Our guest commentator has doubts, and responds to When will the Birthers be happy?

RESPONSE: Interesting to note that, before the issue seemed such a potential publicity boon, WND reported that its own experts determined the COLB to be authentic:

“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.”

WND also reported that the claims that Obama lost any hypothetical American citizenship he had as a child is not supported by US citizenship law:

“In short, the suit claims Obama was not born an American citizen; lost any hypothetical American citizenship he had as a child [ITALICS IN ORIGINAL(Editor's note: This point is not supported by U.S. citizenship law)END ITALICS]; may not now be an American citizen and even if he is, may hold dual citizenships with other countries. ….

RESPONSE: Mel Martinez was RIGHT in contending that, at least at the first instance, Presidential candidates are – and should be – vetted by the voters.

As eloquently stated in Sen. McCain’s Motion to Dismiss Hamblin v. Obama (D. Az.):

“The Constitution indicates that issues relating to a candidate’s eligibility for the Office of President rest, in the first instance, with the VOTERS and then with the ELECTORAL COLLEGE, the constitutionally created body responsible for selecting the President of the United States. See U.S. Const. art. II, § 1, cl. 2 “Each State shall appoint, in such Manner as the Legislature thereof may direct,” electors for the President and Vice President; id. amend. XXIII, § 1. The Constitution’s commitment to the Electoral College of the responsibility to select the President subsumes the authority to decide whether a presidential candidate is qualified for office because the examination of a candidate’s qualifications is an integral component of the electors’ decision-making process. If a court were to sit in judgment of a candidate’s qualifications, its judgment could “inappropriately interfer[e]” with the Electoral College’s constitutional authority to elect the President and to evaluate the qualifications of the candidates seeking that office. …

“The Constitution also provides that, after the Electoral College has voted, further review of a presidential candidate’s eligibility for office, to the extent such review is required, rests with CONGRESS. Where no candidate receives a majority of the electoral votes, the Constitution commits to the House of Representatives the authority to select the President and, in so doing, to evaluate the candidates’ qualifications. See 8 U.S. Const.. amend. XII. Similarly, the Twentieth Amendment explicitly grants Congress the responsibility for selecting a President when a candidate elected by the Electoral College does not satisfy the Constitution’s eligibility requirements. See id. 11 amend. XX, § 3 …

“Both the House and Senate have standing committees with jurisdiction to decide questions relating to presidential elections. …

“The Constitution therefore provides that, in the first instance, the selection of the President – and the evaluation of a candidate’s qualifications – should be made by the VOTERS and politically accountable bodies without judicial participation. VOTERS and electors can choose not to vote for a candidate they believe to be ineligible, and members of Congress can object to electoral votes as they are counted. 3 U.S.C. § 15. IF A COURT WERE TO PASS UPON THE ELIGIBILITY OF A CANDIDATE TO HOLD THE OFFICE OF PRESIDENT – A DETERMINATION RESERVED FOR THE ELECTORAL COLLEGE AND CONGRESS – IT MAY INVOLVE ITSELF IN POLITICAL MATTERS FOR WHICH IT IS INSTITUTIONALLY ILL-SUITED, AND INTERFERE WITH THE CONSTITUTIONAL AUTHORITY OF THE ELECTORAL COLLEGE AND CONGRESS TO EVALUATE THE QUALIFICATIONS OF PRESIDENTIAL CANDIDATES.

“Accordingly, the political question doctrine instructs [the] Court[s] to refrain from superseding the judgments of voters and those governmental bodies the Constitution designates as the proper forums for determining McCain’s eligibility to hold office. If the Court were to make this determination – as it must to resolve Hamblin’s claims – it risks disrupting the Constitution’s carefully calibrated separation of powers – “the absolutely central guarantee of a just Government.” ….

See http://tiny.cc/MonNBC @ 8-10 (some internal citations omitted for readability).

RESPONSE: The article has the facts completely backwards. Once again, reading the source rather than someone’s characterization of the source is useful.

The fact is that Obama Executive Order 13479 **expanded** access to Presidential Records by

(a) revoking Bush’s Executive Order 13222 that limited access to Presidential Records, and
(b) restoring Reagan’s Executive Order 12667.

Source:
Obama Executive Order 13489 @ http://tiny.cc/EO13489
—>Note Sec. 6: “Executive Order 13233 of November 1, 2001, is revoked.”

Bush Executive Order 13233 @ http://tiny.cc/EO13223
—>Note Sec. 6: Executive Order 12667 of January 18, 1989, is revoked.

Reagan Executive Order 12667 @ http://tiny.cc/EO12667

RESPONSE:

A. There is, to date, no facts or evidence to prove that Obama was adopted by Soetoro. (Notably, the article fails to cite any such evidence.) Moreover, even if he was adopted under Indonesian law, that law simply could NOT strip his US citizenship. See http://tiny.cc/WYE_Indonesia for more on that issue.

B. The US State Department has, officially – “in court” (i.e., while subject to under Rule 11 penalties), declared that Obama was never adopted by Lolo Soetoro and never became an Indonesian citizen. See, e.g., ¶37-38, 48, 50 @ http://tiny.cc/StrunkGovAns

RESPONSE:

A. There is, to date, no facts or evidence that Indonesian law at the time did not allow for dual citizenship. (Again, the articles cites to no such evidence.) This “theory” was originally offered by Phil Berg, with multiple “citations” to Indonesian law. However, if one actually READS the laws he cites (the ones that exist), those laws simply do not say what he says they say. See http://tiny.cc/OC_Indonesia for more info.

B. Moreover, whatever Indonesian law at the time (or today), the fact is that US law determines US citizenship and under US law, a minor cannot lose his citizenship merely by virtue of his relocation, the adoption by a non-US citizen, or even his parent’s attempt to “renounce” his citizenship. See http://tiny.cc/WYE_Indonesia for more info.

C. The US State Department has, officially – “in court” (i.e., while subject to under Rule 11 penalties), declared that Obama was never adopted by Lolo Soetoro and never became an Indonesian citizen. See, e.g., ¶37-38, 48, 50 @ http://tiny.cc/StrunkGovAns

RESPONSE:

This is a “red herring,” given that (a) Indonesian law does not provide what the article contents it provides and (b) regardless of what Indonesian law provides, that country cannot “trump” US law on the issue of who, under US law, is a US citizen.

RESPONSE: Notably, there is no citation to any alleged “credible evidence” of an Ann Durham trip to Kenya while pregnant with Obama? If you have some, I’d love to see it.

RESPONSE:
A. Obama’s Kenyan STEP-grandmother was misquoted (and a recording clipped to say) that Obama was born in Africa when, in fact, she repeatedly and emphatically stated (on the same FULL recording) that Obama was born in Hawaii. See http://tiny.cc/SOSpeaks

B. The US State Department has, officially – “in court” (i.e., while subject to under Rule 11 penalties), declared that Obama was born within the state of Hawaii and NOT in Kenya. See ¶36 at http://tiny.cc/StrunkGovAns

RESPONSE

This is a perfect example of the type of inaccuracies contained throughout this and other articles challenging Obama’s eligibility based on flawed facts and flawed reasoning.

A. Federalist No 68 does NOT include your purported Hamilton quote. READ IT!!! http://tiny.cc/Fed68 That quote is simply *not* there.

The article attributes to Alexander Hamilton a statement made by Balint Vazonyi, Director of Center for the American Founding, in connection with a 2000 push to amend the Constitution to allow foreign-born citizens (i.e., naturalized) to become President. (See http://tiny.cc/NotFed68 at page 22.)

B. In any event, “Grow from the soil” is a reference to jus solis, the principle that citizenship is based on LOCATION of birth – as opposed to jus sanguinis, the principle that citizenship is based on PARENTAGE.

See, e.g., Jus Solis @ http://tiny.cc/JusSolBD compared to Jus Sanguinis @ http://tiny.cc/JusSangBD

C. The fact is that throughout the history of US jurisprudence, with the exception of cases now overturned, harshly criticized, and/or abrograted by statute (e.g., Dred Scott), legal scholarship has consistently, overwhelmingly held that a “natural born” or “native born” citizen (used interchangably) means born in the USA – regardless of parentage.

See compendium of legal scholarship at http://tiny.cc/NBCDefined. See also compendium of US Supreme Court cases on the issue at http://tiny.cc/SCtonNBC and more at http://tiny.cc/OC_NBC

For more information on “Natural Born Citizen” and Vattel, oft-quoted in this and other similar articles, see http://tiny.cc/OC_Vattel & http://tiny.cc/OC_Vattel2

———QUERY———

IF … “natural born citizen” really means “born of two US citizen parents,” and if Wong Kim Ark (http://tiny.cc/WKA) does not stand for the proposition that a person born in the US is a natural (or native) born citizen regardless of his parents …
THEN, … why did so many conservative groups file briefs in Hamdi v. Rumsfeld, 542 U.S. 507 (2004) strongly urging the Supreme Court to “reverse” 100 years of jurisprudence to find that birthright citizenship means born of two US parents? I mean, if the issue is settled, as this and other similar articles seem to contend, why would the groups be asking the Supreme Court to “reverse” current law? And if “born US citizen” means something different than “natural born” citizen, why did these briefs advocate for reversal of Wong, and adoption of the dicta in Happersett?

RESPONSE

A. I agree that “originalists” look to founders’ intent. (This does not, however, mean that only original intent is applicable, but that’s another issue.)

B. An “originalist” starts with applicable laws – common law and statutory law – in effect at time of the particular law at issue. Yet the article totally ignores that, as discussed rather extensively in Lynch v. Clarke, the law of ALL THIRTEEN colonies, and ALL THIRTEEN states at the time of the Revolution and drafting of the Constitution provided that a person born OF THE SOIL (of colony or state) was a natural born citizen regardless of that person’s parentage:

“It may then be safely assumed, that at the Declaration of Independence, by the law of each and all the thirteen states, a child born within their territory and liegeance respectively, became thereby a citizen of the state of which he was a native.

This continued unchanged to the time when our National Constitution went into full operation. There is no evidence of any alteration of the rule in any of the states during the period that intervened; and the references which will be made under another head, show conclusively that there had been no intermediate change to their policy.”

http://tiny.cc/NBC_OI. at pp. 243-44.

The court continued:

“It is a necessary consequence, from what I have stated, that the law which had prevailed on this subject, in all the states, became the governing principle or common law of the United States …. If there had been any diversity on the subject in the state laws … it is reasonable to believe that the framers of the constitution would have borne in mind, and enacted a uniform rule, or authorized Congress to establish one. THE ENTIRE SILENCE OF THE CONSTITUTION IN REGARD TO IT FURNISHES A STRONG CONFIRMATION, NOT ONLY THAT THE EXISTING LAW OF THE STATES WAS ENTIRELY UNIFORM, BUT THAT THERE WAS NO INTENTION TO ABROGATE OR CHANGE IT. The term citizen, was used in the constitution as a word, the meaning of which was already established and well understood. ….”
—————–
http://tiny.cc/NBC_OI at pp. 246 (emphasis supplied).

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:

1. Citing Smith v. Alabama, the court said that the Constitution is framed in the language of English Common Law
2. 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
3. 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…[1776].

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:

1. 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.
2. While he did burn his papers before his death, he did not do so in the context or time of the election.
3. Arthur made no statement implying that his father was a citizen when Arthur was born.
4. Arthur, a lawyer from New York, may well have read the New York Supreme 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.
5. 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:

• The Assassination of Chester A. Arthur
• Chester A. Arthur: Rest In Peace

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.

Stay tuned for Part 3 coming to a theater near you.

James Madison

James Madison of Virginia, framer of the Constitution, member of Congress and 4th President of the United States is often called “The Father of the Constitution”. The Federalist Papers, co-authored by Madison, was influential in turning the tide of popular opinion in favor of the ratification of the Constitution.

In a speech before the House of Representatives in May of 1789, Madison said:

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.

Abridgment of the Debates of Congress, from 1789 to 1856 From Gales and Seatons’ Annals of Congress; from Their Register of Debates; and from the Official Reported Debates, by John C. Rives By United States. Congress, Thomas Hart Benton

Thanks to contributor Ballantine for the citation.

Perhaps because the 1795 Act is the transition between laws with and laws without the “natural born citizen” wording, it’s worth looking at.

Someone thought it was important. On January 9, 2009, they edited the Wikipedia page on the Naturalization Act of 1795 adding in some text that implied the “citizen” language we’ll examine later is “opposed” to the “natural born citizen” language in the 1790 act. The Wikipedia is now set back to where it was on January 8.

The 1795 Act repeals its predecessor and makes significant changes. Here are both Acts.

The Naturalization Act of 1790

An ACT to establish an uniform Rule of Naturalization.

BE it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any alien, being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof, on application to any Common Law Court of Record, in any one of the States wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such Court, that he is a person of good character, and taking the oath or affirmation prescribed by law, to support the Constitution of the United States, which oath or affirmation such Court shall administer, and the Clerk of such Court shall record such application, and the proceedings thereon ; and thereupon such person,shall be considered as a citizen of the United States. And the children of such person so naturalized, dwelling within the United States, being under the age of twenty-one years at the time of such naturalization, shall also be considered as citizens of the United States. 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 Naturalization Act of 1795

An Act to establish an uniform Rule of Naturalization; and to repeal the Act heretofore passed on that Subject. For carrying into complete effect the power given by the constitution, to establish an uniform rule of naturalization throughout the United States;

SECTION 1. BE it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, that any alien, being a free white person, may be admitted to become a citizen of the United States, or any of them, on the following conditions, and not otherwise. First, he shall have declared, on oath or affirmation, before the Supreme, Superior, District, or Circuit Court of some one of the states, or of the territories northwest or south of the Ohio River, or a Circuit or District Court of the United States, three years at least before his admission, that it was, bona fide, his intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty whereof such alien may at that time be a citizen or subject. Secondly. He shall, at the time of his application to be admitted, declare on oath or affirmation before some one of the courts aforesaid that he has resided within the United States five years at least, and within the state or territory where such court is at the time held, one year at least; that he will support the Constitution of the United States; and that he does absolutely and entirely renounce and abjure all allegiance and fidelity to any foreigh prince, potentate, state, or sovereignty whatever and particularly by name the prince, potentate, state, or sovereignty whereof he was before a citizen or subject; which proceedings shall be recorded by the clerk of the court. Thirdly. The court admitting such alien shall be satisfied that he has resided within the limits and under the jurisdiction of the United States five years. It shall further appear to their satisfaction that during that time he has behaved as a man of a good moral character, attached to the principles of the Constitution of the United States, and well-disposed to the good order and happiness of the same. Fourthly. In case the alien applying to be admitted to citizenship shall have borne any hereditary title, or been of any of the orders of nobility, in the kingdom or state from which he came, he shall, in addition to the above requisites, make an express renunciation of his title or order of nobility in the court to which his application shall be made; which renunciation shall be recorded in the said court.

SEC. 2. Provided always, and be it further enacted, That any alien now residing within the limits and under the jurisdiction of the United States may be admitted to become a citizen on his declaring, on oath or affirmation, in some one of the courts aforesaid, that he has resided two years, at least, within and under the jurisdiction of the same, and one year, at least, within the state or territory where such court is at the time held; that he will support the Constitution of the United States; and that he does absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty whatever, and particularly by name the prince, potentate, state, or sovereignty whereof he was before a citizen or subject. Moreover, on its appearing to the satisfaction of the court that, during the said term of two years, he has behaved as a man of good moral character, attached to the Constitution of the United States, and well-disposed to the good order and happiness of the same; and when the alien applying for admission to citizenship shall have borne any hereditary title, or been of any of the orders of nobility in the kingdom or state from which he came, on his, moreover, making in the court an express renunciation of his title or order of nobility, before he shall be entitled to such admission; all of which proceedings, required in this proviso to be performed in the court, shall be recorded by the clerk thereof.

SEC. 3. And be it further enacted, that the children of persons duly naturalized, dwelling within the United States, and being under the age of twenty-one years at the time of such naturalization, and the children of citizens of the United States born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States. Provided, that the right of citizenship shall not descend on persons whose fathers have never been resident of the United States. No person heretofore proscribed by any state, or who has been legally convicted of having joined the army of Great Britain during the late war, shall be admitted as foresaid, without the consent of the legislature of the state in which such person was proscribed.

SEC. 4. And be it further enacted, that the Act, intitled, “An act to establish an uniform rule of naturalization,” passed the twenty-sixth day of March, one thousand seven hundred and ninety, be, and the same is hereby repealed.

The italicized sections preceding mark the context where “natural born citizen appears”.

Look at this section from 1790:

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

First the phrase “Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States” must apply specifically to children born outside the United States. Naturalization (in the preceding section) required residence and so all naturalized fathers would have been residents. So in one sentence we have “natural born citizens” and in the next referring back to it we have “citizenship”. This would imply to me that the Congress intended that “natural born citizen[ship]” means the same thing as “citizenship”.

If this is the case, then the Act of 1795 equivalent section:

, and the children of citizens of the United States born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States. Provided, that the right of citizenship shall not descend on persons whose fathers have never been resident of the United States.

is different because the wording a bit tighter and recognizes the superfluous phrase “natural born” (which is understood from the fact that they are born citizens).

The alternative theory is that the First Congress thought that children of citizens born abroad should be “natural born citizens” and the Third Congress thought they should not. Why would that be?

If you read the italicized portions of both laws, it seems to me that the second version reads smoother, and perhaps that’s the reason for the rewording, not to change the meaning.

I’ve been reading this marvelous article from the Boston University Law Review by Sarah Helene Duggin and Mary Beth Collins. While written in 2005, you might think it was written only yesterday when it says:

Any of the many birthright citizens whose natural born status is unclear, however, could become entangled in a battle over the meaning of the natural born citizenship clause in a variety of ways. Early in the Presidential selection process, for example, media coverage of a prospective candidate’s origins could trigger a national controversy over constitutional qualifications. A public credentials contest could, in turn, cause the candidate to withdraw from the race, or persuade supporters that backing the candidate would be too  risky.  Alternatively, vigorous public debate might result in a popular consensus that birthright citizenship should suffice for the Presidency, regardless of the precise meaning of Article II. A popular consensus could  persuade state election officials to include a Presidential hopeful’s name on an election ballot, despite questionable natural born citizenship credentials, and it might dissuade potential challengers from initiating a legal action contesting the eligibility of the candidate to serve as President. Given the nature of present-day political battles, however, it is hard to imagine that competitors would pull any punches in a Presidential contest.

Nor would winning the Democratic or Republican nomination necessarily insulate a Presidential candidate from legal action or convince a disappointed rival to abandon the quest for the Presidency. Moreover, as long as the constitutional standard remains ambiguous, the risk of contentious legal disputes will linger, even in the midst of a national emergency.

‘NATURAL BORN’ IN THE USA: THE STRIKING UNFAIRNESS AND DANGEROUS AMBIGUITY OF THE CONSTITUTION’S PRESIDENTIAL QUALIFICATIONS CLAUSE AND WHY WE NEED TO FIX IT Boston University Law Review, February 2005.

And then the article brings up complications over “standing” should someone try to bring a lawsuit over eligibility, the difficulties involved should the Supreme Court take on the case and even scenarios where the House of Representatives wrestled with the possibility of failing to qualify a popularly elected candidate.

Wow! You might think this describes exactly where we are today, but you would be wrong because what the authors mean by “birthright citizens” are those who are citizens from birth, born in the United States and in US Territories (the latter face ambiguity). Our President-Elect was born in the United States proper. That article goes on to say:

United States citizens born to parents subject to United States jurisdiction in one of the fifty states are unquestionably natural born citizens…

As the foregoing discussion demonstrates, however, even an individual who is indisputably a natural born American can also be a dual national. The  Constitution does not bar dual nationals from becoming President, and, in recent years, United States nationality law has become increasingly tolerant of multiple citizenship, thereby increasing the possibility that a dual national will become President.

According to a CNN report:

“The law has always been understood to be, if you are born here, you’re a natural born citizen,” said Thomas Goldstein, founder of the Scotusblog.com Web site and a lawyer who has argued numerous cases before the high court.

Anyway, that was how it was at 10:59 on November 4, 2008. As soon as the black guy with the funny name walked in the door, it all changed. Now everybody knows. And not only did it change for us, but it changed retroactively so that now everybody knew this in 1776 and knew it in 1880, that to be a natural born citizen (which even has its own acronym, NBC) one must be born in the United States, and BOTH parents must also be citizens. This Constitutional amendment was passed unanimously by the anti-Obama blogosphere and there it is.