With this odd fellow we elected President has come discussion about the Constitutional requirements for being President, and in particular that pesky little phrase “natural born citizen”. There are some very long (and some long-winded) discussions about what this means. I personally think the thing is being over analyzed.
I hit the Concise Oxford English Dictionary for the “old meaning” of the term, and it provided a very simple definition: “having a position by birth”, so “natural born citizen” means being a citizen at birth. There’s nothing new here, and indeed this is what is usually understood by the term. If you look at all the uses of “natural born”, it means “born with” some characteristic, e.g. natural-born storyteller, natural-born swimmer, natural-born athlete, natural-born mathematician, natural-born musician, and on and one. A natural born citizen is just someone born with the quality of being a citizen.
At first blush, this would seem to be a slam dunk answer for Barack Obama’s natural born citizenship, since the fourteenth amendment defines: “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”. There’s no question in my mind that Barack Obama was born in the United States. Some quibble about the latter part: “subject to the jurisdiction thereof”. Keep in mind that now we are talking about citizenship in general, not the qualifications for President. Some argue that the children of non-citizens born in the United States should not be citizens because they are subject to the government of their parents, that they have divided jurisdiction. This non-citizenship for the children of non-citizens would be a big surprise to hundreds of thousands of Americans with US Birth Certificates and carrying US Passports, and to the US State Department and most of the population. However, the question of citizenship for the children of non-citizens was settled long ago by the United States Supreme Court in the case of United States v. Wong Kim Ark. Wong was born in the US, the child of two Chinese temporary workers. He tried to re-enter the country and was denied entry because he was not a citizen. The Supreme Court in a 6-2 vote declared that he was indeed a citizen.
A lot is being written right now about the Wong case (some of it misleading), but the one sure thing in Wong is that the children born in the United States to non-US citizens are themselves citizens at birth.
Since “natural born” refers to a quality at birth, anyone born in the United States can grow up to be President.
INA: ACT 301 – NATIONALS AND CITIZENS OF THE UNITED STATES AT BIRTHSec. 301. [8 U.S.C. 1401] The following shall be nationals and citizens of the United States at birth:
(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
Source: U.S. Citizenship and Immigration Services. See also: Acquisition and Retention of U.S. Citizenship and Nationality – US Department of State.
Actually, I don’t think there is any difference between the “citizen” argument and the “natural born citizen” argument. It is the same argument essentially with just one term substituted for another. Donofrio trots out some Swiss philosopher and translates him into English and makes that the rule that the Constitution must be interpreted by (it’s all he’s got) when any instance you can think of of the use of the term “natural born” means born nature, or nature at birth–here citizen at birth.
Huge articles are written that bring in great concepts of sovereignty and loyalty and divided jurisdiction, but they all fall flat compared to what the Constitution plainly says. If the Constitution doesn’t define “natural born” then the framers must have assumed that it meant what the phrase means everywhere else: “having a position by birth”. Now perhaps the framers had an unusual idea of exactly who was a citizen at birth, but that was cleared up by the 14th amendment, and clarified as to its application in United States v. Wong Kim Ark.
The “subject to the jurisdiction of” clause was included in the fourteenth amendment to exclude a small class of special cases which are enumerated in naturalization law, and they include the Indian tribes, children of foreign ambassadors and persons born on foreign ships at sea within the external territorial waters of the US. This subject was examined at length by the Supreme Court in United States v. Wong Kim Ark which said:
The real object of the fourteenth amendment of the constitution, in qualifying the words ‘all persons born in the United States’ by the addition ‘and subject to the jurisdiction thereof,’ would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases,–”children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state…
Since the Supreme Court under Wong concluded that Mr. Wong was a citizen from birth under the fourteenth amendment, then he must therefore have been born under the jurisdiction of the United States and if, as you say this is claimed to be equivalent to “not subject to any foreign power” then this person born of Chinese citizens must been “not subject to any foreign power”. QED
If we accept the equivalence of “subject to the jurisdiction” with “not subject to any foreign power” then Wong demolishes any argument based on “not subject to any foreign power” since the Wong decision is entirely about making the children of aliens citizens under the fourteenth amendment, and specifically placing them “subject to the jurisdiction” of the United States.
Look at these from Wong:
‘This section [of the fourteenth amendment] contemplates two sources of citizenship, and two sources only,–”birth and naturalization. The persons declared to be citizens are ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof.’ The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.’
Remember, that was talking about citizenship, not the qualifications to be president. If these children are not subject to the jurisdiction, then are not citizens at all. But Wong goes on to say that they indeed are fully under the jurisdiction.
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, and 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.
“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
By the constitution of the United States, congress was empowered ‘to establish an uniform rule of naturalization.’ In the exercise of this power, congress, by successive acts, beginning with the act entitled ‘An act to establish an uniform rule of naturalization,’ passed at the second session of the first congress under the constitution, has made provision for the admission to citizenship of three principal classes of persons: First. Aliens, having resided for a certain time ‘within the limits and under the jurisdiction of the United States,’ and naturalized individually by proceedings in a court of record. Second. Children of persons so naturalized, ‘dwelling within the United States, and being under the age of twenty-one years at the time of such naturalization.’
The point of the preceding citation is to emphasize that aliens residing here are “under our jurisdiction” while they are still aliens.
The supreme judicial court of Massachusetts, speaking by Mr. Justice (afterwards Chief Justice) Sewall, early held that the determination of the question whether a man was a citizen or an alien was ‘to be governed altogether by the principles of the common law,’ and that it was established, with few exceptions, ‘that a man, born within the jurisdiction of the common law, is a citizen of the country wherein he is born. By this circumstance of his birth, he is subjected to the duty of allegiance which is claimed and enforced by the sovereign of his native land and becomes reciprocally entitled to the protection of that sovereign, and to the other rights and advantages which are included in the term ‘citizenship.” Gardner v. Ward (1805) 2 Mass. 244, note. And again: ‘The doctrine of the common law is that every man born within its jurisdiction is a subject of the sovereign of the country where he is born; and allegiance is not personal to the sovereign in the extent that has been contended for; it is due to him in his political capacity of sovereign of the territory where the person owing the allegiance was born.’
Chancellor Kent, in his Commentaries, speaking of the ‘general division of the inhabitants of every country, under the comprehensive title of ‘Aliens’ and ‘Natives,” says: ‘Natives are all persons born within the jurisdiction and allegiance of the United States. This is the rule of the common law, without any regard or reference to the political condition or allegiance of their parents, with the exception of the children of ambassadors, who are, in theory, born within the allegiance of the foreign power they represent.’
The real object of the fourteenth amendment of the constitution, in qualifying the words ‘all persons born in the United States’ by the addition ‘and subject to the jurisdiction thereof,’ would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases,–”children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state,–”both of which, as has already been shown, by the law of England and by our own law, from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country
The chief justice first laid down the general principle: ‘The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may be either express or implied. In the latter case, it is less determinate, exposed more to the uncertainties of construction; but, if understood, not less obligatory.’ 7 Cranch, 136.
In short, the judgment in the case of The Exchange declared, as incontrovertible principles, that the jurisdiction of every nation within its own territory is exclusive and absolute, and is susceptible of no limitation not imposed by the nation itself; that all exceptions to its full and absolute territorial jurisdiction must be traced up to its own consent, express or implied
From the first organization of the national government under the constitution, the naturalization acts of the United States, in providing for the admission of aliens to citizenship by judicial proceedings, uniformly required every applicant to have resided for a certain time ‘within the limits and under the jurisdiction of the United States,’ and thus applied the words ‘under the jurisdiction of the United States’ to aliens residing here before they had taken an oath to support the constitution of the United States, or had renounced allegiance to a foreign government.
The words ‘in the United States, and subject to the jurisdiction thereof,’ in the first sentence of the fourteenth amendment of the constitution, must be presumed to have been understood and intended by the congress which proposed the amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall in the wellknown case of The Exchange, and as the equivalent of the words ‘within the limits and under the jurisdiction of the United States,’ and the converse of the words ‘out of the limits and jurisdiction of the United States,’ as habitually used in the naturalization acts. This presumption is confirmed by the use of the word ‘jurisdiction,’ in the last clause of the same section of the fourteenth amendment, which forbids any state to ‘deny to any person within its jurisdiction the equal protection of the laws.’ It is impossible to construe the words ’subject to the jurisdiction thereof,’ in the opening sentence, as less comprehensive than the words ‘within its jurisdiction,’ in the concluding sentence of the same section; or to hold that persons ‘within the jurisdiction’ of one of the states of the Union are not ’subject to the jurisdiction of the United States.’
By the civil rights act of 1866, ‘all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed,’ were declared to be citizens of the United States. In the light of the law as previously established, and of the history of the times, it can hardly be doubted that the words of that act, ‘not subject to any foreign power,’ were not intended to exclude any children born in this country from the citizenship which would theretofore have been their birthright; or, for instance, for the first time in our history, to deny the right of citizenship to native-born children or foreign white parents not in the diplomatic service of their own country, nor in hostile occupation of part of our territory. But any possible doubt in this regard was removed when the negative words of the civil rights act, ‘not subject to any foreign power,’ gave way, in the fourteenth amendment of the constitution, to the affirmative words, ’subject to the jurisdiction of the United States.’
In 1871, Mr. Fish, writing to Mr. Marsh, the American minister to Italy, said: ‘The fourteenth amendment to the constitution declares that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.’ This is simply an affirmance of the common law of England and of this country, so far as it asserts the status of citizenship to be fixed by the place of nativity, irrespective of parentage.
‘But no sovereignty can extend its jurisdiction beyond its own territorial limits so as to relieve those born under and subject to another jurisdiction, from their obligations or duties thereto; nor can the municipal law of one state interfere with the duties or obligations which its citizens incur while voluntarily resident in such foreign state, and without the jurisdiction of their own country.
In a very recent case, the supreme court of New Jersey held that a person born in this country of Scotch parents who were domiciled, but had not been naturalized, here, was ’subject to the jurisdiction of the United States,’ within the meaning of the fourteenth amendment, and was ‘not subject to any foreign power,’ within the meaning of the civil rights act of 1866;
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 Coke, 6a, ’strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’; and his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.’ It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides, seeing that, as said by Mr. Webster, when secretary of state, in his report to the president on Thrasher’s case in 1851, and since repeated by this court: ‘Independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance, or of renouncing any former allegiance,–”it is well known that by the public law an alien, or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason or other crimes as a native-born subject might be, unless his case is varied by some treaty stipulations.’ Executive Documents H. R. No. 10, 1st Sess. 32d Cong. p. 4; 6 Webster’s Works, 526; U. S. v. Carlisle, 16 Wall. 147, 155; Calvin’s Case, 7 Coke, 6a; Ellesmere, Postnati, 63; 1 Hale, P. C. 62; 4 Bl. Comm. 74, 92.
To hold that the fourteenth amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.
That was rather long, but it is important to actually read the case.
So it is settled. Persons born here are fully and completely subject to our jurisdiction, and are citizens by birth. All you need to finish the question of presidential eligibility is a dictionary. No wonder the Supreme Court decided not to get involved.