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natural born Citizens: Marco Rubio, Bobby Jindal, Ted Cruz

natural born Citizens: Marco Rubio, Bobby Jindal, Ted Cruz

I believe Marco Rubio, Bobby Jindal and Ted Cruz to be “natural born Citizens” and eligible to be President.  Here’s why.

1. Summary

There are few eligibility requirements to be President.  You don’t have to be smart, wise, experienced, honest, educated, or a particular gender or race.

Article II, Section 1, of the Constitution provides, in pertinent part (emphasis added):

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.

For people currently alive, the three requirements are: “natural born Citizen”; age 35; resident of U.S. for 14 years.

Whether a candidate is a “natural born Citizen” has been the subject of political controversy for well over a century, dating back at least to Chester Arthur, who Democrats at the time alleged was born in Canada, not Vermont.  Among others, John McCain, Barack Obama, and George Romney have had their eligibility questioned.

This political season, the eligibilities of Marco Rubio, Bobby Jindal and Ted Cruz are the subject of debate.

As much as we want certainty, the term “natural born Citizen” is not defined in the Constitution, in the writings or history of those who framed the Constitution, or in a demonstrable common and clear understanding in the former British colonies at the time the Constitution was drafted.  Nor has the Supreme Court ever ruled on the issue, and it probably never will.

The modifier “natural born” is not used anywhere else in the Constitution, and its precise origins are unclear, although  it is assumed to be derived in some manner from the British common and statutory law governing “natural born Subjects.”

There are two ends of the spectrum as which just about everyone agrees:  (1) A person born in the United States to parents both of whom are United States citizens is a “natural born Citizen”; and (2) a person born outside the United States to parents neither of whom is a United States citizen is not a “natural born Citizen” even if citizenship later is obtained through naturalization.  These are what law professor Lawrence Solum refers to as “cases of inclusion and exclusion.

Rubio, Jindal and Cruz, as did Obama, fall between those points of inclusion and exclusion.  Rubio and Jindal were born in the United States to parents neither of whom was a United States citizen at the time; Cruz was born in Canada to parents one of whom (his mother) was a United States citizen.

Under the law existing at the time of their birth, each became a citizen of the United States at birth.  Rubio and Jindal by the 14th Amendment, Cruz by statute.

I’ve spent a considerable amount of time examining the issue of what “natural born Citizen” means in this context.  While concepts such as “jus soli,” jus sanguinus” and “natural law” are part of the equation, such concepts do not adequately answer the question, no matter how many times or how vigorously they are repeated.  Similarly, relying on statutes governing citizenship does not answer what “natural born Citizen” means in the Constitution and does not render the question trivial.

There is a false construct all around that this is a purely legal question subject to some absolutely right or wrong conclusion.  We should all just admit that we don’t really know for sure what “natural born Citizen” means or meant between the points of inclusion and exclusion.

So what to do in a constitutionally and politically important area in which there is no clear legal answer?

The key to understanding why I reach that conclusion that Rubio, Jindal and Cruz are “natural born Citizens” requires understanding the problem.

There are strong arguments in favor of Rubio, Jindal and Cruz each being a “natural born Citizen” as that term most reasonably can be understood through its plain text because they became citizens by birth.  Their “natural born Citizen[ship]” also is consistent with the concepts, respectively, of citizenship by birth place (Rubio, Jindal) and parentage (Cruz), from which the term “natural born Citizen” is believed to derive historically.

The arguments that the term “natural born Citizen” excludes Rubio and Jindal (because their parents were not citizens) or Cruz (because he was born abroad to a citizen mother only) at most raise doubts.  Those doubts, however, never rise anywhere near the level of making the case that Rubio, Jindal and Cruz are excluded.  Most of the counter-arguments are historical conjecture, at best, and rely on speculation not connected to the text of the Constitution or any demonstrable actual intent or understanding of the Framers.

In the circumstance of candidates who appear to qualify based on the text of the Constitution and the traditions upon which “natural born Citizen[ship]” is believed to derive, and as to whom there are at worst some doubts raised, I believe the proper constitutional outcome is to leave the issue to the political process.  To exclude apparently eligible candidates based on speculation as to what the term “natural born Citizen” might have meant is no better, and I would argue much worse.

Remember, these are merely eligibility requirements, not requirements that a person be elected.  It would be consistent with the Framers’ demonstrable concerns to consider loyalty to the United States as a political factor, even if not absolutely legally disqualifying.  If you don’t trust the loyalty of a candidate because of how he or she became a “natural born Citizen,” don’t vote for the person.

I set forth below my approach and reasoning.

2. Caveats, conditions and limitations 

I do not claim any prior expertise in the “natural born Citizen” clause.  Few people had that expertise prior to the challenges to McCain.  Challenges to Obama increased the number of purported experts exponentially.

In addition to my own research with the assistance of a former student, I have received input from readers on at least two occasions (here and here).  Even if I disagree with some of the comments, I value the input.  The notion that the Constitution is the exclusive domain of lawyers is unfounded and unwise.

There are limits to this analysis.  It is not intended to argue for or put the dispute into a particular constitutional construction theory.  I link to many writings by constitutional law professors and others who do put the dispute in a more theoretical context, particularly the issue of “originalism,” and you can read those.

I don’t claim that mine is the only approach, but having dwelled on this for several months, it’s the approach that I find best helps unravel the Gordian Knot of accusations and arguments.

I also am not trying to “win” the argument.  I have no intention (hah!)  of getting into the endless argument streams this topic engenders, where for every answer there is a new obscure historical reference or convoluted theory until someone gives up.  There are some things you just can’t “win” on the internet, and this is one of them.

As to formatting, this topic really doesn’t lend itself to the blog post format.  So I’ve not followed legal briefing or law review style of using “supra” and “infra” for repeated citations, instead I just use the full cite each time.   I also leave footnote numbers in quotes, so that if you go to the source, you can follow more easily.  I’ve tried to link to public sources as much as possible.  Some material is hard to find on the internet, but I’ll try to back fill source links after publication as I hunt for public sources.

3. The unfortunate term “birther”

I also want to go on record again objecting to the use of the term “birther.”  If the term were confined to conspiracy theorists, that would be one thing.  But it has become a tool to shut down even legitimate debate.

The term was used as a pejorative as part of a deliberate Obama campaign strategy to shut down debate on his issues, and then expanded outward as a general Democratic talking point as a synonym for racist.  One didn’t even need to question Obama’s eligibility to be called a “birther.”

Unfortunately, the term has been picked up by many Republicans and conservatives to shut down even good faith questions as to the eligibility of Rubio, Jindal and Cruz.  You don’t need to do that.

I suggest that it is our duty as citizens to ascertain that these minimal eligibility requirements are met.  I guess I’m politically naïve in that regard.

Now to the analysis I followed in reaching my conclusions.

4. The Text of The Constitution

The place to start in any analysis is with the text of the Constitution.

As indicated at the start, we’re dealing with a single sentence in Article II, Section 1 (emphasis added):

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.

The first thing to note is that the words “natural born” are not capitalized.  Here is the original, handwritten section (source):

Constitution Article II - Natural Born Citizen Clause full

Constitution Article II - Natural Born Citizen Clause partial

It’s interesting that the actual writing of the term does not denote it is a defined concept, which might have been conveyed conveyed through initial capitalization, as in “Natural Born Citizen.”  At least in modern usage, that might have been significant, but it’s not dispositive because even spelling in the Constitution does not appear to follow any set of rules.

What is significant is that nowhere else in the Constitution as originally ratified is the term “Citizen” defined, much less as modified by “natural born.”  Since we must construe the Constitution (or any law for that matter) so as to give meaning to all terms when possible and reasonable, we have to assume that “natural born” means something, and was not just an error or excess verbiage.

We can presume the term “natural” was not relating to the method of birthing, but rather, birth as relates to citizenship.

It’s also important that the text itself does not contain words, such as  “native born” citizen, which might have reflected a geographic limitation.  Similarly, there are no words delineating any further limitations, such as requiring that both parents be citizens at the time of birth or excluding those with dual citizenship; such wording could have been inserted, and the lack of such limitations is significant.

All we know from the text itself is that to be President one must be a citizen by virtue of birth, not some other method of obtaining citizenship.  There is no other reasonable explanation that relies solely on the text, not outside sources.

But how birth creates “natural born Citizen[ship]” the text doesn’t tell us.

5. The Framers never expressed what “natural born Citizen” meant

Is there any indication that the Framers meant anything other than what the plain text suggests, that a “natural born Citizen” is someone who acquires citizenship by virtue of birth?  No, there is no such evidence.

There is no record of the Framers having explained what was meant by “natural born Citizen.”  Nothing in the history of the debate or drafting sheds light on the subject.

One of the most respected scholarly reviews of the “natural born Citizen” issue was by CHARLES GORDON, WHO CAN BE PRESIDENT OF THE UNITED STATES: THE UNRESOLVED ENIGMA, 28 Maryland Law Review 1 (1968)(emphasis added):

A second puzzling aspect of the constitutional prescription is its naked, again undefined, reference to the “natural-born.” The presidential qualification clause is the sole instance of this term’s appearance in the Constitution.5 The only explanation for the use of this term is the apparent belief of the Framers that its connotation was clear. With the passage of the years this has proved a mistaken assumption. However, any reading of this language must take into account the admonition that an “isolated phrase in the United States Constitution [cannot be] rigidly interpreted without regard to other relevant provisions and to time and circumstance.”6

***

The deliberations of the Constitutional Convention of 1787 furnish no clues to the underlying purpose. The Convention was writing on  a clear slate, since the Articles of Confederation made no provision for a Chief Executive.8 … The discussions regarding the executive concerned his title,11 powers,12 term of office,13 and manner of selection.14 There was virtually no discussion of [presidential] qualifications.15

Professor Michael Dorf notes the significance of Gordon’s writings, Originalism Versus Straight Talk:

… There is almost no contemporary evidence of what the framers and ratifiers thought the precise contours of the limit were. The leading scholarly treatment of the issue says that “no explanation of the origin or purpose of the presidential qualification clause appears anywhere in the recorded deliberations of the [Constitutional] Convention.” The article, called “Who Can Be President of the United States: The Unresolved Enigma,” was written in 1968 by Charles Gordon, then General Counsel of the INS and an adjunct law professor at Georgetown. It was published in the Maryland Law Review.

6. “natural born Citizen” usage at the time of drafting the Constitution is uncertain

As an alternative to an explicit explanation by the Framers, perhaps “natural born Citizen” was a commonly understood term in the newly independent United States at the time of drafting and ratification of the Constitution, such that they felt no need for explanation.  If so, that might shed light on the meaning.

There is no evidence to suggest that the term was in common usage at the time, but there is some evidence that “natural born Citizen” related to citizenship by birth, consistent with the plain text, and did not have some complicated British historical meaning.

Jill A. Pryor, THE NATURAL-BORN CITIZEN CLAUSE AND PRESIDENTIAL ELIGIBILITY: AN APPROACH FOR RESOLVING TWO HUNDRED YEARS OF UNCERTAINTY, 97 Yale L.J. 881 (1988)(emphasis added):

But the extent to which the colonies adopted British nationality law varied widely. [FN30] It was unclear how existing precedents of nationality law applied to the colonies, since these cases dealt specifically with England or previously independent lands acquired by conquest or descent. [FN31] Prominent jurists of the time disagreed over the proper legal analogy for the colonies, while the colonists wanted the protection of the British common law without being subject to control by Parliament. [FN32] This already complex heritage became more complicated when the colonies passed their own naturalization laws prior to the Declaration of Independence. [FN33]

After independence, no uniform rules of naturalization existed prior to the first exercise by Congress of its naturalization powers, the Naturalization Act of 1790. [FN34] Thus, at the time of the framing of the Constitution, there was no common understanding of what ‘natural born citizen’ meant. [FN35]

The phrase was used in a letter to from John Jay to George Washington, and that letter appears to be the source.  Unfortunately, no explanation was given as to what it meant.

Law professor Malinda L. Seymore, writing in the Brigham Young Law Review in 2005, The Presidency and the Meaning of Citizenship, 205 BYULR 927, points out that distrust of foreigners was a concern, although how that relates to the term “natural born Citizen” is unclear (emphasis added):

The Natural-Born Citizen Clause of the U.S. Constitution was adopted against the backdrop of English law that codified distrust of the foreign born. This distrust of foreign-born citizens became codified in the Constitution. Article II, Section 1, Clause 4 “is remarkably innocent of both legislative history and judicial gloss.”48 The apparent purpose of the clause limiting the presidency to natural-born citizens was to “cut off all chances for ambitious foreigners, who might otherwise be intriguing for the office.”49 One commentator traces the genesis of the clause to a letter from John Jay, who later became the Chief Justice of the United States, to George Washington:

Permit me to hint, whether it would 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 Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.50

*      *      *

When the first draft of the presidential qualification clause was presented to the Convention, it required the President to be a citizen, but contained no mention of how that citizenship must be attained.57 Shortly thereafter, George Washington wrote Jay, thanking him for the “hints contained in your letter.”58 Two days later, a second version of the presidential qualifications clause was presented to the Convention.59 This version contained the natural-born requirement and was adopted as presented with no discussion of the natural-born citizen provision.60

Because the second version of the presidential requirements came a mere two days following Jay’s letter to Washington and was adopted without discussion, and considering Washington’s considerable presence at the convention, it is entirely possible that Jay’s reasons for including the natural-born requirement were the primary motivations behind the provision: namely, fear of foreign dominance of government. Thus, Justice Story rightly concluded that the natural-born requirement was motivated by a fear of foreign involvement in the government.61

Jill A. Pryor, THE NATURAL-BORN CITIZEN CLAUSE AND PRESIDENTIAL ELIGIBILITY: AN APPROACH FOR RESOLVING TWO HUNDRED YEARS OF UNCERTAINTY, 97 Yale L.J. 881 (1988), points out that Alexander Hamilton’s notes support the conclusion that “natural born Citizen” relates to citizenship at birth (emphasis added):

The letter is generally assumed to be the source of the phrase in the Constitution. [FN38] Some writers have suggested that Jay was responding to rumors that foreign princes might be asked to assume the Presidency. [FN39] But the only firm conclusions that may be drawn from the letter are that Jay was interested in creating some guarantee of allegiance to the United States for high office holders and that he placed special significance on the word ‘born.’

These conclusions are strengthened by the existence of another document, which, oddly enough, has never been mentioned in previous discussions of the clause. On June 18, a little over a month before Jay’s letter, Alexander Hamilton submitted a ‘sketch of a plan of government which ‘was meant only to give a more correct view of his ideas, and to suggest the amendments which he should probably propose . . . in . . . future discussion.’’ [FN40] Article IX, section 1 of the sketch provided: ‘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.’ [FN41] Hamilton’s draft, which appears to be an early version of the natural-born citizen clause, contains two distinct ideas: first, that those currently citizens will not be excluded from presidential eligibility, and second, that the President must be born a citizen. Without the modifier ‘natural,’ the essence of the text is apparent: The President need not be native born, but must be a citizen from birth.

CHARLES GORDON, in his analysis, points to an almost contemporaneous Act of Congress which suggests that the use of  “natural born Citizen” was consistent with the plain reading of the text, as arising from birth even abroad, WHO CAN BE PRESIDENT OF THE UNITED STATES: THE UNRESOLVED ENIGMA, 28 Maryland Law Review 1 (1968):

And the children of citizens of the United States, that may be born beyond the 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 resident in the United States.64

On balance, therefore, it seems likely that the virtually contemporaneous coloration provided by the 1790 act lends support to the view that the constitutional reference to natural-born citizens was intended to include those who acquired United States citizenship by descent, at birth abroad.

John Yinger also has a lengthy discussion of some background on what led up to the clause, The Origins and Interpretation of the Presidential Eligibility Clause in the U.S. Constitution.  See also J. Michael Medina, The Presidential Qualification Clause in this Bicentennial Year, 12 Oklahoma City University Law Review 253 (1987).

What is clear from all these analyses is that we have no demonstrable basis on which to conclude a specific meaning to the term based on common usage.

7. British common and statutory law doesn’t solve the problem

In the absence of clear terminology, explanation or common usage, it is appropriate to look to British common law in trying to understand terms in the Constitution.  It is presumed that the Framers were familiar with and may have borrowed terminology.

The term “natural born Citizen,” however, was not used in British law at the time.  There was a term called “natural born Subject,” but that was a function of both common law and statutory law.

The combination of common law and statutory law supported being a “natural born Subject” based on the location of birth or parentage, although the usage wasn’t entirely consistent across the British Empire, or necessarily adopted in colonies that became the United States.  (It likely is for that reason that the attorneys challenging Obama’s eligibility had no choice but to insist that “natural born Subject” could not be the basis for understanding “natural born Citizen” — see below).

Prof. Polly J. Price, NATURAL LAW AND BIRTHRIGHT CITIZENSHIP IN CALVIN’S CASE (1608), 9 Yale J.L. & Human. 73 (1997) examined the historical roots of the term (emphasis added):

The territorial rule derived from Calvin’s Case rendered the status of British colonists different from that of colonists of other European countries. Calvin’s Case led to what is today known in international law as the jus soli, the rule under which nationality is acquired by the mere fact of birth within the territory of a state. [FN13] The other great rule for assigning nationality at birth, the jus sanguinis, is identified with the civil law. It holds that, regardless of the place of birth, nationality is acquired by descent following the status of at least one parent (usually the father). [FN14] The United States, Great Britain, and many Latin American countries traditionally have favored the jus soli over the jus sanguinis as a rule for acquisition of citizenship by birth. [FN15] By contrast, the jus sanguinis has been the favored rule in almost all European nations. [FN16]

No nation relies exclusively on one of these principles to determine who is a natural-born subject or citizen. [FN17] In Britain, even before Calvin’s Case, various acts and proclamations provided that a child born out of the territory of England could also be a natural-born subject, as long as the child’s parents owed allegiance to the sovereign of England. [FN18] This is an example of the jus sanguinis operating alongside the jus soli. In the history of both Britain and the United States, the jus sanguinis has always been established by statute, never by judge-made law. [FN19] ….

[FN19]. For example, in 1698 the British Parliament naturalized the children of subjects who were born abroad while the parents were in the King’s service. An Act to Naturalize the Children of Such Officers and Soldiers, and Others the Natural-Born Subjects of This Realm, Who Have Been Born During the War, the Parents of Such Children Having Been in the Service of This Government, 1698, 10 Will. 4, ch. 20 (Eng.). A few years before, Parliament passed an act to naturalize the children of royalists born abroad during the interregnum, An Act for the Naturalizing of Children of His Majesty’s English Subjects, Born in Foreign Countries During the Late Troubles, 1676, 29 Car. 2, ch. 6 (Eng.). See also British Nationality Act, 1981, ch. 61, ss 1, 3 (Eng.); Dummett & Nicol, supra note 17, at 37-38 (citing other acts of Parliament). In the United States, in the Naturalization Act of 1790, Congress provided that “the children of citizens of the United States, that may be born beyond the sea,…shall be considered as natural born citizens ….” Naturalization Act of 1790, ch. 3, s 1, 1 Stat. 103 (repealed 1795). For contemporary law conferring citizenship at birth outside the territorial United States, see 8 U.S.C. s 1401(c)-(e), (g) (1995).

Lawrence B. Solum, Commentary, Originalism and the Natural Born Citizen Clause, 107 Mich. L. Rev. First Impressions 22 (2008)(also here) notes the seemingly inconsistent interpretations of how British common and statutory law impacted the “natural born Citizen” clause (emphasis added):

Existing scholarship does not reveal extensive usage of the phrase “natural born citizen” in the founding era, but it was derived from the related phrase “natural born subject,” which had a technical meaning in English law and constitutional theory. Those learned in the law in the framing era would have been familiar with Blackstone’s Commentaries, which James Madison described (in the Virginia ratifying convention) as “a book which is in every man’s hand.” ….

Blackstone’s understanding of the notion of a “natural born subject” is not completely clear or precise. On the one hand, he states “[n]atural-born subjects are such as are born within the dominions of the crown of England,” but on the other hand, he suggests “all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes.” ….

If the American conception of “natural born citizen” were equivalent to the English notion of a “natural born subject,” then it could be argued that only persons born on American soil to American parents would have qualified…..

So far we have assumed that the conventional meaning of “natural born citizen” for those learned in the law in the eighteenth century was equivalent to the meaning of “natural born subject” in nineteenth century English law. But is this assumption correct? Does the substitution of the term “citizen” for “subject” alter the meaning of the phrase? And if those learned in the law did recognize a difference, what implications does that have for the meaning of the natural born citizen clause?

The language of the Constitution recognizes a distinction between “citizens” and “subjects.” For example, Article III, section 2 differentiates “citizens” of the several states from “citizens” or “subjects” of foreign states. In the framing era, these terms reflected two distinct theories of the relationship between individual members of a political community and the state. In feudal or monarchical constitutional theory, individuals were the subjects of a monarch or sovereign, but the republican constitutional theory of the revolutionary and post-revolutionary period conceived of the individual as a citizen and assigned sovereignty to the people….

This conceptual distinction may be relevant to the original understanding of the American constitutional phrase “natural born citizen,” which was used instead of the English legal phrase “natural born subject.”

Lawrence Friedman, AN IDEA WHOSE TIME HAS COME–THE CURIOUS HISTORY, UNCERTAIN EFFECT, AND NEED FOR AMENDMENT OF THE “NATURAL BORN CITIZEN” REQUIREMENT FOR THE PRESIDENCY, 52 St. Louis U. L.J. 137 (2007):

What are the permissible sources for construing the meaning of a phrase that the Framers left undefined and did not discuss in any contemporaneous account? Some have argued that English common law in effect at the time of the adoption of the Constitution is a reliable source of interpretation. [FN40] Under this interpretation, children born abroad to American citizen parents acquire citizenship at birth because this was a long standing principle of English common law.

But on closer examination, it is at least questionable whether this could be considered a common law principle in 1789. As early at 1350, Parliament enacted a statute providing that persons born “beyond the sea” to English subjects “shall have and enjoy the same benefits and advantages” as their parents with respect to inheritance. [FN41] A 1677 statute made children of English subjects who had fled the country during Cromwell’s protectorate natural born subjects of the Crown. [FN42] A 1708 statute stated that any foreign born child of a natural born British subject was a natural born subject of the kingdom. [FN43] Subsequent legislation in 1731 and 1773 extended the principle to the grandchildren of natural born subjects and stated that these foreign-born *144 “natural born subjects” were eligible to hold all offices in the American colonies (although not in England). [FN44]

Because of the duration of the pendency of these statutes, it has been suggested that by the time of the drafting of the Constitution it was a principle of the common law that a child born abroad of a citizen was a “natural born” citizen. [FN45] This is at best questionable, because before independence, the colonies were not consistent in their adoption of English law generally and the English law of nationality in particular. The colonies also passed differing laws regarding naturalization. [FN46]

The colonies tended to adopt only those aspects of the common law that were “of a general nature, not local to [England].” [FN47] It has also been observed that the colonists did not agree with how the English law of citizenship and naturalization was being enforced in the colonies, and expressed these objections in the Declaration of Independence. [FN48] For these reasons, it is questionable whether English common law in existence at the time of the adoption of the Constitution provides definitive guidance as to the meaning of the phrase “natural born citizen.” [FN49]

I frequently see commenters and writers on the internet insist that “natural born Citizen” means the same thing as “natural born Subject” in order to prove that one must be born in the United States to be a “natural born Citizen,” but one does not follow from the other.

That’s likely why two of the most visible attorneys arguing against Obama’s eligibility insisted that we could not use “natural born Subject” as the template for “natural born Citizen.”  Instead, they engaged in gross speculation as to how the First Amendment provision prohibiting the establishment of religion interacts with the “natural born Citizen” clause in order to extract themselves from that bind:

AMICUS BRIEF by Leo Donofrio in Georgia Presidential Eligibility Case (emphasis added):

The common law rule of jus soli subjection is a complex spiritual concept, which does not simply relate to birth on British soil. Despite popular belief, the common law meaning of “natural-born” is not synonymous with “native-born”. The true nomenclature of “natural-born subject” is rooted in “natural subjection” to the spiritual body of Christ, and therefore our Constitution forbids any construction of the “natural-born citizen” clause that alleges the term to be synonymous with “natural-born subject”.

* * *

Spiritual enemies are not recognized by the laws of the United States, and neither is natural law part of our secular jurisprudence. Therefore, a necessary and proper consultation of the nomenclature of the common law, forbids any construction of the natural-born citizen clause that relies upon the English common law concept of natural allegiance.

As these many and varied accounts demonstrate, there is no clear answer to the question of whether and if so in what way “natural born Citizen” relates to “natural born Subject.”  What is clear is that the notion that “natural born” status requires being born in-country has little basis in British law, much less British law as commonly understood in the former British colonies that became the United States.

8. There Is No Requirement That Both Parents Be Citizens

One common phrasing of objections to Rubio, Jindal and Cruz being deemed “natural born Citizens” is that, regardless of where they were born, both parents would have had to be citizens.

That argument is devoid of almost any support.  The text does not say so.  There is no demonstrable evidence that is what the Framer’s intended, or that’s how the term was commonly understood at the time of drafting.  Such a requirement also is not found in the almost contemporaneous Naturalization Act of 1790, or even in British law which (as described in the section above) was confused and changed over time, but typically followed the father’s lineage for children born abroad.  See also discussion of Supreme Court cases below.

9. The Vattel Treatise is not dispositive

The treatise by Emmerich de Vattel (1758), frequently is invoked by people arguing against natural born Citizenship for Rubio, Jindal and Cruz because the term “natural born Citzen” as used by Vattel allegedly requires that the person be “born in the country of parents who are citizens.”  (emphasis added)

§ 212. 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.

The problem with that argument, however, is that the English translation of the 1758 edition did not use the term “natural born Citizen.”  That term did not appear until the 1797 edition, a decade after the Constitution was ratified.

The Congressional Research Service, in its 2011 report by attorney Jack Meskill, Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement, notes:

It may be noted that some have argued that the relevant common meaning of natural born citizen that was prevalent in 18th century America should not be the one that was actually applicable in the American colonies during that time from British statutory and common law, and which was adopted specifically by the states after independence in 1776 (and which, as noted by Justice Story, formed the “foundation” for American jurisprudence), but rather should be recognized as a Swiss legal philosopher in the mid-1700s.99 This particular treatise, however, in the editions available at the time of the drafting of the U.S. Constitution, did not actually use, either in the original French or in English interpretations at that time, the specific term “natural born citizens.”100 It was not until after the adoption of the Constitution in the United States did a translator interpret the French in Emmerich de Vattel’s Law of Nations to include, in English, the term “natural born citizens” for the first time, and thus that particular interpretation and creative translation of the French, to which the Vattel enthusiasts cite, could not possibly have influenced the framing of the Constitution in 1787.101

But don’t take Meskill’s word or sources for it. Two of the leading attorneys challenging Obama’s eligibility admitted that the term was not in the edition available in 1787, and they make the illogical bootstrap argument that the later change in the Vattel verbiage somehow applies retroactively:

AMICUS BRIEF by Leo Donofrio in Georgia Presidential Eligibility Case (emphasis added):

In 1775, Benjamin Franklin wrote a gracious note to Charles Dumas, for “the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the law of nations.” Franklin also stated that Vattel’s treatise was, “continually in the hands of the members of our Congress.” (From a letter, Benjamin Franklin to Charles Dumas, Dec. 19, 1775.) ….

Vattel’s treatise was first published in 1758, in French. The first edition contains the exact same passage as the 1775 edition give to Franklin by Dumas. In 1759, the first English edition was published in London, translated as follows:

“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.” “The Law of Nations or Principles of the Law of Nature”, E. de Vattell, (London, 1759), § 212, pg. 92. (App. Pg. 159.)

“Les naturels, ou indigenes”, was not accurately translated. The proper translation of “indigenes” is “natives”. The 1759 London edition makes the mistake of repeating the same word twice, once in English and once in French; “natives or indigenes” means “natives or natives”.

The influence of the U.S. Constitution may have played a part in correcting the error, since, in the 1797 London edition, and thereafter, the French passage was correctly translated as follows:

“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.” (Emphasis added.) “The Law of Nations or Principles of the Law of Nature”, E. de Vattell, (London, 1797), § 212, pg. 101.
(App. Pg. 161.)

Additionally, Vattel did not purport to explain the meaning of the term in the context of British law or the common understanding in the British American colonies or newly formed United States.  It is, at best, highly speculative to assert that the Framers looked to Vattel for the definition of “natural born Citizen.”

10. There is Nothing Forbidding “Dual Citizens”

To avoid repetition, each of the arguments set forth as to alleged requirement that both parents be citizens applies as well to the argument that a candidate is excluded if a dual citizen.  While one can develop theories of why that might have been a concern, there is nothing in the text, demonstrable intent and common understanding, or British history (assuming it even was clear and applied) which would make such a condition disqualifying.  See also discussion of Supreme Court cases below.

11. The 14th Amendment defines birth citizenship, but not “natural born Citizen[ship]”

Section 1 of the 14th Amendment provides, in pertinent part:

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 14th Amendment, as interpreted by the Supreme Court, provides for citizenship for those born in the United States even to alien parents.  This concept of birthright citizenship is its own whole debate, but as of now it’s settled law.  It’s also a different concept than “natural born” citizenship, at least in theory.

While the 14th Amendment did not purport to and did not change the meaning of “natural born Citizen,” it is important because it clarified that citizenship was a matter of birth for anyone born in the United States, in this case Rubio and Jindal.

CHARLES GORDON, WHO CAN BE PRESIDENT OF THE UNITED STATES: THE UNRESOLVED ENIGMA, 28 Maryland Law Review 1 (1968):

On its face, the fourteenth amendment did not purport to define or limit the presidential qualification or the naturalization clauses…. of the Constitution. I believe that even if transmission of citizenship by descent at birth abroad were regarded as a form of naturalization, the reasonable and generally accepted view, in the light of the ancient tradition and the contemporary indicia of purpose, is that in speaking of citizenship acquired by birth or naturalization in the United States, the fourteenth amendment did not seek to exclude acquisition at birth outside the United States…. It seems to me, therefore, that the fourteenth amendment has  little significant relevance to the appraisal of the presidential qualification clause, and that the amendment’s specification of birth or naturalization in the United States does not exclude other methods of acquiring United States citizenship.

12. No Clear Binding Supreme Court Precedent

The two cases most cited in this area are Minor v. Happersett, 88 U.S. 162 (1874) and United States v. Wong Kim Ark, 169 U.S. 649 (1898).  Neither case actually decided what “natural born Citizen” means, but there was some verbiage (what we call “dicta,” meaning expressions not related to the actual ruling) which have created a lot of unsubstantiated claims.

Minor v. Happersett addressed whether a state law affording only men the right to vote violated the privileges and immunities clause of the 14th Amendment, not whether the woman litigant was a “natural born Citizen.” Is resolving the case to find that there was no violation, the Court made the following statement (emphasis added):

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 providesFN6 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,’FN7 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. 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. 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.

It is crystal clear, from the sentences I have underscored, that the Court in Minor v. Happersett did not even purport to resolve the issue as to whether children born in the United States “without reference to the citizenship of their parents” were “natural born Citizen[s].” The issue of “natural born Citizen[ship]” was not before the court, was not the issue in the case, and expressly was not resolved; yet this wording relating to “natural-born Citizens” often is used improperly to claim that birth in the United States is not enough to be a “natural born Citizen” unless both parents were citizens.

Not only does that ignore the subsequent sentences, it also over-reads the case.  Even if there were a holding that “all children born in a country of parents who were its citizens” were “natural born Citizen[s],” that would not exclude other situations giving rise to being a “natural born Citizen.”

It’s common to see people refer to Ex Parte Lockwood, 154 U.S. 116 (1894) as supposedly confirming that Minor v. Happersett is binding authority.  (There even was a conspiracy theory that Justia and Cornell’s Legal Information Institute conspired to hide Lockwood, which I somehow got dragged into.)  Lockwood, however,  did not involve the “natural born Citizen” clause, but rather, a claim by an attorney who was refused admission to the Bar and claimed a violation of the 14th Amendment’s privileges and immunity’s clause.  The Court in Lockwood quoted Minor v. Happersett but only as to citizenship, not for the purpose of ruling on the “natural born Citizen” clause:

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 citizons of the United States was no violation of the federal constitution.

In United States v. Wong Kim Ark, the issue was whether a child born in the United States to non-citizen parents from China was a citizen of the United States by virtue of the 14th Amendment.  The Court held the child was a citizen, but in reaching that result engaged in some discussion of the history of citizenship and “natural born Citizen[ship]” which has sparked many theories (and a vigorous dissent).  There are lengthy discussions of the concept of allegiance under British citizenship law, as well as French and European citizenship concepts.  From these discussions, many have drawn all sorts of conclusions in every direction.

This paragraph, however, has led to claims that persons born abroad cannot be “natural born Citizen[s]” because birth abroad is “naturalization”:

The fourteenth amendment of the constitution, in the declaration 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,’ contemplates two sources of citizenship, and two only,—birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law.  But citizenship by birth is established by the mere fact of birth under the circumstances defined in the constitution.  Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.  A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory, or by authority of congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.

It’s not clear that the Court was considering these topics in the context of the “natural born Citizen” clause, since that was not at issue in the case.  Since “natural born Citizen[ship]” was not the issue in the case, and the Court did not even purport to rule on the issue as to whether someone is a “natural born Citizen,” at most there were expressions of opinion (dicta) that would not be legal precedent.

CHARLES GORDON, WHO CAN BE PRESIDENT OF THE UNITED STATES: THE UNRESOLVED ENIGMA, 28 Maryland Law Review 1 (1968):

It is manifest that these statements of the majority and dissenters in Wong Kim Ark were dicta, pure and simple. The question before the Court concerned children born in the United States, and it was not asked to pass on the status of children born abroad. Several of the propositions expounded by the majority are, as I have suggested, debatable. In any event, the majority’s opinion did not discuss the presidential qualification clause of the Constitution and is not necessarily relevant to its interpretation, except possibly by inference.188

CHARLES GORDON, WHO CAN BE PRESIDENT OF THE UNITED STATES: THE UNRESOLVED ENIGMA, 28 Maryland Law Review 1 (1968):

In Wong Kim Ark, the Supreme Court found some comfort in its earlier decision in Minor v. Happersett. 189 The only question in the latter case was whether a state could validly restrict voting to male citizens of the United States. The answer, since expunged by the nineteenth amendment, 140 was that women could be denied the vote. In his generalized discussion, Chief Justice Waite observed that “new citizens may be born or they may be created by naturalization.”141 The court mentioned the presidential qualification clause and stated that it unquestionably included children born in this country of citizen parents, who “were natives, or natural-born citizens, as distinguished from aliens or foreigners.m42 While this language appears to equate natives and natural-born, the Court specified that it was not purporting to resolve any issues not before it.148

CHARLES GORDON, WHO CAN BE PRESIDENT OF THE UNITED STATES: THE UNRESOLVED ENIGMA, 28 Maryland Law Review 1 (1968):

Patently there is little aid in these judicial expressions.169 None of them directly addresses the presidential qualification clause of the Constitution. Their discussions generally concern the historical antecedents of citizenship by descent and the extent of that doctrine’s acceptance in the United States before and after the adoption of the fourteenth amendment.

There are other problems with trying to use Wong Kim Ark to show that both parents must be citizens and/or that the person must be born in the United States. My former student who helped with research compiled the following quotes from the case which totally undermine that argument:

1. “Children, born in England, of . . . aliens, were therefore natural-born subjects.” Id. at 655.
2. There is an “established rule that all persons born under British dominion are natural-born subjects.” Id. at 657 (citing the British case Udny v. Udny (1869) L. R. 1 H. L. Sc. 441.).
3. 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.’ Id. (citing Dicey, Conflict of Laws (1896) (emphasis in original)).
4. “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, while subject to the crown of Great Britain, were natural-born British subjects.” Id. at 659 (citing Inglis v. Sailors’ Snug Harbor, 28 U.S. (3 Pet.) 99, 120 (1830)).
5. “[C]hildren born in [Maryland] of an alien who was still living, and who had not been naturalized, were ‘native-born citizens of the United States.” Id. at 661-62 (citing McCreery v. Somerville, 22 U.S. (9 Wheat.) 354, 356 (1824)).
6. “[I]t [is unquestionable that . . . a child born in England of alien parents was a natural-born subject.” Id. at 662 (citing Levy v. McCartee, 31 U.S. (6 Pet.) 102, 112 (1832)).
7. “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 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.” Id. (quoting U.S. v. Rhodes, 27 F.Cas. 785 (C.C.Ky. 1866) (Swayne, J.)).
8. “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.” Id. at 665 (quoting Chancellor Kent in Kent’s Commentaries, Vol. 2 (6th ed.)).
9. “[A]ny 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.” Id. at 667 (citing Dicey, Conflict of Laws, at 741).

One of the problems is that the few times “natural born” is used in Supreme Court cases (though never the basis for a ruling), the Court sometimes uses “native born” and “natural born” without distinction. For example, in Baumgartner v. United States, 322 U.S. 665 (1944), a case not involving the “natural born Citizen” clause, the Court said “[u]nder our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the presidency.” There is no further explanation given, and the case the Court cited, Luria v. United States, 231 U.S. 9 (1913) also did not involve the “natural born Citizen” clause.

This is the problem with dicta; where any court does not need to decide an issue as a basis for its ruling, there often is no briefing on the subject and a court’s opinion on an issue is not fully developed because it doesn’t need to be.

I should also note that in addressing this issue, we often see citations to state court rulings tracing the history of “natural born” in British and common law. One such case, Lynch v. Clarke (1845) was a New York Chancery Court that did not involve the “natural born Citizen” clause, but rather, how alleged citizenship affected inheritance rights. In Wong Kim Ark the Supreme Court noted that the Clarke case, while is contained a detailed discussion of the common law, was resolved only on the issue of citizenship:

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 50 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. Clarke (1844) 1 Sandf. Ch. 583.

The best that can be said of Supreme Court precedent is that there is none, and the dicta cuts both ways on the issue of the “natural born Citizen” eligibility requirement.

13. The Weight of Authority Supports Rubio, Jindal and Cruz

As set forth above, great uncertainty exists as to what the “natural born Citizen” clause meant in the minds of the Framers, as it was used in the former British colonies, or as a term in relation to the British notion of “natural born Subject.”

There was general, but not uniform, consensus among scholars in the pre-Obama era and with regard to John McCain’s eligibility that the text imposed a requirement only that the citizenship be gained by a matter of birth, even if outside the United States, and even if only one parent were a citizen.

Although I have not relied upon the comprehensive Congressional Research Service Report (2011) for analysis, I do agree with this assessment that is widely quoted in the press:

The weight of legal and historical authority indicates that the term “natural born” citizen would mean a person who is entitled to U.S. citizenship “by birth” or “at birth,” either by being born “in” the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents; or by being born in other situations meeting legal requirements for U.S. citizenship “at birth.” Such term, however, would not include a person who was not a U.S. citizen by birth or at birth, and who was thus born an “alien” required to go through the legal process of “naturalization” to become a U.S. citizen.

Another good source summarizing the historical scholarship is William T. Han, BEYOND PRESIDENTIAL ELIGIBILITY: THE NATURAL BORN CITIZEN CLAUSE AS A SOURCE OF BIRTHRIGHT CITIZENSHIP, 58 Drake L. Rev. 457 (2010).

Here are some more sources laying out the scholarly landscape and scholarly disagreements:

CHARLES GORDON, WHO CAN BE PRESIDENT OF THE UNITED STATES: THE UNRESOLVED ENIGMA, 28 Maryland Law Review 1 (1968):

In viewing this development, the leading British authorities agree that under the early common law, status as a natural-born subject probably was acquired only by those born within the realm, but that the statutes described above enabled natural~born subjects to transmit equivalent status at birth to the . children born to them outside of the kingdom. These are the views expressed in Coke on Littleton46 Blackstone47 Cockburn,48 and Dicey.49 The latter is most explicit in stating that a natural-born subject “means a British subject who became a British subject at the time of his birth” and that this designation includes a person born abroad whose father or _paternal grandfather was born in British dominions. 50 …

If the constitutional reference to natural-born citizens were assessed only in the light of the previous British usage, it would present  little difficulty. “Natural-born citizen” doubtless was regarded as equivalent to “natural-born subject,” adjusted for the transition from monarchy to republic.51 The Framers certainly were aware of the long-settled British practice, reaffirmed in recent legislation in England, 52 which unquestionably “applied to the colonies before the War of Independence, “53 to grant full status of natural-born subjects to the children born overseas to British subjects.54 There was no warrant for supposing that the Framers wished to deal less generously with their own children.55 Therefore, in the absence of other factors, it would have been relatively easy to find such children “natural-born” within the contemplation of the Constitution. 56

CHARLES GORDON, WHO CAN BE PRESIDENT OF THE UNITED STATES: THE UNRESOLVED ENIGMA, 28 Maryland Law Review 1 (1968):

My study of this 180 year enigma leads me to the following conclusions.

1. The reference to “natural-born” in the presidential qualification clause must be considered in the light of the English usage, well  known to the Framers of the Constitution. The English common law, particularly as it had been declared or modified by statute, accorded full status as natural-born subjects to persons born abroad to British subjects.

2. Although the evidence of intent is slender, it seems likely that the natural-born qualification was intended only to exclude those· who were not born American citizens, but acquired citizenship by naturalization. The Framers were well aware of the need to assure full citizenship rights to the children born to American citizens in foreign countries. Their English forebears had made certain that the rights of such children were protected, and it is hardly likely that the Framers intended to deal less generously with their own children. The evidence, although not overwhelming, unquestionably points in the direction of such generosity.

3. This gloss of prior history and usage is not dulled, I believe, by the Naturalization Act of 1790 or by the fourteenth amendment.  The 1790 act, enacted soon after the Constitutional Convention, recognized such persons as natural-born citizens. The fourteenth amendment, adopted primarily to confirm the full citizenship denied to Negroes by the Dred Scott decision, did not refer to “natural-born” citizens, did not purport to limit or define the presidential qualification clause of the Constitution, and did not, in my estimation, bar a construction of that clause to include children born abroad to American parents.

4. Nor is such a construction foreclosed by questionable dicta in United States v. Wong Kim Ark and other Supreme Court decisions.  These dicta are not addressed to the presidential qualification clause and cannot control its construction.

Having endorsed these conclusions, I must concede that the picture is clouded by elements of doubt. These doubts will unquestionably persist until they are eliminated by a constitutional amendment, a definitive judicial decision, or the election and accession of a President who was “natural-born” outside the United States.241 ….

Alexander Porter Morse, Natural Born Citizen of the United States – Eligibility for the Office of President, 66 Albany L.J. 99 (1904):

A natural-born citizen has been defined as one whose citizenship is established by the jurisdiction which the United States already has over the parents of the child, not what is thereafter acquired by choice of residence in this country.

Our conclusion is that the child of citizens of the United States, wherever born, is “a natural-born citizen of the United States,” within the constitutional requirement; and, as· such, if possessed of the other qualifications, would be eligible for the office
of president of the United States.

Alexander Porter Morse, Natural Born Citizen of the United States – Eligibility for the Office of President, 66 Albany L.J. 99 (1904):

The question is often asked: Are children of citizens of the United States born at sea or in foreign territory, other than the offspring of American ambassadors or ministers plenipotentiary, natural-born citizens of the United States, within the purview  of the constitutional provision? After some consideration of the history of the times, of the relation of the provision to the subject-matter and of the acts of congress relating to citizenship, it seems clear to the undersigned that such persons are natural-born, that is, citizens by origin; and that, if otherwise qualified, they are eligible to the office of president….

In respect to the citizenship of children of American parentage, wherever born, the principle of ius sanguinis seems to be the American principle; that is to say, the law of hereditary, rather than territorial allegiance, is recognized, which is modern, as distinguished from the ancient, and at one time, common-law principle of jus soli. If the provision was as sometimes inaccurately cited, namely, that the president must be “a native-born citizen,” there might be no question as to its meaning. But the framers generally used precise language; and the etymology actually employed makes the meaning definite. Its correspondent in English law, “natural-born  subject,” appears in constitutional history and parliamentary enactments; and there it includes all children born out of the king’s allegiance whose fathers were natural-born subjects; and the children of such children (i. e., children whose grandfathers by the father’s side were natural-born subjects), though their mothers were aliens, are now deemed to be natural-born subjects themselves to all intents and purposes, unless their said ancestors were attainted or banished beyond sea for high treason, or were at the birth of such children in the service of a prince at enmity with Great Britain.

Warren Freedman, Presidential Timber: Foreign Born Citizens of American Parents, 35 Cornell L.Q. 357, 357 (1950):

It is submitted that a foreign born child of American parents can rightly aspire to the position of President and hold such high office in accord with the eligibility requirements laid down both under common law principles and the entire body of statutory law.

Warren Freedman, Presidential Timber: Foreign Born Citizens of American Parents, 35 Cornell L.Q. 357, 357 (1950):

In support of the Morse view are Professor Frederick Van Dyne, author of numerous books on citizenship and former Solicitor of the State Department,62 and Professor Luella C. Gettys, distinguished Carnegie Fellow in International  Law and author of The Law of Citizenship in the United States.63 The only apparent authority to the contrary is the prolific writer on all phases of government, Professor Westel W. Willoughby,64 who finds a qualified citizenship” because the Act of 1907 65 requires a determination by the foreign born child of American parents to come to the United States before the age of eighteen so as to indicate an intention to become a resident and remain a citizen; therefore, one whose citizenship is so “qualified” cannot be deemed a “natural born citizen”. Professor Willoughby cites the case of Weedin v. Chin Bow,66 wherein the citizen parents never did reside in the United States, and therefore could not pass on to their offspring any “citizenship”, much less that of being a “natural
born citizen” under U. S. CoNsT. Art. II, § 1, cl. 4. The entire argument stems from too recent an analysis of nationality statutes without reference to the earlier statutory and constitutional law of the days of the adoption of the Constitution, discussed above.

Prof. Gabriel J. Chin, Why Senator John McCain Cannot be President: Eleven Months and a Hundred Yards Short of Citizenship, 107 Mich. L. Rev. First Impressions 1 (2008):

The Supreme Court has held that there are only two ways to become a citizen: 1) birth in the United States, thus becoming a citizen under the citizenship clause of the Fourteenth Amendment or 2) satisfaction of every requirement of a statute enacted by Congress granting citizenship to a class of people. The second category includes naturalization of individual adults or children already born; collective naturalization of groups, such as natives of territory acquired by the United States; and naturalization at birth of certain classes of children born abroad to citizens. Those born in the United States are uncontroversially natural born citizens. There is also a strong argument that those obtaining citizenship at birth by statute are natural born citizens, well articulated by Charles Gordon in Who Can be President of the United States: The Unresolved Enigma. However, natural born citizenship can be acquired only at the moment of birth….

Peter J. Spiro, McCain’s Citizenship and Constitutional Method 107 Mich. L. Rev. First Impressions 42 (2008)(also here):

On the question of restricting presidential eligibility only to those born within the territorial United States, most observers now seem to consider it settled that a presidential candidate can qualify as a natural born citizen even if born outside the United States proper….

Christina S. Lohman, J.D., Presidential Eligibility: the Meaning of the Natural‐Born Citizen Clause, 36 Gonz. L. Rev. 349 (2000)

This Article further asserts that the constitutional Framers had an even broader conception of “natural born,” however, and deemed all foreign‐born children of American citizen parents eligible for the Office of the Presidency. This judgment stems from examination of a statute passed by the First Congress that arguably serves to interpret “natural‐born.”

14. CONCLUSION – It’s The Text

By now your heads must be spinning.  It’s understandable. This is a very confusing area as to which scholars acting in good faith disagree, although there is a clear weight of authority.  But those disagreements, in a sense, are the solution.

A reasonable reading of the plain text of the Constitution supports Rubio, Jindal and Cruz being “natural born Citizen[s]” because they were citizens by birth.  There is no clear, demonstrable intent otherwise from the Framers or clear, commonly understood use of the term to the contrary at the time of drafting the Constitution.  The British term “natural born Subject” as well as concepts of “natural law” were not clearly relied upon by the Framers, and are in themselves not clearly contradictory to this plain reading of the text.

The burden should be on those challenging otherwise eligible candidates to demonstrate through clear and convincing historical evidence and legal argument why such persons should be disqualified.  That has not happened so far, and if two hundred years of scholarship is any indication, it never will happen. 

The ultimate arbiter on the issue likely is to be voters, not Supreme Court Justices.

It is for these reasons that I believe Marco Rubio, Bobby Jindal and Ted Cruz are eligible to be President.

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Comments

There are actually two species of birthers. There is one group that believes that Obama was really born in Kenya and that his Hawaii birth certificate was forged as part of some conspiracy. They have no facts to support this contention, just speculation.

Even if that were true, his mother was a US citizen so he would get natural born citizenship through her.

The other group of birthers cling to a narrow definition of “natural born citizen” that includes only people born in the United States whose parents were both US citizens.

To the best of my knowledge there is no statute or case authority that defines natural born citizen so narrowly. They rely instead on same vague dicta in a 19th Century case to support their contention.

    JoAnne in reply to myiq2xu. | September 3, 2013 at 10:19 am

    Three kinds. Those of us who think Frank Marshall Davis is really his father!

      Bruce Hayden in reply to JoAnne. | September 3, 2013 at 10:51 am

      The thing is, is that his paternity is really irrelevant here – he would have citizenship through his mother regardless of where he was born, and it seems more likely than not, that he was born in Hawaii, but even if not, would presumably be in the same situation as George Romney, John McCain III, and Ted Cruz if he hadn’t been born here.

      That said, the Obama people seem to be hiding something. The birth certificate that was released by his people is fairly obviously fake. At the time he was born, birth certificates did not have colored backgrounds – rather they were black on white, white on black, etc. And, PDFs made from scanning images don’t have separate layers, and, esp. layers containing the background that wasn’t used for maybe a decade or so after Obama was born. Layers are an artifact or feature of computer construction of images.

      I do wonder what the Obama people are hiding (and, it may well be his paternity – he doesn’t look at all like most of the rest of the Obamas). But, that is of only peripheral relevance to this discussion, since he would have had American citizenship from birth,regardless of who his father was, or where he was actually born.

    Juba Doobai! in reply to myiq2xu. | September 3, 2013 at 10:22 am

    I like the second definition because it would prevent from becoming president some anchor or tourism birth certificate baby who is likely to be reared in Communistor socialist countries with no good idea of what it means to be American. Is that important? Yes. Hispanics, for example, I theorize, are likely to vote Democrat because they have been raised in socialist countries and are accustomed to the idea of government as daddy. The exception is Cuba.

    So, a natural born citizen should be one whose parents are American citizens at time of birth. The Democrats would argue an equal rights violation in there, and I would counter American citizenship is not a right but a privilege.

      Juba Doobai! in reply to Juba Doobai!. | September 3, 2013 at 10:55 am

      That should be “natural born citizenship is not a right but a privilege”.

      I think the great barriers of nomination and election serve adequately well to prevent eligible persons “reared in Communist or socialist countries with no good idea of what it means to be American” from becoming President. It does take a bit more than merely satisfying the three conditions listed in the Constitution, you know.

      DrKenNoisewater in reply to Juba Doobai!. | September 4, 2013 at 7:13 pm

      Lol what? Democrats raised in socialism except Cuba? You do know the only potential nominee who fits that mold is Ted Cruz whose dad fought for Fidel Castro

    Doug Wright in reply to myiq2xu. | September 3, 2013 at 1:47 pm

    Regarding Obama, would the age of Obama’s mother make a difference? Some sources say that Anne Dunham was not yet 18 when Obama born, so given the laws at that time, Dunham was not considered to be an adult. Would that make a difference as to the question regarding Obama’s citizenship at the time of his birth?

      It would make a difference ONLY IF Obama was born outside of the United States. If Obama was born inside the U.S., which I think he was, then he is covered by the 14th Amendment which is just the same thing as natural born citizenship in that instance. Being born outside the U.S. subjects you to Congress’s statutory enactments where the age of the mother is relevant.

      Squeeky Fromm
      Girl Reporter

      Dave B. in reply to Doug Wright. | September 3, 2013 at 5:06 pm

      This is the relevant portion of the law that engenders that question, former Sec. 301(a)(7) of the Immigration and Nationality Act:
      “(The following shall be nationals and citizens of the United States at birth)
      a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years”

      That is the law that would’ve applied if President Obama had been born outside the US, its outlying possessions, or the Panama Canal Zone. It had no application at all to persons born, like President Obama, in the United States. But if it had applied, President Obama’s mother, who was a few months short of her nineteenth birthday, would not have been able to satisfy the condition of five years of physical presence in the US or its outlying possessions after attaining the age of fourteen years; and he would not have acquired US citizenship at birth under that statute.
      Coincidentally, that’s the law that made Senator Cruz a US citizen; his mother had satisfied that requirement years before he was born. And in another coincidence, it’s the same law that made President Obama’s sister a US citizen when she was born in Indonesia a few months before Senator Cruz’s birth in Canada.
      So to sum up and directly address your question, Ann Dunham Obama WAS considered an adult at the time of her son’s birth on August 4, 1961; that fact is irrelevant to her son’s citizenship because he was born in the United States; but if he had been born outside the US, its outlying possessions, what would have mattered is not whether or not his mother was an adult, but whether or not she had satisfied the statutory requirement of prior physical presence in the US or its outlying possessions.

    Aarradin in reply to myiq2xu. | September 4, 2013 at 4:42 am

    “Even if that were true, his mother was a US citizen so he would get natural born citizenship through her.”

    Actually, not true. You’re right that there’s no evidence he was born outside the US, but:

    The federal law in effect at the time of Obama’s birth specifies that for people born between December 23, 1952, and November 13, 1986 (BHO was born in 1961) when one parent is a U.S. citizen and the other a foreign national, in cases where a child is NOT born on US soil, the U.S. citizen parent must have resided in the U.S. for a total of 10 years prior to the birth of the child, with five of the years after the age of 14. Ann Dunham failed to meet these criteria and was therefore unable to confer US citizenship to BHO,Jr – assuming he was not born on US soil. Which is why it matters WHERE Obama was born.

    “To the best of my knowledge there is no statute or case authority that defines natural born citizen so narrowly. They rely instead on same vague dicta in a 19th Century case to support their contention.”

    Yup. You need only be born a citizen, not born on US soil.

Try this one. First, there is an international treaty governing diplomats which provides that children born in another country do not automatically acquire citizenship of that country. You can imagine the complications dual citizenship would cause, especially for those with children born in multiple countries. Now, if one of those children moves to the US and acquires citizenship, are they then “natural born citizens?” I could not locate a reference, but I have heard that there is a minor British comedian, born here whose parents were part of the British UN delegation, who jokes about that.

I have a very simple definition of Natural Born Citizen. A natural born citizen is a person who was born a United States Citizen. (Or to get technical the right to assert citizenship by reason of birth by age 18).

That is citizenship was not acquired through naturalization.

    I come to the same conclusion. Since these three are all citizens and since they have never been naturalized, the only way they could be citizens is if they had been born that way.

    Ballantine in reply to sequester. | September 3, 2013 at 10:56 am

    The confusing thing is who is actually naturalized. It is beyond dispute that Cruz is a citizen at birth because he is covered under a statute. Congress only has the power of naturalization so how is such statute pursuant to anything other than the power of naturalization. Here is Scalia talking about the same statutory provision:

    “Petitioner, having been born outside the territory of the United States, is an alien as far as the Constitution is concerned, and “can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress. Id., at 702—703; see also Rogers v. Bellei, 401 U.S. 815, 827 (1971). Here it is the “authority of Congress” that is appealed to–its power under Art. I, §8, cl. 4, to “establish an uniform Rule of Naturalization.” If there is no congressional enactment granting petitioner citizenship, she remains an alien.” Miller v. Allbright 523 U.S. 420 (1998)(Scalia, J., concurring)

    I know it is very common to limit the term naturalization to those who go through the naturalization process even though statutory citizens at birth are made citizens through the power of naturalization. But it is confusing.

      That case involved the illegitimate child of a citizen-father. Briefly, the facts weren’t evident at the time of birth and apparently for many years after. So it required a court decision to make the case that the child (now grown) was an American citizen at birth. Naturalization was the mechanism that conferred citizenship at birth.

      Yeah, it’s confusing. And it means that a naturalized citizen COULD be a citizen at birth under some very unusual circumstances.

Argumentum verbosium by a lawyer of the John Roberts Wing of the so-called conservative movement. Always sad to see the Constitution used as toilet paper.

    Hi Skookum!

    No, this is just where a person ends up at when they don’t try to shoehorn Emer de Vattel into American citizenship law. If you don’t start off thinking that you already know what “natural born citizen” means, and just read the history, then that becomes clear.

    Squeeky Fromm
    Girl Reporter

As far as I am concerned any person, by the nature of their birth, that is to say the specifics of the moment – where, when, who the parent(s) are and their legal nationality at that time – is a natural born citizen IF those particulars, under US law at that very moment grants that person citizenship AND that citizenship not disparaged or denied.

To the extent that US law tolerates dual eligibles then dual eligibles must be tolerated. The only key their is that you must never have ceased to be a US citizen from the moment of birth.

The other way to look at this understanding is to consider the Constitutions delegation of the naturalization process to Congress. Naturalization is simply another word for the law doing what birth did not. Ergo, if your birth status does not mandate naturalization in order to obtain citizenship then you simply must be natural born.

Holy crap – awesome piece of work, this. Ought to be the benchmark for any questions of office eligibility.

    theduchessofkitty in reply to Henry Hawkins. | September 3, 2013 at 2:14 pm

    I agree. I read it from start to finish, and I’m not an attorney. I think this link should be spread far and wide.

    Bravo, Professor!

In the amicus brief by Leo Donofrio, “The common law rule of jus soli subjection is a complex spiritual concept, which does not simply relate to birth on British soil. Despite popular belief, the common law meaning of “natural-born” is not synonymous with “native-born”. The true nomenclature of “natural-born subject” is rooted in “natural subjection” to the spiritual body of Christ, and therefore our Constitution forbids any construction of the “natural-born citizen” clause that alleges the term to be synonymous with “natural-born subject”.”

I would counter that argument and state that our constitution doesn’t forbid “a construction of “natural born citizen” from being *analogous* (not synonymous) to “natural born subject”. After all, though royalty and aristocratic noble titles were forbidden, the office of President was seen as requiring a complimentary noblesse oblige.

One could argue from this point of view that the “Natural subjection to the spiritual body of Christ” in which this term is rooted, would mean the President must be one who believes in the work or salvation of Christ. or has Judeo-Christian moral qualifications.

As at the time of the drafting, the “Separation of Church and State” was only in the direction of the State dictating to the Church, and not in the matter of the Church informing politics, it is quite reasonable to assume that a “Natural Born” citizen, is one born of upstanding moral and/or religious character.

    Ballantine in reply to Paul. | September 3, 2013 at 11:11 am

    Donofrio cites a provision from Lord Coke that was harshly rejected by the time of Blackstone in the harshest of terms. Littleton said Coke’s statements about infidels was a “common error founded on a groundless opinion” of Justice Brooke. Lord Mansfield called such notion “absurd” and when such point was raised by counsel he said not to quote such passage “for the honour of Lord Coke.” One court said it was painful to comment on this doctrine of Lord Coke and that such doctrine was disgraceful “to the memory of a great man.” Suffice it to say that such was not the common law in 1787. There is no doubt in 1787 that anyone born in the dominions of the crown was a natural born subject except for children of ambassadors or an invading enemy. There is no English authority of any significance to the contrary.

I’m not a lawyer or a legal scholar, but I would think that examining the circumstances at the time the Constitution was written can provide a clear definition of “natural born citizen”.

At the time of independence, there would have been a presumption that anyone who was a resident of the United States that considered themself a citizen was, in fact, a citizen. Prior to that time, everyone had British citizenship by birth. With the coming of independence, there would have been two categories of people that were now citizens of the U.S.:

1) Those who had been born in the U.S., and did not remain loyal to the Crown.

2) Those who had not been born in the U.S., had emigrated to the U.S. and subsequently considered themselves to be citizens by virtue of their permanent residence in the U.S.

These two categories cover the “or a citizen” clause. But provision was still needed for new citizens; those who were not born until after independence. This is where the “natural born citizen” comes into play; all those who are born in the U.S. from the writing of the Constitution forward in time are “natural born citizens”, as are those who are born outside the physical confines of the U.S. and whose parent(s) are U.S. citizens.

Just a suggestion…………….

Good paper. Cleary the courts should not interfere in the political process if it is unsure what the term was understood to mean. Originalism is not about taking a guess when one is unsure.

My own analysis is rather more radical and pithy.

1. The Framers were not idiots.

2. There is nothing magical about being born in any particular place, and the Framers would not have held any such view.

3. Many of the Framers were not born in the United States (a tautology).

Ergo…

    Indeed, the framers were not idiots. And you’re right that many of them weren’t born here. Maybe that’s why they allowed an exception for persons who weren’t born here to become President, but only at the time the Constitution was adopted.

    There’s nothing magical about the requirements to become President, they are clearly enumerated.

      Ragspierre in reply to fmc. | September 3, 2013 at 11:37 am

      SO…you are a subscriber to the “magic of birth-place” theory…except for the Founders???

      Of course, it is NOT clear in the Constitution what the Framers meant by natural born citizen. That is, unless you can find a clause all the rest of us are missing.

        rantbot in reply to Ragspierre. | September 3, 2013 at 10:09 pm

        Of course the earliest presidents had to be exceptional cases. Otherwise, the US wouldn’t have had any qualified candidates until 35 years had lapsed since the Treaty of Paris. No older person could be a natural born citizen (whatever that might mean) since there wasn’t a United States when they were born.

        Why do people have trouble with this?

    rantbot in reply to Ragspierre. | September 3, 2013 at 10:13 pm

    Your (2) is an obvious weak point. If you repudiate the concept of nationalism, you might be able to claim that (2) is obviously true, but you can’t convincingly assume that 18th century intellectuals would agree.

I agree that Rubio, Jindal and Cruz would be considered natural born citizens as they were granted citizenship, at birth, under existing laws and as none have renounced their citizenship. There should be no argument here.

The case of Barack Obama is another situation entirely. In his case, it is alleged that he was born outside the borders of the United States. It s claimed that his father was a British Citizen at the time. Under the laws of the time, he would not have been automatically granted citizenship, by virtue of his mother’s citizenship, due to age and residency restrictions, if he was born outside the boundaries of the U.S. and not to parents who both enjoyed U.S. citizenship. This was always the main concern and never had anything to do with the definition of “natural born citizen”. The natural born citizen debate was something dreamed up by attorneys and served no purpose other than to muddy the waters. In addition to the basic question revolving around Barack Obama’s initial citizenship, is whether his U.S. citizenship was renounced, by his mother, and Indonesian citizenship granted him while he resided in Indonesia. An attendant point is whether he ever applied for a re-institution of his U.S. citizenship, upon becoming an adult, and whether such was ever granted. None of these questions was ever answered nor proof provided either way.

Now one thing that I do disagree with is the statement “Remember, these are merely eligibility requirements, not requirements that a person be elected.” This patently absurd. If one is not eligible to hold a position, then they may not hold said position even if everyone in the country decides they can.

    Midwest Rhino in reply to Mac45. | September 3, 2013 at 11:39 am

    yeah … it seems a lot of effort was made to muddy the “birther” debate, from both sides. Obama supposedly traveled to Pakistan under an Indonesian passport, since Americans were not allowed at the time. Dual citizenship was not allowed for students in Indonesia, and he would have had to fill out forms to renounce US citizenship, to legally attend school. But legality is not Obama’s strong suit.

    Even if born in Kenya as his one book cover claimed, he was still qualified, unless he had renounced the U.S. citizenship. But his allegiance to this country is in question still, as clarified in his “Dreams from My (Kenyan) Father”, and loyalty to his Farrakhan Lite Chicago church.

      Actually, if the laws of the time are being interpreted correctly, citizenship would not have been automatically conveyed to Barack Obama simply based upon the citizenship of his mother, IF he was born outside the boundaries of the United States. At the time, residence, by the citizen parent, within the territories of the U.S. was required for a certain length of time after that parent’s 18th birthday and before the birth of a child outside the territory for automatic citizenship to apply. That time period was not met in the case of Ann Dunham.

      Now if he was born in Hawaii, as claimed, simply allowing access to the original long form birth certificate would easily prove that and lay all speculation to rest.

        DrKenNoisewater in reply to Mac45. | September 3, 2013 at 3:28 pm

        Um no. You don’t get a right to have unfettered access to an original. You do know if you let the original out of the vault how exactly are you going to see it? You expect him to mail it to each and every american and then hope it wouldn’t get lost? No one ever sees their original birth certificate. All you ever get is a copy. Obama has done above and beyond what was required of him to prove Hawaiian birth. He showed a short form which is the official BC format in Hawaii back in 2008. He then showed the long form people were whining for. This is more than any president before him has done while in office to prove their birth circumstances.

        He is under no obligation to coddle people who aren’t reasonable. The issuing authority has already verified the document.

      DrKenNoisewater in reply to Midwest Rhino. | September 3, 2013 at 3:25 pm

      Speaking of muddying the waters Rhino. Several things you’ve stated are entirely incorrect. First off there is no requirement for one to be an Indonesian citizen to attend school in Indonesia. In fact to this day many children from other countries attend school there. There is no proof he ever became an indonesian citizen since Indonesia doesn’t allow dual citizenship. Also children over the age of 5 according to Indonesia law 62 in place at the time could not be adopted. Obama was 6 when he was in Indonesia so adoption is out the window as well as citizenship.

      Further there was no Pakistan travel ban for American citizens. In fact travel there was encouraged. Any american could travel and get a 30 day visa to visit during the time period. There was a travel advisory in place. It’s the same as if you traveled to mexico there is a travel advisory.

      His “book cover” never claimed he was born in Kenya. Why do you guys continue to distort your memes beyond recognition? An uncirculated blurb for a book that was never published said that. The blurb resided on a website and went unnoticed until around 2012. The author of the blurb said she made a mistake and had no input from Obama.

      Now back to what Mac45 said. Parents cannot renounce citizenship on behalf of a child. American law does not allow for this. He would have had to do it on his own. No counsel is going to take the word of a 6 year old in that they understand the implications of renouncing citizenship.

        Midwest Rhino in reply to DrKenNoisewater. | September 3, 2013 at 4:10 pm

        Well, as I recall, the book jacket was for a real book, published or not. And the “oh I made a mistake” was only when questioned much later, probably 2008. I’m only saying it fits with Obama’s pattern of lying, not that it means he was born in Kenya.

        The other info is what I recall from years ago, and found a link which seemed rather specific. No evidence that his citizenship was renounced by him or his parents has come forth, so this is just another of many fishy elements of Obama’s past.

        The Indonesian citizenship law was designed to prevent apatride (stateless) or bipatride (dual) citizenship. Indonesian regulations recognized neither apatride nor bipatride (stateless or dual) citizenship. Since Indonesia did not allow dual citizenship; neither did the United States (since the United States only permitted dual citizenship when ‘both’ countries agree); and since Soetoro was a “natural” citizen of Indonesia, the United States would not step in or interfere with the laws of Indonesia. Hague Convention of 1930.
        http://emptysuit.wordpress.com/2010/08/09/obama-indonesian-citizenship/

        That includes all the rules for children obtaining citizenship too.

          DrKenNoisewater in reply to Midwest Rhino. | September 3, 2013 at 4:40 pm

          Wrong again. It was a blurb not for the inside of a book but for promotional purposes. The blurb was never circulated.

          When birthers came across the blurb the writer was found by ABCnews and was told it was a mistake by a junior copy editor who had no interactions with Obama or never got the information from Obama. Since it wasn’t circulated the whole error was forgotten about.

          Again you’re making assumptions. Since there was no input from Obama how would this fit with “Obama’s pattern of lying”? Tell me what would be the point of saying he was born in Kenya for an uncirculated blurb while telling the rest of the world he was born in Hawaii? In 1990 the NYTimes and LA Times said he was born in Hawaii

          http://www.nytimes.com/1990/02/06/us/first-black-elected-to-head-harvard-s-law-review.html

          http://latimesblogs.latimes.com/thedailymirror/2008/09/barack-obama-ha.html

          You’re jumping to conclusions without any data points.

          Wow you look to a random blog for your information? I looked to actual citizenship law. The blogger is wrong in saying the United States doesn’t allow dual citizenship. This is a false statement. Spiro Agnew had both greek and American citizenship.

          Inherited citizenship through parents isn’t something a child has a decision on. He was born on US soil and was a US Citizen by birth. He inherited a chance for foreign citizenship through his father.
          http://travel.state.gov/travel/cis_pa_tw/cis/cis_1753.html

          The US Recognizes dual citizenship.

          “…the United States only permitted dual citizenship when ‘both’ countries agree”
          What exactly is that supposed to mean?

          Midwest Rhino in reply to Midwest Rhino. | September 3, 2013 at 8:40 pm

          Why do you make a jacket cover for “a blurb”? and where is your source?

          When both countries agree … I’d guess it means when the other country also accepts dual citizenship. So it does not mean no US citizen has dual citizenship … just not with countries that don’t allow dual citizenship.

          But rules are broken all the time … so I’m not all that interested … except for the original point that there was more to the “birther” argument than the unlikely claim that Obama was born in Kenya.

          Midwest Rhino in reply to Midwest Rhino. | September 3, 2013 at 9:16 pm

          “Acton, who spoke to Breitbart News by telephone, confirmed precise details of the booklet and said that it cost the agency tens of thousands of dollars to produce.

          He indicated that while “almost nobody” wrote his or her own biography, the non-athletes in the booklet, whom “the agents deal[t] with on a daily basis,” were “probably” approached to approve the text as presented.”
          http://www.breitbart.com/Big-Government/2012/05/17/The-Vetting-Barack-Obama-Literary-Agent-1991-Born-in-Kenya-Raised-Indonesia-Hawaii

          He may have wanted to sell a book, and the timing of when he was selling a particular lie is hard to judge.

          “The biography does, however, fit a pattern in which Obama–or the people representing and supporting him–manipulate his public persona.

          David Maraniss’s forthcoming biography of Obama has reportedly confirmed, for example, that a girlfriend Obama described in Dreams from My Father was, in fact, an amalgam of several separate individuals.

          In addition, Obama and his handlers have a history of redefining his identity when expedient. In March 2008, for example, he famously declared: “I can no more disown [Jeremiah Wright] than I can disown the black community. I can no more disown him than I can my white grandmother.”

          I still just don’t get this business about “the United States only permitted dual citizenship when ‘both’ countries agree.”
          Whether or not a person is a citizen of the United States depends upon nothing but the laws of the United States. If a US citizen happens to also be a citizen of another country, that’s entirely dependent upon the laws of that country. Whether or not that country recognizes dual citizenship doesn’t affect the persons US citizenship one bit. And as long as the person retains that other country’s citizenship, the United States will acknowledge that citizenship whether that country accepts the validity of dual citizenship or not.

          DrKenNoisewater in reply to Midwest Rhino. | September 4, 2013 at 6:30 pm

          It wasn’t a “jacket cover”. Why do you continue to mischaracterize what it was. It’s just a blurb a promotional blurb that never made it near a book. Where is your source that it was a jacket cover?

          So in other words there is nothing to your the US doesn’t allow dual citizenship claim.

          DrKenNoisewater in reply to Midwest Rhino. | September 4, 2013 at 6:35 pm

          How about we actually take this from the horse’s mouth so to speak:
          http://abcnews.go.com/Politics/OTUS/born-kenya-obamas-literary-agent-misidentified-birthplace-1991/story?id=16372566

          “According to a promotional booklet produced by the agency, Acton & Dystel, to showcase its roster of writers, Obama was “born in Kenya and raised in Indonesia and Hawaii.”

          Miriam Goderich edited the text of the bio; she is now a partner at the Dystel & Goderich agency, which lists Obama as one of its current clients.

          “This was nothing more than a fact checking error by me–an agency assistant at the time,” Goderich wrote in an emailed statement to Yahoo News. “There was never any information given to us by Obama in any of his correspondence or other communications suggesting in any way that he was born in Kenya and not Hawaii. I hope you can communicate to your readers that this was a simple mistake and nothing more.”

          So even your link from breitbart doesn’t say it was a jacket cover.

          I love how you start with a quote from acton and then put another part in quotes to try to make it look like it came from acton. Your second part about it fitting a pattern around Obama is dishonest claptrap from an opinion piece on breitbart. Except thus far every so called dishonest claim you claimed came from Obama I’ve debunked. How can anyone take you seriously when you keep lying?

Can’t remember the wag…maybe IowaHawk…

who observed the clause leaves out anyone born by caesarian section…

Who did John Jay suggest should be required to be a natural-born citizen? -The commander in chief.

The commander in chief (not the President or Chief Executive) has a very unique role. He is the one who takes up arms against another nation. As such, if he had allegiance due to that foreign nation, he would be committing treason. Washington knew that. Washington had done that.

Prior to the 14th Amendment, the U.S. had no federal law regarding citizenship. When no universal law (a law consistent throughout all the states in the Union) exists, Blackstone tells us to look to the Law of Nations.

“In arbitrary states this law, wherever it contradicts or is not provided for by the municipal law of the country, is enforced by the royal power; but since in England no royal power can introduce a new law, or suspend the execution
of the old, therefore the law of nations (wherever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by
the common law, and is held to be a part of the law at the land.
http://books.google.com/books?id=4DVFAAAAYAAJ&dq=%22In%20arbitrary%20states%20this%20law%2C%20wherever%20it%20contradicts%20or%22&pg=RA1-PA48#v=onepage&q=%22In%20arbitrary%20states%20this%20law,%20wherever%20it%20contradicts%20or%22&f=false

Mr. Justice GRAY. .. * * International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose where there is no treaty, and no controlling executive or legislative act
or . judicial decision, resort must be had to the customs and usages of civilized nations…”
~THE PAQUETE HABANA (1900)

Again, no municipal law (no law universally applied throughout the Union), we are told to look to the law of nations.

The first usage of “natural-born citizen” I can find is in Quintillian’s Book VII (1774), the last paragraph of Chapter 1.

“Therefore, If possible, every word, and the very tone of voice,. should bespeak the natural born citizen of Rome, that the language may be purely Roman, and not fb, by a right different from birth and education.”

–It makes perfect sense for a new nation to rely on the Law of Nations for citizenship due to the lack of established treaties that would have the other nations recognize our citizenship laws. (Especially relevant when we haven’t even created any federal laws regarding citizenship.)

In the end, I take a conservative approach. I see no reason to extend the qualification beyond those born here of parents who were themselves citizens. —Are we really that lacking in qualified citizens that we need to look to such a small percentage of our citizens for a new President? And if the natural-born citizen qualification is too restrictive, amend the Constitution.

    Ballantine in reply to TheBK. | September 3, 2013 at 11:21 am

    Nonsense. First, we did have a law of citizenship and all legal authority said it was the common law, not any rule of International Law. Indeed, such argument was made and rejected in Wong Kim Ark. Here is what the Court concluded on the pre-1866 era:

    “it is beyond doubt that, before the enactment of the Civil Rights Act of 1866 or the adoption of the Constitutional 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.” United States v. Wong Kim Ark

    And citizenship is a matter of municipal law, not international law,

    “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.” United States v. Wong Kim Ark

    “As municipal law determines how citizenship may be acquired, it follows that persons may have a dual nationality.” Perkins v. Elg

    Dave B. in reply to TheBK. | September 3, 2013 at 5:35 pm

    Seeing “no reason to extend the qualification beyond those born here of parents who were themselves citizens” has a bit of a history attached to it, and it’s not a benevolent history.

William,

An excellent treatise on the topic. One minor nit. I think you ought to include the McCain Case. an example of Vattel 217. Both in common law and in US precedent, the children of those (generally fathers historically) who are “in the Service of the United States, serving abroad…” are citizens at birth. e.g. the offspring of diplomats, military, and missionaries.

§ 217. Children born in the armies of the state.

For the same reasons also, children born out of the country, in the armies of the state, or in the house of its minister at a foreign court, are reputed born in the country; for a citizen who is absent with his family, on the service of the state, but still dependent on it, and subject to its jurisdiction, cannot be considered as having quitted its territory.

    Ballantine in reply to The Drill SGT. | September 3, 2013 at 11:36 am

    Good point. The common law rule actually said one needed to be born in territory actually occupied by the King’s army. Of course, Lord Coke probably didn’t imagine overseas military bases in times of peace but it does seem analogous. I don’t think he would have though McCain owed allegiance to Panama.

      The Drill SGT in reply to Ballantine. | September 3, 2013 at 11:48 am

      Regardless of whether the Panama Canal Zone was US territory (I think it was), I think the original interpretation was that where the Army of the State put its tents and feet was for all intents, sovereign ground. At least till it moved on. Certainly in the middle of the Army, or at an Army Hospital in the PCZ, US law was supreme. Power of the bayonet, etc.

        DrKenNoisewater in reply to The Drill SGT. | September 3, 2013 at 3:31 pm

        The PCZ was considered an unincorporated US Territory for purposes of birth it was not considered US Soil. It took them until 2 years after McCain was born to fix this deficiency.

        Also we don’t consider US military bases on foreign soil to be US Soil

MaggotAtBroadAndWall | September 3, 2013 at 11:30 am

I can only imagine how many hours were devoted to this exercise. Thanks to you and your former student for the effort.

I agree with Prof. Jacobson’s findings. There was never any doubt in my mind that he would come to the same conclusion as every non-Birther attorney who has looked at the issue.

I do disagree with his characterization of Wong Kim Ark language as “dicta.” I have been involved in that argument before. The case was broken into seven sections. Legal conclusions NECESSARY to the holding that WKA was a citizen were made throughout the case.

Language such as this, from Section II and III:

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.

ain’t dicta. That is a judicial conclusion about the underlying law. Similarly, language such as this from Section V:

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 [omitted]. 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.”

Words such as “The foregoing considerations and authorities irresistibly lead us to these conclusions” ain’t dicta. The Court is flatly telling us that they are CONCLUSIONS.

This is why the 3 judge Appeals Court panel in the Indiana Ankeny case cited both of those remarks from WKA. I hardly think that such jurists would cite dicta.

But overall, that is a minor point.(pun?)The main thing is, Prof. Jacobson got the right answer!

Squeeky Fromm
Girl Reporter

    Ballantine in reply to SqueekyFromm. | September 3, 2013 at 1:59 pm

    No it is not dicta. The rationale or ratio decidendi of the case is not dicta. WKA was a citizen becuase the 14th Amendment was declaratory of the common law rule that “prevailed” under the original Constitution. The Court didn’t spend 20 plus pages discussing the common law rule under the original Constitution for fun. Since the 14th Amendment was declaratory, it had to define what such Amendment was declaratory of, i.e., the law under the original Constitution.

Citizenship is a legal status derived from jurisdiction. A law cannot be ambiguous or selective without also sponsoring corruption. In the case of natural born citizenship, it cannot be tied to the land, a single citizen parent, etc, or any other open or indefinite association. The rights, benefits, and responsibilities of citizenship cannot be automatically granted to a child of an illegal alien, including an alien soldier or immigrant; or to an alien diplomat; etc., without undermining the rule of law within a jurisdiction, the citizens, and other legal residents. Illegal and legal aliens, and their children, whether by alien mother and father, alien father and citizen mother, or some combination thereof, can only be granted citizenship by fiat and are naturalized in accordance to the laws of the jurisdiction.

On “anchor babies”

” Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen …”

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 that this great principle of the common law has ever been changed in the United States.

8. “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.”

Well why include “and subject to the jurisdiction thereof”, if ALL native births are so subject? Invading armies need only bring flotillas of pregnant women to drop their child and obtain voting rights 18 years hence. They could even return to their native land, as is common with middle class Mexicans that procure special US benefits for their “jackpot baby” by giving birth here, then returning “home”.

I don’t know if this particular issue was ever specified in US common law. But to say being a subject of the king is the same as a US citizen seems wrong. US citizens are rather the opposite of owned subjects, as our government is OF the people. We rejected and defeated royalty, (despite Obama’s efforts to reinstate it).

Those that come here illegally by choice, and choose to not pay taxes, display no subjection to jurisdiction, and have willfully rejected it. England forcefully colonized countries and claimed ownership of their citizenry, killing those that disagreed. I’m not versed in common law, but we seem to radically depart in at least this point.

And the very idea of dual citizenship rejects the notion of being subject to only one nation, merely by birth location. No man can serve two masters. In the US we put God at the head, and then man in charge above government. Subjection is choice. Cruz chose to reject his Canadian citizenship, though he already swore allegiance to our constitution as a senator.

Illegal alien’s kids SHOULD not qualify, despite settled law based on a footnote, according to Coulter.
out of the blue in 1982, Justice Brennan slipped a footnote into his 5-4 opinion in Plyler v. Doe, asserting that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.” (Other than the part about one being lawful and the other not.)
http://townhall.com/columnists/anncoulter/2010/08/04/justice_brennans_footnote_gave_us_anchor_babies/page/full

    Juba Doobai! in reply to Midwest Rhino. | September 3, 2013 at 1:16 pm

    So we can expect the Chinese women who come here for birthright tourism to teach their children the pledge of allegiance, the Constitution, and such while they are going to school in China and being indoctrinated into good little Communists?

    Ballantine in reply to Midwest Rhino. | September 3, 2013 at 1:45 pm

    Obviously, no one was thinking of illegal aliens in either 1787 or 1866. However, Coulter doesn’t know what she is talking about. Such dicta was not out of the blue. Wong Kim Ark was a citizen because the court said we adopted the common law and the court clearly stated who was subject to our jurisdiction and who was not.

    “The 14th 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.”

    Such is not dicta as it is the rationale of the case. In addition, any treatise on public law in the 19th century clearly stated who was subject to our jurisdiction and who was not and were consistant with the Court’s opinion. Illegal aliens were then, and remain, subject to our jurisdiction. I know some people don’t like this situation, then such is a problem with originalism.

      Midwest Rhino in reply to Ballantine. | September 3, 2013 at 5:36 pm

      Thanks Ballantine … that sounds pretty conclusive, that common law allowed that. I believe England has changed their immigration laws now, and simple birth place will not always award citizenship.

      I sure can’t argue common law or even 19th century SCOTUS decisions. Even though those decisions would be “decided law” and “precedent”, that does not seem the same as “originalism”. (ianal 🙂 ).

      I can’t argue for Coulter either, but she also says:

      The very author of the citizenship clause, Sen. Jacob Howard of Michigan, expressly said: “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.”

      In the 1884 case Elk v. Wilkins, the Supreme Court ruled that the 14th Amendment did not even confer citizenship on Indians — because they were subject to tribal jurisdiction, not U.S. jurisdiction.

      For a hundred years, that was how it stood, with only one case adding the caveat that children born to legal permanent residents of the U.S., gainfully employed, and who were not employed by a foreign government would also be deemed citizens under the 14th Amendment. (United States v. Wong Kim Ark, 1898.)

      So it would seem the more original intent (in our constitution, not in old common law) was not quite the same as the common law? Your quoted exception stated “with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers”. That sounds more like just government officials, but if Ann’s quote from an original author is correct, that would be expanded for US law to include illegal aliens and foreigners.

      So we need to get back to originalism, instead of wrong precedent. Judges can be wrong. Or we just need to change the law because it was not intended to allow “jackpot babies”.

      Further, the language of the WKA case does depend on English common law, but it was only invoked in the specific case “children born to legal permanent residents of the U.S., gainfully employed, and who were not employed by a foreign government”. (still depending on Ann) I had no idea what “dicta” was till a few hours ago, so won’t try to say if the logic would automatically apply to illegal aliens.

      But why did Brennan need to expand the rules by saying “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.” He apparently didn’t get that from WKA.

Here is another nitpicky point: In 11 above, speaking of the 14th Amendment:

It’s also a different concept than “natural born” citizenship, at least in theory.

No. Actually, for persons born inside the U.S., it is exactly the same thing, and the WKA Court clearly holds, several times, that the 14th Amendment is AFFIRMING and DECLARATIVE of the underlying common law on natural born citizenship.

This is what takes the WKA court’s findings about natural born citizenship out of the “dicta” category. One instance in included in my remark above. Another occurs at the beginning of Section V:

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 [natural born citizenship as set forth in II and III supra] was reaffirmed in the most explicit and comprehensive terms.

That is what Section V of the WKA decision is all about.

Squeeky Fromm
Girl Reporter

    Ballantine in reply to SqueekyFromm. | September 3, 2013 at 1:55 pm

    Yes, this is a problem. Wong Kim Ark said the 14th Amendment and the natural born citizenship clause both mean the same thing as they were both based upon the English common law. Such is why we see so many modern scholars looking to the 14th Amendment to define who is natural born. Such is just another way to state the common law. I fail to understand why so many people can’t understand what Wong Kim Ark said. I suggest people look at the dissent’s summary of the majority opinion which it summarizes before it says it disagrees with it.

    “The argument is, that, although the Constitution prior to that amendment nowhere attempted to define the words “citizens of the United States” and “natural-born citizen” as used therein, yet that it must be interpreted in the light of the English common law rule which made the place of birth the criterion of nationality; that that 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;” and “that, before the enactment of the Civil Rights Act of 1866 and the adoption of the Constitutional 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.” Thus, the Fourteenth Amendment is held to be merely declaratory except that it brings all persons, irrespective of color, within the scope of the alleged rule, and puts that rule beyond he control of the legislative power.”

    That is exactly what the majority says which isn’t surprising since half of such is direct quotes from the majority. The dissent goes on:

    “The English common law rule, which it is insisted was in force after the Declaration of Independence, was that…..And it is this rule, pure and simple, which it is asserted determined citizenship of the United States during the entire period prior to the passage of the act of April 9, 1866, and the ratification of the Fourteenth Amendment, and governed the meaning of the words “citizen of the United States” and “natural-born citizen” used in the Constitution as originally framed and adopted. I submit that no such rule obtained during the period referred to….”

    So the dissent disagrees that the 14th Amendment and the natural born citizenship clause were both defined by the English common law, its purpose to make the rule colorblind. Is the majority opinion really that hard to understand?

      myveryownpointofview in reply to Ballantine. | September 3, 2013 at 3:45 pm

      It’s why only particular snips and a sentence here and there are used by some to “make a point”. It’s really to shut down discussion.

        I guess that is what happens when you can’t refute what the court actually said. The misrepresentations of what Wong Kim Ark said has been totally out of hand and at this point there is no excuse for people like you who have spent enough time on these threads and have been told what the said. Gladly, our modern courts have no trouble understanding what it said regardless of all this nonsense on the internet. Again, I suggest you read Fuller’s accurate summary if you want to understand what the court said.

        Well, for people born inside the country, there isn’t much to discuss. As the WKA Court held, anybody born here who isn’t the kid of an invading soldier or a foreign diplomat is a 14th Amendment citizen, and a natural born citizen, because that is the “ancient law” of which the 14th is both declarative and affirming.

        Cruz’s situation is a teeny weeny bit less clear, not having a case which flatly states people in his situation are nbc’s. But, from WKA you can pretty well see where they will go. Which is, that Congress has the right to define naturalization laws, and if they want to declare some persons born overseas as not needing the naturalization process, and instead becoming citizens at birth, then they may.

        Squeeky Fromm
        Girl Reporter

    Aarradin in reply to SqueekyFromm. | September 4, 2013 at 4:11 am

    The WKA decision wouldn’t bear scrutiny if challenged.

    http://www.federalistblog.us/2006/12/us_v_wong_kim_ark_can_never_be_considered/

Professor, this is a thorough and inclusive study. However, I think you should also look at the contemporaneous situation of Poland during the writing of the Constitution.

Poland had a unwieldy, barely functioning legislature (made of Barons, Kings and other landholders in a Serfdom system) which elected a king. I call it barely functioning because any law had to have unanimous approval, and furthermore the entire session of legislature could be undone by a single delegate declaring “I object!”, negating even those items passed previously unanimously.

Because of this unwieldy legislative process and the desire to not have any one landowner be too powerful, Poland would select a non-Polish person to be king. Sort of like someone to be a referee and keep the peace rather than being a forceful leader.

I submit that the framers of the consitution would have been intimately aware of the Polish situation and the inherent problems of having the executive leadership be a non-citizen. Since a Poland-like scenario could have occured with having a naturalized citizenship being permissible (i.e. select the king and then naturalize him), the delegates would have wanted to prevent that scenario. Thus, the “natural born” text was inserted. It is also essential to remember that there was no “national election” in the US, as the states chose their electors to the Electorial College. The first few preidents were entirely from VIrginia and Mass, and thus there might have been a desire for the smaller states to band together to prevent those states from acquiring greater power, thus supporting a non-US citizen.

Thus, I submit that the original intent of the “natural born citizen” clause was to prohibit this scenario. Interpreting this statement with this background would indicate that all the candidates listed above would meet this intent.

PersonFromPorlock | September 3, 2013 at 1:00 pm

Again, the definition of “natural born” is immaterial since the critical requirement is that *whoever* is eligible, they had to be so “at the time of the Adoption of this Constitution.” That was in 1793, so there probably aren’t too many eligible people left. ;^)

I sincerely believe McCain and Romney were put on the ballet to lose. They also could have had issues with natural born citizenships as we all know Obama does; but we really know nothing, at least the average voter does not know who Obama really is. Rubio and Jindal would be the same kind of candidates who would be put there by the opposition to lose. Am not sure about Cruz. Only time would tell. I do know we need to put up candidates and vote these candidates in who truly care about America and it’s people.

Here is another slightly out of whack minor point, from no.7 above:

As these many and varied accounts demonstrate, there is no clear answer to the question of whether and if so in what way “natural born Citizen” relates to “natural born Subject.” What is clear is that the notion that ”natural born” status requires being born in-country has little basis in British law, much less British law as commonly understood in the former British colonies that became the United States.

Actually, there is a clear answer. In WKA, you find this case, cited with approval in Section III:

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 the WKA Court finds the two terms are synonymous is also evident from the very manner in which the majority decision is crafted. Section II deals with natural born subjects. After that is defined, the Court proceeds to Section III to discuss natural born citizens, and clearly holds the two as referring to the same concept, namely persons born inside the physical jurisdiction of the country, and not the child of invading soldiers, diplomats, or wild Indians.

Then in the conclusion to Section V, you find them tying in the 14th amendment by reference to Coke, Calvin’s Case, natural born subjects and natural born citizens.

These are minor points (including two of my remarks above), but probably ones which need some amendment lest they be seized upon by persons not well grounded in the law, who will run with them and spread more confusion about natural born citizenship.

Squeeky Fromm
Girl Reporter

Dear Professor Jacobson, I did not see addressed, Deliberations of Congress regarding the 1790 Naturalization Act. In it, the representatives responsible for using “natural born citizen” in the 1790 Naturalization law were referencing Blackstone and English Law. This seems to add weight to the argument of those who see a parallel between natural born citizen and natural born subject. The Founding Congress would have simply borrowed and updated the idea.

From various members of the 1st Congress debating the 1790 Naturalization Act. (Note Jackson’s use of Blackstone, and the other’s use of British law.):

Mr. Jackson.–It was observed yesterday, Mr. Chairman, that we could not modify or confine our terms of naturalization; that we could not admit an alien to the rights of citizenship progressively. I shall take the liberty of supporting the contrary doctrine, which I contend for, by the reference to the very accurate commentator on the laws of England, Justice Blackstone, I, 10.–“Naturalization,” says he, “cannot be performed but by an act of Parliament; for by this an alien is put in exactly the same state as if he had been born in the King’s legiance, except only, that he is incapable, as well as a denizen, of being a member of the Privy Council, or Parliament, holding offices, grants, &c. No bill for naturalization can be received in either House of Parliament without such disabling clause in it.” So that here we find, in that nation from which we derive most of our ideas on this subject, not only that citizens are made progressively, but that such a mode is absolutely necessary to be pursued in every act of Parliament for the naturalization of foreigners. Representative James Jackson, Georgia, Officer during Revolution in State Militia, delegate to provincial Congress and to State Convention.

Mr. Burke….The case of the children of American parents born abroad ought to be provided for, as was done in the case of English parents, in the 12th year of William III. There are several other cases that ought to be likewise attended to.Aedanus Burke, South Carolina, who had been an officer in the Continental Army.

Mr. Hartley observed, that the subject was entirely new, and that the committee had no positive mode to enable them to decide; the practice of England, and the regulations of the several States, threw some light on the subject, but not sufficient to enable them to discover what plan of naturalization would be acceptable under a Government like this. Some gentlemen had objected to the bill, without attending to all its parts, for a remedy was therein provided for some of the inconveniences that have been suggested. It was said, the bill ought to extend to the exclusion of those who had trespassed against the laws of foreign nations, or been convicted of a capital offence in any foreign kingdom; the last clause contains a proviso to that effect, and he had another clause ready to present, providing for the children of American citizens, born out of the United States.Rep Thomas Hartley, Pennsylvania, Continental Army Officer, Delegate to Provincial Congress, Delegate to Ratification Convention

    Ballantine in reply to UCFan79. | September 3, 2013 at 2:30 pm

    The analogy to English law goes further. Obviously, the term “natural born” only existed in English law in 1787. And while one can cite people distinguishing “subject” form “citizen,” there are far more authorities conflating the terms. Seriously, the terms were used interchangably for many decades and even in the 14th Amendment Congress.

    So, the Constitutional Convention was full of English trained lawyers. In England, in 1787, one had to be a natural born subject to sit in Parliament, sit on Privy Counsel or hold any major office. Gee, what a coincidence. And who was a “natural born subject” capable of holding office? Someone either born in England coverd by the common law or someone who had English parents that qualified under various English statutes. People who were naturalized subjects pursuant to other English statutes were not eligible to hold office in England. Those statutes actually expressly stated they were not eligible. Not surprising why almost all early authority looked to English law on this subject.

      myveryownpointofview in reply to Ballantine. | September 3, 2013 at 3:41 pm

      So, in England one could not hold office if one were naturalized, or denizen. That was the English law.

      The Constitutional Convention opened up offices in the House, Senate, Judiciary, to those that were naturalized here in the US. They had no restrictions of birthplace – just law (naturalization) if not born in the US.

      We were completely the opposite of English laws in the restrictions placed on who could be elected to those high offices.

        Why would you say we are the opposite? You can’t see the analogy between them requiring members of Parliament to be natural born and us requiring the President to be “natural born?” And the framers actually discussed requiring all members of Congress to be “natives” which it didn’t define but was a synonyms for “natural born” in England and the United States. Now perhaps this is evidence for the jus soli interpretation, but it is silly to say they were not looking to English law.

          myveryownpointofview in reply to Ballantine. | September 3, 2013 at 4:52 pm

          Their PARLIAMENTARY was required to be born in England. Our version of such was NOT required to be born in the US. That’s how it is opposite.

          “Under the English Act of Settlement, 1701 NO naturalized (English)subject could ever serve in the House of Commons, or Lords, or the Privy Counsel, or in a wide range of other offices. The U.S. Constitution repudiated this (English) tradition across the board, opening the House, the Senate, the Cabinet and the Federal judiciary to naturalized and native alike.” ~ Prof. Amar (Yale)

          So, we threw off English law in regards to our Senators, Reps. Judges, etc.

          There is a historian, Forrest McDonald, you should read his work.

          Ballantine in reply to Ballantine. | September 3, 2013 at 5:10 pm

          It depends how you look at it. We both had eligiblity restrictions based upon being natural born. Theirs were broader. The framers discussed having such restrictions apply to all of Congress as well which is not surprising. New York, in thier Convention, proposed an Amendment, drafted by John Jay, that would require Congess to also be natural born. Massachusetts would propose the same amendment a few years later, an Amendment that said the natural born citizenship clause applied to “natural born subjects.” Just because they didn’t have the eligiblity requirements apply to all offices like England didn’t mean they didn’t get the idea from English law. And, in fact, all evidence shows they were looking to English law.

      UCFan79 in reply to Ballantine. | September 3, 2013 at 5:02 pm

      ***Not surprising why almost all early authority looked to English law on this subject.***

      Exactly. It is simply a matter of the breadth of meaning applied to “natural born citizen”. Once we see the First Congress discussing the need to make allowance for those born overseas, it is easy to see them changing “subject” to “citizen” and carrying over a perfectly reasonable phrase already in use.

      Pennsylvania Representative Thomas Hartley’s comments exactly parallel the eventual 1790 law and mention the occasional utility of English law:

      “It was said, the bill ought to extend to the exclusion of those who had trespassed against the laws of foreign nations, or been convicted of a capital offence in any foreign kingdom; the last clause contains a proviso to that effect, and he had another clause ready to present, providing for the children of American citizens, born out of the United States”

      House of Representatives, Rule of Naturalization
      3–4 Feb. 1790Annals 1:1109–25
      http://press-pubs.uchicago.edu/founders/documents/a1_8_4_citizenships8.html

Thanks, Professor, for your hard work on collecting this vast amount of legal analysis.

Seems like the analysis here is as long as the Constitution; haven’t counted the words, but there are sure a lot of ’em. This serves to remind me that the Founders didn’t write the Constitution in legalese. The Constitution was written as a contract between the American people and their government, written in a manner that any educated person could read and understand it.

I do not have any arcane knowledge that sheds light on what was considered “natural born citizen” back in 1790, and IANAL.

However, I clearly see why a person who has allegiance to another country may not be the best person to elect to run one’s own country. The person known as B. Obama- what allegiance(es) does he have? To the USA? To Kenya? To…? He wasn’t raised here, wherever he was actually born. I can’t say with any certainty anything at all about this man (before his election anyway,) as nothing connected with him ever proves true or accurate. What can be ascertained by a number of phony documents such as birth certificates, draft card, SS card, and so forth? Nothing at all, except that the documents are fraudulent; this indicates that the person connected to those documents is also a fraud, but is not conclusive.

To me the saddest part is that none of this matters anyway, as we have no rule of law any more. The evidence for that is everywhere you look.

I mourn for my country, and I’m glad I’m old. This breaks my heart daily.

    Ballantine in reply to Eskyman. | September 3, 2013 at 2:42 pm

    You mourn for your country because no one agrees with your silly claims of fogery and some conspiracy that half the government of Hawaii is in on some fraud? Or you mourn because you have not studied the law of allegiance very well. In a nation of immigrants, foreign nations could make all our citizens dual citizens as the rule of descent can extend for as many generations as they want. In 1868, Congress issued a report that as many as 3/5ths of our citizens were dual citizens and might be subject to some foreign claim to allegiance. Our reaction was always that we ignored foreign claims of allegiance on any of our citizens particularly in the United States were we had a right under Internation Law to enforce our own laws. And, to the extent allegiance was defined in the early republic, it was defined by place of birth. Such was pretty much the universal rule in 1787 as it wasn’t until the 19th century that jus sanguinis became popular. So, if the framers questioned anyone’s allegiance, it would be Cruz, not Obama or Rubio.

      Eskyman in reply to Ballantine. | September 3, 2013 at 3:17 pm

      Hey, I’m a simple guy. I’d just like at least ONE document that isn’t forged and can stand up to analysis. Have you got any that you can link to?

      And how’s that “dual citizen” in the WH working out for you? I certainly question his allegiance. Well, except his allegiance to the Muslim Brotherhood. That’s pretty well proven already.

      YMMV.

        DrKenNoisewater in reply to Eskyman. | September 3, 2013 at 3:34 pm

        But in your mind no document he ever releases will be legit since you’ve already decided ahead of time it must all be forged. It’s a ridiculous notion on your part since the Department of Health has verified the PDF matches the contents of the copy they issued to Obama.

        How can anyone analyze a digital document and claim the original it was based on must be forged better than the actual issuing authority?

        How did Thomas Jefferson work out for you since he had dual french and american citizenship?

          Bruce Hayden in reply to DrKenNoisewater. | September 4, 2013 at 9:51 am

          Problem is that the document released as Obama’s birth certificate most likely was not a true copy of his original birth certificate. Why? PDF file was in layers, which indicates post processing, photoeditng, or something akin to that, and the practice at the hospital that he was supposed to have been born in at that time was either black on white, or white on black, and w/o that colored background. Now, it may indeed be what the state of Hawaii gives applicants who ask for copies of their originals, but that is different from it actually having been such.

          As for why so many in the Hawaii state government might have helped covered this up – the state was essentially a one-party state until very recently, and government employees seemingly strongly support Obama, as evidenced, if in no other way, by the IRS scandal and the illegal release of sealed divorce records of Obama’s two opponents in his election to the US Senate.

          Note that I don’t really know or care about whether or not President Obama was born in Hawaii. I think that he likely was, and don’t think that the fact that his mother was underage at the time would have disqualified him for the Presidency if he had been born elsewhere. But, I do get somewhat torqued when all of the issues about his past are swept under the rug by calling those who bring them up as “birthers”. The reality is that millions of dollars, and a lot of effort, has gone into almost completely hiding his past, at least until he graduated from law school, and maybe even a bit after that. We have seen no transcripts or school records whatsoever, and they have been demanded, and provided by every other Presidential candidate for decades. I think it likely that something is being hidden, and suspect that it was primarily that he may have used his adoptive father’s name and nationality in getting even more preferential admission to and treatment in college. But, don’t know, and that is why I am suspicious. More recently, there have been questions about his paternity (he doesn’t look anthing like any of the other Obamas), how his education was funded, and who wrote his autobiography. And, someone who has seemingly plays quite loose with the truth (such as with his “red line”, that ObamaCare will save money or that you will be able to keep your insurance, etc.) is not really someone whom I would automatically trust when they tell me to. IRS and NSA both are telling us to trust them, when both seem to have crossed the ethical, and probably legal, line. Not a lot of trust these days in their government or their political leaders from more and more Americans.

[…] question does not avail itself of clear, bright-line answers. Well, today at Legal Insurrection, William Jacobson takes a long look at the eligibility question and concludes that, given the preponderance of law, […]

Professor Jacobson, I respectfully ask you to read and consider the following linked to article regarding the legal term of art “natural born Citizen” and basic logic, i.e., trees are plants but not all plants are trees. Natural born Citizens are a subset of “born Citizens (citizens at birth)” but not all “born Citizens (citizens at birth)” are “natural born Citizens”: http://cdrkerchner.wordpress.com/2012/06/20/of-natural-born-citizens-and-citizens-at-birth-and-basic-logic-trees-are-plants-but-not-all-plants-are-trees-natural-born-citizens-nbc-are-citizens-at-birth-cab-but-not-all-cab/ … AND … http://www.art2superpac.com/issues.html

CDR Charles Kerchner (Retired), http://www.protectourliberty.org

    Hi CDR Kerchner!

    Well, LOGIC and legal reasoning are not always the same thing. Because, once there is a precedent case, and definitions are determined, then you can’t just go behind the decision to re-argue your case while pretending the holding doesn’t exist. It’s law until there is a subsequent ruling or enactment changes things.

    Which means that you are certainly free to argue that the current law which requires zero citizen parents for people born inside the U.S. is wrong, but you can’t seriously maintain that it isn’t the law.

    Didn’t I teach you and Mario Apuzzo, Esq. anything at all???

    Squeeky Fromm
    Girl Reporter

myveryownpointofview | September 3, 2013 at 3:30 pm

I have a question. Would a number our Reps. and Congresspersons, a few Gov.s and the odd Yale Prof. and such learned folks, be in a position to KNOW whether or not birth IN this country is an Art. 2 requirement? Would any of them know if any of these naturalization laws, fourteenth amendment, etc. had acted as a type of amendment to Article 2 clause 5? http://babel.hathitrust.org/cgi/pt?id=pur1.32754077957292;view=1up;seq=5

Would it make a difference to any of you to know that way back when our Const. was ratified the ONLY dual citizenship in this country was actually our citizens of the several states also being citizens of the Union?

Is it at all reasonable to maintain that the meaning of the natural born Citizen term at the time it was written should be observed to be the same meaning of that term today? Or should we, in this one case, consider the Constitution to be outdated and needing to be defined by more modern terms of citizenship?

How many of you know that the Naturalization Act of 1790 addressed the plight of those U.S. parents whose children were born “over the seas” while they were off abroad on visits? The plight was that the children being born over in Europe to US citizens were aliens to their own parents country. Yep. So that act gave us our first true modern-day type dual citizens. That act was repealed and replaced five years later and had slightly different language. H. Binney, 1853, http://babel.hathitrust.org/cgi/pt?id=mdp.35112102633445;view=1up;seq=31 I notice that Binney provides this observation from the 1790 Act., “It uses the obscure expression of “children of citizens
of the United States. Plural. As in two.

Would you think that it was significant that John Jay, who wrote the letter to George Washington suggesting the Command in Chief of our military not be given to any but a natural born citizen, underlined the word “born”. It was meant as “a strong check to the admission of foreigners into the administration of our national government”. http://myveryownpointofview.files.wordpress.com/2013/03/image-of-john-jay-letter.png
Just a guess here, but I don’t think he underlined that word to make clear that a person must simply be “born”, so don’t go there. 🙂

    I can’t understand why people keep citing Jay when he doesn’t define who is “natural born,” doesn’t say what is a “Strong check” or who is a “foreigner.” Trying to infer some meaning form “born” being underlined? Really? Sorry, it is not helpful.

    And you are wrong about dual citizens. Such was common in the early republic. Nearly all our naturalized citizens remained dual citizens as well as most of their children and grandchildren. We didn’t pay any attention to it as we couldn’t change the laws of foreign countries.

    I have no idea what other points you are trying to make. One can cite a multitude of authority requiring birth in the country. One can also cite quite a bit of authority saying one only has to be a citizen at birth. The only position that lacks authority is the Vattel definition which has never been more than a fringe theory.

      myveryownpointofview in reply to Ballantine. | September 3, 2013 at 4:40 pm

      Don’t know about them retaining their foreign citizenship as well as being citizens of the new United States. Everything I have read is opposite that. You could link your source.

        England and Germany did not honor our naturalization until 1870. Such was a primary cause of the war of 1812. Under an English statute, 13 CEO III, ch. 21, you were an English subject if your father or grandfather was English. Woodrow Wilson, for example, was thus born in English subject. In 1868, Mr. Banks and the Foreign Relations Committee wrote a report suggesting that as many as 3/5ths of our citizens could be dual citizens since the nations of Europe had citizenship by descent for 2 or 3 generations. Such report led to the so-called Expatriation Act (which was really about protecting our dual citizens from claims of foreign allegiance). It also led to England calling a Royal Commission on the subject which would lead to a treaty with the US and lead to England abandoning its doctrine of perpetual allegiance. The issue of dual citizenship was a very complex and much debated topic in the 19th century that International Law never resolved. However, in 1787, jus soli was the near universal rule so it was less of an issue. Also, keep in mind that being a dual citizen didn’t mean one owed dual allegiance. In England, those born in the US to British parents were generally treated as subjects for commerical purposes, but were not deemed to owe allegiance to England outside of England, or at least in their native lands.

        Here is the report from the Royal Commission that led England to change its laws. It includes the report of Mr. Banks that started the ball rolling and much discussion of relevant issues.

        http://books.google.com/books?id=BlEPAQAAMAAJ&printsec=frontcover&dq=royal+commission+on+naturalization&hl=en&sa=X&ei=DU0mUpq_FYnkswbO6ICIAQ&ved=0CEAQ6AEwAA#v=onepage&q=royal%20commission%20on%20naturalization&f=false

        I never really understood the dual citizenship argument raised on these threads. Obviously, such is out of our control as foreign nations can enact any law that they want. There is no legal authority that we ever cared about foreign law on this subject.

          myveryownpointofview in reply to Ballantine. | September 3, 2013 at 5:22 pm

          They were not recognized as dual citizens by the US. Likewise England.

          England would impress such and force them to serve. It was one of the most obvious problems of this dual allegiance.

          The alienigenæ of the United States, by Horace Binney, has much on the topic of naturalization law, and the evolution of such. http://babel.hathitrust.org/cgi/pt?id=mdp.35112102633445;view=1up;seq=9

          Ballantine in reply to Ballantine. | September 3, 2013 at 5:35 pm

          You don’t understand what you are talking about. People born on the soil in England and America were not recognized as dual citizens in that each nation ignored foreign born claims on their native born. However, they were dual citizens since two nations treated them as citizens. However, both both England and the United States put jus soli over jus sanguinis. Since England and America claimed the allegiance of all born on its soil, they had to respect to claim of foreign nations to do the same. Thus, in England and the United States, jus sanguinis citizens or subjects were not protected the same as jus soli citizens or subjects. For example:

          “The 4th section of the act of April 14, 1802 (Rev. Stat., § 2172) (making children of naturalized persons citizens, and extending citizenship to children born abroad to citizens), “is only a municipal law, and can have no effect beyond the jurisdiction of this country, and especially in Holland, if it should be in conflict with the local law of that country. If, therefore, Johannes (whose citizenship was contested) voluntarily placed himself within Dutch jurisdiction, his rights and his obligations must be measured by the laws of Holland and not by the laws of the United States.” Mr. Marcy, Sec. of State, to Mr. Wendell, Sept. 7,1854. MSS. Doni. Let.

          “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.” Attorney General Hoar, 1869.

          In England, the same rule applied, from the Royal Commissioners:

          “It is competent to any country to confer by general or special legislation the privileges of nationality upon those 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.”

          To protect their jus soli claims, their jus sanguinis claims had to take a back seat to jus soli claims of other nations.

Scott J. Tepper | September 3, 2013 at 3:48 pm

I see no problem in calling Birthers by that scornful epithet. The word derived from the “Truthers” who have pushed their own outrageous conspiracy theories. Birthers, for the most part, are trying to delegitimize a President for reasons that have no relationship to either his qualifications or abilities. And those asserting Ted Cruz’s ineligibility are pretty much stalwart adherents to those conspiracy theories who now find they must demonstrate “consistency” or be embarrassed by their overheated prior assertions. I know of no one in the middle or on the left who contends that Cruz is ineligible.

And, on the merits of Cruz’s eligibility, while the phrase “natural born” appears to have meant “native born” contemporaneously when the Constitution was adopted, using a “rule of lenity of interpretation,” I believe the Founders would have extended the meaning to include those born as citizens. I believe this to be the case because the Founders simply did not want foreign born aristocrats contending to become rulers of this country. Those born citizens of the country were not foreign aristocrats. The first Congress did, in fact, enact a statute proclaiming that the children of citizens born abroad were “natural born.” (The Naturalization Act of 1790, 1 Stat. 103 — albeit, the legislation was both racist and sexist in its application of citizen eligibility — something we now eschew.)

    Really? A candidate’s constitutional qualifications have nothing to do with his qualifications?

    You have a bit of a tautology problem.

    Bruce Hayden in reply to Scott J. Tepper. | September 4, 2013 at 10:16 am

    Probably the reason that there are so many conspiracy theories involving President Obama is that so much of his past has been intentionally hidden, at grate expense in time and money. College transcripts and school records have been demanded of, and provided by major party candidates for President for decades now, and his are completely absent. Trust but verify, and the fact that the American people are prevented from verifying is suspicious. I think that currently the more popular conspiracy theories are that he attended college using his step father’s name and nationality to get additional preferences, and both his paternity and the authorship of his autobiography are questioned.

    Maybe it is a question about why, if there is a lot of smoke, it isn’t realistic to question whether or not there is a fire somewhere. For a lot of us, there is little reason to believe what most politicians tell us, and it is esp. worrisome that we are told to trust this one, esp. when the stakes are so high, on the say-so of people whom we have no more reason to trust, esp. when this politician has repeatedly provided evidence that he is no more truthful than most other politicians.

    As long as President Obama and his people continue to hide so much of his background, a lot of Americans are going to believe these crazy conspiracy theories, because of the belief that so much time and money was spent hiding his background indicates that there is something to hide. The President claiming to have the most transparent Administration in recent history has the most opaque background of any major party candidate in at least most of our lifetimes.

      You know, sometimes where there’s smoke, it’s not a fire you should be looking for. What you’ve got there is a bunch of smoke and mirrors. Rumors, innuendo, and gossip– and outright misstatements of facts. You said, regarding President Obama,
      “so much of his past has been intentionally hidden, at grate expense in time and money.”
      Upon what do you base that claim?
      You added,
      “College transcripts and school records have been demanded of, and provided by major party candidates for President for decades now, and his are completely absent.”
      In another comment, you said:
      “We have seen no transcripts or school records whatsoever, and they have been demanded, and provided by every other Presidential candidate for decades.”
      For what major party candidates for President can you provide such information, as voluntarily released while still a candidate?
      You go on,
      “I think that currently the more popular conspiracy theories are that he attended college using his step father’s name and nationality to get additional preferences, and both his paternity and the authorship of his autobiography are questioned…As long as President Obama and his people continue to hide so much of his background, a lot of Americans are going to believe these crazy conspiracy theories, because of the belief that so much time and money was spent hiding his background indicates that there is something to hide.”
      What factual bases are there for those “conspiracy theories”? And more to the point, what factual basis is there for your belief “that so much time and money was spent hiding his background”? After all, in another comment you said:
      “The reality is that millions of dollars, and a lot of effort, has gone into almost completely hiding his past, at least until he graduated from law school, and maybe even a bit after that.”
      What “reality” is that based upon?

As Chief Justice Waite pointed out in Minor v Happersett:

“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. 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.”

However, search as I might, I can find no reference at all to where any of the founders or framers of this enigmatic phrase had any discussion at all about any doubts to its meaning (even in the Committee of Eleven). As far as the record indicates, the delegates to the 1787 constitutional convention unanimously adopted this phrase without much discussion at all, or, at least, none that was recorded. Certainly, if the delegates had “doubts” as to its meaning, surely a record would existed, after all this was one of only three requirements listed to stand for the presidency, and the only one that even requires the US president to be a US Citizen at all, of any strip. So I think we can safely say, whatever the “doubts” Chief Waite was eluding to 87 years later, they weren’t shared by the delegates to the constitutional convention, which would be a very strong indication the definition of an Art. II, §1, cl. 4 natural born citizen would be the one that has never been doubted: “…children born in a country of parents who where its citizens became themselves, upon their birth, citizens.”

ex animo
davidfarrar

    Ballantine in reply to davidfarrar. | September 3, 2013 at 4:21 pm

    I really fail to see what point you are trying to make other than making clear why Minor is useless as it is dicta that says some unknown person or persons had doubts that it didn’t need to explore. Wow, that just is so enlightening. Waite did say we should look to the common law to define natural born but expressly declined to address the statuts of children of aliens under the common law. Wong Kim Ark said to look to the common law to define natural born and spent 50 pages telling us the status of children of aliens under the common law. Guess which one is precedent.

    Before claiming that the framers said one needed citizen parents, I suggest you find one shred of evidence that any framer or contemporaneous legal authority agreed with that if you want to be taken seriously.

    Hi DavidF!!!

    Wow, there are sooo many people here who I know. Maybe we should see if we could do a virtual Dinner-On-The-Ground??? Anyway, once again you left out part of the Minor Happersett quote, the next sentence. So here it is:

    For the purposes of this case it is not necessary to solve these doubts.

    Squeeky Fromm
    Girl Reporter

    DrKenNoisewater in reply to davidfarrar. | September 3, 2013 at 4:44 pm

    Hard to take you seriously David when you quote dicta from a voting rights case that had nothing to do with citizenship. A case that was made completely void by constitutional amendment.

    You also truncated the quote.

    Maybe you can tell us about how you once claimed you’d file a case against Mitt Romney if he was republican nominee and then when he was you never filed suit.

I think the definition of an Art. II, §1, cl. 4 natural born US Citizen given in Minor, which has NEVER BEEN DOUBTED; plus the fact that none of the delegates at the 1787 constitutional convention ever doubted Minor’s definition, nor has 43* out of the last 44 elected US Presidents, should be proof enough for all that children born in a country of parents who were its citizens became themselves, upon their birth, citizens also; and that les naturals, ou ‘indigènes’, are people living in the land of their birth, and the death and birth of their ancestors, are by natural law, Art. II, §1, cl. 4 natural born citizens, exactly as the founders, framers, and ratifiers of the US Const. intended this term to mean.

ex animo
davidfarrar
*I include Chester Arthur in with the US Presidents who followed the two citizen-parent rule due to the fact that he lied twice about his fathers naturalization and took steps to hide this fact by leaving instructions to burn all of his personal records after his death.

    Ballantine in reply to davidfarrar. | September 3, 2013 at 5:46 pm

    Stop lying. Minor doesn’t define anything. It looked to the common law and said there was one class for which there was no doubt and a class where some unknown person had doubts that it wouldn’t address. That is not a definition.

    And it is a lie to say any framer agreed with such definition much less saying whether they had doubts about a definition they never said anything to support. Sorry, no one who matters is ever going to agree with these silly arguments as they make no sense.

    And why would it matter what the status of former Presidents was if no one who ever mattered ever said one needed citizen parents. Obviously rare for a child of an immigrant to rise so far. Again, you make no sense.

    I think it comes down to an example I wrote about nearly two years ago:

    The Case of Virginia Rabbit Versus Happersett (1875)

    The Court: At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all rabbits were mammals, and their children were mammals, too. These were mammals, or common sense mammals, as distinguished from critters like platypuses or weird animals. Some authorities go further and include as mammals, platypuses. 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.

    Vattel Birthers: See!!! This PROVES platypuses are NOT mammals!!!

    Rational People: Uh. . .No. Because the case was about a rabbit, they didn’t have to deal with platypuses at all.

    Squeeky Fromm
    Girl Reporter

    Dave B. in reply to davidfarrar. | September 3, 2013 at 6:12 pm

    David, the “doubts” to which Chief Justice Waite referred were regarding whether certain classes of persons would be considered “part of the people” of the United States. The doubt over persons of African descent had been settled just a few years before. The doubt over persons of Chinese descent, and all others, would be settled a generation later. The doubt over whether such persons not born in the US could be naturalized persisted until the 1940’s.
    I just don’t see how clinging to such doubts is anything but malignant.

Professor Jacobson, you are wrong for one important reason. The Framers did not write a document that takes thousands of words to explain a three word phrase. I continue to believe that anyone who cannot grasp the concept of “natural born Citizen” is being purposefully ignorant. Are you afraid of being labeled a “birther”?

    Well, actually there is a very short and sweet way to define natural born citizenship and it is right there in plain sight in the Wong Kim Ark(1898) case. Theoretically, all you need is this brief blurb:

    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.

    See, that is real short and sweet, and not thousands of word. An NBC is somebody born here under the jurisdiction of the U.S., which means someone who is not the kid of a foreign diplomat or invading soldier.

    That’s it! That’s all there is to it for people born here! No two citizen parents, no John Jay, no Vattel, none of that stuff.

    And, since the 14th Amendment covers people born here subject to the jurisdiction of the U.S., then that makes those people natural born citizens, too! If you doubt that, and need an extra hint, the WKA Court comes right out and tells you that down in Section V:

    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 diplomats, invading soldiers, and wild Indians, at that time in 1898]. 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.”

    See, there it is all wrapped up in a nice simple package and the only reason why it has ever been a problem is the Birthers lack of reading comprehension skills.

    For Ted Cruz, being born overseas, the question is whether or not Congress extended natural born citizen rights when it legislated it’s citizen-at-birth statutes for foreign born Americans. Which is still pretty simple, and the answer is probably “Yes.”

    Squeeky Fromm
    Girl Reporter

Let’s just use a little common sense here. The term, “natural born citizen,” should be understood in the context of the late 18th century in which it was used to contrast with “naturalized citizen.” So anyone born on US soil or of a parent who is a US citizen is a “natural born citizen.”

Cruz is a “Natural Born Citizen” because, at birth, he was a US Citizen, even though he was born in Canada. Note that this would not have applied to Obama were he born outside the US, since under the federal laws in force at the time, his mother was too young and had spent too little time in the US to confer citizenship.

Jindal and Rubio can only be natural born citizens if you amend the US Constitution to delete the phrase “, and subject to the jurisdiction thereof,” from Section 1 of the 14th amendment.

Both of their parents were foreign nationals at the time of their birth, therefore they were subjects of their respective countries. The whole point of that phrase in the 14th amendment is to exclude people who owe allegiance to some other government when born.

They can later become naturalized, as their parents were, but under no circumstance can either Rubio or Jindal ever be considered ‘natural born’. Rubio was born a citizen of Cuba, Jindal was born a citizen of India. The 14th Amendment is crystal clear, for those who do not deliberately omit the operative phrase “, and subject to the jurisdiction thereof,”

Yes, I know there are some really bad, and not really to the point, SCOTUS rulings on the matter. But, the Constitution is clear, and hasn’t been amended to delete that phrase from the 14th Amendment. You can’t just pretend it doesn’t exist.

    Dave B. in reply to Aarradin. | September 3, 2013 at 8:04 pm

    You, on the other hand, can pretend it means something more than it does.

    Aarradin in reply to Aarradin. | September 3, 2013 at 8:09 pm

    Here, read this. Educate yourself on what the people who wrote it believed it to mean:

    http://www.federalistblog.us/2007/09/revisiting_subject_to_the_jurisdiction/

    Aarradin in reply to Aarradin. | September 3, 2013 at 8:13 pm

    One more thing: It is an established principle of Constitutional Law that every phrase in the Constitution must mean something. If “, and subject to the jurisdiction thereof,” does not exclude the children of aliens born in the US from having citizenship conferred on them at birth, then it is absolutely without meaning.

      charlie hughes in reply to Aarradin. | September 3, 2013 at 8:24 pm

      Under the Jurisdiction clause was discussed in the Wong Kim Ark decision:

      “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”

        Yes, that’s about as far wrong from the meaning of the 14th Amendment as the SCOTUS at the time could possibly get. The person in question, whose parents are clearly subjects of a foreign nation, is born subject to the jurisdiction of that nation. Not the US.

        SCOTUS opinion of where a person’s particular allegiance lays is irrelevant, and yet that formed the whole basis of their decision. They decided that, since the person in question, in their opinion, was loyal to the US that they ought to have been granted citizenship. Ludicrous.

        A person is “subject to the jurisdiction” of the nation he is a citizen of. The fact that one most obey the laws of the nation he currently resides in does not change that fact. If you, a US citizen, travel to Mexico (or any other nation on the planet), then you must obey their laws while you are there. That doesn’t change the fact that you are a US subject.

        The Wong Kim Ark decision deliberately muddled the waters here, and ruled in clear contradiction to the original intent of the 14th Amendment.

        Its long since past due for that decision to be overturned.

        Here’s a thorough explanation of just how horribly wrong the Wong Kim Ark decision was:

        http://www.federalistblog.us/2006/12/us_v_wong_kim_ark_can_never_be_considered/

Why would the Framers use a phrase that no one could define? Why didn’t they just say citizens born within the boundaries of the United States? I know why, because that is not what they meant. Taking the fear of foreign influence in the highest post in the land as well as Commander in Chief and the use of the phrase natural born citizen, purposely changed from natural born subject, leads to the only rational conclusion that the Framers wanted the President to be born with no dual loyalties being born of citizens of this country an no other.
The knots some of these people tie themselves into in order to include Obama, Rubio, Cruz and Jindal as natural born Citizens is comical.
Have you every considered that the simplest answer is the correct one? Why is it so hard to see that the Founders weren’t concerned about being politically correct or feared they might offend someone, they were writing the framework for a country like none before and protecting it from foreign influence was of utmost importance.

charlie hughes | September 3, 2013 at 8:16 pm

Professor Jacobson there is a mistake in Jill Pryor’s article that you cited.

The June 18th, 1787 draft plan by Alexander Hamilton did not include the “born a citizen” clause. That was in a draft constitution that he gave to James Madison at the end of the Convention.

It is so sad to see so much written about something so simple. The longer the legal argument becomes the less credible it becomes as well. A natural born citizen is one who is a citizen absent the operation of law. It’s really that simple–er–“natural.” All three of the candidates mentioned require some sort of law (which differs from country to country) to be considered as citizens and therefore can never be considered natural born. So it should not come as a big surprise when the legal types spend so much time and effort trying to find laws and case law to help them in this matter and end up right where they started. No law exists because no law is necessary to define the term any more than a law is needed to define “birth.”

“The apparent purpose of the clause limiting the presidency to natural-born citizens was to “cut off all chances for ambitious foreigners, who might otherwise be intriguing for the office.”

Gee, I wonder who the Framers were worried about? /sarc

Obama is exactly the type of politician who the Framers did not want to become President of the United States.

As for Rubio, Jindal, and Cruz? It’s obvious that the Democrats and their sycophantic media will enforce the double standard. No one but a wealthy (or perceived to be from wealth) white male shall be the Republican nominee for President of the United States. Anyone doesn’t fall within the Democrat’s rules governing gender and identity politics will be savaged until they are politically unviable.

Natural born citizen is going by the way of the commerce clause and general welfare, hijacked for political reasons.

IMO, to dismiss the clause “or a citizen of the United States at the time of the Adoption of this Constitution” is thoughtless. At the time the Constitution was adopted the country was young and many immigrants came here from other countries. It was not so hard to gain citizenship then. We took in just about everyone. Their children who were born here became “natural born” citizens even though their parents were not yet citizens. This was the way the Founding Fathers thought of this problem. They thought any child born in this country whose parents planned to stay and become citzens was a “natural born” citizen. It would have been very limiting to say both parents had to be citizens.

The real problem is the “anchor baby clause”. This is the clause that is ambilivent and takem out of context. We have the problem of foriegners coming to this country legally or illegally and claiming citizenship for their children born here. A lot of these people return to their own countries and bring up their children as citizens of their native land. They are “natural born” citizens under the present law. The Constitution doesn’t say one or both parents must be citizens themselves. It only mentions “natural born” citizes which could be idntified as born in this country. This is a real problem and should be addressed by the SC. I doubt the Founding Fathers intended for these children to become citizens because the Constitution further says something about living in this country and abiding by our laws. The whole point was to live here and be loyal to this country and anchor babies fail to come under this descripion. As long as we fail to rectify this law we will have a real problem. The intent of the Founding Fathers was plain. Only children of people who planned to become citizens were to be called “natural born”. The questioning of Cruz, Jindal and Rubio are just the beginning. It will get worse on down the line.

    Aarradin in reply to BarbaraS. | September 3, 2013 at 9:19 pm

    The “anchor baby” problem would go away if they simply enforced 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.”

    “Anchor Babies” are NOT subject to the jurisdiction of the US at birth. They are the subjects of the nation of their parent’s citizenship.

    You can’t simultaneously be against the ‘anchor baby’ phenomenon and believe that Rubio and Jindal are natural born citizens. None of their parents were US citizens at the time of their birth.

Aarradin,

I read your link and couldn’t agree more, so why would yousay Sen. Cruz is an Art. II, §1, cl. 4 natural born citizen?

ex animo
davidfarrar

    Aarradin in reply to davidfarrar. | September 3, 2013 at 9:55 pm

    Sen Cruz’ mother was a US citizen. He was born outside the US, but under federal law at the time she was old enough to confer citizen. Hence, Cruz was born a US citizen.

    To my mind, the ‘natural born’ debate comes down to the difference between being born a US citizen and having to have been naturalized. I realize there’s a school of thought that you have to have two US Citizen parents to be considered ‘natural born’, but I don’t think there’s anything in the text of the Constitution to support that.

    Frankly, I haven’t done the research necessary to weigh in on the two parent definition: you really need to look into the history of it and find out what the founders would have considered and what most other countries were doing at the time (the founders did use a lot of legal language common in international law and common to other countries).

    On the other hand, with the 14th Amendment, the text of which is clear and the origins of which are well documented, I don’t see how anyone could argue that the Wong Kim Ark decision wasn’t dead wrong. Much of what is now considered ‘settled law’ is based on truly horrendous SCOTUS screwups.

    Wickard v Filburn, for example. One decision expanded the so-called ‘commerce clause’ from a nothing little thing that allowed the federal govt to prevent the states from having trade wars (a common problem in Europe at the time, and a fresh example happened between NY and NJ just prior to the Constitution being written) was expanded to grant the federal government authority over absolutely everything that could conceivably (even in the wildest stretch of the sharpest lawyers sophistry) relate to commerce. Which is everything. Meanwhile, by doing so, the 10th amendment is rendered moot.

    So, for a Conservative, if you don’t support the Constitution when it is diametrically opposed to the bad SCOTUS decisions that have corrupted it, then you might as well be a Progressive.

charlie hughes,

I find this interesting. Do you have a cite for your statement that the June 18th, 1787 draft plan by Alexander Hamilton did not include the “born a citizen” clause. That was in a draft constitution that he gave to James Madison at the end of the Convention?

I have been trying to find out if, in fact, Hamilton every gave his draft to the CC. I see people quoting it all the time, but I never really nailed down if anyone actually saw it and rejected it. You help in this regard would be deeply appreciated.

Thank you

ex animo
davidfarrar

ex animo

Thanks very much for this clear and thorough analysis, Professor. You’ve handled all the cases I’ve seen mentioned in this seemingly endless argument. It’s nice for me, a non-lawyer, to know that in this case “natural born citizen” means what it would commonly mean in ordinary language, that is, someone who was a citizen at his birth and who didn’t need any further procedure or ruling to become a citizen.

What surprises me a little is the almost total absence of support for the frequent argument that a “natural born” citizen must be someone whose parents were both citizens at the time of his birth. I’ve seen lots of comments from people insisting that is “obviously” required, but it’s not. I still see, above, people saying it ought to be required, but that’s wishful thinking, not legal precedent.

SqueekyFromm,

“For the purposes of this case it is not necessary to solve these doubts…

Actually, I didn’t include that sentence for the same reason the Minor court didn’t proceed beyond that point. There was no need. They had already established US citizenship on the part of Mrs. Minor, which is, actually, precedent on citizenship; I might add, because the Minor court could have used the 14th Amendment, if they had chosen to do so. I mean, Mrs. Minor was born within the jurisdiction; was she not? The only way they could have avoided the 14th was to create independent citizenship precedent that would allow the court to reach its conclusion as to a women’s voting privileges.

So what we have in Minor is an independent citizenship precedent as to what constitutes a native, or a natural born citizen, which is used synonymously, meaning: “…children born in a country of parents who where its citizens became themselves, upon their birth, citizens”, in much the same way as the independent citizenship precedent also created in Minor that states: “There are only two ways to become a become a citizen: 1) by birth, 2) by positive law…naturalization.

ex animo
davidfarrar

    Uh, if it was precedent for defining natural born citizenship, then why didn’t the Wong Kim Ark Court 23 years later just skip all that British common law stuff on natural born subjects, and the American cases on natural born citizens???

    The answer is, that Minor v Happersett isn’t a precedent.

    Squeeky Fromm
    Girl Reporter

      Aarradin in reply to SqueekyFromm. | September 4, 2013 at 4:03 am

      Here, this explains exactly why the majority in the Wong Kim Ark case went so far out of their way to avoid their own, very recent, precedent and also why they ruled that the debate in the Senate amongst those that actually wrote the 14th Amendment was not allowed in as testimony.

      http://www.federalistblog.us/2006/12/us_v_wong_kim_ark_can_never_be_considered/

      Their decision contradicts the clear text of the 14th Amendment, contradicts their own precedent, and contradicts the clear intentions of the Senators that wrote the 14th Amendment.

This “natural born Citizen” criterion is a matter of entitlement and inheritance. We naturally receive the titles and inheritances passed on to us by our parents, especially patrilineally at the time of the Constitution’s framing. That is what the ontological “nature” of parentage and inheritance is about.

Anthropologically, one is classically a member of his nuclear family, his extended family, his tribe/clan, and his nation. All of this is passed on by parentage.

That is exactly what is “natural” about it. Otherwise the word “natural” would intuitively and logically not be used.

If one is born in a certain nation, but his father is not a citizen of that nation, it can hardly be said that he is a natural born Citizen of that nation.

As to Vattel, the good doctor seems to presume that John Jay and the framers of the Constitution did not know, nor read any languages but English.

What languages did Jay know, Dr. Jacobson? What languages might an American attorney well seasoned in the subject of international law know and read, at the time?

Furthermore, what experience might they have in interpreting and dealing in international law, that would instruct them in the way nations(plural) interpreted Vattel and international law?

Aarradin,

Well, the article you cited talked quite a bit about dual allegiances at birth. I assume you have read and understood the article you cited; do you agree with its conclusion?

ex animo
davidfarrar

    Aarradin in reply to davidfarrar. | September 3, 2013 at 10:53 pm

    The case for persons born to parents that have different citizenship comes down to a question of, “what is the child’s citizenship at birth, by law?”.

    1) The US does not recognize dual citizenship, so if there were a claim to that status, you’d be hard pressed to later make the claim for ‘natural born’.

    2) The article I linked to made repeated reference to the fact that federal and state law throughout the first century or so of our existence tied citizenship of the child to that of the father. By the 1950’s, at least, that had changed. For Cruz, as for Obama, there is federal law that clearly defines whether or not a child of parents of differing citizenships would be a US citizen. Those laws also distinguished between circumstances where the child was born on US soil or not (hence, for Obama, if he was in fact born in Hawaii matters: because if he was born outside the US then he is not, and never was, a US citizen at all).

    So, again, if you are born a US citizen, then you are ‘natural born’, if you were born with allegiance to a foreign nation (sole or dual allegiance), then no.

charlie hughes,

Thank you. I have read this material a numbers of times, but now with your help and direction, I should be able to pin this one small issue down. Thank you.

ex animo
davidfarrar

Where something was self-evidently expressed, such as “natural born Citizen,” there was no need to define it, in the Constitution, nor in commentary about it.

What is the definition of “natural born Citizen” that is attributable to John Jay’s expressed concern? Clearly that by “natural born,” he meant: by the nature of one’s birth (as a matter of inherited position).

Again, such things naturally occur in concentric circles: first individual, then immediate family, then extended family, then tribe and/or clan, then nation, all matters of lineage.

The dumbest objection I’ve seen is the one about being born outside the US precluding a person from being a natural born citizen.

The D’s tried this with McCain. Both his parents were US citizens. He was born in Panama. He was born a US citizen, therefore he is a ‘natural born’ citizen. The fact that he was born in the canal zone is irrelevant. He could’ve been born in the Kremlin and he still would’ve been a natural born US citizen.

Similarly with Romney, his grandparents (or great-grandparents, I forget), lived for a time in Mexico, evading the crackdown on polygamy. What matters is whether or not they renounced their US citizenship and became citizens of Mexico. If they were US citizens, living abroad, their children would obviously be US citizens. When they moved back to the US their children would not have to go through a naturalization process.

    Dave B. in reply to Aarradin. | September 3, 2013 at 11:05 pm

    What “D’s tried this with McCain”?

      Aarradin in reply to Dave B.. | September 3, 2013 at 11:33 pm

      Seriously?? Google search “mccain us citizenship natural born” for a few thousand results.

      You’ll notice both Pravda on the Hudson and Pravda on the Potomac (NY Times and WAPO) had run articles claiming he wasn’t eligible. The leftwing blogosphere was nearly unanimous that he wasn’t eligible.

      He made his case on the floor of the Senate, and the Senate voted, unanimously, that he was a natural born citizen.

      You couldn’t have looked this up yourself?

        Dave B. in reply to Aarradin. | September 3, 2013 at 11:52 pm

        Seriously? Counting google hits as research? I just got a few thousand results for “Aarradin makes things up.” What should we make of that?
        How about some names?
        What New York Times and Washington Post articles made claims that Senator McCain wasn’t eligible for the Presidency?
        And when, exactly, did Senator McCain “make his case on the floor of the Senate”? How about providing us with the text of that speech?

As to interpreting by British law, the British wanted to expand their territories. They were very inclusive of those whom they termed subjects. The more subjects, the more tax revenue. It was precisely to distinguish the criterion for a Commander in Chief from this expansive interpretation that John Jay bothered himself, here, or his letter to Washington would not have been necessary.

Clearly, John Jay did not want to use the expansive, British interpretation, in seeking to narrow the qualification for a Commander in Chief for the sake of loyalty.

And, I doubt very much that he was ignorant of the original language of Vattel’s treatise, being what he was and the fact that international law and diplomacy was essentially *done in French.*

In any case, “natural” means “by nature of” and “natural born” means “by the nature of one’s birth,” i.e., a matter of inheritance and entitlement, being that matter of jurisdiction.

Clearly, Jay wrote “natural” not “naturally.” This was not a matter of how the baby was born, but the nature of his birth, Cesarian or not! ;-`

    Ballantine in reply to Arlen Williams. | September 4, 2013 at 9:39 am

    Actually, our laws were more expansive that England. They had no general naturalization statute. We allowed anyone to come here and become a citizen by taking an oath.

    I love how people claim to be able to read Jay’s mind and infer things he never said or define what “natural born” meant without any evidence at all. Sorry, no early legal authority said “natural born” meant “by the nature of one’s birth,” rather the term was always given its English meaning.

Here’s a bit of history on how SCOTUS went out of its way to rewrite the 14th Amendment through bad precedent:

http://www.federalistblog.us/2006/12/us_v_wong_kim_ark_can_never_be_considered/

Aarradin,

So you don’t see the need for an Art. II, §1, cl. 4 natural born citizen to be born in one of the united states?

ex animo
davidfarrar

    Aarradin in reply to davidfarrar. | September 4, 2013 at 12:24 am

    I assume you mean cl. 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.”

    But, no. You need to have been born a US citizen. Being born on US soil is, in most cases, irrelevant. You can be born on US soil to parents who are aliens, and you are therefore alien, or you can be born outside of the US to parents who are US citizens and therefore be born a US citizen. Allegiance is what matters, not location of birth.

    The exceptions being cases where the parents are of different citizenship. Obama, for instance: his mother was a US citizen, his father was a citizen of the United Kingdom (Kenya was a colony). In his case, federal law clearly defined whether he would be a US Citizen at birth. If he was born on US soil, then yes. If he was born overseas then his mother would have had to have been over a certain age and have maintained residence in the US for a certain number of years prior to his birth in order to confer citizenship (criteria she didn’t come close to meeting).

      Dave B. in reply to Aarradin. | September 4, 2013 at 12:47 am

      What, exactly, do you mean by “she didn’t come close to meeting” that criteria? The law makes no distinction based on how “close” someone may be to satisfying the statute’s requirement, and no part of that requirement is going to be waived; but how close would you say “close” is?
      And what’s this business about how she would’ve had to “have maintained residence in the US for a certain number of years prior to his birth”?

        Aarradin in reply to Dave B.. | September 4, 2013 at 3:30 am

        Are you really this ignorant, or are you just here to piss people off?? This is common knowledge. Even if you didn’t know it, you could look it up for yourself in less time than it took you to write that stupid post.

        The federal law in effect at the time of Obama’s birth, since you’re too stupid or lazy to find it yourself, specifies that for people born between December 23, 1952, and November 13, 1986 (BHO was born in 1961) when one parent is a U.S. citizen and the other a foreign national, the U.S. citizen parent must have resided in the U.S. for a total of 10 years prior to the birth of the child, with five of the years after the age of 14. Ann Dunham failed to meet these criteria and was therefore unable to confer US citizenship to BHO,Jr – assuming he was not born on US soil. Which is why it matters WHERE Obama was born.

          Dave B. in reply to Aarradin. | September 4, 2013 at 11:58 am

          I’m familiar with the law. As a matter of fact, I’ve quoted it on this very page. That particular law contains absolutely no requirement– none at all– that the US citizen parent EVER resided in the US or its outlying possessions.

          Now regarding the ACTUAL criteria, which she in fact failed to meet, you referred to the “criteria she didn’t come close to meeting.” So how close is close?

          DrKenNoisewater in reply to Aarradin. | September 4, 2013 at 6:19 pm

          Except Congress amended the law to make it retroactive and since Ann was a resident in the US during the entire time period including years after she was 19, Obama could have been born anywhere. Either way it doesn’t matter since Obama was born in Hawaii.

          DrKenNoisewater in reply to Aarradin. | September 4, 2013 at 6:24 pm

          As for your claim she didn’t come close to meeting the criteria how exactly do you figure that? She was born in the US on November 29th 1942. If you add up the months and years until Obama Jr was born on August 4th, 1961 that adds up to 18 years and 7 months and 5 days later. So she met the 10 year residency requirement from birth. She was only a little under 5 months shy of the 5 years past the age of 14 mark. So how is that 5 months qualified as “not even close”?

          Dave B. in reply to Aarradin. | September 4, 2013 at 6:41 pm

          Dr. Ken, the law wasn’t made retroactive. Pub. L. 100–525, § 8(r) specified the effective date of the amendment of the physical presence requirement as November 14, 1986.
          Pub. L. 99–653, which amended the requirement:
          http://en.wikisource.org/wiki/Page:United_States_Statutes_at_Large_Volume_100_Part_5.djvu/183
          Its specific language:
          “SEC. 12. Section 301(g) (8 U.S.C. 1401(g)) is amended by striking out “ten years, at least five” and inserting in lieu thereof “five years, at least two”.”
          Pub. L. 100–525, which set the effective date:
          http://en.wikisource.org/wiki/Page:United_States_Statutes_at_Large_Volume_102_Part_3.djvu/667
          Its specific language:
          “The amendment made by section 12 [amending this section] shall apply to persons born on or after November 14, 1986.”

          DrKenNoisewater in reply to Aarradin. | September 4, 2013 at 7:24 pm

          None of it matters since Obama was born in the US. The spirit of that law was that someone who wasn’t born here had to be a resident during a time period before having a child born overseas. Obama’s morther was born in here and lived here during that entire time period.

        Bruno Lesky in reply to Dave B.. | September 4, 2013 at 6:09 am

        Prof. Jacobson links to the answer to your question quoting the statute early in his post:

        Under the law existing at the time of their birth, each became a citizen of the United States at birth. Rubio and Jindal by the 14th Amendment, Cruz by statute.*

        *The link doesn’t copy in this reply. It’s
        http://drewmusings.wordpress.com/2013/08/13/yes-ted-cruz-is-eligible-to-be-president/

        Dave B. in reply to Dave B.. | September 4, 2013 at 7:43 pm

        I understand “the spirit of that law”, but she hadn’t been physically present anywhere on earth “during that entire time period” that would have been required by that particular statute.
        And of course none of that matters. Why do people find it so important to make an Obama who doesn’t even exist eligible for the office the real Obama legitimately holds?

Sorry if this has been mentioned in earlier comments, I have neither the time nor the inclination to read all 137 of them.

It defies belief to contend that the Founders, who argued about words and phrases at length in every section of the Constitution, would suddenly include words introducing a new restriction or a new class of citizenship without any prior mention of it at all. It doesn’t pass the laugh test to say this.

Neither is there any specification of any difference in rights between these types of citizens other than eligibility, if a “natural born citizen” means something other than “citizen at birth by law” it would have been so stated.

No, there are two types of citizen only: “naturalized,” or “natural born.”

Let people play all the semantic games they wish, the burden of proof remains with those making the assertion that it means something they specify.

    Aarradin in reply to Estragon. | September 4, 2013 at 3:55 am

    Exactly.

    davidfarrar in reply to Estragon. | September 4, 2013 at 12:51 pm

    I agree:

    “There are two types of citizen only: “naturalized,” or “natural born.”

    This is why Aarradin’s point, as it applies to Sen. Cruz, is confusing to me. Up to this point, dual allegiances at birth implies two allegiances. If you need a positive law to distinguish the descending allegiance, you are, in fact, a “naturalized” US citizen at birth, not a “natural” US citizen by birth.

    Moreover, I see this same problem with Barack Obama’s presidential qualifications. His father was not a US citizen at the time of his son’s birth, but a British subject. While there was a transfer of (US) allegiance at birth on the part of his natural born mother, privileged law would be required to determine the descending allegiance.

    ex animo
    davidfarrar
    *Art. II, §1, cl. 4 is the more accurate cite of the presidential qualification clause, than Art. II, §1, cl. 5, due to the adopting of the 12th Amendment in 1804, which displaced Art. II, §1, cl. 3, dealing with the presidential electors.

      Ballantine in reply to davidfarrar. | September 4, 2013 at 1:50 pm

      “If you need a positive law to distinguish the descending allegiance, you are, in fact, a “naturalized” US citizen at birth, not a “natural” US citizen by birth.”

      You just keep making this gibberish up. Seriously, why do you post things as fact that there is no legal or historical authority to support but your own opinion? I really don’t get people who clearly know nothing at law pretending that their own opinions based upon their own unsupported assertions is somehow relevant to what the law is.

This is way beyond a “blog post”. Your work and your opinion is much appreciated. Thank you.

The “natural-born” issue was raised in 1916, regarding Republican Presidential candidate Charles Evans Hughes. His parents were British immigrants, who had not been naturalized at the date of his birth.

A St. Louis attorney, one Breckinridge Long, argued that this meant Hughes was not eligible to be President. His argument appeared in “Chicago Legal News”.

    davidfarrar in reply to Rich Rostrom. | September 4, 2013 at 7:52 pm

    Rich Rostrom,

    This is fascinating reading.

    Click here for the printed article.

    Thank you.

    ex animo
    davidfarrar

      Dave B. in reply to davidfarrar. | September 4, 2013 at 8:43 pm

      So how did that work out, David?
      Charles Evans Hughes was already serving on the US Supreme Court in 1916, from which he resigned to seek the Presidency. He went on to serve as Secretary of State. He was also sought out as a candidate for President in 1928, but declined on account of his age. Instead, he went on to return to the Supreme Court as Chief Justice. Some divided loyalties, eh?
      And he’s got a thing or two in common with Professor Jacobson.
      Hughes’s career in service to the American people ended on a more auspicious note than Breckinridge Long’s did.

      Canusee in reply to davidfarrar. | September 4, 2013 at 9:09 pm

      When one reads your link it is extremely difficult to comprehend Professor could come to such a staunch conclusion. In fact, compare this article to the professor’s and it becomes obvious that even though Professor took a great deal of time to research and present his conclusion, it is amateur hour compared to this article you share. The difference is years of study vs. in-the-moment study to validate a stand in a current controversy that is controversy because so few are actually learned in history and language. (I by no means claim to be one of the learned.)

Can you please comment on this, Prof. Jacobson?

The Dirty “little” Secret Of The Natural Born Citizen Clause Revealed:
http://naturalborncitizen.wordpress.com/2012/01/27/the-dirty-little-secret-of-the-natural-born-citizen-clause-revealed/

Professor Jacobson – FYI, Jack Maskill is the correct spelling.

Also in July, 1781 the Continental Congress reviewed a treaty with France. In the Journals of the Continental Congress both the French and English translations of the treaty are presented. The French version has the sentence “Les consuls et vice consuls respectifs ne pourront être pris que parmi les sujets naturels de la puissance qui les nommera.” with the English version translating the phrase “les sujets naturels” as the “the natural born subjects”.

So in reading Vattels phrase “Les naturels, ou indigenes”, the Founders/Framers might have translated it as “The natural born, or indigenes” or as “The natural born, or natives”.

Of course that doesn’t change the fact that there is no evidence that Vattel was used by the Framers to define the term.

Professor Jacobson – “There is no evidence to suggest that the term was in common usage at the time, but there is some evidence that “natural born Citizen” related to citizenship by birth, consistent with the plain text, and did not have some complicated British historical meaning.”

One of the first uses of the term was in a 1777 draft of the Articles of Confederation.

Massachusetts used the term NBC in it’s naturalization acts as early as 1785. Those naturalization acts (1785 to 1790) used both terms natural born citizen and natural born subject interchangeably. In fact the last act to use the term NBS was written in 1791.

    Ballantine in reply to charlie hughes. | September 4, 2013 at 1:46 pm

    Adams used the term prior to 1787 as well in treaty negotiations with England as he talked of “natural born subjects” of England as opposed to “natural born citizens” of the United States.

    Here are some of the relevant Massachusetts statutes showing the terms were used interchangably:

    In February, 1785, the Massachusetts legislature passed “AN ACT FOR NATURALIZING NICHOLAS ROUSSELET AND GEORGE SMITH.” in which it was declared that Nicholas Rousselet and George Smith “shall be deemed, adjudged, and taken to be citizens of this Commonwealth, and entitled to all the liberties, rights and privileges of natural born citizens.”

    In February, 1786, the Massachusetts legislature passed “AN ACT FOR NATURALIZING MICHAEL WALSH.” in which it was declared that Michael Walsh “shall be deemed, adjudged, and taken to be a citizen of this Commonwealth, and entitled to all the liberties, rights and privileges of a natural born citizen.”

    In July, 1786, the Massachusetts legislature passed “AN ACT FOR NATURALIZING JONATHAN CURSON AND WILLIAM OLIVER” in which it was declared that Jonathan Curson and William Oliver “shall be deemed adjudged and taken to be free Citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born citizens.“

    In March, 1787, the Massachusetts legislature passed “AN ACT FOR NATURALIZING WILLIAM MARTIN AND OTHERS.” in which it was declared that William Martin and Others,”shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born subjects.”

    In May, 1787, the Massachusetts legislature passed “AN ACT FOR NATURALIZING EDWARD WYER AND OTHERS THEREIN NAMED.” in which it was declared that William Martin and Others,”shall be deemed, adjudged and taken, to be free Citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born subjects.”

    In October, 1787, the Massachusetts legislature passed “AN ACT FOR NATURALIZING BARTHOLOMY DE GREGOIRE, AND MARIA THERESA, HIS WIFE, AND THEIR CHILDREN.” in which it was declared that Bartholomy de Gregoire, and Maria Theresa, his wife, their children,”shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, and entitled to all the liberties, rights and privileges of natural born citizens.”

    In November, 1787, the Massachusetts legislature passed “AN ACT FOR NATURALIZING ALEXANDER MOORE, AND OTHERS, HEREIN NAMED.” in which it was declared that Alexander Moore and others,”shall be deemed, adjudged and taken to be free citizens of this Commonwealth, & entitled to all the privileges, liberties, and immunities of natural born subjects.”

    In June, 1788, the Massachusetts legislature passed, “AN ACT FOR NATURALIZING WILLIAM MENZIES, AND OTHERS, THEREIN NAMED.” in which it was declared that William Menzies and others “shall be deemed, adjudged and taken to be free citizens of this Commonwealth, and intitled to all the liberties, privileges & immunities of natural born subjects.”

    In November, 1788, the Massachusetts legislature passed, “AN ACT FOR NATURALIZING ELISHA BOURN, AND OTHERS, THEREIN NAMED.” in which it was declared that Elisha Bourn and others “shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, & entitled to all the liberties, privileges & immunities of natural born Citizens.”

    In February, 1789, the Massachusetts legislature passed, “AN ACT FOR NATURALIZING JAMES HUYMAN, AND OTHERS, THEREIN NAMED.” in which it was declared that James Huyman and others “shall be deemed, adjudged and taken to be free Citizens of this Commonwealth, and entitled to all the Liberties, Privileges and Immunities of natural born subjects.”

    In June, 1789, the Massachusetts legislature passed, “AN ACT FOR NATURALIZING NATHANIEL SKINNER, AND OTHERS, THEREIN NAMED.” in which it was declared that Nathaniel Skinner and others “shall be deemed, adjudged and taken to be free citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born subjects.”

    In March, 1790, the Massachusetts legislature passed “AN ACT FOR NATURALIZING JOHN JARVIS, AND OTHERS, THEREIN NAMED” in which it was declared that John Jarvis and others, “shall be deemed adjudged and taken to be free citizens of this Commonwealth, and entitled to all the liberties, privileges and immunities of natural born subjects.”

    In March, 1791, the Massachusetts legislature passed“AN ACT FOR NATURALIZING JOHN WHITE & OTHERS” in which it was declared that John White and others, “shall be deemed adjudged and taken, to be free citizens of this Commonwealth, and intitled to all the liberties, privileges, and immunities of natural born subjects.”

Reply
SqueekyFromm September 4, 2013 at 12:03 am

“Uh, if it was precedent for defining natural born citizenship, then why didn’t the Wong Kim Ark Court 23 years later just skip all that British common law stuff on natural born subjects, and the American cases on natural born citizens???

The answer is, that Minor v Happersett isn’t a precedent.”

That may, indeed, be your answer. But here is mine: The Wong court used the 14th Amendment because it did recognize the citizenship precedent set in Minor, and that Wong Kim Ark did not meet that precedent. Indeed, it was because of this very reason, the SCOTUS chose this particular case to strike a political blow against the 1882 Chinese Exclusion Act.

If the Wong court didn’t recognize the citizenship precedent established in Minor, you would be right, i.e., it could have simply declared Wing Kim Ark an Art. II, §1, cl. 4 natural born citizen and closed the case.

ex animo
davidfarrar

    Ballantine in reply to davidfarrar. | September 4, 2013 at 4:17 pm

    Have you ever even read the case? Since you are saying things the Court never remotely stated you either haven’t read the case or are lying.

    Of course, the Court didn’t recognize Minor as citizenship precedent. The Court cited Minor twice. First, as one authority supporting the Court’s assertion that the Constitution be interpreted in light of the common law, the English common law, since Justice Waite looked to the common law for a definition in Minor. Second, the Court quoted Minor to point out that Justice Miller and the Slaughterhouse Court (i.e., essentially the same court) was not committed to a view on the children of aliens since such court expressly declined to address the status of such persons. Thus, the Wong Kim Ark court was pointing out the Minor was not precedent as they didn’t address the issue and hence we shouldn’t pay much attention to the Slaughterhouse dicta. Seriously, you are about as wrong as you can be. But that can be said for pretty much all your posts.

    The reason it didn’t just call Wong Kim Ark a natural born citizen and close the case is that the question before the Court was the meaning of the 14th Amendment and Courts usually address the question it is presented with. The Court thus spend many pages telling us persons of his status were natural born citizens since such was defined by the English common law before telling us that persons of his status were also citizens under the 14th Amendment since such Amendment was declaratory of the same English rule. The Court concluded that persons of his status were thus citizens (it didn’t say just under the 14th in the conclusion) since the Court had spent 50 plus pages showing such persons were citizens both before and after the 14th Amendment. The notion that the Court had to declare him to be a natural born citizen to be precedent just shows your ignorance of law. Justice Waite never declared Virginia Minor to be a natural born citizen and yet you think that is precedent. Waite actually wasn’t even talking about Viginia Minor’s citizenship but you wouldn’t understand what that case actually said if I explained it to you.

    charlie hughes in reply to davidfarrar. | September 4, 2013 at 11:40 pm

    David – “If the Wong court didn’t recognize the citizenship precedent established in Minor, you would be right, i.e., it could have simply declared Wing Kim Ark an Art. II, §1, cl. 4 natural born citizen and closed the case.”

    It wasn’t just the Wong Court that didn’t recognize Minor as precedent, the lower court in the Wong Kim Ark case didn’t recognize it either.

    “But the supreme court has never squarely determined, either prior to or subsequent to the adoption of the fourteenth amendment in 1868, the political status of children born here of foreign parents. In the case of Minor v. Happersett, 21 Wall. 168, the court expressly declined to pass upon that question.” District Judge Morrow, Northern District of California

    And in his ruling in the decision he wrote:

    “From the law as announced and the facts as stipulated, I am of opinion that Wong Kim Ark is a citizen of the United States within the meaning of the citizenship clause of the fourteen amendment”

    Notice he never says that Wong is a natural born citizen?

    Yet the US Government took his ruling and decided that Wong was now being made a natural born citizen.

    “The question presented by this appeal may be thus stated: Is a person born within the United States of alien parents domiciled therein a citizen thereof by the fact of his birth? The appellant maintains the negative, and in that behalf assigns as error the ruling of the district court that the respondent is a natural-born citizen” Appellant Brief

    You see David the US Government just assumed that when Judge Morrow said that Wong was a citizen at birth that he was also saying that Wong was a natural born citizen.

    Remember to them there were only two types of citizens natural born and naturalized. And Wong was definitely not naturalized.

Although Justice Gray in his majority opinion didn’t explicitly declare Wong to be a natural born citizen it is clear from the context of Gray’s opinion that Wong’s only path to citizenship was to be a natural born citizen.

I researched what contemporary legal scholars had to say about Wong Kim Ark and found that one of the most respected attorneys in the country concluded that Wong would be eligible to run for president if he met the age and residency requirements. William Dameron Guthrie wrote:

“The common law rule has been finally affirmed by the Supreme Court in the recent case of the United States v Wong Kim Ark. The Supreme Court held that a child born in this country of Chinese parents domiciled here is a citizen of the United States by virtue of the locality of his birth. The whole subject is discussed at length in the opinions of this case. The effect of this decision is to make citizens of the United States, by virtue of the Fourteenth Amendment, all persons born in United States of alien parents and permanently domiciled here, except the children of the diplomatic representatives of foreign powers; and therefore, a male child born here of alien Chinese subjects is now eligible to the office of President, altho his parents could not be naturalized under our laws.”

Guthrie was fairly young when he wrote that but was already quite famous. He had successfully argued before SCOTUS in 1896 in a case that led to the overturning of the first income tax law. That case led to proposal and adoption of the Sixteenth Amendment.

I could find no contemporary articles that agree with the modern Birther reading of Minor v Happersett. No one wrote that Minor defined NBC. The reason is obvious. It didn’t

I wrote an article a while back about Guthrie’s views on WKA. http://rcradioblog.wordpress.com/2012/06/28/funk-wagnalls-president-obama-is-eligible/

Dave B.

I found some errors, such as his mother seem to have been an American from birth. But the article didn’t, in fact, tell us when his father did receive his US naturalization, or where. Like somebody pointed out above: he was born before the 14th Amendment was passed, I really haven’t had enough time to see what the state of New York’s naturalization requirement were in 1862.

The Naturalization act of 1802 reaffirmed that every State and Territorial court was considered a district court within the meaning of the laws pertaining to naturalization, and that any persons naturalized in such courts were accorded the same rights and privileges as if they had been naturalized in a district or circuit court of the United States.

So the jury is still not as to the actual facts of this case. But as to Mr. Long’s views, as they relate to what an Art. II, §1, cl. 4 natural born citizen actually meant before the 14th Amendment…fascinating! When you stop and think the 14th was only declarative…well

ex animo
davidfarrar

    And I ask again, how did that work out, David?
    Breckinridge Long’s political stunt didn’t even get as far as being whupped in court by an empty chair, like yours did. It did help get his foot in the door at the State Department, though. How do you reckon that ended up?

    charlie hughes in reply to davidfarrar. | September 4, 2013 at 10:53 pm

    David – for Long to write that article would be essentially the same as a very strong Obama supporter writing that McCain was not eligible or that a campaign aid to Hillary Clinton wrote that Cruz was not eligible. You need to look at motives.

    Breckingridge Long wasn’t just a Democrat, he was a part of the Wilson for President Campaign. He is credited with helping to form the Wilson foreign policy platform at the St. Louis Democratic Convention. Some even give him at least partial credit for the phrase “He kept us out of war”. When the campaign was strapped for cash, Long donated $5000 and lent the campaign another $30,000.

    After the election, Wilson made him a Third Assistant Secretary of State.

      davidfarrar in reply to charlie hughes. | September 4, 2013 at 11:34 pm

      Yes, I understand, Long had his own political motives. I think it is safe to say everyone has positive motives. But I find it fascinating the analysis Long is making is identical to what has been raised here almost 100 years later. It, at the very least, suggests this issue can be raised without being a racist, but simply on the merits of the case. It also suggests the question of what constitutes a US Citizen has been around since the very beginning of the Republic, represented on one side by the 1898 Wong Kim Ark decision, which rests upon a conservative backlash to the Glorious Revolution articulated by Blackstone’s “Commentaries on the Laws of England” and the old Coken concept of perpetual allegiance, rather than the more enlightened concepts of a Lockean consent-based citizenship.

      Somehow I can’t see a Madison, or a Hamilton, running around the streets of Philadelphia in 1787, waving around a copy of Blackstone Commentaries, as Justice Gray would have us believe, but rather waiving around a copy of de Vattel’s Laws of Nations, or Locke’s Second Treatise on Civil Government…but I digress.

      ex animo
      davidfarrar

        charlie hughes in reply to davidfarrar. | September 5, 2013 at 12:02 am

        Sir Edmund Burke said this about the American colonies in a speech in Parliament:

        “In no country perhaps in the world is the law so general a study. The profession itself is numerous and powerful; and in most provinces it takes the lead. The greater number of the deputies sent to the congress were lawyers. But all who read, and most do read, endeavour to obtain some smattering in that science. I have been told by an eminent bookseller, that in no branch of his business, after tracts of popular devotion, were so many books as those on the law exported to the plantations. The colonists have now fallen into the way of printing them for their own use. I hear that they have sold nearly as many of Blackstone’s Commentaries in America as in England.” March 22nd, 1775.

        Blackstone was the first law book at the first law school (William and Mary) in the United States.

        Ballantine in reply to davidfarrar. | September 5, 2013 at 10:35 am

        I guess you know nothing about history:

        “I will refer you to a book which is in every man’s hand–Blackstone’s Commentaries.” James Madison, Debate in Virginia Ratifying Convention, 18–19 June 1788

        Why don’t you show us one provision of the Constitution that the Supreme Court has ever said came from Vattel. There are none. Now, why don’t you research how many provisions are based upon English law. Where do you think the 2nd Amendment came from? Vattel or English law? Do you not know that the Constitution is full of terms that didn’t exist outside of English law. For example:

        “But in so doing, they did not reject the body of the common law. They founded their respective state constitutions and the great national compact, upon its existing principles, so far as they were consistent and harmonious with the provisions of those constitutions. A brief reference to the Constitution of the United States will illustrate this idea. It gives the sole power of impeachment to the House of Representatives, and the sole power of trying an impeachment to the Senate. Impeachment is thus treated as a well known, defined and established proceeding. Yet it was only known to the common law, and could be understood only by reference to the principles of that law. The Congress was authorized to provide for the punishment of felonies committed on the high seas, and for punishing certain other crimes. The common law furnished the only definition of felonies. The trial of all crimes, except in cases of impeachment, was to be by jury; and the Constitution speaks of treason, bribery, indictment, cases in equity, an uniform system of bankruptcy, attainder, and the writ of habeas corpus; all of which were unknown even by name, to any other system of jurisprudence than the common law. In like manner, the amendments to the Constitution make provisions in reference to the right of petition, search warrants, capital crimes, grand jury, trial by jury, bail, fines, and the rules of the common law.” Lynch v. Clarke (NY 1844)

        The question of citizenship really wasn’t aroung for 100 years before Wong Kim Ark. Rather there were literally hundreds of authorities that looked to the common law and a handful of authorities, mostly in the later 19th century, which challenged the commonly understood meaning and lost.

What about this? (I would ask for Prof. Jacobson’s opinion again, but I guess that won’t happen.)
Minor v. Happersett Revisited http://naturalborncitizen.wordpress.com/2012/01/09/minor-v-happersett-revisited-2/

    davidfarrar in reply to lgstarr. | September 5, 2013 at 8:11 am

    I find this section truly enlightening:

    “Please note that the correct title of Vattel’s Book I, Chapter 19, section 212, is “Of the citizens and naturals”. It is not “Of citizens and natives” as it was originally translated into English.

    While other translation errors were corrected in reprints, that 1759 translation error was never corrected in reprints. The error was made by translators in London operating under English law, and was mis-translated in error, or was possibly translated to suit their needs to convey a different meaning to Vattel to the English only reader.

    In French, as a noun, native is rendered as “originaire” or “indigene”, not as “naturel”. For “naturel” to mean native would need to be used as an adjective.

    In fact when Vattel defines “natural born citizens” in the second sentence of section 212 after defining general or ordinary citizens in the first sentence, you see that he uses the word “indigenes” for natives along with “Les naturels” in that sentence. He used the word “naturels” to emphasize clearly who he was defining as those who were born in the country of two citizens of the country.

    Also, when we read Vattel, we must understand that Vattel’s use of the word “natives” in 1758 is not to be read with modern day various alternative usages of that word. You must read it in the full context of sentence 2 of section 212 to fully understand what Vattel was defining from natural law, i.e., natural born citizenship of a country.

    (Please see the photograph of the original French for Chapter 19, Section 212, here in the original French if you have any doubts, click here.)

    Please do not simply look at the title as some have suggested that is all you need to do. Vattel makes it quite clear he is not speaking of natives in this context as someone simply born in a country, but of natural born citizens, those born in the country of two citizens of the country. Our founding Fathers were men of high intellectual abilities, many were conversant in French, the diplomatic language of that time period. Benjamin Franklin had ordered 3 copies of the French Edition of “Le droit des gens,” which he deferred to as the authoritative version as to what Vattel wrote and what Vattel meant and intended to elucidate.”

    ex animo
    davidfarrar

Again, looking for comments on the following:

TOP WASHINGTON D.C. CONSTITUTIONAL LAWYER: “A NATURAL BORN CITIZEN IS ONE WHO IS BORN TO A MOTHER AND A FATHER WHO ARE UNITED STATES CITIZENS”
[Please see credentials for Dr. Herbert W. Titus at the bottom of this post.]
http://thedailypen.blogspot.com/2011/12/top-washington-dc-constitutional-lawyer.html

“To add further proof to the intent of the Founding Fathers literal meaning of Vattel’s definition of a natural born citizen being born of two citizens, and in the country itself, and wanting a natural born citizen having no other claim to his loyalty except that of the United States of America, in 1795 the Congress amended the Naturalization Act of 1790. . .”
http://birthers.org/USC/Vattel.html

“It’s common to see people refer to Ex Parte Lockwood, 154 U.S. 116 (1894) as supposedly confirming that Minor v. Happersett is binding authority. (There even was a conspiracy theory that Justia and Cornell’s Legal Information Institute conspired to hide Lockwood, which I somehow got dragged into.) Lockwood, however, did not involve the “natural born Citizen” clause, but rather, a claim by an attorney who was refused admission to the Bar and claimed a violation of the 14th Amendment’s privileges and immunity’s clause. The Court in Lockwood quoted Minor v. Happersett but only as to citizenship, not for the purpose of ruling on the “natural born Citizen” clause:

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 citizons of the United States was no violation of the federal constitution.”

Wait wait wait, not so fast. So Let’s talk supreme court cases here Mr. Jacobson. First you said, “It’s common to see people refer to Ex Parte Lockwood, 154 U.S. 116 (1894) as supposedly confirming that Minor v. Happersett is binding authority.” Wait a second right there, isn’t or is it not binding authority on CITIZENSHIP as confirmed by Ex Parte Lockwood Mr. Jacobson? Then if it is, which I believe you admitted to when you said “The Court in Lockwood quoted Minor v. Happersett but only as to citizenship, not for the purpose of ruling on the “natural born Citizen” clause”. Well Mr. Jacobson, it did not simply quoted it, it confirmed it as binding authority in that regard. Let’s continue, so if it is binding authority on CITIZENSHIP and you admit it is not dicta regarding CITIZENSHIP then how did the court defined those members of the nation born of citizen parents within the same context of Citizenship Mr. Jacobson? That’s right, they were never doubted to be natural born citizens by the court. This is the only binding authority that exists to date that supports the citizen parents definition. Why put a dicta stamp on it when the law tells us otherwise?

    charlie hughes in reply to mrjr101. | September 5, 2013 at 12:28 am

    But not binding authority on what is a natural born citizen. The single sentence from the Minor opinion “These were natives or natural-born citizens, as distinguished from aliens or foreigners.” can be removed without any impact to the decision. It was not essential to the decision. The United States Court of Appeals, Seventh Circuit in United States of America v. John Allan Crawley, 837 F.2d 291 said that this is the definition of dicta.

      I beg to differ, it is part of the rationale; the sentence is there to create a distinction of Minor’s membership in a society as a citizen and eliminate doubts that she is an alien or a foreigner. The sentence, which is defining this meaning of NBC is there, it cannot be removed from the rationale.

        charlie hughes in reply to mrjr101. | September 5, 2013 at 5:24 am

        “The sentence, which is defining this meaning of NBC is there, it cannot be removed from the rationale.”

        On the contrary, it absolutely can be removed. Here it is without the sentence:

        ‘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. 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.’

        The analytical structure of the paragraph is not changed. Minor is still in the class of citizens with two citizen parents and there are still the doubts about the other class of citizens.

          davidfarrar in reply to charlie hughes. | September 5, 2013 at 9:40 am

          charlie hughes | September 5, 2013 at 5:24 am

          First a correction in my post of September 4, 2013 at 11:34 pm, wherein I wrote: “Yes, I understand, Long had his own political motives. I think it is safe to say everyone has positive motives.”

          I meant:”Yes, I understand, Long had his own political motives. I think it is safe to say everyone has political motives.”

          And now to your point: I agree; that sentence in Minor:

          “These were natives, or natural-born citizens, as distinguished from aliens or foreigners.”

          is dicta, but dicta based on the citizen precedent that:

          “All children born in a country of parents who were its citizens became themselves, upon their birth, citizens also,

          And that women (a person), if born of citizen parents within the jurisdiction of the United States, has always been considered a citizen of the United States, as much so before the adoption of the Fourteenth Amendment to the Constitution as since,

          And that it has never been doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also,

          And as to all children born to aliens within the jurisdiction there have been doubts, but never as to the first,

          leaves but one possibility, and that of a natural born US Citizen.

          ex animo
          davidfarrar

      Finally, if we all analyze the Minor dictum argument here a little bit more, we will all find that it fails miserably. The Minor court concludes the paragraph stating:

      “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. 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 Minor court told us that for the purpose of the case it was not necessary to solve the class with doubts, which was that some authorities included as CITIZENS those persons born in the U.S. to parents of unknown nationality (so this should include anything in between, one parent U.S. citizen, or no parents U.S. citizens). The court stopped there. It was not necessary to go any further of the rational to reach its conclusion, that Minor, as a female, was without a doubt a Citizen because she was born in the U.S. to citizen parents. The language of the justices in this paragraph indicates that if Minor’s parents were of unknown nationality, one or no U.S. citizen parents, then it was absolutely necessary to solve the doubts that the court had of those people because it was necessary to rule on Minor’s citizenship status. The last couple of sentences is the nail in the coffin. It reads: “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.” This court never lingered in dicta about Minor’s citizenship, not one bit.

    mrjr101 in reply to mrjr101. | September 5, 2013 at 12:42 am

    There is necessary correction I need to make to my last statement. The Minor Court did not say that there was no doubt Minor was a natural born citizen. The minor court did tell us, and confirmed by Ex Parte Lockwood 154 U.S. 116 (1894), that there was no doubt Minor was a citizen. This is part of the ruling according to Lockwood. Within the same context, the Minor court then defined what those classes of citizens were called, natural born citizens, and clearly distinguished them from aliens or foreigners. This is the only definition of natural born citizenship within the context of citizenship in a supreme court case that we know of regardless of theoretical inclusions or exclusions.

      Ballantine in reply to mrjr101. | September 5, 2013 at 10:20 am

      Actually, you get pretty much everything wrong about Minor. Minor’s citizenship was conceded in the original filing and never contested. There is nothing about her parents or place of birth in the record of the court or the courts below. Her native citizenship was a stipulated fact in the Supreme Court opinion which means such was not before the Court. Indeed, the holding of the case said that citizenship was irrelevant to the right to vote so the Court never needed to even address her citizen. The Court below acutally didn’t bother addressing it for the same reason.

      So why did Waite discuss citizenship. The primary argument Virginia Minor made was that she was a citizen under the 14th Amendment and hence had the right to vote under the privileges and immunies clause. Waite responded by pointing out that woman had always been citizens, that voting was never a privilege of citizenship, that the 14th Amendment did not add any new privileges and hence women had no constitutional right to vote whether they were citizens or not. The natural born citizenship discussion was one of five examples given that women had always been citizens. The others were that women were always covered under naturalization law, state laws of descent, jurisdictional law and homstead laws, provisions where he clearly was not talking about Virginia Minor.

      Obviously, to show that women were always citizens it didn’t need to address the status of children of aliens which it didn’t and hence simply cannot be authority on. When a court simply says some unknown person has doubts and declines to address whether those doubts have merit, it is not authority. And it didn’t say the doubts were about some type of citizenship other than natural born citizenship. So the language cited is dicta that expressly declined to address the statuts of people like Obama and Rubio. No court has ever, or will ever, cite it as authority for children of aliens as it isn’t. It really is no debate about the matter.

      And, of course, Wong Kim Ark did define who was natural born, though it seems to be a matter of religious faith by some here to pretend such case doesn’t exist. No modern court seems to have trouble understanding the case no matter how it is misinterpreted by nameless people on blogs.

        davidfarrar in reply to Ballantine. | September 5, 2013 at 10:37 am

        Pray tell me which part of my September 5, 2013 at 9:40 am repose to charlie hughes you would disagree with as being facially inaccurate?

        ex animo
        davidfarrar

          Ballantine in reply to davidfarrar. | September 5, 2013 at 11:12 am

          Uh I was responding to mrjr101’s incorrect analysis of Minor. I have no idea what you mean by “dicta based upon citien precedent.” Nothing such court says is precedent and it cites no other precedent on citizenship. Sorry, it is not a matter of debate, Minor is not precedent on whether native born children of aliens are natural born.

For that period in time, if one was going to start an American revolution, they would not have used Blackstone’s Commentaries, is all I am saying; they would have used de Vattel’s ‘The Laws of Nations’ as their guide.

Founders like Jefferson, Hamilton, Jay and Madison would have been far more drawn to the radical principles of popular sovereignty and individual natural rights from natural law from liberal theorists such Spinoza’s “Ethics” (which laid the groundwork for the 18th century of Enlightenment), or Algernon Sidney’s ‘Discourses Concerning Government’:

“There can be no peace, where there is no justice; nor any justice, if the government instituted for the good of a nation be turned to its ruin”,

or Locke’s ‘consent-based government theories’ found in his ‘Second Treaties’, rather than Blackstone’s Commentaries. All one has to do is read Jefferson’s Declaration of Independence to see in it the ghost of the radical liberalism of Lock in his replacement of a sovereign king with the “Consent of the Governed” to understand fully: this was no Blackstone.

ex animo
davidfarrar

    Ballantine in reply to davidfarrar. | September 5, 2013 at 10:04 am

    Making assertions you have no evidence to support is not legal argument. You have not presented a shred of evidence that they used Vattel and the argument that they were secretly doing their own translation from the French and you someone know how they would translate it is just silly. Such argument would be laughed out of court.

      davidfarrar in reply to Ballantine. | September 5, 2013 at 10:52 am

      As I pointed out:

      All one has to do is read Jefferson’s Declaration of Independence to see in it the ghost of the radical liberalism of Lock in his replacement of Charles III with the “Consent of the Governed” to understand fully: this was no Blackstone.

      Please note: this will be the first and last time I will respond to your posts if you again try and buttress you points of view with crude insults. Believe me when I tell you, they only weaken your point, not mine.

      ex animo
      davidfarrar

        Ballantine in reply to davidfarrar. | September 5, 2013 at 11:09 am

        Great response. You see, to make your arugment you need to show some evidence that the framers looked to Vattel or Locke on citizenship not cite a document that says nothing about citizenship. And, before the ink was barely dry in the Declaration, Viginia adopted the common law and Jefferson himself wrote a statute saying anyone born in Virginia was a citizen. So much for Locke.

          davidfarrar in reply to Ballantine. | September 5, 2013 at 11:29 am

          Jefferson’s Declaration of Independence was almost word for word Lockean liberalism and nothing of Blackstone.

          Moreover Blackstone, as do our courts today, gladly point out, under English common law, there is no distinction between a subject of the real and an American citizen. Such cannot be said of Locke.

          ex animo
          davidfarrar

          Ballantine in reply to Ballantine. | September 5, 2013 at 11:38 am

          You are missing the point. No legal authority ever said we looked to Locke on citizenship. Not the Declaration, not Jefferson, not Madison, not any court ever. So, exactly what point are you trying to make. I know you can’t except that all early authority says we followed English law or that our Supreme Court has clearly said that such is the case. The founders being familiar or liking Locke doesn’t change the fact that much, if not most, of the Constitution was based upon English law and the the common law was the basis of our entire legal system. Such are historical facts whether you like it or not.

You are missing the point: L’Espirit de la Revolution, as articulated by Mr. Jefferson’s Declaration of Independence must be accurately reflected by the US Const. at all times or the US Supreme Court is in breach of its judicial responsibilities.

ex animo
davidfarrar

    Ballantine in reply to davidfarrar. | September 5, 2013 at 12:03 pm

    Yes, we must remove all the provisions of the Constitution based upon English law that you don’t think Locke would like. What silliness. Actually, it would seem that treating all persons born on the soil the same comports perfectly with the notion that all people are created equal. Discriminating based upon parentage would not seem in that spirit. Maybe that is why Viginina and all the state followed the common law with respect to citizenship after 1776. I guess they didn’t get your memo. These are the types of argument one makes when they can find no one that actually support their arguments. The truth is you can’t cite a single early authority saying natural born meant anything other than native birth or was otherwise defined by English law. Those are facts that a court would base a decision on not what you think comports with the Declaration.

There are no articles in the US Const. based on English common law. English common law terminology was used as the legal language of the day. But the concept of replacing the English sovereign, Charles III, with the Lockean concept of We the people as expressed by the “Consent of the Governed” is nowhere to be found in English common law.

There are a few rights articulated in the Bill of Rights,i.e., the 5th and 7th Amendments, but even these rights were first recognized by radical liberalism of the 1688 Glorious Revolution.

Of course, Mr. Apuzzo, would have a better handle on this point, than I.

ex animo
davidfarrar

ex animo
davidfarrar

    Ballantine in reply to davidfarrar. | September 5, 2013 at 12:36 pm

    As if Apuzao is an authority on anything. I suggest you read the post above quoting Lynch v. Clarke on all the provisions of the Constitution that come from the English common law. Such is why Blackstone has been cited so often by the Court. However, the states clearly did following the common law after the declaration and there is no early authority that any change was made with respect the law of allegiance and alienage. You can claim it wasn’t Lockean all you want but it doesn’t change the fact that no one looked to any Lockean concepts on citizenship as such concepts have never been part of our law. I guess you have no other arguments to make.

    And that last admission speaks volumes.

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