Defining Natural-Born Citizen
by P.A. Madison on November 18th, 2008
“The common law of England is not the common law of these States.” –George Mason
What might the phrase “natural-born citizen” of the United States imply under the U.S. Constitution? The phrase has always been obscure due to the lack of any single authoritative source to confer in order to understand the condition of citizenship the phrase recognizes. Learning what the phrase might have meant following the Declaration of Independence, and the adoption of the Fourteenth Amendment, requires detective work. As with all detective work, eliminating the usual suspects from the beginning goes a long way in quickly solving a case.
What Natural-Born Citizen Could Not Mean
Could a natural-born citizen simply mean citizenship due to place of birth?
Unlikely in the strict sense because we know one can be native born and yet not a native born citizen of this country. There were even disputes whether anyone born within the District of Columbia or in the territories were born citizens of the United States (they were generally referred to as “inhabitants” instead.) National Government could make no “territorial allegiance” demands within the several States because as Madison explained it, the “powers delegated by the proposed Constitution to the Federal Government, are few and defined,” and those “which are to remain in the State Governments are numerous and indefinite.”
Jurisdiction over citizenship via birth within the several States was simply an exercise of a States “numerous and indefinite” powers. Early acts of Naturalization recognized the individual State Legislatures as the only authority who could make anyone a citizen of a State. James Madison said citizenship rules “have obtained in some of the States,” and “if such a law existed in South Carolina, it might have prevented this question from ever coming before us” (question of Rep. William Smith being a citizen or not).
Framer James Wilson said, “a citizen of the United States is he, who is a citizen of at least some one state in the Union.” These citizens of each State were united together through Article IV, Sec. II of the U.S. Constitution, and thus, no act of Congress was required to make citizens of the individual States citizens of the United States.
Prior to the Revolutionary War place of birth within the dominions of the crown was the principle criterion for establishing perpetual allegiance to the King, however natural citizenship via birth could require being born to a British subject depending on the era in question. After independence this perpetual allegiance to the crown was abandoned for the principle of expatriation.
It should be noted this allegiance due under England’s common law and American law are of two different species. Under the common law one owed a personal allegiance to the King as an individual upon birth for which could never be thrown off. Under the American system there was no individual ruler to owe a perpetual personal allegiance to.
Furthermore, unlike the British practice, States required everyone including aliens to take an oath of allegiance to the State as a condition of residency. Children born to these residents were considered born into the allegiance of the State. In addition to this, States also had specific laws that banned citizenship to alien born who were not resident aliens who had declared their allegiance. New York for example, responded through enactment of a law to the ruling in Lynch v. Clarke (1844) that had used common law rules of citizenship by birth to specifically exclude children born to “transient aliens, and of alien public ministers and consuls, etc.”
In other words, unlike under the common law, birth by itself did not create allegiance to anyone due merely to locality.
Could a natural-born citizen perhaps be synonymous with the British term “natural-born subject”?
It is very doubtful the framers adopted the doctrine found under the old English doctrine of allegiance to the King from birth. The British doctrine could create double allegiances, something the founders considered improper and dangerous. The American naturalization process required all males to twice renounce all allegiances with other governments and pledge their sole allegiance to this one before finally becoming a citizen.
House Report No. 784, dated June 22, 1874, stated, “The United States have not recognized a ‘double allegiance.’ By our law a citizen is bound to be ‘true and faithful’ alone to our government.” It wouldn’t be practical for the United States to claim a child as a citizen when the child’s natural country of origin equally claims him/her because doing so could leave the child with two competing legal obligations, e.g., military duty.
Under the old English common law, birth was viewed as enjoining a “perpetual allegiance” upon all to the King that could never be severed or altered by any change of time or act of anyone. England’s “perpetual allegiance” due from birth was extremely unpopular in this country; often referred to as absurd barbarism, or simply perpetual nonsense. America went to war with England over the doctrine behind “natural-born subject” in June of 1812.
Because Britain considered all who were born within the dominions of the crown to be its natural-born subjects even after becoming naturalized citizens of the United States, led to British vessels blockading American ports. Under the British blockade, every American ship entering or leaving was boarded by soldiers in search of British born subjects. At least 6,000 American citizens who were found to be British natural-born subjects were pressed into military service on behalf of the British Empire, and thus, the reason we went to war.
Fourteenth Amendment
Whatever might had been the correct understanding of “natural-born citizen” prior to 1866, the adoption of the Fourteenth Amendment certainly changes the view because for the first time we have a written national rule declaring who are citizens through birth or naturalization. Who may be born citizens is conditional upon being born “subject to the jurisdiction” of the United States – a condition not required under the common law. The legislative definition of “subject to the jurisdiction thereof” was defined as “Not owing allegiance to anybody else,” which is vastly different from local jurisdiction due to physical location alone.
This national rule prevents us from interpreting natural-born citizen under common law rules because it eliminates the possibility of a child being born with more than one claim of allegiance.
The primary author of the citizenship clause, Sen. Jacob M. Howard, said the “word jurisdiction, as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.”
This remark by Howard puts his earlier citizenship clause remark into proper context: “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 accredited to the Government of the United States, but will include every other class of persons.”
United States Attorney General, George Williams, whom was a U.S. Senator aligned with Radical Republicans during the drafting of the Fourteenth Amendment in 1866, ruled in 1873 the word “jurisdiction” under the Fourteenth Amendment “must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment.” He added, “Political and military rights and duties do not pertain to anyone else.”
Essentially then, “subject to the jurisdiction thereof” means the same jurisdiction the United States exercises over its own citizens, i.e., only citizens of the United States come within its operation since citizens of the United States do not owe allegiance to some other nation at the same time they do the United States. This makes arguing the physical presence of being subject to laws silly because being subject to another countries laws while visiting makes no change to an aliens allegiance to their native country.
Natural-Born Citizen Defined
One universal point most all early publicists agreed on was natural-born citizen must mean one who is a citizen by no act of law. If a person owes their citizenship to some act of law (naturalization for example), they cannot be considered a natural-born citizen. This leads us to defining natural-born citizen under the laws of nature – laws the founders recognized and embraced.
Under the laws of nature, every child born requires no act of law to establish the fact the child inherits through nature his/her father’s citizenship as well as his name (or even his property) through birth. This law of nature is also recognized by law of nations. Sen. Howard said the citizenship clause under the Fourteenth Amendment was by virtue of “natural law and national law.”
The advantages of Natural Law is competing allegiances between nations are not claimed, or at least with those nations whose custom is to not make citizens of other countries citizens without their consent. Under Sec. 1992 of U.S. Revised Statutes (1866) made clear other nation’s citizens would not be claimed: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.”
Rep. John A. Bingham commenting on Section 1992 said it means “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.” (Cong. Globe, 39th, 1st Sess., 1291 (1866))
Bingham had asserted the same thing in 1862 as well:
Does the gentleman mean that any person, born within the limits of the Republic, and who has offended against no law, can rightfully be exiled from any State or from any rood of the Republic? Does the gentleman undertake to say that here, in the face of the provision in the Constitution, that persons born within the limits of the Republic, of parents who are not the subjects of any other sovereignty, are native-born citizens, whether they be black or white? There is not a textbook referred to in any court which does not recognise the principle that I assert. (Cong. Globe, 37th, 2nd Sess., 407 (1862))
Bingham of course was paraphrasing Vattel whom often used the plural word “parents” but made it clear it was the father alone for whom the child inherits his/her citizenship from (suggesting a child could be born out of wedlock wasn’t politically correct). Bingham subscribed to the same view as most everyone in Congress at the time that in order to be born a citizen of the United States one must be born within the allegiance of the Nation. As the court has consistently ruled without controversy, change of location never changes or alters a persons allegiance to their country of origin except by acting in accordance to written law in throwing off their previous allegiance and consenting to a new one.
This of course, explains why emphasis of not owing allegiance to anyone else was the effect of being subject to the jurisdiction of the United States under the Fourteenth Amendment.
The constitutional requirement for the President of the United States to be a natural-born citizen had one purpose according to St. George Tucker:
That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence, which, wherever it is capable of being exerted, is to he dreaded more than the plague. The admission of foreigners into our councils, consequently, cannot be too much guarded against; their total exclusion from a station to which foreign nations have been accustomed to, attach ideas of sovereign power, sacredness of character, and hereditary right, is a measure of the most consummate policy and wisdom. …The title of king, prince, emperor, or czar, without the smallest addition to his powers, would have rendered him a member of the fraternity of crowned heads: their common cause has more than once threatened the desolation of Europe. To have added a member to this sacred family in America, would have invited and perpetuated among us all the evils of Pandora’s Box.
Charles Pinckney in 1800 said the presidential eligibility clause was designed “to insure … attachment to the country.” President Washington warned a “passionate attachment of one nation for another, produces a variety of evils,” and goes on to say:
Sympathy for the favorite nation, facilitating the illusion of an imaginary common interest, in cases where no real common interest exists, and infusing into one the enmities of the other, betrays the former into a participation in the quarrels and wars of the latter, without adequate inducement or justification. It leads also to concessions to the favorite nation, of privileges denied to others, which is apt doubly to injure the nation making the concessions; by unnecessarily parting with what ought to have been retained; and by exciting jealousy, ill- will, and a disposition to retaliate, in the parties from whom equal privileges are withheld.
And it gives to ambitious, corrupted, or deluded citizens, (who devote themselves to the favorite nation,) facility to betray or sacrifice the interests of their own country, without odium, sometimes even with popularity; gilding, with the appearance of a virtuous sense of obligation, a commendable deference for public opinion, or a laudable zeal for public good, the base or foolish compliances of ambition, corruption, or infatuation.
What better way to insure attachment to the country then to require the President to have inherited his American citizenship through his American father and not through a foreign father. Any child can be born anywhere in the country and removed by their father to be raised in his native country. The risks would be for the child to return in later life to reside in this country bringing with him foreign influences and intrigues, and thus, making such a citizen indistinguishable from a naturalized citizen.
Conclusion
Extending citizenship to non-citizens through birth based solely upon locality is nothing more than mere municipal law that has no extra-territorial effect as proven from the English practice of it. On the other hand, citizenship by descent through the father is natural law and is recognized by all nations (what nation doesn’t recognize citizenship of children born wherever to their own citizens?). Thus, a natural-born citizen is one whose citizenship is recognized by law of nations rather than mere local recognition.
Chairman of the House Judiciary Committee, James F. Wilson of Iowa, confirmed this in 1866: “We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except that of children born on our soil to temporary sojourners or representatives of foreign Governments.”*
When a child inherits the citizenship of their father, they become a natural-born citizen of the nation their father belongs regardless of where they might be born. It should be pointed out that citizenship through descent of the father was recognized by U.S. Naturalization law whereby children became citizens themselves as soon as their father had become a naturalized citizen, or were born in another country to a citizen father.
Yes, birth is prima facie evidence of citizenship, but only the citizenship of the nation the father is a member.
* Temporary sojourners like transient aliens were a description applied to aliens other than resident aliens. The difference being temporary aliens were here for temporary purposes, such as work, travel, visitation or school, who had no desire to become citizens or was prevented from becoming citizens by law. Resident aliens were those who desired to become citizens and had renounced their prior allegiances and had taken the legal steps to become citizens or reside within some state per state law.
UPDATE: In regards to questions about the citizenship of the mother: Mothers citizenship rarely ever influenced the citizenship of their children except in certain situations such as the father dying before the child was born or when the identity of the father was unknown.
Related: What “Subject to the Jurisdiction Thereof” Really Means
Related: Nothing Unusual about States Denying Citizenship to Alien Born Children
Related: Was U.S. vs. Wong Kim Ark Wrongly Decided?
Senator Howard’s use of the phrase “by virtue of natural law” in his sponsorship speech of the citizenship clause is, of course, taken from Lord Coke in Calvin’s Case:
“That ligeance or obedience of the subject to the Sovereign is due by the law of nature”Â
Thus, “by the law of nature”–“It is neither the climate nor the soil but allegiance and obedience that make the subject born.”Â
Allegiance to the United States at birth (natural-born) or after birth (naturalized) is, of course, the determinant to U.S. citizenship; but there is an exception–“non-citizen national of the United States,” defined by law as “a person who, though not a citizen of the United States, owes permanent allegiance to the United States” to confer the oxymoron identity to disowned outcasts, otherwise stateless.
In Reply to domingo arong:
The sovereign Coke is referring to is the crown. There was no crown in this country! In this country the people are the sovereign.
The ligeance Coke is referring to is England’s very own homegrown “natural allegiance,” AKA “perpetual allegiance.”
And there no such thing as owing “permanent allegiance” in this country. Expatriation is alive and well just as it has been since the beginning. You need to get your head out of the dark ages 🙂
In Reply to Larry:
As regards “natural” or “perpetual” allegiance, this is how “Justice Swayne, sitting in the circuit court,” defined “Ânatural-born” in U.S. v. Rhodes–decided during the same year Congress enacted the Citizenship Clause in 1866 (ratified 1868)–that Justice Gray cited in U.S. v. Wong Kim Ark (1898):
“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.”Â
So, the principle applies whether the sovereign is the “crown” or “We, the people.”
It’s the law that says “permanent allegiance” (see definition of “non-citizen national” in the U.S. Code at Title 8, Chapter 12, Subchapter I, Section 1101, (a), 22).
It’s this law that’s still in the “dark ages.”
In Reply to domingo arong:
Swayne in Rhodes was repeating what Kent had written and was not making any opinion of his own. Swayne made a fatal mistake of fact when he wrote: “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.”
He concludes by writing “if we have erred, the Supreme Court of the United States can revise our judgment and correct our error.”
Well the Supreme Court never did not get the opportunity because Congress clearly rejected the common law doctrine with their civil rights act the 14th amendment the same year.
I think the fundamental differences between American law and common law the 39th Congress brought about was in this country allegiance was made conditional upon citizens having only allegiance to this country and no other. In the U.K. citizens owed unconditional allegiance to the crown.
In either case, birth was still the criteria for acquiring allegiance to either nation with the only difference in this country there could only be one allegiance!
FWIW: I don’t trust anything Kent has to say about American citizenship after he had suggested the rule of the common law remained unaltered in this country because, allegedly, no one could renounce their citizenship. What an ignorant moron.
The Fourteenth Amendment, like all the amendments, only further declares and restricts the Constitution mainbody. No new “national rule” is created. Additionally, The People of the United States view the so-called “institution of slavery” as a series of felonies including manstealing, mayhem, and assault. The limitations against nobility, state and federal, expressly withdraw all immunities to prosecution claimed by self-described slavemasters.
It is inconceivable that a president-elect could get this far — AFTER an election, without giving absolute proof of his eligibility to even run for the office. Did the Dems go to sleep at the wheel or what???? Why bother with a constitution at all if it’s totally ignored in THE most important election in our country?
I think the point about inheriting your father’s last name is important because I am not aware of any law that says all children born acquire their father’s last name. It is only natural, right? Acquiring your father’s citizenship would be just as natural.
No one argues today children should acquire their mother’s last name?
What happens if Obama is disqualified?
In Reply to Tom T.:
If Obama is found disqualified than the office would go to the next candidate with the most EV’s. The key word here is “disqualified” and not death or removal of a president.
It is no different than any other race when the winner is found disqualified. A new race is never held over again but the runner-up made the legitimate winner. Biden wouldn’t be the runner up since he wasn’t in the race for office of President (he became disqualified with Obama).
So many questions here:
(1)Where did the Blessed Event take place? The fact that there is a birth certificate somewhere in the secret files of Hawaii doesn’t mean he was born in Hawaii. As even forest dwellers know by now, the Certification of Live Birth on the Obama website was bogus, and even if it were real, is not the legal equivalent of a Birth Certificate. E.G. Obama’s born-in-Indonesia sister has a Certification of Live Birth from Hawaii. Certificate/Certification.
(2) Were the Mother and BHO, Sr. legally married? (This is another matter to be considered, as BHO, Sr. was already married in Kenya, and a father.) Frankly, I think if his parents were NOT legitimately married, it makes the case for The Chosen One’s citizenship stronger.
(3)Enough with Hawaii and Kenya. Was The Obamessiah adopted by Lolo Soetoro, an Indonesian citizen to whom his mother was presumably legally married after the Obama thing broke up? After all, our putative leader did use the name Barry Soetoro for years, and traveled to Pakistan with his NYC roomies on, it is rumored, an Indonesian passport in that name.
(4) Relax everyone. The SCOTUS will ponder all of these strange factoids and much more on December 5th. They will be trying to decide whether or not they should be involved. After all, what does the Constitution matter in Presidential elections? What is this country coming to if an illegal alien living in Boston Public Housing can’t have her nephew elected President?
I think P.A. Madison is correct here with his definition of natural born citizen considering the first Congress defined natural born citizen as born to a American father. Citizenship cannot be any more natural than that.
If SCOTUS want to treat natural born the same as place of birth they’ll have to explain away why the founders defined natural born citizens as being being born to American father’s only.
Alexander Morse in 1904 wrote “the framers thought it wise, in view of the probable influx of European immigration, to provide that the President should at least be the child of citizens owing allegiance to the United States at the time of his birth.”
In Reply to domingo arong: No United States person owes allegiance to anyone or any government. He is duty-bound to obey U.S. Constitution and laws in pursuance or pay prescribed penalties. How could this be otherwise, since every person maintains equal sovereignty with every other person? American sovereignty is joint and several.
What’s a natural born U.S. citizen?
NOT OBAMA !
There’s no way I will recognize a Kenyan born man as an American president.
Why bother migrating to America if all we get is a Kenyan born president with values of a Kenyan and anti-American?
No can do.
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Natural born citizen is defined by the Immigration and Nationality Act, Section 301. It reads as follows:
INA: ACT 301 – NATIONALS AND CITIZENS OF THE UNITED STATES AT BIRTH
Sec. 301. [8 U.S.C. 1401] The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;
(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;
(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;
(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;
(e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;
(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;
(g) 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 five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 1 of the International Organizations Immunities Act (59 Stat. 669; 22 U.S.C. 288) by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 1 of the International Organizations Immunities Act, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and
(h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States. 302 persons born in Puerto Rico on or after April 11, 1899
In Reply to Larry: It depends…
If it is proven before January 6, 2009 and the electoral votes are not cast for Obama then the electorals votes could go to any other candidate.
After Jan 6 and before Jan 20 (official qualification period) then Biden would become president.
After January 20, 2009 Obama must be impeached and you know they would not do that to their savior.
According to Blackstone, citizenship in some periods under common law might also involve the father’s citizenship or *both* parents being citizens. The later probably fits this age better, but Obama wouldn’t be a natural born citizen under either criteria.
That declaration by the Reconstruction Congress declaring the U.S. does not recognize double allegiance is a double whammy against the holding in Wong Kim Ark. If this was the true purpose behind subject to the jurisdiction of the United States then there is no way anyone can link the clause to common law.
What a horrible mess the court has made for itself.
In Reply to David Hoobler:
I might be reading that wrong, but doesn’t this just describe who is a citizen, and not a natural-born citizen? Under the law, these are two very different things.
lanlamphere.com produced the article US v. Rhodes, 27 F. Cas. 785; 1866 U.S. App. LEXIS 330; 1 Abb. 28; 1 Am. Law T. Rep. U.S. Cts. 22 (Circuit Court, D. Kentucky 1861) is the case that defines “natural born citizen”
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 [**18] as of England. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are in theory born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons. 2 Kent, Comm. 1; Calvin’s Case, 7 Coke, 1; 1 Bl. Comm. 366; Lynch v. Clarke, 1 Sand. Ch. 583.
In Reply to truthrevealed: Rhodes is a irrelevant citation. See my response to Rhodes below.