It’s one thing to dump a list of citations to try to prove a point with proof texts. I’d done some of that on this blog, but in my mind I have sincerely tried to understand what the founders of our country really thought. I read Kettner’s book, which was very helpful as well as everything I could find on the Internet. Let me share a few of my conclusions:
There has never been any distinction made between the phrase “natural born citizen” and “born a citizen” in American law or politics.
I come to this conclusion first from simply not finding any such distinction and affirmatively from language in several court cases where citizens are divided into two exclusive classes: natural born and naturalized.
- AG Bates Opinion (1862)
- Schneider v Rusk (1964)
- Baumgartner v United States (1944)
- Elk v Wilkins (1844)
- Minor v. Happersett (1874)
- Luria v. United States, 231 U. S. 9 (1913)
And from 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.
“Foreigner” doesn’t apply to someone born in the United States.
There was a good deal of “sorting out” of citizenship during and after the Revolutionary War. The Treaty of Paris (1783) used the phrase “real British subjects” to designate those residents of British North America who remained loyal to the crown. Allegiance was understood to come from multiple sources, primarily to the community in which one was born. This community is defined independently from government.
William Smith in defense of his eligibility to be a member of Congress declared that he was a Carolinian from his birth and so a citizen of the United States from his birth because the community into which he was born declared itself independent from Great Britain and a part of the United States.
But most often Americans after the Revolution focused on the decisions of individuals. Someone may have been born in what became the United States, but which side did they support during the war? A minor child may inherit the citizenship of his father, or his place of birth, but the real citizen affirms that citizenship through his deeds and the choice of society to which he adheres when he comes of age.
George Washington was born in Virginia, but his father died a British subject. Did anyone consider Washington not to be a “natural born citizen”? It appears not.
The Law of Nations
Much is made of a small citation from The Law of Nations by Emerich de Vattel, taken from an English translation done a decade after the US Constitution. While we may discard the phrase “natural born citizen” as being an anachronism, the principle behind that citation remains. In context, de Vattel considers that citizenship and allegiance flows through one’s father. Those one one side raise the importance of The Law of Nations to the authoritative reference for the Constitution. Others say that it had no importance when it comes to citizenship. Neither side is right. The US Supreme Court says that definitions in the Constitution come from the British common law (Smith v. Alabama). However, we know from a broadside published by William Smith in South Carolina in 1788 that he was using de Vattel’s principle of allegiance from one’s father. However, it is instructive to look at what Smith wrote:
The Doctor [Ramsay] says the circumstance of birth does not make a citizen–This I also deny. Vattel says, “The country of the father is that of the children, and these become citizens merely by their tacit consent.” I was born a Carolinian, and I defy the Doctor with all his ingenuity, arithmetical or political, to say at what moment I was disenfranchised–at what moment I lost my citizenship.
Only Smith’s father died a British Subject. I do not see that Smith (nor many Americans at the time) made a distinction between someone born in the United States to an alien father and one born to a citizen father, for the simple reason that colonial laws encouraged persons to become citizens and made it quick and easy. There were few alien fathers, and no one kept track of such things. I think this is important to keep in mind when confronting legalistic interpretations of statements from this period.
Returning to topic, The Law of Nations was an important book and apparently a widely read book. It was influential in some areas in not in others. It certainly was never the law of the United States. It represented a point of view on citizenship that was inconsistent with the British Common law that underpinned legal process before and after the Revolution.
It is a mistake to read early American history on citizenship and immigration through a modern lens. Early America stayed alive through immigration. It was the country’s life blood (as so much of its native blood was sacrificed to disease). Today there is widespread anti-immigrant sentiment, fear and anxiety over job loss and terrorism. It was not like that in 1783! The new states were willing and ready to make citizens quickly and with little hassle beyond a character reference and an oath of allegiance. They were not the “blood purists” that we have bred today.
If you had asked the “man on the street” in 1783 what a “natural born citizen” was, you would likely have gotten a wide range of answers. You would have found sentiment that citizenship comes from one’s parents, and sentiment that it comes from one’s place of birth and sentiment for both. Most importantly, it would come from membership in the community, however defined.
If presented with the problem of Barack Obama, born in the United States, British father, American mother, the 1783 American might have given various answers. However, their variation would not be based on a definition of “natural born citizen” but whether a person was born a citizen. If it were added to the equation that our hypothetical Obama spent most of his life in the United States, was educated here, and when he came of age dedicated himself to American public service, I do not think you would have found anyone who thought he was ineligible to be president (so long as you didn’t tell them he was black).