This is a continuation of the discussion of the June 5, 2009, article titled Obama Presidential Eligibility – An Introductory Primer by Stephen Tonchen. We resume at the end of his section 4:
In 1898, in the Wong Kim Ark case, the Supreme Court reexamined the “citizenship-by-birthplace-alone” theory, but did not decide whether it applied to natural born citizenship. The Court ruled that Mr. Ark was a citizen, but did not rule that he was a natural born citizen (SCOTUS in ‘Wong Kim Ark’).
This is a major gloss over one of the most sweeping surveys of citizenship ever appearing in US jurisprudence. The question before the court was whether Wong Kim Ark, born in California of Chinese subjects at a time when racist legislation (the Chinese Exclusion Act) prohibited the Chinese from becoming naturalized citizens, was a citizen. The Court said that he was. But in the majority opinion, the Court said a great many things of importance, specifically:
- Citing Smith v. Alabama, the court said that the Constitution is framed in the language of English Common Law
- The Court cited English Common law, saying that those born in England are natural born subjects of England, without regard for the citizenship of their parents
- The Court asserted the equivalence of “citizen” and “subject”.
While US v. Wong did not decide the natural born citizen question, the majority opinion leads inevitably to the conclusion that those born within the United States (except the children of ambassadors) are our natural born citizens, without regard to the citizenship of their parents.
Next in Tonchen’s article we read some details about Barack Obama’s birth, that his father was a “British Subject” (technically Obama was a Citizen of the UK and Colonies, not a British subject). Tonchen says:
If Barack Obama Jr. was born in the United States but, at the time of his birth, his father was a citizen of a foreign country and not a U.S. citizen, does Barack Obama Jr. meet the Constitutional “natural born citizen” requirement for presidency?
Obama apologists say “Yes”.
Earlier in the piece, Tonchen says that a consensus of the Congress and the media believe that birth in the United States is sufficient, but now he relegates this view to “Obama apologists”.
I note that Tonchen uses the term “birther” differently than the editorial policy of this web site. For Tonchen, a birther is anyone who doubts Obama’s eligibility to be president, where here we use it for anyone who doubts that Obama was born in the United States. Keep this in mind when comparing the two sources. Tonchen describes the born in Africa story as “unsubstantiated rumors,” so we will agree on this point and move on to his comment:
The U.S. Constitution, and the Naturalization Acts of Massachusetts (1776-1790), use the term “natural born citizen” but do not define it.
The Massachusetts acts, while not defining the term (implying that the term was established already in common law), do present some interesting language suggesting the absence of a parentage requirement (consistent with common law definitions). Here is a sample from the act naturalizing Peter Landais:
Be it enacted…that upon the taking and Subscribing the Oath of Allegiance…the said Peter Landais…shall be deemed and adjudged and taken to be a natural [other acts say “born” in this spot] Subject [other acts say “citizen” in this spot] of this State to all Intents and Purposes as if he the said Peter Landais had been Born within this State and had continued and dwelt therein from the Time of his Birth and having been here abiding on the fourth day of June….
Here we see that this grant of natural born subject status is equivalent to someone being born in the state and continuing to reside there. Not a word about natural born subjects having a parental requirement. We see similar language (without any reference to parentage) in the Naturalization Acts of New York. It is quite clear from these acts, as well as from the Charter of Georgia and legislation in South Carolina that the phrase natural born citizen/subject was universally tied to birth within the state/colony without regard to the status of the parents.
Tonchen follows with:
Five years later, Congress repealed the 1790 [Naturalization] Act and replaced it with the Naturalization Act of 1795. The wording of the 1795 Act was essentially the same as the 1790 Act, except that the term “natural born citizens” was deleted and replaced with “citizens”.
I would object to the assertion that the two acts were essentially the same. One is twice as long as the other, and the section specifically about children of citizens born overseas has been rewritten. It is not at all clear whether the drafters of the 1795 act dropped the phrase “natural born” for substantive legal reasons or just because they thought that all children who were citizens at birth are natural born, and therefore the phrase was unnecessary, and the change was made to improve the flow of the text (which it did). Compare the text of the two acts for yourself.
In Section 6, Tonchen relies on the Leo Donofrio’s slander of the late president Chester A. Arthur by saying:
When Chester Arthur ran for Vice President and later President, he told outright lies and burned historical records, to conceal the fact that, although he was born in the United States, his father was a British Subject and not a U.S. citizen at the time of his (President Arthur’s) birth. If “natural born citizen” means anyone born in the United States, regardless of parental citizenship, why did Chester Arthur go through so much trouble to convince the public that his parents were U.S. citizens when he was born? It is inconceivable that Chester Arthur would have taken such extraordinary measures, unless he believed that his birth to non-citizen parents made him ineligible to serve as VP or President (Historical Breakthrough — Chester Arthur).
There are a number of misleading statements and half-truths here. The facts are:
- While Chester Arthur lied saying he was one year younger than he really was, and he got some family details and dates wrong, he never said his father was a US Citizen when Arthur was born.
- While he did burn his papers before his death, he did not do so in the context or time of the election.
- Arthur made no statement implying that his father was a citizen when Arthur was born.
- Arthur, a lawyer from New York, may well have read the New York Chancery Court opinion that said the children of aliens born in the United States were eligible to be president (Lynch v. Clarke). Therefore, there is no rational explanation for the claim that Arthur thought he was ineligible, since the NY Court had said that the universal public opinion was that children of aliens born in the US are natural born citizens.
- Finally, through original research, Obama Conspiracy Theories has found evidence that at least one Arthur opponent was aware of Arthur’s father’s naturalization status.
This is discussed at length in two articles on this web site:
Tonchen then says:
On March 9, 1866, Representative John Bingham of Ohio, considered the father of the 14th Amendment, said the following in a speech before House of Representatives:
[I] find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that 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. (John Bingham, 1866, as quoted in Defining Natural Born Citizen)
The problem with this quotation, is that the reader is not treated to the context of what “allegiance to any foreign sovereignty” meant at the time. Allegiance in the United States (as is jurisdiction and citizenship) is attached to the place of birth as stated by framer of the Constitution, President James Madison:
It is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general place is the most certain criterion; it is what applies in the United States.
Tonchen, continuing to provide true evidence, but misdirecting it says:
In 1797 (a decade after the Constitution was adopted), the English translation of Emmerich de Vattel’s, Law of Nations was revised to include the term “natural born citizen”. The revised English translation helps to clarify the meaning of “natural born citizen”, as English-speaking people generally understood it towards the end of the 18th Century
This is true, but we should emphasize that the English translation of de Vattel available at the time the Constitution was written said indigenes [a transliteration of the 0f the original French] and not “natural born citizen”. The 1779 translation is hardly a clarification, but an inexplicable departure from the original.