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The Great Mother of all Native Born Citizenship Pages

There seems to be strong historical evidence that the founders of the country considered native born citizen and natural born citizen the same thing. Consider the following from commenter Ballantine and see of you don’t agree:

No court has ruled on NBC. The court has not defined many terms, but that does not mean a definition is in doubt. Even if it was in doubt, the court will look to all early legal authorities to define such term…

With respect to native birth, Wong stated that since the common law was adopted, all children born in the US are generally native born citizens. You are simply trying to read an implication into a choice of terminology. The court made clear the English common law rules controlled and under the common law all the native born (subject to common law exceptions) were by definition “natural born.” I think you need to refresh your Blackstone as you would see there are only 2 classes of people at birth under the common law, the natural born and the alien born. The natural born were also referred to as natives. There is no authority anywhere that says there is a difference between native and natural born under the common law.

Finally, here is a list of early authorities saying that the president needs to be native born citizen or a native. Take notice it includes the most influential scholars of the early republic that court consistently relies upon. If you or Leo [Donofrio] disagree with this multitude you need to find authority to the contrary. Clearly, there you have no such authority.

“No man but a native, or who has resided fourteen years in America, can be chosen President.” Elliot’s Debates –DEBATES IN THE CONVENTION OF THE STATE OF NORTH CAROLINA, ON THE ADOPTION OF THE FEDERAL CONSTITUTION, pg 195-196 (statements of future Supreme Court Justice James Iredell, July 30, 1788).

“That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted) is a happy means of security against foreign influence,…” St. George Tucker, BLACKSTONE’S COMMENTARIES (1803) Continue Reading →

The Great Mother of All Natural Born Citizen Quotation Pages

This project intends to collect every relevant citation on “natural born citizen,” making them accessible in one place. If it takes much context or argument, a brief reference and a link is included. I promise you that the quotations will mean the same thing when you read them here than they mean if you read the larger context, and the larger context will be linked to the text. No tricks, no deception.

For additional citations, see The “Natural Born Citizenship” Clause (Updated) to whom this article is indebted for some of these citations. And for EVEN MORE citations see SCOTUS & “Natural Born Citizen” – A Compendium, Books on Google that define “Natural Born Citizen” and History of US citizenship laws.

If readers know of some other items I should add, please let me know via the site’s Contact link.

Constitution

No Person except a natural born Citizen . . . shall be eligible to the Office of President . . . .

Article II, section 1 of the Constitution

The 14th Amendment (1868) begins:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Legislation

Immigration Act of 1790

The Immigration Act of 1790 extended natural born citizenship to children of American parents born outside the United States. This is the first and only time the phrase “natural born citizen” appears in US immigration law.

…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…

The Immigration Act of 1790

Executive Branch statements

AG Opinions are precedents and can be relied upon, although not binding on the courts.

Attorney General Edward Bates, Opinion on Citizenship (1862)

The Constitution itself does not make the citizens, (it is. in fact,made by them.) It only intends and recognizes such of them as are natural–”home-born–”and provides for the naturalization of such of them as were alien–”foreign-born–”making the latter, as far as nature will allow, like the former. …

And our Constitution, in speaking of natural born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic.

If this be a true principle, and I do not doubt it, it follows that every person born in the country is, at the moment of birth, prima facie a citizen; and he who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the “natural born” right as recognized by the Constitution in terms the most simple and comprehensive …

And so strongly was Congress impressed with the great legal fact that the child takes its political status in the nation where it is born, that it was found necessary to pass a law to prevent the alienage of children of our known fellow-citizens who happen to be born in foreign countries. The act of February 10, 1855, 10 Statutes, 604, provides that “persons,” (not white persons,) ” persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, shall be deemed and considered and are hereby declared to be citizens of the United States: Provided, however, That the rights of citizenship shall not descend to persons whose fathers never resided in the United States.”

Attorney General Edward Bates, Opinion of Attorney General Bates on Citizenship (1862).

Attorney General Edward Bates, Opinion on Citizenship of Children Born in the United States of Alien Parents (1862)

I am quite clear in the opinion that children born in the United States of alien parents, who have never been naturalized, are native-born citizens of the United States

Citizenship of Children Born in the United States of Alien Parents, 10 U.S. Op. Atty. Gen. 328, 1862 WL 1393 (U.S.A.G.), available on Westlaw (paid subscription).

Walter Dellinger (Assistant Attorney General) before House subcommittee December 13, 1995

Throughout this country’s history, the fundamental legal principle governing citizenship has been that birth within the territorial limits of the United States confers United States citizenship. The Constitution itself rests on this principle of the common law. As Justice Noah Swayne wrote in one of the first judicial decisions interpreting the Civil Rights Act of 1866, the word “Citizens ‘under our constitution and laws means free inhabitants born within the United States or naturalized under the laws of Congress.’ We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States.”

and

While the Constitution recognized citizenship of the United States in prescribing the qualifications for President, Senators, and Representatives, it contained no definition of citizenship until the adoption of the Fourteenth Amendment in 1868. Prior to that time, citizenship by birth was regulated by common law. And the common law conferred citizenship upon all persons born within the territory of the United States, whether children of citizens or aliens. The only common law exceptions to this generally applicable rule of jus soli were children born under three circumstances –” to foreign diplomats, on foreign ships, and to hostile occupying forces –” which, under principles of international law, were deemed not to be within the sovereignty of the territory.

http://www.usdoj.gov/olc/deny.tes.31.htm

State Department guidance to Ambassadors and Consulate officials (1995)

7 FAM 1111.2 Citizenship
(TL:CON-64; 11-30-95)

a. U.S. citizenship may be acquired either at birth or through naturalization.

b. U.S. laws governing the acquisition of citizenship at birth embody two legal principles:

(1) Jus soli (the law of the soil), a rule of common law under which the place of a person’s birth determines citizenship. In addition to common law, this principle is embodied in the 14th Amendment to the U.S. Constitution and the various U.S. citizenship and nationality statutes.

(2) Jus sanguinis (the law of the bloodline ), a concept of Roman or civil law under which a person’s citizenship is determined by the citizenship of one or both parents. This rule, frequently called “citizenship by descent” or “derivative citizenship”, is not embodied in the U.S. Constitution, but such citizenship is granted through statute. As laws have changed, the requirements for conferring and retaining derivative citizenship have also changed.

c. Naturalization is “the conferring of nationality of a state upon a person after birth, by any means whatsoever” (Section 101(a)(23) INA) or conferring of citizenship upon a person (Sections 310 and 311 INA). Naturalization can be granted automatically or
pursuant to an application. Under U.S. law, foreign naturalization acquired automatically is not an expatriating act [see chapter 7 FAM 1200 ].

http://www.state.gov/documents/organization/86755.pdf

Supreme Court

Perkins v. Elg, 307 U.S. 325 (1939)

The following shows that acquiring dual citizenship does not abrogate the natural born status of a US Citizen.

And the mere fact that the plaintiff [Elg] may have acquired Swedish citizenship by virtue of the operation of Swedish law on the resumption of that citizenship by her parents does not compel the conclusion that she has lost her own citizenship acquired under our law….

The court below, properly recognizing the existence of an actual controversy with the defendants [page 350] ….. declared Miss Elg “to be a natural born citizen of the United States,”

Perkins v. Elg, 307 U.S. 325 (1939)

United States v. Wong Kim Ark (1898)

This post 14th Amendment case is important both because it provides a broad survey of citizenship law and the legal framework through which the Constitution views citizenship, and because this decision is cited by numerous other cases.

[An alien parent’s] allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Coke, 6a, ’strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’

The Wong court also said:

“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,’ for we are equally bound by allegiance and subjection to the government and law of the land.’

and

…every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.

III. The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established.

United States v. Wong Kim Ark (1898)

See additional citations from Wong relative to jurisdiction in my article Natural Born Citizen.

Kwock Jan Fat v. White, 253 U.S. 454 (1920)

It is not disputed that if petitioner is the son of Kwock Tuck Lee and his wife, Tom Ying Shee, he was born to them when they were permanently domiciled in the United States, is a citizen thereof, and is entitled to admission to the country. United States v. Wong Kim Ark, 169 U. S. 649. But, while it is conceded that he is certainly the same person who, upon full investigation, was found, in March, 1915, by the then Commissioner of Immigration, to be a natural born American citizen…

Kwock Jan Fat v. White

Schneider v. Rusk (1964)

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, s 1.

Note the equivalent use of native born and natural born.

Baumgartner v United States (1944)

The naturalized citizen has as much right as the natural born citizen to exercise the cherished freedoms of speech, press and religion…

Here only two types of citizen are recognized.

Elk v Wilkins, 112 U. S. 94 (1884)

The distinction between citizenship by birth and citizenship by naturalization is clearly marked in the provisions of the constitution, by which ‘no person, except a natural-born citizen, or a citizen of the United States at the time of the adoption of this constitution, shall be eligible to the office of president;’ and ‘the congress shall have power to establish an uniform rule of naturalization.’Const. art. 2, § 1; art. 1, § 8.

Note here that “citizens by birth” are contrasted to naturalized citizens, with the former eligible to be president.

This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.”

Minor v. Happersett (1874)

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 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,’ 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.

Here the court affirms two kinds of citizenship: natural born and naturalized.

Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts.

Here the court (without explanation) suggests that prior to the 14th Amendment there was some controversy whether the children of aliens born in the United States were citizens. The rule of common law as determining original intent is affirmed.

Luria v. United States, 231 U. S. 9 (1913)

In this brief citation, the court implies the equivalence of “native born” with “natural born” when it used the former as the qualification for president:

Citizenship is membership in a political society, and implies a duty of allegiance on the part of the member and a duty of protection on the part of the society. These are reciprocal obligations, one being a compensation for the other. Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the Presidency. 88 U. S. 165; Elk v. Wilkins, 112 U. S. 94, 112 U. S. 101; 22 U. S. 827

Sugarman v. Dougall, 413 U. S. 634 (1973)

I do not believe that it is irrational for New York to require this class of civil servants to be citizens, either natural born or naturalized.

Here the understanding of only two classes of citizen appears.



Lower Courts

Lynch v. Clarke, New York in 1844

This case is important because it was among those cited by the United States Supreme Court in United States v. Wong Kim Ark as well as other lower court decisions such as Munro vs. Merchant (N.Y. 1858).

By the common law, all persons born within the ligeance of the crown of England, were natural born subjects, without reference to the status or condition of their parents…

The term citizen, was used in the constitution as a word, the meaning of which was already established and well understood. And the constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President. “No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this constitution, shall be eligible to the office of President,” … The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not.

The New York Legal Observer

Munro vs. Merchant (N.Y. 1858)

Chancellor Kent, in his commentaries, defines a native born citizen to be a person born within, and an alien one born out of, the jurisdiction of the United States. (2 Kent’s Com. 37-50.)

Munro vs. Merchant (N.Y. 1858), as reported in Oliver Lorenzo Barbour, REPORTS OF CASES IN LAW AND EQUITY IN THE SUPREME COURT OF THE STATE OF NEW YORK, Vol. 26 (1858), at 383

Town of New Hartford v. Town of Canaan (CT 1886)

Moreover, if as is suggested, he [LaFayette ] was born to the advantages of a double allegiance, upon attaining his majority he exercised the right which was his of electing the government to which he would give allegiance, and that election related back to the time of his birth. Upon these authorities LaFayette had by birth what his father did not then have, citizenship of the United States and of the State of Massachusetts. This privilege neither needed nor had any strengthening by reflection from the subsequent naturalization of his father; he held it to the fullest extent in his own, and that the highest right.

Albany law journal

Musata v. U.S. Department of Justice, United States Court of Appeals, Sixth Circuit (1999)

Petitioners Marian and Lenuta Mustata are citizens of Romania. At the time of their petition, they resided in Michigan with their two minor children, who are natural born citizens of the United States.

The courts in this case assumed that two children of aliens are “natural born citizens of the United States.”

Diaz-Salazar v. Immigration and Naturalization Service, United States Court of Appeals, Seventh Circuit.

In this case, the children of an illegal immigrant father and a US citizen mother are described as natural born citizens.

The relevant facts which have been placed before the INS, BIA, and this court can be summarized as follows: The petitioner has a wife and two children under the age of three in Chicago; the children are natural-born citizens of the United States. He also has relatives in Mexico.

Tanaka v. Immigration and Naturalization Service (1965)

Jalbuena was a natural-born citizen of the United States who moved to the Philippines and, by operation of law, became a Philippine citizen. His action in applying for and receiving a Philippine passport after subscribing to an oath to support the Philippine Constitution, it was held, did not constitute renunciation of his American citizenship;

United States v. Low Hong, Circuit Court of Appeals, Fifth Circuit.Circuit Court of Appeals (1919)

Low Hong was born in the United States in 1894 presumably to non-citizen parents (Chinese immigrants could not become citizens under the Chinese Exclusion Act of 1882 and because of the court’s citation of US v. Wong Kim Ark).

The averments of the amended petition show that the appellee is a natural-born citizen of the United States. United States v. Wong Kim Ark, 169 U.S. 649, 18 Sup.Ct. 456, 42 L.Ed. 890.

Reference: here.

U.S. v. Rhodes, 27 F.Cas. 785, C.C. Ky. 1866 (Swayne)

All persons born in the Allegiance of the King are Natural-Born subjects, and all persons born in the Allegiance of the United States are Natural-Born Citizens. Birth and Allegiance go together. Such is the Rule of the Common Law, and it is the Common Law of this country…since as before the Revolution.

Ankeny v. Daniels, Indiana Court of Appeals (2009)

Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are “natural born Citizens” for Article II, Section 1 purposes, regardless of the citizenship of their parents.

Tisdale v. Obama, Virginia federal court (2012)

It is well settled that those born in the United States are considered natural born citizens.

Purpura v. Obama, New Jersey (2012)

No court, federal, state or administrative, has accepted the challengers’ position that Mr. Obama is not a “natural born Citizen” due to the acknowledged fact that his father was born in Kenya and was a British citizen by virtue of the then applicable British Nationality Act. Nor has the fact that Obama had, or may have had, dual citizenship at the time of his birth and thereafter been held to deny him the status of natural born. It is unnecessary to reinvent the wheel here. … The petitioners’ legal position on this issue, however well intentioned, has no merit in law. Thus, accepting for the point of this issue that Mr. Obama was born in Hawaii, he is a ‘natural born Citizen’ regardless of the status of his father.

Allen v. Obama, Arizona (2012)

Most importantly, Arizona courts are bound by United States Supreme Court precedent in construing the United States Constitution, Arizona v. Jay J. Garfield Bldg. Co. , 39 Ariz. 45, 54, 3 P.2d 983, 986(1931), and this precedent fully supports that President Obama is a natural born citizen under the Constitution and thus qualified to hold the office of President. … Contrary to Plaintiff’s assertion, Minor v. Happersett, 88 U.S. 162 (1874), does not hold otherwise.

State Laws

The Constitution of Virginia

Cited in The Republic of Republics, 1881:

Vermont, in her constitution, calls her native citizens “natural born subjects of this state”.

Amendment to the Constitution of Virginia (1828)

ADOPTED JUNE 26 1828 ARTICLE No person who is not already a freeman of this state hall be entitled to exercise the privilege of a freeman unless he be a natural born citizen of this or some one of the United States or until he shall have been naturalized agreeably to the acts of congress. The American’s Guide Comprising the Declaration of Independence, the Articles of Confederation, the Constitution of the United States, and the Constitutions of the Several States Composing the Union By United States

Charter of 1732 – Georgia

Also we do for ourselves and successors declare by these presents that all and every the persons which shall happen to be born within the said province and every of their children and posterity shall have and enjoy all liberties franchises and immunities of free denizens and natural born subjects The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States … By Benjamin Perley Poore, United States

Laws of the State of Connecticut (1795)

“The people are considered as aliens, born in some foreign country, as inhabitants of some neighbouring state in the union, or natural born subjects, born within the state. It is an established maxim, received by all political writers, that every person owes a natural allegiance to the government of that country in which he is born. Allegiance is defined to be a tie, that binds the subject to the state, and in consequence of his obedience, he is entitled to protection… The children of aliens, born in this state, are considered as natural born subjects, and have the same rights with the rest of the citizens.” Zephaniah Swift, A system of the laws of the state of Connecticut: in six books, Volumes 1-2 of A System of the Laws of the State of Connecticut: In Six Book, pg. 163,167 (1795)

Law Professors

Gabriel J. Chin, Chester H. Smith Professor of Law, Professor of Public Administration and Policy, University of Arizona

The Supreme Court has held that there are only two ways to become a citizen: 1) birth in the United States, thus becoming a citizen under the citizenship clause of the Fourteenth Amendment or 2) satisfaction of every requirement of a statute enacted by Congress granting citizenship to a class of people. The second category includes naturalization of individual adults or children already born; collective naturalization of groups, such as natives of territory acquired by the United States; and naturalization at birth of certain classes of children born abroad to citizens. Those born in the United States are uncontroversially natural born citizens. There is also a strong argument that those obtaining citizenship at birth by statute are natural born citizens, well articulated by Charles Gordon in Who Can be President of the United States: The Unresolved Enigma. However, natural born citizenship can be acquired only at the moment of birth. As stated by the leading Supreme Court case, United States v. Wong Kim Ark, ” ‘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.”Gabriel J. Chin, Commentary, Why Senator John McCain Cannot be President: Eleven Months and a Hundred Yards Short of Citizenship, 107 Mich. L. Rev. First Impressions 1 (2008)

Daniel P. Tokaji Associate Professor of Law, The Ohio State University, Moritz College of Law; Associate Director, Election Law @ Moritz

This is a valuable article to read, although there are no short quotes to show here.

Daniel P. Tokaji, Commentary, The Justiciability of Eligibility: May Courts Decide Who Can Be President?, 107 Mich. L. Rev. First Impressions 31 (2008)

William Blackstone, Commentaries 1:354, 357–58, 361–62 (1765)

The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject.The thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors….

Allegiance, both express and implied, is however distinguished by the law into two sorts or species, the one natural, the other local; the former being also perpetual, the latter temporary. Natural allegiance is such as is due from all men born within the king’s dominions 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.

http://press-pubs.uchicago.edu/founders/documents/a1_8_4_citizenships1.html

Theodore Olson and Laurence Tribe

“The Constitution does not define the meaning of “natural born Citizen.” The U.S. Supreme Court gives meaning to terms that are not expressly defined in the Constitution by looking to the context in which those terms are used; to statutes enacted by the First Congress…. and to the common law at the time of the Founding….These sources all confirm that the phrase “natural born” includes both birth abroad to parents who were citizens, and birth within a nation’s territory and allegiance….”

” If the Panama Canal Zone was sovereign U.S. territory at the time of Senator McCain’s birth, then that fact alone would make him a “natural born” citizen under the well-established principle that “natural born” citizenship includes birth within the territory and allegiance of the United States…Premising “natural born” citizenship on the character of the territory in which one is born is rooted in the common-law understanding that persons born within the British kingdom and under loyalty to the British Crown–including most of the Framers themselves, who were born in the American colonies–were deemed natural born subjects.”

“Historical practice confirms that birth on soil that is under the sovereignty of the United States, but not within a State, satisfies the Natural Born Citizen Clause….And Senator Barack Obama was born in Hawaii on August 4, 1961–not long after its admission to the Union on August 21, 1959. We find it inconceivable that Senator Obama would have been ineligible for the Presidency had he been born two years earlier. ”

Letter by Theodore Olson and Laurence Tribe, reported in 154 Cong. Rec. S3645-46 (Apr. 30, 2008).

Law Review Articles

Jill A. Pryor

It is well settled that “native-born” citizens, those born in the United States, qualify as natural born.” It is also clear that persons born abroad of alien parents, who later become citizens by naturalization,” do not.

The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty – Yale Law Journal 1988

Duggins and Collins

This is a valuable article to read, although there are no short quotes to show here.

‘Natural Born’ in the USA: The striking unfairness and dangerous ambiguity of the Constitution’s presidential qualifications clause and why we need need to fix it – Boston University Law Review 2005

Amar, Akhil Reed

Senator Obama’s very candidacy is a powerful embodiment of a Reconstruction vision in which blacks, under the Fifteenth Amendment, would be full political equals with a right to vote and to be voted for on the same terms as whites. Indeed, Barack Obama’s very existence as a natural-born child of a white American-citizen mother and a black African-immigrant father is a testament to Reconstruction; Founding-era legislation opened the naturalization process only to foreign-born whites, leaving it to the Fourteenth Amendment and its companion statutes to open the way for a more racially inclusive naturalization system.

Amar, Akhil Reed. “Heller, HLR, and holistic legal reasoning.” Harvard Law Review 122.1 (Nov 2008)

US Senators and Representatives

Representative John Bingham (1862)

Debate in the House of Representatives

The Constitution leaves no room for doubt upon this subject. The words “natural-born citizen of the United States” occur in it, and the other provision also occurs in it that “Congress shall have power to pass a uniform system of naturalization.” To naturalize a person is to admit him to citizenship. Who are natural-born citizens but those born within the Republic? Those born within the Republic, whether black or white, are citizens by birth — natural-born citizens. There is no such word as white in your Constitution. Citizenship, therefore, does not depend on complexion any more than it depends on the rights of election or of office. All from other lands, who by the terms of your laws and compliance of their provisions become naturalized, are adopted citizens of the United States; all other persons born within the Republic, of parents owing allegiance to no other sovereignty, are natural-born citizens. Gentlemen can find no exception to this statement touching natural-born citizens except what is said in the Constitution in relation to Indians. The reason why that exception was made in the Constitution is apparent to everybody. The several Indian tribes were recognized at the organization of this Government as independent sovereignties. They were treated with as such; and they have been dealt with by the Government ever since as separate sovereignties. Therefore, they were excluded from the general rule.

Congressional Globe 37th Congress 2nd session 1862 (page 1639).

Representative James F. Wilson (1866)

This provision is simply declaratory of what the law now is… The English Law made no distinction on account of race or color in declaring that all persons born within its jurisdiction are natural-born subjects. This law bound the colonies before the revolution, and was not changed afterward. The Constitution of the United States recognizes the division of the people into the two classes named by Blackstone – natural born and naturalized citizens.”

Cong. Globe, 39th Cong., 1st Sess. 1115-(1866).

Senator Lyman Trumbull

By the terms of the Constitution he must have been a citizen of the United States for nine years before he could take a seat here, and seven years before he could take a seat in the other House ; and, in order to be President of the United States, a person must be a native-born citizen. It is the common law of this country, and of all countries, and it was unnecessary to incorporate it in the Constitution, that a person is a citizen of the country in which he is born…. I read from Paschal’s Annotated Constitution, note 274: “All persons born in the allegiance of the king are natural born subjects, and all persons born in the allegiance of the United States are natural born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country as well as of England. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are, in theory, born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons.” Sen. Trumbull, Cong. Globe. 1st Session, 42nd Congress, pt. 1, pg. 575 (1872)

Senator Thomas F. Bayard (1881)

DEAR SIR :-In response to your letter of the 7th instant- the term ”natural-born citizen,” as used in the Constitution and Statutes of the U. S., is held to be a native of the U. S.

Letter to A. P. Hinman, 1881.

Senator Lindsey Graham (R-SC) (2008)

Every child born in the United States is a natural-born United States citizen except for the children of diplomats.

December 11, 2008 letter to constituent

Senator Orrin G. Hatch (R-UT)

What is a natural born citizen? Clearly, someone born within the United States or one of its territories is a natural born citizen.

Senate Judiciary Committee hearing hearing on OCTOBER 5, 2004

Rep. Dana Rohrbacher (CA)

…let me just note that the reasons our Founding Fathers added a natural born citizen requirement to the Constitution’s qualification for being President, those reasons may have seemed like they were real back then, but they are archaic, and technologically they have been dealt with in the meantime. The main rationale seems to be that our Founding Fathers had was to protect future generations from undue foreign influence which would happen through the election of a foreign-born leader to the Executive office.

Senate Judiciary Committee hearing hearing on OCTOBER 5, 2004

Other authorities

Sandra Day O’Connor, Justice of the US Supreme Court (ret.)

All of our Presidents have, to date, been born in the 50 states. Notably, President Obama was born in the state of Hawaii, and so is clearly a natural born citizen.

CNN

CNN Senior Legal Analyst, Jeff Toobin, stated during a broadcast of CNN’s Situation Room with Wolf Blitzer:

BLITZER: What do the founding fathers mean when they inserted “naturally born” as a qualification to be president?

TOOBIN: Well, what they –” what they wanted was not someone who had been born in England. They wanted someone born within, at that point, the 13 colonies. And usually it’s a pretty straightforward issue of whether someone was born in this country or not.

Addressing this in more detail on the Campbell Brown: No Bias, No Bull program:

BROWN:Now let’s go back to the story that had a loft us in the newsroom scratching our heads today, the accusation that Barack Obama is not a natural-born citizen and therefore cannot be president of the United States. Well, frankly, it sounds like another of the crackpot rumors that dogged Obama throughout the campaign, the kind of thing you would hear from people wearing tinfoil hats, frankly. But this one won’t go away. It won’t die. Lawsuits have been filed in several states now. And the –” or at the Supreme Court, the justices met today. They could decide at any moment whether they will actually hear arguments on the case.

And Jeffrey Toobin is here to put the whole thing to our NO BULL test.

Hi, Jeff.

JEFFREY TOOBIN, CNN SENIOR ANALYST: Hello, Campbell.

BROWN: So, before we get into the I guess how on earth this ended up potentially going before the Supreme Court, just explain the merits of the case, if there are any in your view. Is there any evidence at all to support this?

TOOBIN: Well, you know, I’m a lawyer. So, I have got to be a little cautious in responding to this. So, this much I will say. This is a joke. This is ridiculous.

(LAUGHTER)

BROWN: OK.

TOOBIN: This is absurd.

BROWN: Don’t hold back.

TOOBIN: This is a whack-job project. And the reason there are lots of lawsuits is, they all keep losing appropriately and they are now winding up before the Supreme Court.

Look, there are two –” let’s look at two documents. One is his birth certificate, which shows that he was born in Hawaii, in the United States.

BROWN: OK. Right. Which we have all known, right.

TOOBIN: And end of story. That’s it. He is eligible to be president.

And if you are not convinced by that, there is a newspaper announcement of his birth in –” there it is –” in Hawaii on –” in August 1961. There is no merit to this lawsuit at all.

BROWN: So, if it’s total bull, which is what you are saying…

TOOBIN: Total bull.

BROWN: … why is it even being discussed as a possible case before the Supreme Court? TOOBIN: Well, because the losers in this lawsuit, the people who keep filing this nonsense, keep appealing. And now they have made it all the way to the Supreme Court.

TOOBIN: Lawyers with too much time on their hands.

BROWN: OK, apparently, Jeffrey Toobin for us tonight.

And again on the American Morning program:

THOMAS GOLDSTEIN, SUPREME COURT LEGAL ANALYST: The law was always been understood to be that if you are born here you are a natural born citizen and that is particularly the case when you have a U.S. citizen parent like Barack Obama’s mother.

ARENA: The Obama campaign says the proof of his U.S. citizenship is right on his birth certificate. Case closed. What’s more his Kenyan citizenship automatically expired when he turned 21. Legal experts do not expect the Supreme Court to take the case, even though it has never really defined what it means to be a natural born citizen

US Constitution Online:

Who is a natural-born citizen? Who, in other words, is a citizen at birth, such that that person can be a President someday?

Constitution Topic: Citizenship

Rawle’s View of the Constitution of the United States (1825)

The following paragraph was cited by Congressman Wilson of Iowa in debate on the 14th Amendment.

Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural-born citizen within the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity….

Under the Constitution the question is settled by its express language, and when we are informed that, excepting those who were citizens, (however that capacity was acquired,) at the time the Constitution was adopted, no person is eligible to the office of the president unless he is a natural born citizen, the principle that the place of birth creates the relative quality is established as to us.

Rawle’s View of the Constitution

There is much relevant discussion in Rawle’s worth reading.

George Bancroft: History of the United States, from the Discovery of the American Continent (1876)

The king of England claimed as his subjects all persons born within his dominions: in like manner every one who first saw the light on the American soil was a natural born American citizen; but the power of naturalization, which, under the king, each colony had claimed to regulate by its own laws, remained under the confederacy with the separate states.

The king had extended protection to every one of his lieges in every one of the thirteen colonies; now that congress was the successor of the king in America, the right to equal protection was continued to every free inhabitant in whatever state he might sojourn or dwell.

Volume 5

Letter from Mr. McLane (US) to Mr. Flourens (France) re: US citizens, in PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES, Part 1 (1888) at 503

…and that alone among all natural-born Americans those who happen to have a French father do not find under the jurisdiction of the French Republic the protection extended everywhere to every American citizen.

Letter from Mr.McLane (US) to Mr. Flourens (France) re: US citizens, in PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED STATES, Part 1

Mr. Barbour, director of the Office of Eastern European Affairs at the State Department

Senator Jackson. No one has ever defined that term, “natural-born citizen.” That is the constitutional provision.

Mr. Barbour. I believe citizenship uses that term in both ways, whether born in the United States, or obtained citizenship by birth any place through American citizens.

McCarthy Senate Hearings 1953-54

DAWN E. JOHNSEN, ACTING ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE

Aliens, in contrast, whether temporary or permanent, legal or illegal, do not enjoy any comparable claim of not being subject to the full jurisdiction of the United States. To the contrary, as the Supreme Court said in Wong Kim Ark, and I quote: ”It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides … [and] owes obedience to the laws of that government and may be punished for treason, or other crimes, as a native-born subject might be, unless his case is varied by some treaty stipulations.” As Wong Kim Ark further explains, the alien’s, ”allegiance to the United States is direct and immediate and, although … continuing only so long as he remains with in our territory, is yet … strong enough to make a natural subject, for if he has issue here, that issue is a natural-born subject.”

House Judiciary Committee Testimony June 25, 1997

Outlines of the Constitutional Jurisprudence of the United States: Designed as a Text Book for Lectures, as a Class Book for Academies and Common Schools and as a Manual for Popular Use (1833)

642 All persons born within the Colonies whilst subject to the British Crown were natural born British subjects and it necessarily follows that this character was changed by the separation of the Colonies from the parent State and the subsequent acknowledgment of their independence Outlines of the Constitutional Jurisprudence of the United States Designed as a Text Book for Lectures, as a Class Book for Academies and Common Schools, and as a Manual for Popular Use By William Alexander Duer

656 The rights of Aliens to the privilege of Naturalization are by these Laws submitted to the decision of Courts of Record and a person duly naturalized becomes entitled to all the privileges and immunities of a natural born Citizen except that a residence of seven years is requisite to enable him to hold a seat in Congress and that he is not eligible to the office of President of the United States or of Governor in several of the States

Outlines of the Constitutional Jurisprudence of the United States Designed as a Text Book for Lectures, as a Class Book for Academies and Common Schools, and as a Manual for Popular Use By William Alexander Duer

This last shows that there are only two classes of citizen: native born and naturalized.

A Brief Exposition of the Constitution of the United States (1845)

It is not necessary that a man should be born in this country to be a natural born citizen It is only requisite he should be a citizen by birth and that is the case with all the children of citizens who have ever resided in this country though born in a foreign country A Brief Exposition of the Constitution of the United States With an Appendix, Containing the Declaration of Independence, and the Articles of Confederation, and a Copious Index By James Bayard

The Short Constitution (1920)

A person may attain to citizenship in the United States in any of seven different ways 1 By birth ie natural born 2 By naturalization which usually requires continuous residence for five years 3 By treaty regulation 4 By statute of Congress 5 By annexation of territory 6 By marriage if a foreign woman marries an American citizen 7 By honorable discharge from the army or navy upon which the court admits to citizenship regardless of the time of residence in the United States

The short Constitution … Being a Consideration of the Constitution of the United States, with Particular Reference to the Guarantees of Life, Liberty, and Property Contained Therein, Sometimes Designated the Bill of Rights By Martin Joseph Wade, William Fletcher Russell, Charles Henry Meyerholz

Frederick Van Dyne, Citizenship of the United States (1904)

Van Dyne was the Assistant Solicitor for the US Department of State.

After an exhaustive examination of the law, the court [in Lynch v. Clarke] said that it entertained no doubt that every person born within the dominions and allegiance of the United States, whatever the situation of his parents, was a natural-born citizen; and added that this was the general understanding of the legal profession and the universal impression of the public mind.

It is beyond doubt that, before the enactment of the civil rights act of 1866 . . . or the adoption of the constitutional amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or foreigners, excepting only children of ambassadors or public ministers of a foreign government, were native-born citizens of the United States.

Cited by House Judiciary Committee Testimony June 25, 1997

Citizenship in the United States, Frederick Van Dyne

FindLaw for Legal Professionals

Clause 5. Qualifications

All Presidents since and including Martin Van Buren were born in the United States subsequent to the Declaration of Independence. The only issue with regard to the qualifications set out in this clause, which appears to be susceptible of argument, is whether a child born abroad of American parents is ”a natural born citizen” in the sense of the clause. Such a child is a citizen as a consequence of statute. 94 Whatever the term ”natural born” means, it no doubt does not include a person who is ”naturalized.” Thus, the answer to the question might be seen to turn on the interpretation of the first sentence of the first section of the Fourteenth Amendment, providing that ”[a]ll persons born or naturalized in the United States” are citizens. 95 Significantly, however, Congress, in which a number of Framers sat, provided in the Naturalization act of 1790 that ”the children of citizens of the United States, that may be born beyond the sea, . . . shall be considered as natural born citizens. . . .” 96 This phrasing followed the literal terms of British statutes, beginning in 1350, under which persons born abroad, whose parents were both British subjects, would enjoy the same rights of inheritance as those born in England; beginning with laws in 1709 and 1731, these statutes expressly provided that such persons were natural-born subjects of the crown. 97 There is reason to believe, therefore, that the phrase includes persons who become citizens at birth by statute because of their status in being born abroad of American citizens. 98 Whether the Supreme Court would decide the issue should it ever arise in a ”case or controversy” as well as how it might decide it can only be speculated about.

The Wall Street Journal

A child is not a natural-born citizen unless both parents are U.S. citizens. That this is false should be obvious. It is uncontested that Obama’s father was an alien. Thus if both parents had to be citizens in order for a child to be a natural-born citizen, the question of Obama’s eligibility never would have come up. He would have been ineligible right off the bat and would not have run for president. The birth certificate and place of birth would be irrelevant.

Nonetheless, the birthers have blown a lot of smoke around the meaning of the phrase “natural-born citizen,” and we are here to clear it up.

Article II, Section 1 of the Constitution stipulates that the president must be a “natural born citizen” (or, in an obsolete provision, a citizen in 1788), but it does not define the term. The original interpretation relied on British common law, under which, as Justice Horace Gray noted in U.S. v. Wong Kim Ark (1898), “every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.”

The 14th Amendment, ratified in 1868, established this principle as a constitutional right: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Aside from the children of foreign diplomats and (theoretically) military occupiers, the only U.S. natives not to be natural-born citizens were Indians born on reservations–and this exception was abolished by the Indian Citizenship Act of 1924.

The Wall Street Journal, July 31, 2009

FindLaw: U.S. Constitution: Article II

Mississippi Medicaid Procedures Manual (2007)

Most United States citizens are natural-born citizens, meaning they were born in the United States or were born to United States citizens overseas.

Charles Fisk Beach (author of many legal treatises), Commentaries on the Law of Public Corporations, Vol. 1 (1893)

There are in the United States two classes of citizens– natural and naturalized citizens. Citizenship of the former class is created by the birth of the citizen within the jurisdiction of the United States. Citizenship of the latter class is created by the performance of certain requirements defined by statute. The naturalized citizen is from the time of naturalization a full-fledged citizen, entitled to all the rights, privileges and immunities of a natural citizen, saving certain disabilities which relate back to the period during which he was an alien. It is conceded learning that birth within the jurisdiction of the United States creates natural citizenship whether the parents of the citizen are aliens or citizens.

Losers

Here are citations from the losing side or minority opinion in a court case or legislative debate.

Vattel cited in dissenting Supreme Court opinion in United States v. Wong Kim Ark

Before the Revolution, the views of the publicists had been thus put by Vattel: ‘The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is herefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.’ Vatt. Law Nat. bk. 1, c. 19, § 212. ‘The true bond which connects the child with the body politic is not the matter of an inanimate piece of land, but the moral relations of his parentage. * * * The place of birth produces no change in the rule that children follow the condition of their fathers, for it is not naturally the place of birth that gives rights, but extraction.’

United States v. Wong Kim Ark paragraph 134

For more information on Vattel and his relationship to the Constitution, one might find useful information in the notes and commentary accompanying the translation at Constitution.org.

Conclusion

If you’ve read the quotations preceding, and taken the links to the larger sources, you will know that throughout our nation’s history there has been a widespread belief that (except for Indians, Ambassadors and invading armies) that everyone born in the United States is a natural born citizen. In all of my extensive study in preparation for this page, I found the most important items from a legal perspective are the New York decision in Lynch v. Clarke which is cited over and over again by later courts including the US Supreme Court, and the United States Supreme Court decision in United States v. Wong Kim Ark, which again is cited over and over by later courts. These two cases make up the legal precedent by which any court would conclude that Barack Obama is eligible to be President of the United States under Article 2 of the Constitution.

I will not mislead you by saying that there are no quotations (such as Vattel above) that argue that citizen parents are required before someone is a citizen (Vattel) or a “natural born citizen”. Nevertheless, these are few and far between and they are never in legislation and they are never in court decisions (except in dissenting opinions — and in Dred Scott, but that’s another story).

What I hope the reader learns from this exercise is that anyone who claims that it is self-evident, and widely known and generally accepted, that a natural born citizen must have citizen parents, is either ignorant of the body of evidence to the contrary, or deliberately perpetrating fraud.