Drafting a definition for Natural Born Citizen (update)
I’m working on a definition for Natural Born Citizen to be submitted to the Urban Dictionary. The current definitions there are highly unsatisfactory and have net negative response from those who rate them.
This blog has published definitions before including:
- Defining Natural Born Citizen
- Natural Born Citizen: Defined! (from a legal dictionary)
Unfortunately my original article is far too long to fit the 1500 character limit of the Urban Dictionary, and in any case, I want something short and easy to read. So here is a draft for comment. Keep in mind that the following is just 38 characters under the limit, so I can’t add anything substantial without removing something else.
A US Circuit Court said “all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together.” US v. Rhodes (1866). This principle has been cited approvingly by subsequent courts including the US Supreme Court in US v. Wong Kim Ark (1898) that said:
“The 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including children here born of resident aliens, … The Amendment, in clear words and in manifest intent, includes the children born within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.” (more…)
International law and citizenship in the United States
The consensus view today is that everyone born in the United States (with a few exceptions) is a natural born citizen, following the historical survey of the Supreme Court of New York in Lynch vs. Clarke and many subsequent court decisions, US Attorney general decisions, and books on the subject. Their view is that the common law of Britain is the source of this stream of history, and the place to turn to when defining terms used in the Constitution (as affirmed by the Supreme Court in Smith vs. Alabama).
In recent times a move is afoot to argue that citizenship at birth in the United States is only acquired by birth in the United States of citizen parents(s), following the philosophy of Emerich de Vattel in his book, The Law of Nations. They say that this is the view of the founders of the United States, who understood such concepts according to “international law” rather than “common law”. While de Vattel is just one commentator on international law, they say that his views control.
So to further the discussion, I offer the following text from the book INTERNATIONAL LAW, Chiefly as Interpreted and Applied in the United States by Charles Cheney Hide, professor of law at Northwestern University (1922). Please refer to the original for important footnotes.
THE ACQUISITION OF AMERICAN NATIONALITY BY BIRTH
a
Citizenship(1)
By Right of Place. Jure Soli(a)
§ 343. The Common Law.
According to the common law every child born “within the ligeance and jurisdiction” of the King of England was regarded as his subject. It is not true that all persons born within the King’s domain were within his ” ligeance and jurisdiction.” Thus, the child of an alien enemy born in British territory within hostile military occupation was regarded as outside thereof; likewise the child born within the realm whose father was an alien, and at the time of the birth of the child, a diplomatic officer accredited to the Crown by a foreign sovereign. As these were, however, the only instances where persons born within the royal domain failed to acquire English nationality, it became natural to assert as a rule of law, commonly known as the jus soli, that, subject to these exceptions, a person became a natural-born subject by reason of his birth within the King’s domain. (more…)
De Vattel appears in 1884 law review article
In ARE PERSONS BORN WITHIN THE UNITED STATES IPSO FACTO CITIZENS THEROF? The American Law Review (Sep/Oct 1884) George D. Collins argues that only those born in the United States whose fathers are citizens, are themselves citizens.
This find by Leo C. Donofrio should provide some some discomfit to Mario Apuzzo who has been doggedly pursuing the two-citizen-parent rule.
Mr. Collins jumps right into the topic by attacking Lynch v. Clarke (New York 1844) denying that there is a common law of the United States (although he is quite ready to adopt the Swiss philosopher Vattel in lieu of a common law). Collins seems to think de Vattel’s “The Law of Nations” represents international law rather than de Vattel’s philosophy of international law, but the facts are that de Vattel’s view of citizenship did not represent a consensus of national laws on citizenship; quite the contrary.
Finally Collins launches into racist screed against the Chinese:
Now it is evident that such persons [the Chinese] are utterly unfit, wholly incompetent, to exercise the privileges of an American citizen….
…yet under the common law rule the children of all persons, irrespective of race, who were born within the United States would be citizens. (more…)
Searching for “natural born citizen”
US Constitution
Not many folks have spent more time than I searching the Internet and WestLaw for keywords including “natural born citizen”. You can see the results of such activity on pages like my The Great Mother of All Natural Born Citizen Quotation Pages and Tes’s SCOTUS & “Natural Born Citizen” – A Compendium. While that’s useful, finding short paragraphs with keywords is not the way to understand the subject in depth. Even those who disagree with me fall into the same pattern, for example, citing E. de Vattel without reading the chapters that follow.
To really understand what’s going on one must read those works where the subject is developed: this happens in some scholarly works, and in some imp0rtant court decisions. Here are some useful texts, by far not all.
- The United States Constitution
- The Congressional Debates on the 14th Amendment
- Lynch v Clarke (Supreme Court of New York)
- US v Wong Kim Ark (Supreme Court of the US)
- Afroyim v. Rusk, 387 U.S. 253
- Rogers v Bellei (Supreme Court of the US)
- The Development of American Citizenship, 1608-1870
- The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty – Yale Law Journal 1988
- The Origins and Interpretation of the Presidential Eligibility Clause in the U.S. Constitution: Why Did the Founding Fathers Want the President To Be a “Natural Born Citizen” and What Does this Clause Mean for Foreign-Born Adoptees?
- Defining “American” Birthright Citizenship and the Original Understanding of the 14th Amendment, James C. Ho.
- Rawle’s View of the Constitution
- Citizenship in the United States, Frederick Van Dyne (1904)
- The Justiciability of Eligibility: May Courts Decide Who Can Be President? [HTML] [PDF] Daniel P. Tokaji, The Ohio State University, Moritz College of Law
- Originalism and the Natural Born Citizen Clause [HTML] [PDF] Lawrence B. Solum, University of Illinois Law School
- Attorney General Edward Bates, Opinion of Attorney General Bates on Citizenship (1852).
Commenters here may suggest additions to the list.
Wong Kim Ark in the news!
Not a photo of Orly Taitz
Riding home today, listening as always to All Things Considered on National Public Radio, I heard an interview with this Ted Hilton, a real estate developer, who is trying to get an initiative on the ballot in California that would deny benefits to the children of illegal aliens.
The way this would work is that they would disallow illegal immigrants from applying for benefits, and further say that children cannot apply themselves, resulting in the children being denied as well. The interviewer suggested that this would deny equal protection to the children who are U. S. citizens under the Fourteenth Amendment.
The Mr. Hilton then said, that no court or law has declared that they were citizens, and that Wonk Kim Ark only applies to alien parents who are “permanently domiciled” in the U. S. While he was not arguing that President Obama was ineligible, he did sound like a birther to the practiced ear.
Certainly the dicta in Wong contradicts the idea that permanent residence was considered a requirement.
Defining Natural Born Citizen
Natural born citizen
While coming tantalizingly close, no US Court has ever decided the definition of “natural born citizen”. The term was not explained in the debates of the Constitutional Convention, nor the state legislatures when it was ratified, nor by individual framers in their speeches, letters or papers. Where do we go for a definition–to an 18th century Swiss philosopher–to an appeal to our shared prejudices?
The US Constitution is replete with terms that it doesn’t define: citizen, impeachment, felonies, treason, bribery, bankruptcy, warrants, grand jury and attainder. These are, however, familiar terms in the common law. The Supreme Court wrote in the case of Smith v. Alabama (1888) 124 U.S. 465:
There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history. (more…)
