No, that category is too broad. It is not being a citizen at birth, it is being a citizen at birth with no other claim on your allegiance. As for having one parent, the rule of law in those days was "Partus Sequitur Patrem", meaning the father's country is the child's country. The Citizenship of the woman was immaterial because women automatically acquired derivative citizenship upon marriage to an American male. This principle was common place at the time, but it was not codified into law until this act.
The requirement that the FATHER be a citizen is further demonstrated by the naturalization act of 1790 which specifically says:
Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States:
Here is a link to a good explanation of the process in 1790.
And in fact, one of my points is that since each State had its own citizenship requirements (which admittedly might have been very similar), and those requirements were simply adopted by reference in the Constitution, there ACTUALLY WAS NO FEDERAL LAW concerning the requirements of citizenship, except those adopted by reference from the States. The words “natural born” do not define who can be a citizen, but rather who is qualified for the Presidency. Therefore, I come back to my original point, ie. there are really two issues here: 1) Is a person a citizen? 2) Are they “natural born”? The first question was decided by State law. The second question was purely an issue of federal Constitutional law. So they obviously had to be two separate questions.
You are conflating State Citizenship with Federal Citizenship. When the Constitution was created, it made Federal citizens of all existing "State" citizens, but it did not necessarily grant Federal citizenship to all subsequent people who qualified for state citizenship. As I pointed out before, this was EXACTLY the situation that James McClure found himself in in 1810. He was a Citizen of Virginia, but he was not recognized as a Citizen of the United States. Read this again.
Here is a link to the full page.
Another piece of evidence against you is this effort by Alexander Hamilton during the Constitutional convention to draft Presidential requirements:
“No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States.”
This is an exact description of what you are suggesting. The problem was, it was voted down and the term "natural born citizen" was used in it's place. A "natural citizen" is one born of "We the People", and "We the People" do not include people who have yet to become American citizens. It is a foreign attribute that is undesirable in an American Citizen.
The overall problem that I have with your argument is that you keep referring to a “recognizable claim to allegiance,” but that is merely begging the question. What determines whether it is a “recognizable” claim? Our law has got to determine that, and it’s got to be specific.
Our law DOES say so, and you might THINK it has to be specific, but in fact it is often based on commonly held principles. This is why they call it the "common law." As I pointed out, Derivative citizenship for married women wasn't codified into law (i.e. Made "specific") until 1854, but it was the ACTUAL law of that era.
You can’t just say it’s recognizable when you want it to be recognizable and not recognizable when you don’t want it to be. You could take what I suppose is your approach and say that it is determined by historical rules, but where do they come from and what exactly are they? You say not the English common law. Obviously, they can’t come from the States since then we would have a different rule for each State, yet the Constitution itself did refer to the States for the rules of citizenship. The Constitution itself is not clear on the point of what “natural born” means. The Constitutional history doesn’t help much. I get the impression that you want to defer to the Mexican law, or perhaps the Afghani law, or the Angolan law, but you disclaim that and say it’s our law that is relevant. Still, you can’t just make these rules up out of thin air 220 years after the Constitution was written.
You must be new to this discussion. The principles are outlined in the works on natural law by Groteius, Puffendorf, Locke, Vattel, et al. Here is an example where Natural citizenship is clarified by the Supreme court:
The Venus, 12 U.S. 8 Cranch 253 253 (1814)
Supreme Court Justice Washington:
"1. The writers upon the law of nations distinguish between a temporary residence in a foreign country for a special purpose and a residence accompanied with an intention to make it a permanent place of abode. The latter is styled by Vattel "domicile," which he defines to be, "a habitation fixed in any place, with an intention of always staying there." Such a person, says this author, becomes a member of the new society, at least as a permanent inhabitant, and is a kind of citizen of an inferior order from the native citizens, but is nevertheless united and subject to the society without participating in all its advantages. This right of domicile, he continues, is not established unless the person makes sufficiently known his intention of fixing there, either tacitly or by an express declaration. Vatt. 92-93. Grotius nowhere uses the word "domicile," but he also distinguishes between those who stay in a foreign country by the necessity of their affairs or from any other temporary cause and those who reside there from a permanent cause. The former he denominates "strangers" and the latter "subjects," and it will presently be seen by a reference to the same author what different consequences these two characters draw after them.
Chief Justice Marshall:
The whole system of decisions applicable to this subject rests on the law of nations as its base. It is therefore of some importance to inquire how far the writers on that law consider the subjects of one power residing within the territory of another, as retaining their original character or partaking of the character of the nation in which they reside.
Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says
"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 indigenes are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights."
"The inhabitants, as distinguished from citizens, are strangers who are permitted to settle and stay in the country. Bound by their residence to the society, they are subject to the laws of the state while they reside there, and they are obliged to defend it because it grants them protection, though they do not participate in all the rights of citizens. They enjoy only the advantages which the laws or custom gives them. The perpetual inhabitants are those who have received the right of perpetual residence. These are a kind of citizens of an inferior order, and are united and subject to the society, without participating in all its advantages."
"The domicile is the habitation fixed in any place with an intention of always staying there. A man does not, then, establish his domicile in any place unless he makes sufficiently known his intention of fixing there, either tacitly or by an express declaration. However, this declaration is no reason why, if he afterwards changes his mind, he may not remove his domicile elsewhere. In this sense, he who stops, even for a long time, in a place for the management of his affairs has only a simple habitation there, but has no domicile."
A domicile, then, in the sense in which this term is used by Vattel, requires not only actual residence in a foreign country, but "an intention of always staying there." Actual residence without this intention amounts to no more than "simple habitation."
To me, the only way (as well as the simplest way) to deal with it is simply to say that “natural born” means only that you are a citizen from birth. Then you refer to the law of citizenship to determine whether that is the case. And that seems to be perfectly consistent with the Constitution, which did refer to other law for the purpose of determining citizenship.
Whether it be "simple" or not, the law that was in effect in 1787 is the same law that is in effect now. It has not been changed by constitutional amendment, therefore it is still valid. Congress can decide that someone is "born" a citizen if they were born in a tree, but this would not change the meaning of what being born as a "natural citizen" means.
I think that the 14th Amendment complicates the point, but not that much. I don’t think they were trying to change the definition of “natural born” for the purpose of determining eligibility of the President when they adopted the 14th Amendment. They were just trying to change the law of citizenship. In particular, they were trying to prevent the States from disenfranchising the slaves. But you’re still stuck with the actual language they used, irrespective what their intent was.
Not according to Justice Black in Duncan v Louisiana.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring.
Professor Fairman's "history" relies very heavily on what was not said in the state legislatures that passed on the Fourteenth Amendment. Instead of relying on this kind of negative pregnant, my legislative experience has convinced me that it is far wiser to rely on what was said, and, most importantly, said by the men who actually sponsored the Amendment in the Congress. I know from my years in the United States Senate that it is to men like Congressman Bingham, who steered the Amendment through the House, and Senator Howard, who introduced it in the Senate, that members of Congress look when they seek the real meaning of what is being offered. And they vote for or against a bill based on what the sponsors of that bill and those who oppose it tell them it means.
Apart from that, they used the language "subject to the jurisdiction thereof" which pretty much means that if you remain a foreign citizen, you cannot have an American Child. A lot of people are not aware that the 14th amendment was a continuation of the effort began with the Civil rights act of 1866, which served as a blueprint for it. The Civil rights act of 1866 is much clearer on the correct meaning.
Civil Rights Act of 1866, 14 Stat. 27 (1866). Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, 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.