Chief Justice Marshall in a clear and powerful train of reasoning, of which it will be sufficient, for our present purpose, to give little more than the outlines. The opinion did not touch upon the anomalous casts of the Indian tribes, the true relation of which to the United States was not directly brought before this court until some years afterwards in Cherokee Nation v. Georgia (1831), 5 Pet. 1; nor upon the case of a suspension of the sovereignty of the United States over part of their territory by reason of a hostile occupation, such as was also afterwards presented in United States v. Rice, above cited. But, in all other respects, it covered the whole question of what persons within the territory of the United States are subject to the jurisdiction thereof.
The Chief Justice first laid down the general principle:
The jurisdiction of the nation within its own territory is [p684] necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may be either express or implied. In the latter case, it is less determinate, exposed more to the uncertainties of construction; but, if understood, not less obligatory.
7 Cranch 136.
He then stated, and supported by argument and illustration, the propositions that
this full and absolute territorial jurisdiction, being alike the attribute of every sovereign, and being incapable of conferring extraterritorial power,
given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction which has been stated to be the attribute of every nation
— the first of which is the exemption from arrest or detention of the person of a foreign sovereign entering its territory with its license, because
a foreign sovereign is not understood as intending to subject himself to a jurisdiction incompatible with his dignity and the dignity of his nation; . . . a second case, standing on the same principles with the first, is the immunity which all civilized nations allow to foreign ministers; . . . a third case, in which a sovereign is understood to cede a portion of his territorial jurisdiction, is where he allows the troops of a foreign prince to pass through his dominions;
and, in conclusion, that
a public armed ship, in the service of a foreign sovereign with whom the Government of the United States is at peace and having entered an American port open for her reception, on the terms on which ships of war are generally permitted to enter the ports of a friendly power, must be considered as having come into the American territory under an implied promise that, while necessarily within it, and demeaning herself in a friendly [p685] manner, she should be exempt from the jurisdiction of the country.
7 Cranch 137-139, 147.
As to the immunity of a foreign minister, he said:
Whatever may be the principle on which this immunity is established, whether we consider him as in the place of the sovereign he represents or, by a political fiction, suppose him to be extraterritorial, and therefore, in point of law, not within the jurisdiction of the sovereign at whose court he resides, still the immunity itself is granted by the governing power of the nation to which the minister is deputed. This fiction of exterritoriality could not be erected and supported against the will of the sovereign of the territory. He is supposed to assent to it. . . . The assent of the sovereign to the very important and extensive exemptions from territorial jurisdiction which are admitted to attach to foreign ministers is implied from the considerations that, without such exemption, every sovereign would hazard his own dignity by employing a public minister abroad. His minister would owe temporary and local allegiance to a foreign prince, and would be less competent to the objects of his mission. A sovereign committing the interests of his nation with a foreign power to the care of a person whom he has selected for that purpose, cannot intend to subject his minister in any degree to that power; and therefore, a consent to receive him implies a consent that he shall possess those privileges which his principal intended he should retain — privileges which are essential to the dignity of his sovereign and to the duties he is bound to perform.
7 Cranch 138, 139.
The reasons for not allowing to other aliens exemption “from the jurisdiction of the country in which they are found” were stated as follows:
When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were [p686] not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign counties are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter can never be construed to grant such exemption.
7 Cranch 144.
In short, the judgment in the case of The Exchange declared, as incontrovertible principles, that the jurisdiction of every nation within its own territory is exclusive and absolute, and is susceptible of no limitation not imposed by the nation itself; that all exceptions to its full and absolute territorial jurisdiction must be traced up to its own consent, express or implied; that, upon its consent to cede, or to waive the exercise of, a part of its territorial jurisdiction rest the exemptions from that jurisdiction of foreign sovereigns or their armies entering its territory with its permission, and of their foreign ministers and public ships of war, and that the implied license under which private individuals of another nation enter the territory and mingle indiscriminately with its inhabitants for purposes of business or pleasure can never be construed to grant to them an exemption from the jurisdiction of the country in which they are found. See also Carlisle v. United States (1872), 16 Wall. 147, 155; Radich v. Hutchins (1877), 95 U.S. 210; Wildenhus’ Case (1887), 120 U.S. 1; Chae Chan Ping v. United States (1889), 130 U.S. 581, 603, 604.
From the first organization of the National Government under the Constitution, the naturalization acts of the United States, in providing for the admission of aliens to citizenship by judicial proceedings, uniformly required every applicant to have resided for a certain time “within the limits and under the jurisdiction of the United States,” and thus applied the words “under the jurisdiction of the United States” to aliens residing here before they had taken an oath to support the Constitution of the United States, or had renounced allegiance [p687] to a foreign government. Acts of March 26, 1790, c. 3; January 29, 1795, c. 20, § 1; June 18, 1798, c. 54, §§ 1, 6; 1 Stat. 103, 414, 566, 568; April 14, 1802, c. 28, § 1, 2 Stat. 153; March 22, 1816, c. 32, § 1; 3 Stat. 258; May 24, 1828, c. 116, § 2; 4 Stat. 310; Rev.Stat. § 2165. And, from 1795, the provisions of those acts which granted citizenship to foreign-born children of American parents described such children as “born out of the limits and jurisdiction of the United States.” Acts of January 29, 1795, c. 20, § 3; 1 Stat. 415; April 14, 180, c. 28, § 4; 2 Stat. 155; February 10, 1855, c. 71; 10 Stat. 604; Rev.Stat. §§ 1993, 2172. Thus, Congress, when dealing with the question of citizenship in that aspect, treated aliens residing in this country as “ under the jurisdiction of the United States,” and American parents residing abroad as “out of the jurisdiction of the United States.”
The words “in the United States, and subject to the jurisdiction thereof” in the first sentence of the Fourteenth Amendment of the Constitution must be presumed to have been understood and intended by the Congress which proposed the Amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall in the well known case of The Exchange and as the equivalent of the words “within the limits and under the jurisdiction of the United States,” and the converse of the words “out of the limits and jurisdiction of the United States” as habitually used in the naturalization acts. This presumption is confirmed by the use of the word “jurisdiction” in the last clause of the same section of the Fourteenth Amendment, which forbids any State to “deny to any person within its jurisdiction the equal protection of the laws.” It is impossible to construe the words “subject to the jurisdiction thereof” in the opening sentence, as less comprehensive than the words “within its jurisdiction” in the concluding sentence of the same section; or to hold that persons “within the jurisdiction” of one of the States of the Union are not “subject to the jurisdiction of the United States.”
These considerations confirm the view, already expressed in this opinion, that the opening sentence of the Fourteenth [p688] Amendment is throughout affirmative and declaratory, intended to allay doubts and to settle controversies which had arisen, and not to impose any new restrictions upon citizenship.
By the Civil Rights Act of 1866, “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed,” were declared to be citizens of the United States. In the light of the law as previously established, and of the history of the times, it can hardly be doubted that the words of that act, “not subject to any foreign power,” were not intended to exclude any children born in this country from the citizenship which would theretofore have been their birthright, or, for instance, for the first time in our history, to deny the right of citizenship to native-born children of foreign white parents not in the diplomatic service of their own country nor in hostile occupation of part of our territory. But any possible doubt in this regard was removed when the negative words of the Civil Rights Act, “not subject to any foreign power,” gave way, in the Fourteenth Amendment of the Constitution, to the affirmative words, “subject to the jurisdiction of the United States.”
This sentence of the Fourteenth Amendment is declaratory of existing rights and affirmative of existing law as to each of the qualifications therein expressed — “born in the United States,” “naturalized in the United States,” and “subject to the jurisdiction thereof” — in short, as to everything relating to the acquisition of citizenship by facts occurring within the limits of the United States. But it has not touched the acquisition of citizenship by being born abroad of American parents, and has left that subject to be regulated, as it had always been, by Congress in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.
The effect of the enactments conferring citizenship on foreign-born children of American parents has been defined, and the fundamental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of parents, has been affirmed, in well considered opinions of the executive departments of the Government since the adoption of the Fourteenth Amendment of the Constitution. [p689]
In 1869, Attorney General Hoar gave to Mr. Fish, the Secretary of State, an opinion that children born and domiciled abroad whose fathers were native-born citizens of the United States and had at some time resided therein were, under the .statute of February 10, 1855, c. 71, citizens of the United States, and
entitled to all the privileges of citizenship which it is in the power of the United States Government to confer. Within the sovereignty and jurisdiction of this nation, they are undoubtedly entitled to all the privileges of citizens. . . . But,
the Attorney General added,
while the United States may, by law, fix or declare the conditions constituting citizens of the country within its own territorial jurisdiction, and may confer the rights of American citizens everywhere upon persons who are not rightfully subject to the authority of any foreign country or government, it is clear that the United States cannot, by undertaking to confer the rights of citizenship upon the subjects of a foreign nation who have not come within our territory, interfere with the just rights of such nation to the government and control of its own subjects. If, therefore, by the laws of the country of their birth, children of American citizens born in that country are subjects of its government, I do not think that it is competent to the United States, by any legislation, to interfere with that relation or, by undertaking to extend to them the rights of citizens of this country, to interfere with the allegiance which they may owe to the country of their birth while they continue within its territory, or to change the relation to other foreign nations which, by reason of their place of birth, may at any time exist. The rule of the common law I understand to be that a person “born in a strange country, under the obedience of a strange prince or country, is an alien” (Co.Lit. 128b), and that every person owes allegiance to the country of his birth.
13 Opinions of Attorneys General 89-91.
In 1871, Mr. Fish, writing to Mr. Marsh, the American Minister to Italy, said:
The Fourteenth Amendment to the Constitution declares that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” This is simply an affirmance [p690] of the common law of England and of this country so far as it asserts the status of citizenship to be fixed by the place of nativity, irrespective of parentage. The qualification, “and subject to the jurisdiction thereof” was probably intended to exclude the children of foreign ministers, and of other persons who may be within our territory with rights of extraterritoriality.
2 Whart.Int.Dig. p. 394.
In August, 1873, President Grant, in the exercise of the authority expressly conferred upon the President by art. 2, sect. 2, of the Constitution to
require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices,
required the opinions of the members of his cabinet upon several questions of allegiance, naturalization and expatriation. Mr. Fish, in his opinion, which is entitled to much weight as well from the circumstances under which it was rendered as from its masterly treatment of the subject, said:
Every independent State has as one of the incidents of its sovereignty the right of municipal legislation and jurisdiction over all persons within its territory, and may therefore change their nationality by naturalization, and this without regard to the municipal laws of the country whose subjects are so naturalized, as long as they remain, or exercise the rights conferred by naturalization, within the territory and jurisdiction of the State which grants it.
It may also endow with the rights and privileges of its citizenship persons residing in other countries so as to entitle them to all rights of property and of succession within its limits, and also with political privileges and civil rights to be enjoyed or exercised within the territory and jurisdiction of the State thus conferring its citizenship.
But no sovereignty can extend its jurisdiction beyond it own territorial limits so as to relieve those born under and subject to another jurisdiction from their obligations or duties thereto, nor can the municipal law of one State interfere with the duties or obligations which its citizens incur while voluntarily resident in such foreign State and without the jurisdiction of their own country. [p691]
It is evident from the proviso in the act of 10th February, 1855, viz., “that the rights of citizenship shall not descend to persons whose fathers never resided in the United States,” that the lawmaking power not only had in view this limit to the efficiency of its own municipal enactments in foreign jurisdiction, but that it has conferred only a qualified citizenship upon the children of American fathers born without the jurisdiction of the United States, and has denied to them what pertains to other American citizens — the right of transmitting citizenship to their children — unless they shall have made themselves residents of the United States or, in the language of the Fourteenth Amendment of the Constitution, have made themselves “subject to the jurisdiction thereof.”
The child born of alien parents in the United States is held to be a citizen thereof, and to be subject to duties with regard to this country which do not attach to the father.
The same principle on which such children are held by us to be citizens of the United States, and to be subject to duties to this country, applies to the children of American fathers born without the jurisdiction of the United States, and entitles the country within whose jurisdiction they are born to claim them as citizen and to subject them to duties to it.
Such children are born to a double character: the citizenship of the father is that of the child so far as the laws of the country of which the father is a citizen are concerned, and within the jurisdiction of that country; but the child, from the circumstances of his birth, may acquire rights and owes another fealty besides that which attaches to the father.
Opinions of the Executive Departments on Expatriation, Naturalization and Allegiance (1873) 17, 18; U.S. Foreign Relations, 1873-74, pp. 1191, 1192.
In 1886, upon the application of a son born in France of an American citizen, and residing in France, for a passport, Mr. Bayard, the Secretary of State, as appears by letters from him to the Secretary of Legation in Paris and from the latter to the applicant, quoted and adopted the conclusions of Attorney General Hoar in his opinion above cited. U.S. Foreign Relations, 1886, p 303; 2 Calvo Droit International, § 546. [p692]
These opinions go to show that, since the adoption of the Fourteenth Amendment, the executive branch of the Government, the one charged with the duty of protecting American citizens abroad against unjust treatment by other nations, has taken the same view of the act of Congress of 1855, declaring children born abroad of American citizens to be themselves citizens, which, as mentioned in a former part of this opinion, the British Foreign Office has taken of similar acts of Parliament — holding that such statutes cannot, consistently with our own established rule of citizenship by birth in this country, operate extraterritorially so far as to relieve any person born and residing in a foreign country and subject to its government, from his allegiance to that country.
In a very recent case, the Supreme Court of New Jersey held that a person born in this country of Scotch parents who were domiciled but had not been naturalized here was “subject to the jurisdiction of the United States” within the meaning of the Fourteenth Amendment, and was “not subject to any foreign power” within the meaning of the Civil Rights Act of 1866; and, in an opinion delivered by Justice Van Syckel with the concurrence of Chief Justice Beasley, said:
The object of the Fourteenth Amendment, as is well known, was to confer upon the colored race the right of citizenship. It, however, gave to the colored people no right superior to that granted to the white race. The ancestors of all the colored people then in the United States were of foreign birth, and could not have been naturalized or in any way have become entitled to the right of citizenship. The colored people were no more subject to the jurisdiction of the United States, by reason of their birth here, than were the white children born in this country of parents who were not citizens. The same rule must be applied to both races, and unless the general rule, that, when the parents are domiciled here, birth establishes the right to citizenship, is accepted, the Fourteenth Amendment has failed to accomplish its purpose, and the colored people are not citizens. The Fourteenth Amendment, by the language, “all persons born in the United States, and subject to the jurisdiction thereof,” was intended [p693] to bring all races, without distinction of color, within the rule which prior to that time pertained to the white race.
Benny v. O’Brien (1895), 29 Vroom (58 N.J.Law), 36, 39, 40.
The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;” and his child, as said by Mr. Binney in his essay before quoted, “if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.” It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides — seeing that, as said by Mr. Webster, when Secretary of State, in his Report to the President on Thrasher’s Case in 1851, and since repeated by this court,
independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance or of renouncing any former allegiance, it is well known that, by the public law, an alien, or a stranger [p694] born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason, or other crimes, as a native-born subject might be, unless his case is varied by some treaty stipulations.
Ex.Doc. H.R. No. 10, 1st sess. 32d Congress, p. 4; 6 Webster’s Works, 56; United States v. Carlisle, 16 Wall. 147, 155; Calvin’s Case, 7 Rep. 6a; Ellesmere on Postnati 63; 1 Hale P.C. 62; 4 Bl.Com. 92.
To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.
VI. Whatever considerations, in the absence of a controlling provision of the Constitution, might influence the legislative or the executive branch of the Government to decline to admit persons of the Chinese race to the status of citizens of the United States, there are none that can constrain or permit the judiciary to refuse to give full effect to the peremptory and explicit language of the Fourteenth Amendment, which declares and ordains that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
Why is Romney not a NBC? Was he born somewhere else, or is one of his parents not a citizen? Just curious.
A truly awesome piece of work, my friend. Thank you so much for taking the time to pen this. I’m bookmarking it for my NBC folder.
It is alleged than Mittens' baby-daddy was a Mexican citizen, or so the story goes.....
“....another sleeper like Obama, backed by Saudi dollahs again.”
Backed by the DEMS and unquestionably accepted by the PUBS.
“Types Of Citizenship: Jus Soli, Jus Sanguinis, Natural Born, Native Born, Naturalized”
SCOTUS does not and will not recognize various types of U.S. Citizenship. Either you are a citizen of the U.S. or you are not. Schneider v. Rusk, 377 U.S. 163 (1964), was a United States Supreme Court case which invalidated a law that treated naturalized and native-born citizens differentially under the due process clause of the Fifth Amendment.
When discussing rights of US citizenship, SCOTUS will acknowledge the manner a person acquired his/her citizenship. For example, the WKA case held he was a citizen of the U.S. and acquired his citizenship as a Natural born citizen would acquire his citizenship. In other words, WKA’s US citizenship was of the same dignity and co-extensive with the rights of any other Natural born citizen.
No person has a right to be classified as a Statutory citizen, Naturalized citizen, Native born or Natural born citizen. See 22 U.S. (9 Wheat.) at 827-28, [The naturalized citizen] is distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none.
Natural born citizenship status is undefined and will remain undefined until a Constitutional Amendment is passed.
Essay on NBC
His father, George, was born in Mexico but never applied for U.S. citizenship. He didn’t have to. The laws of citizenship in 1907 conferred U.S. citizenship upon him.
Thank you very much. Quite a bit of work and thought here; I look forward to a careful read.
It is clear one of the ways to change an organization is to change the values it assigns to its traditional concepts; e.g. political correctness. That effort has intensified in the United States in very recent years, subtlety or otherwise. A quick skim suggests you address the unmistakable intent of the founders when they used the term; which is, of course, the most relevant point.
Very interesting link, thank you, SERKIT.
Now, lets focus on how best to spread the message. Try focusing on the definition provided in the Minor vs. Hapersett case and keep it short and sweet. Less than a page, if possible.
I had to highlight all of your comment, to make sure there wasn't a "</SARCASM>" concealed somewhere therein... '-)
Great job, Sourcery! Thanks!
The 14th Amendment's citizenship clause defines both a) those born in the US and subject to its jurisdiction, and b) those naturalized in the US and subject to its jurisdiction, to be citizens of the US, and does so using a single sentence with a single phrase that is the subject of the sentence and a single phrase that is its predicate. The subject phrase is of the form "<A> and <B>", and the predicate phrase is "are citizens of the United States." That single predicate phrase, "are citizens of the United States," must intend to apply that exact same meaning of the word citizens to both noun phrases in the conjunctive phrase that is the subject of the sentence, since it's but one predicate phrase applied to but the one conjunctival phrase that is the subject of the sentence. Therefore, the semantics of the word citizens in the 14th Amendment must encompass both those born in the US (and subject to its jurisdiction) and those naturalized in the US and subject to its jurisdiction. That is flat-out impossible unless the intended semantics of the term citizen in the 14th Amendment is that of general citizenship, and is not intended to signify any other, more specialized meaning.
I have not yet finished reading the whole thing because I stopped at one place where I thought I might assist you in improving it with the addition of a salient fact.
The term "sujets naturels" was translated into American English as "Natural born Subjects" in 1781 by Charles Thomas. Note Article III.
And the location where to find this information. The French part begins on the next page.
Thanks...for both reference and the kind words!
Let me set you straight on this. I have been arguing this on another thread, and you are referring to the Edmunds-Tucker Act. It DOES NOT strip people of their citizenship. It fines them, Takes away their property, and puts them in prison, but it does not strip away their citizenship. I don't believe any act of Congress can strip someone's citizenship. Congress can stipulate who may BECOME a citizen, but they cannot take someone's citizenship away. The Romneys that went to Mexico remained Citizens, and therefore their son "George" was born as a citizen.
You are an annoying fellow, and here you are again polluting the thread with that horrible mess you always post. Nobody bothers to read it.
Sven, it doesn't seem as though you READ his essay. He pointed out quite persuasively that no man made law can define "natural" citizenship. That is defined as a characteristic of nature.
It is tantamount to asserting that Congress can pass a law making everyone's hair blond. As hair color is a characteristic of nature, no such law will change anyone's hair color. Therefore, no such law can change anyone's natural born citizen status. It is a function of the laws of nature, not man.
save for later
I have in the past. This time, I just skimmed it to see whether or not he had anything new to say. He didn't as far as I could tell.
Worse, it's clear his post was not a specific response to my essay, and that it was written without reference to it.
However, the core of his argument is his interpretation of the interpretation of the 14th Amendment given in Wong Kim Ark, which my essay utterly demolishes (I crafted that text based in part of the claims made by Mr. Rogers, after all.) And that's why I challenged him with the following:
The 14th Amendment's citizenship clause defines both a) those born in the US and subject to its jurisdiction, and b) those naturalized in the US and subject to its jurisdiction, to be citizens of the US, and does so using a single sentence with a single phrase that is the subject of the sentence and a single phrase that is its predicate. The subject phrase is of the form "<A> and <B>", and the predicate phrase is "are citizens of the United States." That single predicate phrase, "are citizens of the United States," must intend to apply that exact same meaning of the word citizens to both noun phrases in the conjunctive phrase that is the subject of the sentence, since it's but one predicate phrase applied to but the one conjunctival phrase that is the subject of the sentence. Therefore, the semantics of the word citizens in the 14th Amendment must encompass both those born in the US (and subject to its jurisdiction) and those naturalized in the US and subject to its jurisdiction. That is flat-out impossible unless the intended semantics of the term citizen in the 14th Amendment is that of general citizenship, and is not intended to signify any other, more specialized meaning.
That's not in my essay. I'm saving certain points for later. That one I was specifically saving for Mr. Rogers :-) I have more....
Firstly, the sentence you quoted in my essay was not about the classes of citizenship that US law may or may not recognize. It was about the ontological categories of citizenship used to define the semantic space of citizenship applicable to any and all countries. It was presented very early in the document as an aid to understanding historical and legal texts that use those terms in discussing citizenship.
Secondly, the fact that US law requires all citizens to be treated exactly the same is a completely separate issue from whether or not different conceptual classes of citizenship exist in peoples's minds, and whether US law will use each one in different cases in order to determine whether or not someone is or is not a citizen. There is more than one way to qualify as a citizen. How one does so is a separate issue from the privileges and immunities that citizenship bestows.
US courts absolutely will use jus sanginuis but not jus soli to rule that someone is a citizen. They have done so. And they will also use jus soli but not jus sanguinis to rule someone else to be a citizen in a different case. They have done that, too. And in Minor vs. Happersett, they used both principles to rule that someone was not just a citizen, but a natural born citizen.
The reasons or principles by which citizenship are legally determined is a completely separate issue from the privileges and immunities provided by citizenship. You are almost correct that US law recognizes no differences whatsoever between the citizenship of one person versus that of another as far as the privileges and immunities of citizenshp are concerned, regardless of the principles by which a person's citizenship was acquired. The one exception is eligibility to be President. The courts have no choice on that: It's a Constitutional requirement. And Constitutional requirements cannot, by definition, be Unconstitutional.
Either you are a citizen of the U.S. or you are not. Schneider v. Rusk, 377 U.S. 163 (1964), was a United States Supreme Court case which invalidated a law that treated naturalized and native-born citizens differentially under the due process clause of the Fifth Amendment.
Federal and state laws can be invalidated for such reasons. Constitutional prohibitions cannot.
When discussing rights of US citizenship, SCOTUS will acknowledge the manner a person acquired his/her citizenship. For example, the WKA case held he was a citizen of the U.S. and acquired his citizenship as a Natural born citizen would acquire his citizenship. In other words, WKAs US citizenship was of the same dignity and co-extensive with the rights of any other Natural born citizen.
There is no statement in Wong Kim Ark that states that someone born in the US to alien (permanent resident) parents is a natural born citizen eligible to President. If that's false, it should be easy to prove. Please provide the exact words from the majority opinion that say what you claim.
No person has a right to be classified as a Statutory citizen, Naturalized citizen, Native born or Natural born citizen. See 22 U.S. (9 Wheat.) at 827-28, [The naturalized citizen] is distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none.
By "the law," the Court meant Congressional statutes. But it acknowledged that the Constitution does make such a distinction by using the phrase "except so far as the constitution makes the distinction." Which it in fact does, as all can easily see by reading Article II, Section 1, Clause 5.
Natural born citizenship status is undefined and will remain undefined until a Constitutional Amendment is passed.
The Constitution cannot define that term without creating a logical contradiction, as my essay makes clear. But the Supreme Court can. And did, in Minor vs. Happersett, as my essay also makes clear.
All citizens within the jurisdiction of the United States have the same rights under the Constitution. All except one right, and that is the right to be eligible to the position of the President of the United States.
The Supreme Court can be overly-verbose in its definitions until paper runs out in Washington. Nothing will change this simple, elegant fact.
This reasoning is flawless, in my humble opinion.
"I may not respond immediately to comments."
Hope you get to take a well-deserved break, after that epic! :)
Oops, NBC in MvH is obiter dictum.
I did read his essay and took issue with “Types of Citizenship ...” That’s why I quoted it in the response. There is one type or classification of citizenship available and it is undefined, Natural born citizen.
You can be a US Citizen and not be a Natural born citizen and you must be a US Citizen to be a Natural born citizen. Attempting to define Natural born citizen classification through natural law or common law transgresses a specific classification to a term of art which fluctuates with current political headwinds.
At this time, we can only determine who is a Natural born citizen by eliminating those who are not ...
Non-US Citizens are not.
US Citizens who naturalized are not.
US Citizens who obtained their citizenship through statute are not.
US Citizens who have or have had dual citizenship are not.
US Citizens who had to swear an Oath of Allegiance to obtain their US citizenship are not.
Your response reminds me of just how well educated were the people in the past, and shows that they well understood the characteristics of the English language.
I once had an argument with a Freeper called “Sometimes Lurker” during which I pointed out that all of the promoters of the 14th amendment were aware of the term “natural born citizen”, if for no other reason than that they used it during the debates on the Amendment. That they were well aware of it and did not use it was not an accident. They INTENTIONALLY chose not to use that term. Two extra words would have cost them virtually nothing in terms of ink and paper, but the ramifications of it would have been substantial.
They considered it and decided against it, and that’s pretty much all anyone really needs to know about the 14th amendment’s impact on the Presidential Eligibility issue. The notion that it should somehow repeal the meaning of Article II “natural born citizen” is explicitly rejected by the evidence of the carefully chosen wording they used.
As for Mr. Rogers, I believe he is emotionally committed to his position, and appeals to reason will be continuously dismissed. That his ideas make no sense doesn’t matter to him. He has the faith of a zealot.
"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 1788, 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."
William Loughton Smith (b. 1758), was sent to England by his father Benjamin in 1770 at the age of 12 years. Later that same year, his father died, a British subject, six years prior to the Declaration of Independence. Smith's mother died in 1760. William Smith did not return to America until 1783, after the bloody fight for our freedom was finished.
Ramsay basically asserted correctly that Smith's father Benjamin could not have passed U.S. Citizenship to his son as he died six years prior to the Declaration of Independence in 1776.
I believe Mr. Jackson in reply to Mr. Madison's argument, said it best:
The case was decided by vote in committee in favor of Smith, with the objections of Mr. Jackson as noted above. Political considerations seem to have trumped reason in this case, as there is no possible way that Smith could have been considered a U.S. Citizen prior to the year 1783, when he arrived in the newly created United States as a young man in his twenties.
But what, my good man, does that have to do with anything? The Usurper sits in the WH and the cowards of the SCOTUS sit on their hands. No Republican elected representative or candidate will forthrightly address the issue. To paraphrase the extremely well-tailored millionaire drunkard who speaks for the Republican House of Representatives, "The State of Hawaii said he was born there and that's good enough for me."
I have come to the point where I don't even want their opinions. All I want is that someone ... anyone... in a position of representative responsibility to say, "Ya know, I don't know. That's a matter for the Supreme Court."
I have maintained from the beginning that the issue will have to be settled by one or two brave STATE election officials. We are grasping at the Georgia situation as a drowning man grasps at a straw. Has no one stopped to think that any State Attorney General has the absolute right to throw this man (or any man) from his state's ballot right now, forcing the issue to the courts? Out of 50 states are there not 10 Secretaries of State ...lawyers all ... who agree with the view left to us as a legacy of Roman and English law? That is a "Natural Born Citizen," is a citizen both of whose parents were citizens at the time of his birth.
I hear you. Just making sure that those on our side have all the facts straight.
No event subsequent to his birth extinguished Congressman Smith's citizenship in the sovereign state of South Carolina—which, since he was born there and his parents were citizens of the state, meant he was a subject born of South Carolina.
Madison's argument was that any citizen (natural or not) of South Carolina became a natural US citizen at the moment the US became sovereign over South Carolina, provided allegiance to the US was accepted by that citizen. Not a natural born citizen—because the parents would not have been citizens of the US when the person was born—but nevertheless a citizen by natural law, and not by any official act of naturalization.
Without a naturalization law that made Congressman Smith a citizen, and without his having duly undergone the naturalization process specified by such a law, his citizenship cannot be by means of naturalization, but can only be natural citizenship by the operation of natural law.
Right or wrong, that was Madison's argument. And it applies with equal force and legitimacy to all other citizens of the several States, whether they were at home or abroad at the moment the US came into existence. To be logically consistent, either all who were citizens of any of the several States and didn't reject allegiance to the US when it acquired soveignty over their State were citizens of the US by natural law, or none were. If none were, then all would have needed to be naturalized in order to be citizens.
Interesting, but wasn’t Smith’s father also a British subject, and by natural law passed that condition to his son?
Yes, of course. But the same was true of almost everyone else in the American Colonies, yes? That British citizenship asserted by the British Navy against US-citizen sailors of US ships was one of the causus belli of the War of 1812.