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Why the disconnect on “natural born citizen”?

There are polar opposite views on what the phrase “natural born citizen” in the Constitution means. One pole is the legal community and the other the birthers. How can reasonable people come to such different opinions?

Obviously one answer is that the birther side isn’t being reasonable; however, there is a little more to it. The fact of the matter is that our country has not always been of one mind on citizenship, and that there have been periodic bouts of anti-immigration sentiment in the population, sentiment reflected in the statements of politicians and sometimes in the courts and occasionally in statutes (like the Chinese Exclusion Act). Like it or not, the Dred Scott decision was the law of the land until it was supplanted by the 14th Amendment, no matter how bizarre and racist its conclusions sound today.

I was digging through some bookmarks last week and re-discovered a 2006 Congressional Research Service report, “U.S. Citizenship of Persons Born in the United States to Alien Parents.” I found the report valuable in understanding the historical context. They wrote on page 4 (footnotes omitted):

Although the English common law at the time of the adoption of the Constitution considered a person born in the English dominions to alien parents to be an English citizen unless those alien parents fit into the exceptions described above, and although American law apparently generally accepted this position, there nevertheless appeared to be some uncertainty as to whether persons born in the United States to alien parents were, in fact, citizens of the United States. Some scholars ascribe this uncertainty to the desire of Americans to embrace both a “consensualist” doctrine of citizenship, by which a person and a government consent to be mutually obligated, and an “ascriptive” doctrine by which a person is ascribed citizenship by virtue of circumstances beyond his control, such as birth within a particular territory or birth to parents with a particular citizenship.

It is the general view of the legal community that this issue was put to rest by the US Supreme Court in the 1898 case of US v. Wong. But even the Wong decision was split 6-2.

Given that confirmation bias leads us to select those authorities and citations that confirm what we already believe, it should be no surprise that in the midst of a wealth of conflicted history, each side could find things to make the case that suits them. The fact that the birthers always lose in court should inform us on which side has the stronger argument.

Rawle’s “therefore”

The citizens of each state constituted the citizens of the United States when the Constitution was adopted. The rights which appertained to them as citizens of those respective commonwealths accompanied them in the formation of the great compound commonwealth which ensued. They became citizens of the latter without ceasing to be citizens of the former and he who was subsequently born a citizen of a state became at the moment of his birth a citizen of the United States. Therefore every person born within the United States its territories or districts whether the parents are citizens or aliens is a natural born citizen in the sense of the Constitution and entitled to all the rights and privileges appertaining to that capacity. … [the balance of this paragraph is discussed below]

–William Rawle – A View of the Constitution (1829)

William Rawle, a confidant of Washington and Franklin, has impressive credentials.  The preceding citation has appeared on this site a number of times in support of the eligibility of Barack Obama to be President of the United States, and the eligibility of anyone else born a US citizen within the country.

Rawle was a US Attorney and a noted jurist, and we may assume that he forms his arguments like a lawyer, and this looks like a logical argument because of the use of the word “therefore.” The most common argument form ending in “therefore” is like this:

1) All (a) are (b)
2) All (b) are (c)
Therefore: All (a) are (c)

Rawle doesn’t provide a second premise, but I think he intended one to be understood, because otherwise the argument doesn’t work. His conclusion doesn’t follow solely from his explicit premise.

In a formal argument, the first premise and the conclusion are sufficient to derive the second premise. Here’s Rawle’s argument substituted into the standard argument form:

1) All persons born in the United States are citizens at birth
2) All (b) are (c)
Therefore: All persons born in the United States are natural born citizens.

In the preceding (b) is “citizens at birth” and (c) is “natural born citizens.”

Therefore: the missing second premise, all (b) are (c), by substitution must be:

“All citizens at birth are natural born citizens.”

If Rawle’s statement is a logical argument in the standard form and there is a missing 2nd premise, then we have undoubtedly derived it. It is reasonable to assume that “natural born citizen” was a term generally understood in 1787, given the paucity of discussion about it, and if it was generally understood, the omission of an explicit second premise is justified and the assumption that Rawle’s argument follows the standard form is very likely. Indeed Rawle tells us as much, writing:

It cannot escape notice that no definition of the nature and rights of citizens appears in the Constitution. The descriptive term is used, with a plain indication that its meaning is understood by all, and this indeed is the general character of the whole instrument. …

Now let’s consider the balance of the paragraph opening of this article from Rawle:

… It is an error to suppose as some (and even so great a mind as Locke) have done, that a child is born a citizen of no country and subject of no government, and that he so continues till the age of discretion, when he is at liberty to put himself under what government he pleases. How far the adult possesses this power will hereafter be considered, but surely it would be unjust both to the state and to the infant, to withhold the quality of the citizen until those years of discretion were attained. Under our Constitution the question is settled by its express language, and when we are informed that, excepting those who were citizens, (however the capacity was acquired) at the time the Constitution was adopted, no person is eligible to the office of president unless he is a natural born citizen, the principle that the place of birth creates the relative quality1 is established as to us.

Rawle’s initial argument left a hole. What if being born in the country just makes one a citizen upon majority? Rawle says that this question is settled by the Constitution’s “express language.” How would it be settled if the phrase “natural born citizen” in the Constitution is defined by place of birth? By that definition, the Constitution says nothing more than that there exists citizens born in the country who at age 35, when they become eligible to run for President, are citizens. The only way the Constitution could settle the question of citizenship with its “express language” is for “natural born citizen” to be generally understood as “citizen from birth” thereby proving that people born in the country are citizens from birth.

Rawle says that the “relative quality” (which I take to be “citizenship from birth”) is established by place of birth (as he says clearly in the opening of the paragraph). Under the Constitution, the only way to be a citizen at birth is to be born in the country, but that is sufficient for his argument. However, under statute, there are other ways (as we saw in the Naturalization Act of 1790) to become a citizen at birth, but Rawle’s book is about the Constitution, not statutory law.

I believe that it was Rawle’s opinion that “all citizens at birth are natural born citizens” based on his writing in A View of the Constitution.

Cranking natural born citizen

When someone comes along with a theory they think is obvious, but that hardly anyone else thinks is right, and the one holding the theory has no special expertise in the field, I’m apt to label the theorist a “crank.” I’ve done it on this blog. Today, however, I’m swapping roles and being the crank.

Most legal scholars believe that anyone who is born a US Citizen is a natural born citizen, and meets that piece of the eligibility requirement to become President of the United States. I fully agree. Where I fit my own definition of a crank is the way that I arrive that conclusion.

One mark of a crank is making legal arguments out of a dictionary instead of law and precedent. So I start cranking with the dictionary definition of “natural born” which is “having a quality at birth.” The Constitution doesn’t define “natural born citizen" but I have never found any document from our Founders that says “natural born citizen” has a special technical definition. Why does it have to be a “term of art?”

The U.S Supreme Court in the case of United States v. Wong Kim Ark cited approvingly Mr. Dicey in Digest of the Law of England with reference to the Conflict of Laws, where Dicey explains the difference between a British Subject, and a natural-born British Subject:

“British subject” means any person who owes permanent allegiance to the Crown. … “Natural-born British subject” means a British subject who has become a British subject at the moment of his birth.

He did not say “a subject who was born on the soil of England,” but one who became a subject at birth. And of course as we all know, the Court asserted the convertibility of “subject” and “citizen.”

If you think about it, the lack of a definition in the Constitution makes sense because in 1789, citizenship was defined by the States and not the Federal Government. Congress only had the power of naturalization under the Constitution and therefore they couldn’t define the citizenship of persons already born that way. That is, if natural born citizen means “citizen at birth” then the Constitution couldn’t have defined it because states had different definitions. My theory explains a puzzle: why the Constitution uses this term it doesn’t define, and whose common law derivation is controversial.

Now, the legal experts are going to look to the English Common Law for undefined terms in the Constitution (see Smith v. Alabama and Ex parte Grossman).  That’s what lawyers are trained to do, but I say they are overthinking the problem, and as proof I keep coming back to the Naturalization Act of 1790. In that act, the Congress said explicitly that the children born of US fathers overseas were citizens. In the debate on that act, the argument was made that the United States should make provision for the children of its citizens born overseas, just has had the English centuries before. If it provides for someone, that means that the Act made people citizens at birth who were not citizens at birth before the Act. It means that these persons were not eligible to run for President when the Constitution was ratified. Nevertheless, that act called these new citizens “natural born citizens.” James Madison, principal author of the Constitution, was in that Congress, and George Washington, President of the Convention that produced the Constitution, signed it into law. Surely they understood that they were adding a new class of potential candidates for President.

If one applies the common law concept to the 1790 Act, all sorts of constitutional questions arise. If one applies the dictionary, there is no problem at all.

The plain English meaning of “natural born citizen” is anyone who is a citizen from birth. At different times in our history, the laws on who was a citizen from birth changed. The states originally defined it in various ways, the Congress defined it through various laws, and the Constitution nailed some of it down in the 14th Amendment. Whoever the law, statutory or common, says is born a citizen, that person is a natural born citizen.

One other mark of a crank is that they very stubbornly hold on to their theories, expecting other people to prove them wrong. Well?

Depressing

I went over to Obama Release Your Records this morning to check out something I saw from them about some teacher giving a homework assignment that mentioned “natural born citizen.” When I looked at the headlines on the site, it was depressing to see so much effort put into defaming the President, twisting events to suit a negative agenda, and generally pushing people towards the dark side.

  • President Obama’s plan for a socialist America…
  • Obama’s forged birth certificate…
  • Are we being compromised by Obama’s murky past?
  • Obama had Indonesian passport
  • Judge Schack A Socialist-Wonder Nutcase
  • Obama Identity Document Fraud Case Goes to Court of Special Appeals of Maryland
  • Obama Survival Guide
  • Analysis of Hawaii Department of Health Loretta Fuddy’s Financial Disclosure Form…fraudulent Long Form

Conspiracy theories I sort of understand: the brain works in particular ways that distort judgment. Trading good for evil, however, is something that is more fundamentally disturbing.

As for the article about the teacher, I did find it. The teacher, according to the article, may have followed a text book that said the qualification for President was a “native-born” citizen. Given that the Oxford English Dictionary gives the same definition for “native born” as “natural-born,” I don’t see what the big deal is—they see it as liberal indoctrination.

Just a guy with a blog

I’ve been rather busy of late, but primarily doing things unrelated to the blog. I’m close to finishing my 4th audiobook for LibriVox.org as well as writing some cool software to help with that activity.

One article of interest appeared at the Western Free Press (not to be confused with the birther rag, The Western Center for Journalism). The article was titled: “’Birtherism’ and the Tyranny of Ignorance.” It is another in a long line of “Ted Cruz is eligible to run for President” stories. The author, Greg Conterio, says something I strongly support:

One final observation: when you try to read-up on topics like this, sources do matter.  Some guy with a blog, or some attorney with some bizarre sounding legal theory are NOT authoritative sources. 

The problem is that Mr. Conterio so far as I can tell, is not an authority, nor does he cite authority in his article. For all intents and purposes he is “some guy with a blog.” The end of that cited paragraph says: “When it comes to law, the ONLY valid source is the published local, state or federal code on the topic.” Of course we all know that no statute uses the term “natural born citizen.” So what he does is jump to a conclusion that allows him to substitute “citizen at birth” for “natural born citizen,” saying:

A few points about section 1401 – The term citizen at birth is a synonym for natural born citizen.  They are not two different terms, with different meanings.

The two terms are trivially not the same since a citizen at birth is not necessarily even a citizen today, and I do not think anyone would argue that someone born a US citizen, having renounced his citizenship, is eligible to run for President.

However, I do agree that being a citizen at birth, or as I would prefer to say “a citizen from birth,” is the key to being a natural born citizen. I have written some articles arguing that this is the case. However, I am painfully aware that hardly any authority shares my views on the question of how the term “natural born citizen” gets its definition, most authorities deriving it as a term of art based on English Common Law. Conterio rejects the English Common Law as authority. So while I agree with the conclusion that Ted Cruz is eligible, I consider Conterio’s argument fringe at this point.

I guess that when it comes to guys with blogs, one needs to look at whether one cites sources or just simply asserts condescendingly.

I left some comments on the article.