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.

The Constitution does not define “natural born citizen”, nor is it defined in legislation. The U. S. Supreme Court has never decided the question of the relationship of parentage to natural born citizenship. The uncertainty should be resolved.

The second debate thesis might be summed up this way:

Based on common law principles, and supported by numerous authorities, one may conclude with a high degree of certainty that natural born citizens of the United States are those born within its borders except the children of ambassadors.

Folks like Ken Dunbar and Stephen Tonchen (the author of the piece to be discussed here) are debating the former, and this web site is largely geared towards investigating the latter. If debating the first question, then one might say that Barack Obama’s eligibility is “unproven”, but when debating second one will conclude that it is “proven”.

I have no strong objection to the first thesis, but because I affirm the second, I don’t find that there is any urgency towards a judicial resolution of a question that has already been decided by force of argument, the same argument that would be made to the Court and that would certainly prevail. Whichever the case, I find language like “usurper” to be totally irresponsible.

Free Republic published on June 5, 2009, an article titled Obama Presidential Eligibility – An Introductory Primer by Stephen Tonchen that argues the first thesis from a historical perspective. In an introductory comment Tonchen says:

Among members of Congress and the mainstream news media, the consensus of opinion is that anyone born in the United States is a “natural born citizen”.

I find this bit of honesty refreshing. This is the consensus opinion (except in regard to the children of ambassadors). In the context of that consensus opinion Tonchen then sets out his task:

However, when we researched this issue a bit more carefully, we found that the consensus opinion is not consistent with American history.

The rest of the Tonchen article primarily deals with that historical research. While I would not call Tonchen’s article fair and balanced, I would say that that it is far more fair and far more balanced than what has gone before.

This web site already has over 40 articles addressing the meaning of “natural born citizen” in the Constitution, and I do not propose to repeat what has already been said or to answer one massively vertical argument with another. What I intend to do  is offer a “reality check” to Tonchen’s article, to identify unsupported assertions and to balance some one-sided views. This article cannot be understood in isolation from Tonchen’s article. Backup evidence to all of the assertions I make below are contained in those other articles on the site, some of which are linked and some of which are not.

Tonchen claims:

With only two exceptions, every American President, who was born after 1787, was born in the United States, to parents who were both U.S. citizens. The two exceptions were Chester Arthur and Barack Obama. When Chester Arthur ran for office, the public did not know about his eligibility problem…

Only recently did historians learn that, when Arthur was born, his father was not a U.S. citizen. The 2008 election was the first time in history that the United States knowingly elected a President who was born after 1787 and whose parents were not both U.S. citizens.

There are two “reality checks” here. First, one cannot be sure that the public was unaware that Arthur’s father was not a US Citizen at the time of Arthur’s birth. There is a contemporary newspaper reference to Arthur as being “Irish born” (his father was Irish). It may well be that historians “re-discovered” his father’s emigration status.  There is strong evidence that opponents of Arthur (in particular A. P. Hinman) were aware of the fact. But I think it important that Tonchen acknowledges that the American voters did elect Barack Obama in the full knowledge that his father was not a US citizen.

The second check is the assumption that there was an eligibility “problem” in the first place. Arthur was from New York, and just a few years earlier the Supreme Court of New York (Lynch v Clarke, 1844) had stated that the child born in the United States to aliens was eligible to be president, and declared this to be the universal view of the public and the legal community. So just as today where the consensus view is that birth in the United States is sufficient to make one a “natural born citizen”, so it was in the time of Chester A. Arthur. Given that fact, it seems quite a misrepresentation to describe the situation as a “problem” since the consensus at the time (just as it is today) is that it was not.

Tonchen then comments:

According to Minor v. Happersett, there is unresolved doubt as to whether the child of a non-citizen parent is a natural born citizen.

It is true that a comment in this Supreme Court opinion says this and says that it was not necessary to resolve this doubt for the purposes of that case. However, no reason for this doubt is given; no authority is cited. The comment’s context remains a mystery. That someone had a doubt  does not imply that the Minor court could not have resolved that doubt should it have chosen to. One must be careful not to rephrase the comment in Minor to say that Obama’s eligibility is “doubtful”.

Tonchen then goes into an balanced discussion of the fact that in England, its “natural born subjects” where those born in the territory, without regard for the citizenship of the parents. What arises then is the question of whether one can rightly say that the American phrase “natural born citizen” is a close analog to the English “natural born subject”. Tonchen then jumps into a literary pool borrowing from the work of Mr. Greshak. After citing the historical example, Tonchen concludes:

In both Patsall and Vattel, “natural born citizen” meant much more than someone who was born in a particular place. Parentage, upbringing and education also contributed to the meaning of “natural born citizen”. [Conclusion to section 4.3].

From the historical examples, I would not arrive at this conclusion. Tonchen’s own sources state the equivalence of  “natives” and “natural born citizens”. And of course, de Vattel, writing in French, did not use the words “natural born citizens”, nor was de Vattel translated into English as “natural born citizens” at the time of the ratification of the US Constitution. I have a concern when Tonchen says:

Thus alumnum urbis — the “natives” or “natural born citizens” of a city — are those who were not merely born in the city, but were raised or parented by the city — specifically, by residents or citizens of the city.

My objection is to the choice of the word “parented” here. While it is technically correct, it could be easily misunderstood to refer to birth parents, not to who raised the child. The emphasis in the original text is to language and manners. In the case of Barack Obama, he was not “parented” by Barack Obama Sr. and so this text raises no objection to the particular case of Barack Obama being a natural born citizen. I don’t think anyone would say that Barack Obama talks like a foreigner.

I have an overall objection both to both the literary examples, because the translation “natural born citizen” is not a literal rendering of the original in either case. In both cases “natives”  is a better translation for our time and our purposes in this discussion.

The next remark from Tonchen came as a surprise, when he said:

In 1874, the U.S. Supreme Court affirmed Vattel’s definition of “natural born citizen”:

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. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens (Minor v. Happersett, 1874)

First, de Vattel was arguing from the point of view of natural law, not common law. Second, English translations of de Vattel that existed at the time of the ratification of the Constitution did not use the phase “natural born citizen”. So, I find it difficult to say that de Vattel has been affirmed either by definition or by results (since de Vattel’s natural law definition of “natives” by “parentage only” is also brought into doubt).

Tonchen then fairly describes the historical record:

Throughout American history, various “authorities” (judges, district attorneys, legal experts, etc.) have expressed support for the “citizenship-by-birthplace-alone” theory. According to this theory, U.S.-born children of non-citizen parents are citizens at birth and presumably natural born citizens as well.

I can give dozens of citations in support of this statement. However, Tonchen states that it is “unproven”. That is correct at least from the point of view that no court has made the definitive ruling specifically on the question. However, I would say that it is proven based on the weight of authorities cited here and elsewhere.

For more, check out Part 2.