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My views on the meaning of natural born citizen

Dr. Conspiracy

Dr. Conspiracy

After 9 months of study, and dozens of articles written, I have made up my mind about who is a natural born citizen of the United States. This is the way I reasoned it out.

One striking omission from the US Constitution as originally adopted, was any definition as to who were citizens of the United States, except to say, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”1 That opens the possibility of different requirements for citizenship among the states.

Given the obvious conclusion that all “natural born citizens are citizens”, it would be impossible for the Framers to have had any specific list of qualifications for “natural born citizen” in mind when they penned the presidential eligibility clause2 because the states defined an essential part of the phrase and they may define it differently. The only possibility remaining is that the Framers had a more generic understanding of the term that could apply whatever the states defined as citizens.

In British common law, the moment of birth created an immutable bond between subject and monarch. While Americans reject the immutable nature of citizenship, it nonetheless seems reasonable that they would consider someone who was always a citizen superior to someone who changed loyalties (or pretended to). For this reason, I have concluded that the Framers intended that Natural Born Citizen mean “citizen from birth”. It was not their intent to define the criteria under which someone was a citizen from birth, only to require that it be so for our president.

The Fourteenth Amendment to the US Constitution instituted a uniform rule of citizenship for persons born in the United States and under its jurisdiction. Its rule makes everyone born within the United States, except for those excluded from our jurisdiction such as the families of ambassadors, and those born in territory held by an invading army, and the Indian Tribes recognized as sovereign nations, were born citizens of the United States. It is established precedent that Congress has the power to make other citizens at birth, such as the children of citizens born outside the country, and members of the Indian tribes. All these persons who are born as citizens are our natural born citizens.


1 US Constitution, Article 4, Section 2.
2 US Constitution, Article 2, Section 1.

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82 Responses to My views on the meaning of natural born citizen

  1. avatar
    jvn August 10, 2009 at 7:27 pm #

    Quite right.

    It can be taken a step further using the language of the birthers.

    They argue that the Founders adopted de Vattel to define “natural born citizen.” The problem for them is that he was defining citizenship itself at birth and not some third category of “super native citizen.”

    If you follow their logic, a whole lot of us aren’t even citizens, let alone natural born ones…

    As you have stated, each individual state had requirements for citizenship up until the 14th Amendment mandated a national definition.

    Period.

  2. avatar
    brygenon August 10, 2009 at 8:13 pm #

    From the article:

    For this reason, I have concluded that the Framers intended that Natural Born Citizen mean “citizen from birth”.

    Another reason is that they spoke English. If one knows what “naturalized citizen” means, then “natural born citizen” is hardly a mystery.

  3. avatar
    Mario Apuzzo August 11, 2009 at 1:33 am #

    Dr. Conspiracy,

    When you take a motor apart, you have to make sure all the pieces go back together again. You put “born” in its place. Now what do you do with the word “natural.”

    Mario Apuzzo, Esq.

  4. avatar
    Bob August 11, 2009 at 2:01 am #

    Try reading the fourth paragraph.

  5. avatar
    Dr. Conspiracy August 11, 2009 at 2:02 am #

    Natural born citizen simply means “born with the nature of a citizen”. No parts left over. (I like the analogy, though.) Look, for example, at common phrases in the language such as “natural born leader.” It doesn’t invoke any specific set of conditions about how one obtained leadership talent, only that it was there from the start.

    The term natural born citizen of the United States means all persons born in the allegiance of the United States. United States v Rhodes (U. S.) 27 Fed. Cas. 785, 789.

    (See, I can cite something besides Wong and Lynch.)

    Can you cite any authority at law when natural born means anything else? I can’t. It appears to me that native born, natural born and citizen born are used interchangeably.

    That leaves you the daunting task of overturning Wong or chipping enough away to remove citizenship itself from the child of a temporary resident alien. What do you think your chances of that are?

  6. avatar
    BenjiFranklin August 11, 2009 at 3:11 am #

    Dear Mario,

    When you propose to take a country apart, you don’t care whether all the pieces go back together again. After the Constitution was allowed in shameful violation of the most basic precepts of Liberty upon which it was premised, to preside over a hundred years of slavery and a second hundred years of inexcusable racial discrimination, you feel its “sanctity” now compells you to ask that a Constitutional Term of Art so ambiguous that not a single state has ever been able to codify it into a legal standard for vetting Presidential candidates when they register (for eligibility,) should have that uncertainty resolved in favor of an interpretation that would remove the first elected Black President.

    The SCOTUS has already telegraphed their unwillingness to help you set civil rights in this country back 50 years, sir, but when persons of your intelligence dutifully contemplate such evil in a pretense of respect for The Law, I understand too well, not why, but at least how came many of the horrors of history. Hopefully your notariaty will peek as a footnote in the book of persons who failed in their attempt to trigger a second Civil War.

    Sincerely,
    BenjiFranklin

  7. avatar
    Greg August 11, 2009 at 6:44 am #

    This gets into sticky issues of preemption. Did the Founders, when they wrote that Congress shall have the power to set a uniform rule of naturalization (Art. I, sec. 8) intend that uniform rule to supplant the States’ definitions or to supplement them? Lynch discusses this on pages 238-241.

    While I think it’s likely that at least some of the founders believed that the definition of NBC could be supplemented by Congress, I think they also came at the problem with an understanding of Natural Born Citizen already fixed in place. The Act of 1790 confirms both of these propositions. The Act said that those born to citizens overseas would be considered natural born citizens. But commentators also stated that it was merely confirmatory of the law as it stood – that it just made explicit the non-obvious meaning of NBC.

  8. avatar
    jvn August 11, 2009 at 7:12 am #

    In response to both Mario and the perspicacious Brygenon, we have been missing the forest for the trees!

    What does the word “naturalized” mean if not “to make as if natural?”

    In other words, the process takes a non-citizen and makes them a citizen just like the “natural” one.

    The distinction then required for a President is that they be “born” a citizen.

    How clear is THAT?

  9. avatar
    Dr. Conspiracy August 11, 2009 at 7:43 am #

    In the British tradition of Calvin’s Case naturalization operates retrospectively, making one a citizen from birth and this is why the naturalization of the father makes his children citizens, as if the father had been a citizen when they were born. Some of the legal issues get remarkable complex when you have the legal analog to “time travel”.

  10. avatar
    Dr. Conspiracy August 11, 2009 at 7:56 am #

    In contrast to my compact essay above, Mr. Kerchner has been promoting a much longer article in emails. The article is The Logical analysis of a Natural Born Citizen.

    I can’t help but wonder about the coincidence of my article’s appearance, the visit by Mr. Kerchner’s attorney (Apuzzo) to this web site, and Mr. Kerchner’s email campaign, all with a few of hours.

    As time permits, I will reply to that article as well.

  11. avatar
    Black Lion August 11, 2009 at 9:25 am #

    Did anyone read that piece of crap put forth by Kerchner? I mean it is nice with all of the charts and graphs, which I am sure will impress the birthers and other people that are reading challenged. But the conclusions he comes up with are crazy. His entire premise is based on de Vattel. He cannot prove that the founding fathers used de Vattel and not Blackstone, but that is the basis of his theory. And then he tries to get cute in the following paragraph:

    “He does not meet the full and complete description of a “natural born citizen,” which is a citizen who has unity of citizenship at birth to one and only one country via by both Jus soli (place) and Jus sanguinis (the parents,) who is born in the country to two citizens of the country. Such a citizen can only have his allegiance claimed by one country. A natural born citizen cannot evade civic or military obligations by repatriating himself or herself to another country since a natural born citizen does not have dual or multiple citizenships by birth. A natural born citizen who gives his or her allegiance to another country during a time of war cannot justify it by saying he or she is a spy or a patriot for some other country for which he or she also has citizenship via birth. Such a person is simply a traitor to his or her natural born country.”

    He alludes to the President being a possible spy in a time of war or a traitor. His comclusions are so off base that they don’t make any sense.

  12. avatar
    Black Lion August 11, 2009 at 9:47 am #

    Heavy, you must not be keeping up with your reading. That so called investigator’s report is misleading. But since it comes from WND, then it doesn’t mean much. The individual doesn’t identify himself or source his conclusions. He doesn’t even link us to the so called HI statutes that define these BC 1-4 possibilites. He tries to claim that President Obama’s BC could be a foreign registration of some kind, or a delayed registration, or submitted by a relative. But provides no evidence or way to authtenticate anything he states in that so called report.

    But WND also says…

    “In discussing the Certification of Live Birth that the Obama campaign claims was posted on the web, Orly Taitz also asserts that “Hawaii has statute 338 that allows foreign-born children of Hawaiian residents to get Hawaiian birth certificates.” What she is referring to here is the 1982 amendment of the vital records law. Under Act 182 H.B. NO. 3016-82, state policies and procedures could accommodate even “children born out of State” (this is the actual language of Act 182) with an original birth certificate on record. But though Act 182 does provide children born out of state with a birth certificate it does not provide them with birth certificates that say that these children were born in Hawaii or at a specific location in Hawaii. Consequently these birth certificates cannot engender Certifications of Live Birth which state that the subject was born in Honolulu, as the purported Obama Certification of Live Birth does.”

    http://www.westernjournalism.com/?p=2686

    And remember they also said the following before they attempted to ammed their statement….

    “A separate WND investigation into Obama’s certification of live birth utilizing forgery experts also found the document to be authentic. The investigation also revealed methods used by some of the bloggers to determine the document was fake involved forgeries, in that a few bloggers added text and images to the certificate scan that weren’t originally there.”

    So WND has stated that the COLB is authentic and that by HI law it could not be any of those foreign birth registrations. So we have to assume they believe that the President was born in HI and is a natural born citizen. That is unless you don’t believe WND.

  13. avatar
    richCares August 11, 2009 at 9:51 am #

    the bigot knows that story is false, he’s lying, no need to answer him, don’t feed the troll (bigot troll). send him back to his KKK site.

  14. avatar
    Heavy August 11, 2009 at 10:04 am #

    Misleading? This whole site is misleading. Liberalism is misleading. Have you read the article? Obviously not. Give it a try, Blackie. You may just learn something.

  15. avatar
    Greg August 11, 2009 at 10:07 am #

    That’s Article 1, section 8 of the Constitution, not Article 1, section 8). Sorry.

  16. avatar
    Black Lion August 11, 2009 at 10:29 am #

    I read the article Heavster…And it was humorous and totally false. I love article where the individual won’t give his name and makes conclusions based on faulty evidence and conclusions and won’t source anything or name anyone he spoke to. And WND, which is westernjournalism (an oxymoron if I have ever heard one), has kind of disputed their own claims with the articles I linked you too…So maybe you should do some reading yourself…This site tells the truth and most commenters SOURCE their conclusions and facts. Unlike the birthers. But Rich is right, it makes no sense responding to you because you are just trolling…

  17. avatar
    HistorianDude August 11, 2009 at 11:24 am #

    Ouch!!!! Ben (the original) had no problem skewering the politically dishonorable. But he was generally more of a poker than an impaler.

    Touche’!

  18. avatar
    HistorianDude August 11, 2009 at 11:31 am #

    Let us not forget that the inaptly labeled “de Vattel Definition” is not de Vattel’s and did not exist until ten years after the Constitution was framed.

    It is (unless you embrace time-travel) completely irrelevant to the Constitutional definition.

  19. avatar
    Bob August 11, 2009 at 11:42 am #

    Donofrio previously had accused the WSJ of being Obama propagandists.

    The latest on Donofrio’s enemies list? Why, none other than WND.

    Best “reader” comment so far: “I’m now mostly convinced that Farah & Co. may be shills for the Obama camp.”

    At this point, I think every birfer has accused the others of all being Obama shills, meaning there are no true birfers left.

  20. avatar
    kimba August 11, 2009 at 12:19 pm #

    It’s the famous Obama jujitsu at work. He used his ninja stealth skills he learned in Indonesia to divide the birthers without them even realizing. “Take the pebble from my hand, grasshoppers.”

  21. avatar
    Black Lion August 11, 2009 at 12:40 pm #

    Why do people even listen to Donofrio? He doesn’t even get the law right for issues that are obvious. For instance he makes the following claim in his blog that Bob linked us to….

    “If Obama was born in Kenya, since he was never naturalized, he wouldn’t be a US citizen at all – as we speak – today – as he inhabits the White House. That’s right, if born in Kenya, Obama isn’t even a US citizen. He most certainly could not be a “natural born citizen” if he isn’t even a basic US citizen.

    If Obama was born in Kenya – according to US law at the time of his birth – in order for him to be a US citizen at birth, his mother had to have been a US citizen for five years after the age of 14. She was only 18 when she had Obama and as such she could not transmit US citizenship to him if he was born abroad.”

    Did he forget about the following change to US immigration law?…

    “SEC. 301. [8 U.S.C. 1401] The following shall be nationals and citizens of the United States at birth:
    (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;”

    Since President Obama’s mother was 17 or 18 when she had him, she was over 14 and had lived in the US for at least 2 years after the age of 14, then she could convey citizenship. So he is wrong about that. So if we is wrong about that, what else is he wrong about. The fact that he is trying to make 3 classes of US citizens? No wonder the birthers can never win. It is because of incompetence like that.

  22. avatar
    richCares August 11, 2009 at 12:59 pm #

    being wrong is the lifeblood of a Birther.
    Actually we should update the term Birther, I read a blog suggesting we call them “BirFoons”, that really fits especially jtx and heavy (our resident Birfoons).

  23. avatar
    Expelliarmus August 11, 2009 at 1:16 pm #

    Well, obviously the birthers believe in time travel. How else could those 2 birth announcements in Hawaii papers have been placed?

  24. avatar
    Heavy August 11, 2009 at 1:24 pm #

    EXACTLY what is false? If you call telling the truth trolling, well then you have the problem.

    Liberals are truth averse. Your messiah is fast approaching the end of his hoax. My GOD have mercy on his sole.

  25. avatar
    Liz August 11, 2009 at 1:31 pm #

    It makes me sad that people do not understand the truth of liberalism. I guess it can’t be helped since people like Limbaugh, Coulter, Hannity, et al have demonized it with their pontificating propaganda.

    BTW, not sure why God needs to have mercy on people’s feet and/or shoes…. their “soles”?

  26. avatar
    Dr. Conspiracy August 11, 2009 at 1:36 pm #

    No, I have one birfer still chained in my basement.

  27. avatar
    Dr. Conspiracy August 11, 2009 at 1:37 pm #

    And colonial laws and charters were talking about natural born subjects decades before de Vattel was even born!

  28. avatar
    Dr. Conspiracy August 11, 2009 at 1:44 pm #

    No, I haven’t read it yet, and I dread having to do it. I am sincerely trying to understand the historical context and language of the constitution. Today I’m reading James Kettner’s book The Development of American Citizenship, 1608-1870, a prize-winning work of scholarship. I’m spending time and money on quality, and then I see the crap on the Internet. It’s demoralizing.

    The more I study, the more flaky folks like Kerchner sound.

  29. avatar
    smrstrauss August 11, 2009 at 2:10 pm #

    Re: Indian tribes.

    I believe that there were questions about Indians being Native Born at one time, as you say because the tribes were considered sovereign.

    But I think that that has changed and that today if an Indian ran for office there would be nothing barring her or him from being considered Natural Born. This would all revolve around sovereignty and to what extent the Indian tribes are really sovereign.

  30. avatar
    Bob Weber August 11, 2009 at 2:44 pm #

    Ironically enough, de Vattel was descrbing the law of his homeland, Switzerland. But Swiss law determines citizenship purely by ancestry! Where you are born is completely irrelevant!

    Also, under Swiss law, naturalized citizens are eligible for any and all federal offices, including the closest thing the Swiss have to a president, Chair of the Federal Council.

  31. avatar
    Nullifidian August 11, 2009 at 2:57 pm #

    Well said.

    …in favor of an interpretation that would remove the first elected Black President.

    Ah, but as the commentators were so quick to remind us, he’s only a half-Black president.

    I couldn’t tell you how heartwarming I found it to see these right-wing pundits reviving the 19th century racial hierarchy of “mulatto, quadroon, and octoroon”.

  32. avatar
    Heavy August 11, 2009 at 3:02 pm #

    It’s a play on words, Lizzy. He thinks he is the messiah, THE ONE. Get it? Liberals are sick people.

  33. avatar
    jvn August 11, 2009 at 3:15 pm #

    This is from the first paragraph of the section of Kerchner’s “essay” titled “Current Methods of Becoming a US Citizen:”

    “Throughout the history of the United States of America there have been only three major classes of citizens: original, naturalized and born.”

    Duh.

    This either means that Kerchner believes the President was born in Kenya or he believes that there is evidence somewhere that the Founders intended to create a higher class of “super native born citizen” that alone could aspire to the Presidency and the Vice Presidency.

    In a nation of immigrants, this is a stupid and xenophobic path to attempt to take.

    I’m glad the GOP is doing it! This COULD lead to their marginalization for a long time!

    There is NO EVIDENCE OF THAT AT ALL!

  34. avatar
    Nullifidian August 11, 2009 at 3:44 pm #

    It’s a play on words, Lizzy. He thinks he is the messiah, THE ONE. Get it? Liberals are sick people.

    ROGER DE BRIS: Ah! Messrs. Bialystock and Bloom, I presume. Ha ha! Forgive the pun.

    LEO BLOOM: What pun?

    MAX BIALYSTOCK: Shut up! He thinks he’s witty.

    The Producers

  35. avatar
    Welsh Dragon August 11, 2009 at 3:58 pm #

    AARgh! Nullifidian – I’ve had this terrible vision of a chorus of birthers singing ‘Springtime for Hitler”!

  36. avatar
    kimba August 11, 2009 at 4:19 pm #

    USC 8 Sec 1401 b already covers that:

    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;
    http://www.law.cornell.edu/uscode/8/1401.html

  37. avatar
    misha August 11, 2009 at 4:27 pm #

    To Puzo and his mob, black people are not fully human. I’m sure he’s crying in his beer over Dred Scott.

  38. avatar
    misha August 11, 2009 at 4:32 pm #

    “mulatto, quadroon, and octoroon”

    Don’t forget macaroon. (ba-dump)

  39. avatar
    kimba August 11, 2009 at 4:49 pm #

    Revive? They didn’t revive it, they live it. Every day. You think they’re kidding when they say ” the South shall rise again.” They’re not. That America they want back? It’s the Confederate States of America. Listen to all the talk about states’ rights, 10th amendment, secession…it’s like they’re stuck in 1859. Let ‘em secede. As far as I know, the only southern state that sends more tax money to DC than it receives back in federal funds is Texas. We should tell them we’ll take New Orleans, though.

  40. avatar
    Chris August 11, 2009 at 5:20 pm #

    Black Lion: you need to be careful here. I think your analysis is wrong because it does not take account of the extent of retroactivity of the statute. The version of the statute (8 USC section 1401) Donofrio relies on was in effect at the time our President was born. In 1986, the statute was changed to read as you quote it by Pub. L. 99-653 which substituted “five years, at least two” for “ten years, at least five”. It’s clear from the statute itself that the military service provision is retroactive to 1952, but that’s not relevant here. The issue is when the change from “ten years, at least five” to “five years, at least two” is retroactive to. According to Section 23(d) of Pub. L. 99-653, as added by Pub. L. 100-525, Section 8(r), “The amendment . . . shall apply to persons born on or after November 14, 1986.”

    Since our President was not “born on or after November 14, 1986″ the 1986 amendment of the statute which you are relying upon does not appear to apply to him.

    See http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t05t08+5075+0++%28%29%20%20AND%20%28%288%29%20ADJ%20USC%29%3ACITE%20AND%20%28USC%20w%2F10%20%281401%29%29%3ACITE%20%20%20%20%20%20%20%20%20

  41. avatar
    Dr. Conspiracy August 11, 2009 at 5:26 pm #

    smrstrauss: “today if an Indian ran for office there would be nothing barring her or him from being considered Natural Born”

    smrstrauss, meet the Birthers.

  42. avatar
    Mario Apuzzo August 11, 2009 at 6:02 pm #

    Dr. Conspiracy,

    You state: “Natural born citizen simply means “born with the nature of a citizen”.[sic]”

    You are evading the question. Simply saying “born citizen” would have accomplished what you describe as “born with the nature of a citizen.” You still have not answered the question why the Founders did not simply say “born citizen.” Why did they say “natural” + “born” + “citizen?”

    You state: “The term natural born citizen of the United States means all persons born in the allegiance of the United States. United States v Rhodes (U. S.) 27 Fed. Cas. 785, 789.

    (See, I can cite something besides Wong and Lynch.)”

    First, what does “in the allegiance of the United States” mean? Given the language of Civil Rights Act of 1866 [14 Stat. 27], it would have undoubtedly meant born in the U.S. and not subject to any foreign power. That rules out anyone born with double allegiances such as Obama. You cannot deny the fact which Mr. Obama himself has admittetd that when he was born he was also a subject of Great Britain. How can he therefore have been born “not subject to any foreign power?”

    Second, Rhodes only addressed the question of whether freed blacks were “citizens of the United States” under the Civil Rights Act of 1866 [14 Stat. 27]. It did not need to answer the question of whether Nancy Talbot was an Article II “natural born Citizen.” The Court ruled that Ms. Talbot was such a “citizen.” If you must out of necessity extend the Court’s holding to find that Ms. Talbot was also a “natural born citizen,” please note that Ms. Talbot was born in the United States and was not subject to any foreign power. Mr. Obama, being born also a British subject, does not have the same birth circumstances as Ms. Talbot and therefore is not a “natural born Citizen.”

    Except for the Lynch (not a Supreme Court decision) court’s gratuitous and erroneous statement that a “citizen” is sufficient to be President, there is no case, including Wong Kim Ark, that uses “native born” and “citizen” interchangeably with Article II “natural born Citizen.” You simply cannot cite to any such case.

    It is not my intent to overturn Wong Kim Ark and I do not know from where you got that notion. Your comment leads me to believe that you do not understand my “natural born Citizen” argument.

    Mario Apuzzo, Esq.

  43. avatar
    Greg August 11, 2009 at 6:28 pm #

    First, if you read Lynch, you’ll find several citations to cases using citizen and natural born citizen and natural born subject interchangeably.

    Second, as for the definition of born in the allegiance of, that is clearly refering to the ancient exception to Jus Soli, the children of the sovereign or ambassadors. The courts of the day weren’t nearly as incensed by the notion as you believe. They recognized that people could be born with another nation claiming their allegiance against their will. See Ainslee v. Martin, 9 Mass. 454 (1813).

    The question you have to answer is why, if the Founders were working in a society that recognized ad nauseum the phrase “natural born subjects,” they would write “natural born citizen” to mean something ENTIRELY different without a word of explanation? Not just entirely different, but the exact, polar, opposite.

    You’ve got a society that understands “Natural Born Subject” to mean jus soli or jus sanguinis, based on, at the time, 500+ years of British and American Common Law. They’ve used “natural born subject” in their Constitutions, in the statutes, in their writings on citizenship.

    There’s not a question in their minds, not anyone’s mind, that someone born in the country, even if born to an alien on vacation, is a natural born subject.

    In this society, the Founders write “Natural Born Citizen” and they mean to completely overturn the apple cart? Without a single word of explanation? Without a single founder writing to another and saying, “Boy, that Vattel’s conception of indigenes is perfect for our new society! Screw Blackstone!”?

    It’s not like they didn’t write ANYTHING about citizenship. They didn’t agree with the Common Law’s conception of perpetual allegiance. They worked from Calvin’s case and Locke’s theories to show that when a sovereign misbehaves, you can throw off your allegiance. So, they knew how to write about citizenship, how to make principled arguments against the common-law conception of it.

    Despite this, not a single word among the founders suggesting that they intended to overturn the way the British viewed people born here to alien parents, or the way that the early colonies viewed people born here to aliens, or the way the states under the Articles of Confederation viewed people born here to aliens. Not a word!

    That’s kind of a big oversight.

  44. avatar
    Bob August 11, 2009 at 6:37 pm #

    It is not my intent to overturn Wong Kim Ark and I do not know from where you got that notion.

    Because the same analysis that leads to Wong Kim Ark being a citizen also leads to Obama being a natural-born citizen. You can’t have one without the other.

  45. avatar
    BlackLion August 11, 2009 at 6:39 pm #

    I posted my response to Donofrio on his blog and he responded. He said the following…

    [Ed. The law to which you site is only applicable to persons born AFTER the law was enacted in 1986. For those who were born prior to 1986, the mother must have been a US citizen for 5 years after the age of 14, not 2 years. Even Taranto admits this in the Wall Street Journal, but he propagandizes that it's just a "technicality".

    The change to "at least two of which were after attaining
    the age of fourteen years" was made by Public Law 99-653, Nov. 14,
    1986. This was enacted after the "Provided" clause and the last
    sentence were added: "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.'" Two years later, the
    Immigration Technical Corrections Act of 1988, Public Law 100-525,
    Oct. 24, 1988, provided:

    (r) EFFECTIVE DATES. -- INAA [the Immigration and Nationality Act
    Amendments of 1986 (Public Law 99-653)] is further amended by
    adding at the end the following new section:
    “EFFECTIVE DATES
    “SEC. 23….
    “(d) The amendment made by section 12 shall apply to persons born
    on or after November 14, 1986.

    See also:

    2) Born to one U.S. citizen and one alien parent

    a. Born before or on November 13, 1986

    The U.S. citizen parent must have been physically present in the United States for a cumulative period (or periods totaling) ten years before the birth of the child, at least five years of which were after the U.S. citizen parent reached the age of fourteen. If this requirement is met, the child acquires U.S. citizenship under the provisions of Section 301(g) of the Immigration and Nationality Act.

    b. Born on or after November 14, 1986

    The U.S. citizen parent must have been physically present in the United States for a period (or periods totaling) five years prior to the birth of the child, at least two years of which were after the U.S. citizen parent reached the age of fourteen years. If this requirement is met, the child acquires U.S. citizenship under the provisions of Section 301(g) of the Immigration and Nationality Act (as amended by Public Law 99-653 of November 14, 1986).]

    I believe his response does not take into consideration the section of the 301 that I quoted above that said “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;” Did I miss something or did Donofrio totally miss that line in formulating his response….

  46. avatar
    BlackLion August 11, 2009 at 6:43 pm #

    Chris, that is what Donofrio said. But the revised statute also states the following…”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;” It seems to me that it was making the change retroactive to all births after 1952, not 1986. If they had meant only for 1986 and after they would not have added that additional line. But maybe I am misreading the statute.

  47. avatar
    brygenon August 11, 2009 at 7:08 pm #

    Mario, a competent lawyer would simply have looked up the term Black’s Law Dictionary. No need to make a federal case of it. You simply need a big red X through your homework.

    Except for the Lynch (not a Supreme Court decision) court’s gratuitous and erroneous statement that a “citizen” is sufficient to be President, there is no case, including Wong Kim Ark, that uses “native born” and “citizen” interchangeably with Article II “natural born Citizen.” You simply cannot cite to any such case.

    Other decisions have cited Lynch. It’s just the birthers calling it “gratuitous and erroneous”. The courts are fine with it.

    Court rulings that use “native born” interchangeably with “natural born” include those flushing two birther suits: Hollister v. Soetoro and Cook v. Simtech. Birthers went all a-tizzy over “native born” where the issue was “natural born”, as if this were an error. No error; the judges simply used the terms interchangeably. And the thing to remember about the judges is, they’re the judges.

    Now where’s your case in which anyone was declared not to be a natural born citizen, while being a citizen by birth? Without a single counter-example to Dr. Conspiracy’s conclusion, you’re looking pretty silly.

    Do you even have one noted constitutional scholar siding with you? One article in a serious legal journal?

    John Roberts swore in Barack Obama (twice!) then addressed him as “Mr. President”. Of course that was before you, Mario, had a chance to educate the Chief Justice of the Unite States on what the Constitution means.

  48. avatar
    Greg August 11, 2009 at 7:15 pm #

    “there is no case, including Wong Kim Ark, that uses “native born” and “citizen” interchangeably with Article II “natural born Citizen.” ”

    Rogers v. Bellei, 401 US 815, “The dissent based its position on … the Constitution’s distinctions between native-born and naturalized citizens.” and

    “Apart from the passing reference to the “natural born Citizen” in the Constitution’s Art. II, § 1, cl. 5, we have, in the Civil Rights Act of April 9, 1866, 14 Stat. 27, the first statutory recognition and concomitant formal definition of the citizenship status of the native born

    Schneider v. Rusk, 377 US 163, “We start from the premise that HN2the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the “natural born” citizen is eligible to be President. Art. II, § 1.”

    McGrath v. Kristensen, 340 US 162, Describing Elg, “the Department of State had refused her a passport ‘solely on the ground that she had lost her native born American citizenship.’” whereas the Supreme Court in Elg’s case said, “”The court below, properly recognizing the existence of an actual controversy with the defendants, declared Miss Elg ‘to be a natural born citizen of the United States,’”

    Perkins v. Elg, 307 US 325

    DeLima v. Bidwell, 182 US 1, “‘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, or we are equally bound by allegiance and subjection to the Governmeut and law of the land.’” (Citing Kent’s Commentaries) …

    “Passing by questions once earnestly controverted, but finally put at rest by the Fourteenth Amendment of the Constitution, it is beyond doubt that, before the enactment of the civil rights act of 1886, or the adoption of the constitutional amendment, all white persons at least and 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.”

    Spratt v. Spratt, 26 US 343, “The conclusion which has been pressed, that the construction contended for would give to alien heirs, privileges, superior to those of natural born heirs, can derive no support from the law. They are only relieved from the disabilities incident to their alienage. A remote alien heir is not preferred to a nearer native heir.”

  49. avatar
    Bob August 11, 2009 at 7:17 pm #

    No need to make a federal case of it.

    Zing!

  50. avatar
    Greg August 11, 2009 at 7:22 pm #

    Eugene Volokh claims to have made the same mistake on his first reading. His later analysis suggested to him that the “proviso” only refered back to where the statute started saying “Provided…” so only the military.

    However, this raises a question. Could Congress, if it wanted to piss off the Birthers, make the citizenship law retroactive in the same way that the military proviso was retroactive?

  51. avatar
    BlackLion August 11, 2009 at 7:41 pm #

    Greg, I am not sure about that. It seems kind of open. It is not specific about what it is referencing. Has there ever been any case law that further clarified things?

  52. avatar
    Chris August 11, 2009 at 7:43 pm #

    I think you are misreading the statute. I think “This proviso” refers to the statutory language beginning “Provided that …” Note that the “This proviso” sentence comes directly after the lengthy sentence beginning “Provided that . . .” That language has the effect of treating military service abroad (or service abroad on behalf of the U.S. government) as if it were residence in the U.S. I assume we can agree that that language has no application here.

  53. avatar
    Chris August 11, 2009 at 7:55 pm #

    Nothing would prevent Congress from amending the statute to make the “five years, at least two” language retroactive to some time before the birth of our President. The constitutional effect of such an amendment on the definition of “natural born citizen” is not so easy to resolve.

    All the persons listed in 8 USC section 1401 are “citizens at birth.” I agree that that’s enough to be a “natural born citizen” but clearly not everyone agrees with this.

    One issue here is whether Congress can “change” the Constitution by statute (outside of the Article V amendment process). Usually, where a constitutional provision does not have a clear meaning (like “natural born citizen”), it is appropriate for Congress to fill out the meaning thereof by statute, as long as the statute does not conflict with the Constitution. I do not believe that the proposed retroactivity would be inconsistent with the Constitution.

  54. avatar
    Dr. Conspiracy August 11, 2009 at 8:21 pm #

    Mr. Apuzzo,

    First, I acknowledge and thank Greg for his citations of cases. The attorney who created the What’s Your Evidence? web site also came to the conclusion that native born, natural born and citizen born are used by the courts interchangeably, as Greg demonstrates so well. The links to those citations are: SCOTUS & “Natural Born Citizen” – A Compendium and The “Natural Born Citizenship” Clause (Updated).

    My comment about overturning Wong was not based on your argument, but on where I believe the only remaining straw of desperate hope remains once it is conceded (which you have not yet done) that anyone born a citizen is a natural born citizen. I am just l looking ahead. While Lynch is not a US Supreme Court case, the Supreme Court seems rather fond of citing it, no?

    To your question, “what does ‘in the allegiance of the United States’ mean?”, I would invoke Blackstone:

    “Natural allegiance is such as is due from all men born within the king’s dominion immediately upon their birth. For, immediately upon their birth, they are under the king’s protection; at a time, too, when (during their infancy) they are incapable of protecting themselves. Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered by any change of time, place, or circumstance…. Tucker, ed., Blackstone’s Commentaries 1:2, 369-370.

    While I do not concede that the meaning of any phrase, in this case “natural born citizen,” is necessarily defined wholly by the separate definitions of its component words (when was this ever a rule in English?), let me pose the same question to you, and perhaps by your answer we will understand your argument better.

    What does “natural-born” mean in the following quotation? It describes the Act of 1761 for the admission to allegiance of volunteer British troops in North America.

    “All foreign Protestants who had served or would serve for two years in the British forces in North America, who would take the oaths and declarations, and who could certify that they had taken the Sacrament within the six months preceding admission, were deemed natural-born subjects.” The Development of American Citizenship, 1608-1870, James H. Kettner, Chapel Hill, 1978 citing 2 Geo. III, c. 25 (1761).

  55. avatar
    Dr. Conspiracy August 11, 2009 at 8:36 pm #

    The British and the American colonies where making “natural born subjects” right and left through legislation in the 17th and 18th centuries.

  56. avatar
    BlackLion August 11, 2009 at 10:33 pm #

    Chris, I would agree. The point is irrelevant because the proof shows that President Obama was born in HI. Maybe your interpertation of the law makes sense. It seems kind of confusing either way. However I will ceede your point that the language has no application here. Good explanaton though.

  57. avatar
    misha August 11, 2009 at 10:51 pm #

    “Liberals are sick people.”

    Fine. Then you, birthers and conservatives are vermin.

  58. avatar
    dunstvangeet August 12, 2009 at 12:20 am #

    Research Charles Curtis. He was 3/8ths Native American, yet was considered a Natural-Born Citizen.

  59. avatar
    Bob August 12, 2009 at 12:47 am #

    Chatter on Apuzzo’s blog that Obama Sr. was a diplomat or ambassador (because he had a scholarship!), and thus was not subject to the jurisdiction of the U.S.

  60. avatar
    markcon August 12, 2009 at 1:27 am #

    wow your argument would be a slam dunk but for one thing– your a fraud and a deceiver.

    the date is 1986! not 1952- every body do a search for “SEC. 12. Section 301(g) (8 U.S.C. 1401(g))”
    in 1961 it was 10 years- 5 of which after 14(not the 2 it is now)
    you do this alot here.

    also there is 3 types natural born, native and naturalized. one example where this is obvious
    the 1964 Schneider v. Rusk case.

    “We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity, and are coextensive. The only difference drawn by the Constitution is that only the “natural born” citizen is eligible to be President. Art. II, § 1. becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it so far as respects the individual.”

    proof– native is not equal to natural born in the law and that native = naturalized= citizen? there for citizen does not equal natural

  61. avatar
    markcon August 12, 2009 at 1:30 am #

    again your misleading- we are citizens not subjects

  62. avatar
    markcon August 12, 2009 at 1:39 am #

    they did intend that –”natural born”- free of foreign allegiance of 2 citizen parents -a requirement for only one thing- president – my children are citizens but not natural born, mother is a permanent resident- thats the way it should be!

  63. avatar
    markcon August 12, 2009 at 1:55 am #

    the founders were concerned about foreign influence and allegiance-plenty of evidence- as related to the position of president- that is why natural born is used for only that position-

    the 14th your trying to relate to naturalborn- nowhere in 14th does it say it. only citizen.

    an easy to understand site explains
    http://birthers.org/misc/logic.htm

  64. avatar
    markcon August 12, 2009 at 2:07 am #

    subject was a bad word to founders. subject does not equal citizen. be more accurate to say king equal citizen. vattel and his precursors was used to write constitution not your eng common law even though some was used. allegiance(thru parents) and birth place determines naturalborn
    swearing allegiance as a “naturalborn subject is more akin to naturalization.

  65. avatar
    dunstvangeet August 12, 2009 at 2:38 am #

    Actually, the statute doesn’t mention any time table, markcon. Read the actual statute. According to the statute, he is considered a U.S. Citizen at birth. There is no time limit on this, and just to point you to other things, take a look further down in the U.S. Code, where it states the following: “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.”

    That tells me that the code also includes time limits on other provisions. However, it doesn’t have any language such as “born after” or anything else. Barack Obama, even if he was born abroad, would be considered a United States Citizen at Birth.

    As far as your other little theory. I take it that you have case law stating that someone can be a citizen at birth, but not a natural-born citizen. I also take it that you have case-law backing up your interpretation of the constitution. Because at this point, I don’t see the word “parent” anywhere in the constitution.

    And another question is the following. The founders of the constitution were immensly familiar with English Common Law, so much so that they constantly used terms from English Common Law (such as Writ of Haebus Corpus) in other places in the constitution. They had just broken off from England, and knew that the populace would be more familiar with English Common Law, than with a Swiss Philosopher. My question is if the founders had intended to break off from the more common definition of “Natural-Born” in English Common Law, to use a Swiss philosopher, why would they have not defined it in the constitution to make sure that was the definition that other people used?

  66. avatar
    dunstvangeet August 12, 2009 at 3:42 am #

    You forgot the “Natural-Born” part, which did have a distinct meaning. Subject, in the British Tradition, and Citizen are virtually the same thing. Subject is more applicable towards a monarchy, while Citizen is more applicable towards a Democracy.

    I keep on asking you this. However, “Natural-Born” had a very defined meaning in English Common Law. Why would a bunch of people who were knowledgable of English Common Law, knew it would be more widely known than a Swiss philosopher, and used English Common Law to frame other terms within the constitution (such as “writ of Haebus Corpus”) all of a sudden break off of English Common Law for a definition, and then refuse to define that definition, despite knowing that the English Common Law definition would be more widely known?

  67. avatar
    dunstvangeet August 12, 2009 at 3:46 am #

    I’m presuming that you have some case law to back you up. I’m presuming that you have a reasonable explanation as to why a bunch of guys familiar with English Common Law, would all of a sudden break from English Common Law, without providing a definition, despite knowing that the English Common Law definition would be more widely known. I’m presuming that you have other constitutional scholars, and not just a professional poker player, to back you up on this.

    That is not what the English Tradition defines as “Natural-Born”, Markcon. You know that, and so do I. You still haven’t answered why a bunch of English-Born people would break off from English Common Law, and then not provide a definition when they did do it.

  68. avatar
    dunstvangeet August 12, 2009 at 3:49 am #

    And you have yet to provide a reasonable explaination why the founders, familiar enough with English Common Law to use terms such as “Writ of Haebus Corpus” without definitions and explainations would all of a sudden abandon the more common definition of “Natural-Born” to take the term from a book that didn’t have the words “Natural-Born” in it until 10 years after the constitution was written.

  69. avatar
    dunstvangeet August 12, 2009 at 3:52 am #

    Which is why they used Citizen. However, they kept the “Natural-Born” part of it, knowing it from English Common Law. Notice how they kept other things from English Common Law, such as “Writ of Haebus Corpus”. Why would they break off of the definition of “Natural-Born” that they were already familiar with for some Swiss Philosopher, and then not define it within the constitution, or further when they got to Congress? They had to know that the English Common Law definition would be more familiar than a swiss philosopher to a bunch of former English Subjects.

  70. avatar
    Welsh Dragon August 12, 2009 at 6:01 am #

    Amazing! A theory even LESS likely than ‘born on Krypton’

  71. avatar
    Greg August 12, 2009 at 6:48 am #

    I think your Rusk quote actually proves that there are only TWO types of citizen – naturalized or born (native or natural).

    “We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity, and are coextensive. The only difference drawn by the Constitution is that only the ‘natural born’ citizen is eligible to be President.”

    They seem to be using “native born” and “natural born” as interchangeable terms here.

  72. avatar
    Greg August 12, 2009 at 6:58 am #

    At the founding of the nation, England did not recognize someone’s ability to alienate themselves from their English citizenship. So, according to British law at the founding, every child born in the US to parents who were, at one time, British citizens were ALSO natural born subjects of Britain.

    Depending on the circumstances, this could go to two generations. So, if your grand-father was a natural-born subject of Britain, so were you, even if your grandfather moved to the US, naturalized here, and your father was born here.

    It was in this society, where kids were born all the time with foreign allegiances against their will, against their parents’ will, that the Founders wrote the Constitution.

    The issue came up a lot in the case of the “antenati” both in Britain and in England. What happens to the property of those who were born in the US before the Revolution? Both nations concluded that they retained the natural-born status of both nations. Ainslee v. Martin (Mass. 1813) stated that the dual allegiance was a natural consequence of the citizenship laws of both nations, but that England’s laws couldn’t trump ours.

    Your kids are natural-born, and you can safely tell them they can grow up to be President.

  73. avatar
    Greg August 12, 2009 at 7:44 am #

    Subject wasn’t really so horrible a word to the founders. Many of the founders wrote state constitutions that used the word “subject.”

    Vermont, for example, said, “Every person of good character, who comes to settle in this State, having first taken an oath or affirmation of allegiance to the same, may purchase, or by other just means acquire, hold and transfer land or other real estate; and after one year’s residence shall be deemed a free denizen thereof, and entitled to all rights of a natural born subject of this State…”

    It was written in 1793, six years after the US Constitution (1787).

    Massachusetts’ Constitution (1780) drafted by John Adams, states, “And no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping God in the manner…”

    New Hampshire (1784): “Every subject of this state is entitled to a certain remedy…”

    New York (1777): “All such of the persons so to be by them naturalized, as being born in parts beyond sea, and out of the United States of America, shall come to settle in and become subjects of this State, shall take an oath of allegiance to this State, and abjure and renounce all allegiance and subjection to all and every foreign king, prince, potentate, and State in all matters, ecclesiastical as well as civil.”

    Pennsylvania (1776): “…entitled to all the rights of a natural born subject of this state…”

    New Jersey (1776): “…shall fully and freely enjoy every privilege and immunity, enjoyed by others their fellow subjects.”

    That’s why the Court has used subject and citizen interchangeably. From Minor v. Happersett:

    “For convenience it has been found necessary to give a name to this membership. The object is to designate by a title the person and the relation he bears to the nation. For this purpose the words ‘subject,’ ‘inhabitant,’ and ‘citizen’ have been used, and the choice between them is sometimes made to depend upon the form of the government. Citizen is now more commonly employed, however, and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the States upon their separation from Great Britain, and was afterwards adopted in the Articles of Confederation and in the Constitution of the United States. When used in this sense it is understood as conveying the idea of membership of a nation, and nothing more.”

  74. avatar
    Dr. Conspiracy August 12, 2009 at 7:48 am #

    Have I not forseen this?

  75. avatar
    Greg August 12, 2009 at 7:54 am #

    A good article on the current status of the Tribes:

    http://www.slate.com/id/2222879/entry/2224859/

    I expect that if there were a serious Democratic candidate who was also a member of a Native American tribe, the birthers would redouble their efforts to revive (and distort) Elk v. Wilkins.

    If, however, there is a serious Republican candidate who was a member of a tribe, you’d never hear the issue come up.

  76. avatar
    Welsh Dragon August 12, 2009 at 9:30 am #

    Add to that the interchangabity of ‘citizen’ and ‘subject’ in the naturalisation acts of MASS shown in John Greschak’s essays at

    http://www.greschak.com/essays/natborn/index.htm (see also De Vettal Revisted)

    Although Greschak is a ‘twofer’ his factual research on this is very useful.

  77. avatar
    Heavy August 12, 2009 at 9:39 am #

    He won’t answer the question because he CAN’T answer the question. Oh, he’ll make it look like he did. It’ll just be a bunch of hooey like everything else he syas in defense of his messiah.

  78. avatar
    Dr. Conspiracy August 12, 2009 at 10:00 am #

    Mr. Apuzzo,

    Let me offer a further thought on your challenge: ” You still have not answered the question why the Founders did not simply say ‘born citizen.’”

    There are two parts to the answer. The direct reason, I believe, is that “natural born citizen” is intentionally a reference to the common law term “natural born subject” that appears in British common law and all throughout the colonial laws and charters, substituting “citizen” for the inappropriate “subject”. This equivalence was asserted by the Supreme Court in its discussion of US v Wong.

    But the meat of the question is why did British common law use “natural born subject” instead of just “born subject”? I think the answer lies in the peculiar (to us) nature of British naturalization. At least from 1608 (Lord Coke’s decision in Calvin’s Case) naturalization in Britain made an alien not only a subject, but it made them a subject from their birth. Naturalization acted retroactively. However, certain privileges were withheld from naturalized citizens. This is why in British Common law, the distinction is made between natural born citizens and naturalized citizens (those who were born as citizens and those who were made citizens from birth). Natural born means that one was a citizen as a state of nature when they were born, as opposed to the artificial fiction of being a citizen from birth according to law.

  79. avatar
    Dr. Conspiracy August 12, 2009 at 10:28 am #

    Greg, I appreciate your excellent comments on this article. You obviously know your stuff.

  80. avatar
    Greg August 12, 2009 at 10:48 am #

    Can YOU answer my question? You’ve got the Founders writing the Constitution in a society that, for 500+ years, has understood “natural born” when used with “subject” to mean, at least, birth within the borders, regardless of the citizenship of the parents. Why would they have changed the meaning of “natural born” 100% without a single word explaining that they were doing so much less why they would do such a thing?

  81. avatar
    dunstvangeet August 12, 2009 at 12:54 pm #

    I’ll bet Obama Sr. would love to know that he could have murdered Mario Apuzzo, and walked out and get away with it.