Dred Scott

Here’s a natural born thought experiment. Consider two hypothetical persons, both born on January 1, 1799 in Charleston, South Carolina.

Ezekiel Crowe was born a slave and the son of slaves. Both he and his Charleston-born parents were owned by John Rutledge, a Framer of the Constitution of the United States. Young Crowe was raised listening to anecdotes about the great Mr. Rutledge. Mr. Crowe was freed from slavery by the proclamation of Abraham Lincoln in 1863 when he was 64 years old.  He served in the reconstruction legislature in South Carolina, and received a law degree from the University of South Carolina.

Otto Shicklegruber was born the son of German immigrants who arrived from Germany in 1793 and had become naturalized US Citizens. Otto’s father died of yellow fever before Otto was born and his mother died in childbirth. Because both of his parents were dead, the newborn Shicklegruber  was sent back to Germany to live with grandparents. In 1857  he returned to the United States and established residence in a German speaking community in Wisconsin (Shicklegruber did not speak any English), where he lived as a loan shark.

Questions:

1. Which of the two were natural born citizens of the United States on April 15, 1856? (Before the Dred Scott decision)
2. Which of the two were natural born citizens of the United States on April 15, 1862? (After Dred Scott, but before the Emancipation Proclamation))
3. Which of the two were natural born citizens of the United States on April 15, 1865? (After the Emancipation Proclamation, but before the 14th Amendment
4. Which of the two were natural born citizens of the United States on April 15, 1870? (After the 14th Amendment)
5. Which of the two were eligible to run against President Grant in 1872? (after Shicklegruber had lived in the US for 14 years)

The two “Madisons” are contemporary self-identified “constitutional researcher” P. A. Madison, author of an article on the Federalist Blog that is the topic for discussion here, and James Madison, framer of the Constitution, Congressman and 4th President of the United States.

This web site recently featured President James Madison in the article James Madison on Birth and Allegiance.

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

It is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general place is the most certain criterion; it is what applies in the United States.

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

P. A. Madison, on the other hand asserts the opposite, that place of birth alone does not and cannot grant citizenship in his article, Defining Natural-Born Citizen. We know P. A. Madison from an earlier article challenging the citizenship of children born in the United States to illegal aliens, something true today under the Supreme Court decision in United States v. Wong Kim Ark. P. A. Madison disagrees with that decision and presents an alternate view of history (from the legal and judicial survey in the Wong decision) in which parentage matters.

Certainly P. A. Madison is the most eloquent writer I know of who takes the view he has, and to someone who knows only one side of the story, perhaps he is is even persuasive. Let us examine what P. A. Madision has to say. His opening comment is a quotation from George Mason: “‘The common law of England is not the common law of these States.‘ —George Mason”. This is an important point because the courts up until now have relied on the fact that English common law was in effect at the time the United States separated from England, and formed the basis of American jurisprudence except when our Constitution differed, or we made new laws. Under English common law, those born under the jurisdiction of the King (geographically) became natural born subjects, without regard for the status of their parents.

While P. A. Madison doesn’t identify the source of the quotation, it comes from the debate in the Virginia Ratifying Convention in June 1788. (Here at Obama Conspiracy Theories, we believe in making it easy for readers to verify context through links to original documents.) As I read George Mason’s comments, I do not believe that he is saying that the common law of England not the source of definitions in the Constitution, nor is he saying that American jurisprudence is not founded on the common law of England, but rather that Americans are free to make any changes they see fit under our own Constitution (by all means, read the context for yourselves). Indeed the Supreme Court of the United States refutes P. A. Madison when it said:

Smith v. Alabama (1888) 124 U.S. 465:

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.

P. A. Madison then asks the rhetorical question: “Could a natural-born citizen simply mean citizenship due to place of birth? Unlikely because we know one can be native born and yet not a native born citizen of this country prior to the year 1866.”

Interestingly, P. A. Madison leaves that statement stand without explanation. He is, of course, referring to the slaves, who were born in the United States, but (according to the Supreme Court in the infamous Dred Scott v. Sanford case) were not and could never become citizens. The passage of the Civil Rights Act of 1866 made the slaves citizens and the 14th Amendment enshrined citizenship of the former slaves in the Constitution itself.

Slavery was a point of cognitive dissonance within the Constitution, which on the one hand declared freedom and equality, and on the other hand recognized slavery. Because of the self contradiction involved, I think it impossible to argue any point based on it. Court cases which talk about citizenship recognize a special exception for the slaves, one which we today would reject in total.

P. A. Madison then goes on to argue that issues of citizenship were questions for the States. He said: “Jurisdiction over citizenship via birth within the several States was part of the “ordinary course of affairs” of the States that only local laws could affect. “P. A. Madison then goes on to say (again without citation or link to the original):

After independence each State was free to establish their own maxims on the subject. James Madison’s own State of Virginia adopted a birthright law authored by Thomas Jefferson that recognized parentage (citizenship of father) in determining citizenship of the child, as well as recognizing the right of expatriation – something unheard of under the common law. States that were slow in enacting laws over acquiring citizenship through birth forced courts to adjudicate citizenship disputes under common law rules.

So one again is forced to go looking to see whether P. A. Madison is speaking honestly,  or resorting to a subtle twist of words to fool us. Note that he fails to say what the law actually was, only that it “recognized parentage”. “Recognize” is rather different from “required”. The Charter of Georgia (1732) , see my article Natural Born in Georgia, accepted either birth place or parentage as sufficient for being natural born subjects.

This the point (after two citations with abused context) where I get disgusted with dishonest reporters like P. A. Madison.

It appears that P. A. Madison is referring to Chapter LV of the Laws of Virginia, 1779 or perhaps Chapter XVI from 1783. And indeed, the law does consider as citizens both those born in the Commonwealth and the children of those who become naturalized. While P. A. Madison speaks truly that citizenship of the father is recognized, he fails to disclose that it was not a requirement and that being born in the Commonwealth was sufficient to be a citizen, regardless of the condition of the father.

That all free persons, born within the territory of this commonwealth… shall be deemed citizens of this commonwealth

Chapter XVI from 1783

So the smoke screen is parted. Now if P. A. Madison could site for us ANY state which had parental citizenship requirements for persons born in the state to be its citizens, let him state it. However, since none was given, we may reasonably assume that P. A. Madison did not know of any. Therefore, this entire part of the argument is pure misdirection. It hardly matters whether birth in the country was a federal common law understanding, or whether it was a combination of federal common law and state statute or how tangled the courts got; the end result is the same. In the United States, we don’t require citizen parents of our citizens.

[It is September 5, 2009. Assuming I was correct in saying that Madison was non-specific as to what law of Virginia he referenced, the Madison article has changed to provide the reference, sort of. He now reverences a law of 1779, and quotes it:

[A]ll infants, whenever born, whose father, if living, or otherwise, whose mother was a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise, their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this Commonwealth until they relinquish that character, in manner as hereinafter expressed; and all others not being citizens of any, of the United States of America, shall be deemed aliens.

However that quotation is not accurate, and what is visually rather suspicious is that he has the SAME citation in an earlier article from 2007, only accurate then.

[A]ll infants, wheresoever born, whose father, if living, or otherwise, whose mother was a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise, their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this Commonwealth until they relinquish that character, in manner as hereinafter expressed; and all others not being citizens of any, of the United States of America, shall be deemed aliens.

While I cannot prove that the first citation was intentionally altered to change the meaning to support P. A. Madison’s theories, his contextual dishonesty with other citations makes it plausible.] [Update: Madison's article has changed again and the citation is now correct.]

P. A. Madison continues:

Could a natural-born citizen perhaps be synonymous with the British term “natural-born subject”?

It is very doubtful the framers adopted the doctrine found under the old English doctrine of “natural-born subject.” The British doctrine allowed for double allegiances, something the founders considered improper and dangerous.

Framer Rufus King said allegiance to the United States depended on whether a person is a “member of the body politic.” King says no nation should adopt or naturalize a person of another society without the consent of that person. The reason? Because “he ought not silently to be embarrassed with a double allegiance.”

I think that is rather ironic. What this says to me is that the United Kingdom shouldn’t be able to make Barack Obama a Citizen of the UK and Colonies without his consent (which he did not give) and that consent is essential for citizenship (while P. A. Madison’s entire argument rests on the importance and validity of involuntary application of citizenship by second countries). But as to the initial question, a number of commentators have said that yes, the terms are convertible.

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. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His 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 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;” and his child, as said by Mr. Binney in his essay before quoted, “if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.”

US v. Wong Kim Ark

And if, at common law, all human beings born within the ligeance of the King, and under the King’s obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary. . . . 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.

2 Kent Com. 258, note. (cited in Wong preceding)

“The term ‘citizen,’ as understood in our law, is precisely analogous to the term ’subject’ in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people; and he who before was a ’subject of the King’ is now ‘a citizen of the state.” State v. Manuel, 20 N. C. (4 Dev. & B. L.) 20, 26 (1838)

P. A. Madison shifts gears to discuss the 14th Amendment:

Whatever might had been the correct understanding of “natural-born citizen” prior to 1866, the adoption of the Fourteenth Amendment certainly changes the view because for the first time we have a written national rule declaring who are citizens through birth or naturalization. Who may be born citizens is conditional upon being born “subject to the jurisdiction” of the United States – a condition not required under the common law. The legislative definition of “subject to the jurisdiction thereof” was defined as “Not owing allegiance to anybody else.”

A more complete version of this quotation shows that Senator Trumbull was particularly talking about the Indian tribes not being under the complete jurisdiction of the United States:

Of course my opinion is not any better than any other member of the Senate; but it is very clear to me that there is nothing whatever in the suggestions of the Senator from Wisconsin. The provision is, that “all persons born in the United States and subject to the jurisdiction thereof, are citizens.” That means “subject to the complete jurisdiction thereof.” Now, does the Senator from Wisconsin pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United States? What do we mean by “subject to the jurisdiction of the Unites States?” Not owing allegiance to anybody else. That is what it means. Can you sue a Navajoe Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them…. [the remainder of the section deals with Indians]

Congressional Globe. Debate from 39th Congress, 1st Session, Page 2893

What we have already seen in the quotation from President Madison, is that place of birth is what determines allegiance in the United States, and this is further buttressed by the citation from US v. Wong preceding. P. A. Madison’s fundamental error here is taking “allegiance” in a common way and not as it was used by the founders and the courts since then. The rest of P. A. Madison’s argument is undermined by the correct definition of what jurisdiction and allegiance means. (Note that P. A. Madison believes the Supreme Court was wrong in its 6-2 decision in Wong, but I cannot help that.) The reader would do well here to read the complete decision in US v Wong, since that is the essence of its lengthy argument, that allegiance to those within the United States is absolute and immediate, without regard to whose citizens they are (only excepted in the case where we grant immunity from our jurisdiction as to ambassadors). In the words of Chief Justice Marshall (cited in Wong):

The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction.

Finally, while not quoting Emerich de Vattel, he uses the ideas of that Swiss philosopher  on Natural Law. Natural Law is really a means to justify ones own prejudices, which at the end of the day is what P. A. Madison is trying to do. I would recommend my article De Vattel for Dummies for a discussion about Natural Law and Citizenship.

P. A. Madison, by failing to link to his sources, and omitting essential details, makes technically correct statements which are carefully crafted to mislead the naive reader. In short, P. A. Madison has no respect for the truth or for his readers. Heck, I don’t know if P. A. Madison is even his real name.

[This article may be updated and expanded in the future as time allows.]