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Framer v. Farmer

Introduction

The authorities say that it is abundantly clear that those born US Citizens in the country are natural born citizens1, from whom we elect may Presidents. They also say that in all likelihood those born US citizens anywhere are also natural born citizens and eligible as well; however, they say that an argument can be made against the second group.

I frankly have had a hard time achieving clarity on that second group. Part of the difficulty stems from the question of whether “natural born citizen” is a term of art derived from the English Common Law phrase “natural born subject,” or whether “natural born” is taken from popular usage. That question led to this article’s title, and I think the answer to the question is “both.”

The courts have said repeatedly that the Constitution is correctly interpreted according to the definitions of the Common Law with which the Framers were familiar. One exposition of this principle was made by Chief Justice Taft in Ex Parte Grossman 267, U.S. (1925):

The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Conventions of the thirteen States were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.

However, I have some reservations about that statement. The foregoing is descriptive of the Framers, but the Framers did not enact the U. S. Constitution; they only wrote it. It was in state conventions where the document was debated and eventually adopted. For me the question is not what the Framers wrote, but what the Country ratified. Some of those delegates were lawyers and some were farmers.

The Framers

For the lawyer Framers there may have existed a point of contention on who is a “natural born citizen” under the Common Law. It is abundantly clear that in English Common Law anyone born under the King’s protection was a natural born subject2; however, those born abroad of English parents were also subjects at least since the enactment of De natis ultra mare in 1350. Is that statute so ancient that it had become  fundamental to society and thereby assumed into the Common Law by 1789? Answering that is way above my pay grade, but if those born beyond the sea are natural born subjects in England, then we can safely say that according to the lawyers, they are natural born citizens under the Constitution.

Henry Straus Quixano Henriques argues in his book The law of aliens and naturalization: including the text of the Aliens act, 1905 that De Natis was not declarative of the common law as it stood in 1350, saying:

It has been well remarked that the language of the statute is inconsistent with the view that it is merely declaratory of the common law, and moreover, in that case the subsequent legislation on this subject would have been wholly unnecessary.

Nevertheless, Henriques appears to believe that those made citizens by De Natis were natural-born subjects, writing:

There was apparently in the very earliest times a desire to extend the class of natural-born subjects beyond those who would be recognized as such by the strict application of the old feudal law.

Particularly relevant to this assertion is the British Nationality Act of 1730, which says:

…the Children of all natural-born Subjects, born out of the Ligeance of her said late Majesty, her Heirs and Successors, should be deemed, adjudged and taken to be natural-born Subjects of this Kingdom to all Intents, Constructions and Purposes whatsoever… 3

That leads us to the American equivalent of De Natis and subsequent British legislation, the Naturalization Act of 1790, passed by the First Congress. Here’s what it said:

… And the children of citizens of the United States that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States: Provided also, That no person heretofore proscribed by any State, shall be admitted a citizen as aforesaid, except by an act: of the Legislature of the State in which such person was proscribed.

The question then arises, why did Congress pass a law to make these foreign-born children citizens if they were already citizens under the Common Law definition  referenced in the Constitution? Did the First Congress believe such children were already natural born citizens under the Common Law, but thought it important to remove any doubt, a doubt existing because technically De natis was a statute, no matter how ancient? Perhaps not. In the House debate on the 1790 Act, Mr. Burke said:

The case of the children of American parents born abroad ought to be provided for, as was done in the case of English parents, in the 12th year of William III.

Mr. Burke at least seems to think those children were not covered by the Common Law rule. On the other hand the our 1790 statute didn’t just make these children citizens, it said they were “natural born citizens” and to me that suggests, as Mr. Henriques said of the English, that so too the Americans desired to extend the class of natural-born citizens beyond the class made such by the Common Law.

The issue continued to be murky for me as the courts have talked about two sources of citizenship under the Constitution: birth and naturalization.4 Generally naturalization, like any “ization” word represents a change in status. Anyone born a citizen does not have a change in status and so must be a citizen by birth rather than naturalization. On the other hand, if they are citizens by an act of Congress, and that is how such persons have citizenship to this day, then we may argue that they are naturalized because Congress under the Constitution explicitly has power only to naturalize. Against that argument is the general principle that any country can say who its citizens are and that perhaps Congress has that power to make citizens implicitly because the United States is a sovereign nation. Also arguments were made in the first Congress that in addition to those explicit powers granted in the Constitution, there are also “implied powers” necessary to carry out its general provisions, which allowed for, by way of example, the creation of a national bank. The implied powers of Congress were found in the Constitution’s provision:

to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States or in any department or officer thereof.

The Farmers

I think the case of the farmers is far simpler. The words “natural born” refer to a quality had from birth, and so a “natural born citizen” is a citizen from birth, which means that the children of Americans born abroad, such as George Romney and John McCain, were legitimate candidates. This is the definition of “natural born” from the Oxford English Dictionary:

Having a specified position or character by birth; used esp. with subject.

So I think the foreign-born citizens at birth are good to go with the farmers.

Conclusion

This article was not written to argue towards a conclusion because when I started, I didn’t have a conclusion in mind. The purpose of the article was to try to figure out the answer by writing something, and I think I have done that.

First, I think the farmers are right and the dictionary defines what “natural born” means: “Having a specified position or character by birth.” I think that meaning is also what the English Common Law used and it is what Americans in the 18th century understood. My confusion came from conflating what “natural born” means with the laws determining who is a member of that class.

The force of the Common Law is in granting to one particular group, those born in the country, the status of citizen or subject by birth. By statute both in England and in the United States, other persons are also citizens at birth and therefore natural born citizens too. So the lawyers are also right. The only time in which there was ambiguity about the presidential eligibility of the children of US citizen parents abroad was between the ratification of the Constitution and the passage of the Naturalization Act of 1790.

I have made up my mind: “Natural born citizen” means nothing more or less than “citizen from birth.” If you want to know who was born a citizen, consult the U. S. Code.


1See, for example, Gabriel Chin, who said: “Those born in the United States are uncontroversially natural born citizens.”

2See, for example, Lord Coke’s commentary on Calvin’s Case.

3See also, the British Nationality Act of 1772.

4For example, Minor v. Happersett 88 U.S. 162 (1875) said:

Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides [n6] that “no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,” [n7] and that Congress shall have power “to establish a uniform rule of naturalization.” Thus new citizens may be born or they may be created by naturalization.

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11 Responses to Framer v. Farmer

  1. avatar
    Robert September 28, 2012 at 12:55 pm #

    is there an Erie problem here – I don’t know if the NBC is specific enough to have common law allowed…
    otherwise, common law is ALWAYS overrideable by statute, and here congress acted, thus creating the definition at play – which, at obamas birth, is 1 contact, in any form.

  2. avatar
    Dr. Conspiracy September 28, 2012 at 1:16 pm #

    That’s a tough one. For reference:

    http://en.wikipedia.org/wiki/Erie_doctrine

    My view is that the Common Law criterion for a citizen at birth at the time of the ratification of the Constitution set a minimum floor for membership in that class, and that such class eligibility cannot be removed except by constitutional amendment. I say that based on the Supreme Court argument in US v. Wong that the Congress could not prevent Wong from being a citizen by passage of the Chinese Exclusion Act. Contemporary arguments were made, I think by Mr. Collins, that just as I argued in my article above, that a country had a right to determine who its citizens are; however, the Court didn’t buy it insofar as excluding someone from citizenship would have been eligible at ratification of the Constitution.

    Robert: is there an Erie problem here – I don’t know if the NBC is specific enough to have common law allowed…
    otherwise, common law is ALWAYS overrideable by statute, and here congress acted, thus creating the definition at play – which, at obamas birth, is 1 contact, in any form.

  3. avatar
    Scientist September 28, 2012 at 1:39 pm #

    Dr. Conspiracy: My view is that the Common Law criterion for a citizen at birth at the time of the ratification of the Constitution set a minimum floor for membership in that class, and that such class eligibility cannot be removed except by constitutional amendment. I say that based on the Supreme Court argument in US v. Wong that the Congress could not prevent Wong from being a citizen by passage of the Chinese Exclusion Act. Contemporary arguments were made, I think by Mr. Collins, that just as I argued in my article above, that a country had a right to determine who its citizens are; however, the Court didn’t buy it insofar as removing someone from citizenship.

    In Britain and a number of other common law countries, like Australia, statutes have overidden the common law and those born on the soil today must have a parent (1, not 2) who is a citizen or legal resident in order to get birth citizenship. Clearly, the 14th Amendment precludes such a statute here, as the Wong court recognized. Prior to the 14th, the case would have been less clear, since the original Constitution never defined who was a citizen. Of course, there was no such statute, so common law jus soli certainly applied.

    As far as presidential eligibillty, my opinion is that the 12th and 20th Amendments delegate the matter entirely to Congress, after the Electoral College has acted. They certainly ought to base their decisions on the law, but they don’t have to. There is little doubt, based on the Senate resolution on McCain, that they side with the Farmers, and consider those born citizens abroad eligible. Had he won the election, I have no doubt that the courts would have declined to get involved.

    Doc, would you please consider a thread on those who claim that there is a giant conspiracy to skew the polls in Obama’s favor? I even have a catchy name for them-skewers.

  4. avatar
    LW September 28, 2012 at 1:49 pm #

    And introducing Justin Henry as “Article 2, Section 1, Clause 5.”

  5. avatar
    nbc September 28, 2012 at 1:51 pm #

    Robert:
    otherwise, common law is ALWAYS overrideable by statute, and here congress acted, thus creating the definition at play – which, at obamas birth, is 1 contact, in any form.

    Let’s understand the argument:

    The Constitution uses the term ‘natural born’ but does not define it. Thus, the courts have argued, its meaning has to be found in common law usage in those days. Common Law was traced back to English Common Law where natural born referred to Jus Soli. While statutes in England had extended Jus Soli to certain cases of jus sanguini, these were not part of the common law.
    Similarly we see how in the US, Congress enacted statutes in 1790, 1795 and 1802 I believe to extend citizenship to children born abroad to US citizens. Yes statute can regulate citizenship under the naturalization powers.

    Sure, common law can be overridden by statute but that is not really relevant here.

  6. avatar
    Dr. Conspiracy September 28, 2012 at 2:20 pm #

    The fog is receding.

    So before the 14th Amendment birthright citizenship was determined by the Common Law, but afterwards it was determined by the Amendment. That is why the Chinese Exclusion Act could not make Wong Kim Ark an alien. The rule wasn’t changed, it was just made immune from the whims of Congress.

    nbc: Similarly we see how in the US, Congress enacted statutes in 1790, 1795 and 1802 I believe to extend citizenship to children born abroad to US citizens. Yes statute can regulate citizenship under the naturalization powers.

  7. avatar
    Dr. Conspiracy September 28, 2012 at 2:23 pm #

    Apparently the First Congress thought that they could regulate who was a citizen under the uniform rule of naturalization rubric, even those who were born citizens. The 1790 Act that made the children born abroad of US Citizen fathers natural born citizens was titled in full: “An Act to establish a uniform Rule of Naturalization.”

  8. avatar
    Scientist September 28, 2012 at 3:56 pm #

    Dr. Conspiracy: So before the 14th Amendment birthright citizenship was determined by the Common Law, but afterwards it was determined by the Amendment.

    I agree. And statute can overule Common Law. So a pre-Civil War Congress could have passed statutes requiring a citizen or legal resident parent. This is what Parliament has done in Britain (and has occasionally been discussed, but not done in Canada). But Congress can’t overrule the 14th, so requiring a citizen or legal resident parent here would require an Amendment.

  9. avatar
    Keith September 29, 2012 at 2:08 am #

    Dr. Conspiracy: The rule wasn’t changed, it was just made immune from the whims of Congress.

    Except that the rule in effect at the time of the adoption of the 14th amendment was most certainly changed.

    That would the 1857 Dred Scott rule.

    Most certainly, the 14th amendment restored the original common law rule, that ‘right minded’ people understood and removed it from statutory and judicial meddling.

  10. avatar
    brygenon September 29, 2012 at 11:53 am #

    nbc: The Constitution uses the term ‘natural born’ but does not define it. Thus, the courts have argued, its meaning has to be found in common law usage in those days. Common Law was traced back to English Common Law where natural born referred to Jus Soli.

    That makes the mistake Dr. Conspiracy described: “conflating what ‘natural born’ means with the laws determining who is a member of that class.”

    One could hardly state what “natural born” means more clearly and directly than we see in U.S. v. Wong Kim Ark, where the Court quotes British jurist A.V. Dicey: “’Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth.”

  11. avatar
    ballantine September 29, 2012 at 1:38 pm #

    Statute can overrule the common law, but not at the federal level because “natural born” was not based upon federal common law. There were generally two theories in the early republic on federal citizenship. The first was that the States got to define who were native citizens and they all followed the common law at least in the beginnning. The second theory was that the common law jus soli rule was incorporated into the original Constutiton in the NBC clause, not that there was a federal common law. The debate didn’t really matter much since either way the common law would generally apply. This argument was still onging in the 14th Amendment Congress where a number of Congressmen thought the States should still determine native citizenship. However, they were outnumbered by those who thought there was a national citizenship incorporated into the original Constitution. Accordingly, I don’t think anyone thought that Congress had any power of citizenship other than naturalization, the power to make aliens into citizens.

    During the Civil Rights Act debates about the power of Congress to confer citizenship. At least half a dozen Congressmen argued that Congress only had the power to naturalize the foreign born and cited the courts and numberious other legal authority to support that. Accordingly, the argument that they were naturalizing blacks was generally abandoned and it was asserted that the statute was Constitutional since it was only declaratory of the current law essentially ignoring Dred Scott. It was also argued that the statute was authorized by the 13 Amendment. There were others who thought that Dred Scott needed to be directly addressed and over-ruled by an Amendment. Justice Swayne found the statute declaratory but nevertheless authorized by the 13th Amendment.

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