“The natives, or natural-born citizens, are those born in the country, of parents who are citizens.”

December 15, 2008

What is this “natural born citizen” mentioned as one of the three requirements to be President and “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States”?

Article 2, Section 1 of the United States Constitution:

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; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.”

Thanks to Leo Donfrio’s work, an excellent reference from the late 18th century sheds some light on how the authors of the Constitution would have understood the term “natural born citizen”. The below reference is from Vattel’s 1758 work, “THE LAW OF NATIONS”.

From the Preface:

“This 1758 work by Swiss legal philosopher Emmerich de Vattel is of special importance to scholars of constitutional history and law, for it was read by many of the Founders of the United States of America, and informed their understanding of the principles of law which became established in the Constitution of 1787. “

And the reference in question:

212. Citizens and natives.

The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. 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 therefore 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.

It’s my opinion that the term “natural born citizen” was understood by all politically-savvy thinkers in the 18th and 19th centuries so much so that even President Chester Arthur hid the fact that he wasn’t a natural born citizen in order to become president.

This means neither Barack Obama nor John McCain could be defined as natural born citizens, proving that those who would claim to rule and reign over us give no thought to “law” if it impedes their ambitions but apply that same “law” to us if it would increase their titles, status and wealth.

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10 Responses to ““The natives, or natural-born citizens, are those born in the country, of parents who are citizens.””

  1. germanist Says:

    Wikipedia says in the following article http://en.wikipedia.org/wiki/Natural-born_citizen#Supreme_Court_cases_relating_to_citizenship_and_.22natural_born.22_status:

    # United States v. Wong Kim Ark, 169 U.S. 649 (1898): It was held that a person born within the jurisdiction of the U.S. to non-citizens who “are not employed in any diplomatic or official capacity” is automatically a citizen, per the Fourteenth Amendment. The majority also mentioned what the situation was prior to the Fourteenth Amendment and the U.S. Constitution, by quoting Emerich de 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.” Dissenters in Wong Kim Ark wrote: “it is unreasonable to conclude that ‘natural born citizen’ applied to everybody born within the geographical tract known as the United States, irrespective of circumstances; and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay, or other race, were eligible to the presidency, while children of our citizens, born abroad, were not.”[13] The majority opinion in Wong Kim Ark did not explicitly disagree with this comment of the dissenters, and instead merely observed that: “The constitution nowhere defines the meaning of these words [citizen and natural born citizen], either by way of inclusion or of exclusion, except in so far as this is done by the affirmative declaration that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.'”

    I repeat: “The majority opinion in Wong Kim Ark […] merely observed that: “The constitution nowhere defines the meaning of these words [citizen and natural born citizen], either by way of inclusion or of exclusion, except in so far as this is done by the affirmative declaration that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.

    bye,
    jack

  2. jezekiah Says:

    all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.

    Being a citizen isn’t the issue. Being a natural born citizen is.

    Neither Barack Obama or John McCain, by the understanding of those that wrote Article 2, Section 1 of the Constitution, would be considered natural born citizens.

  3. germanist Says:

    Perhaps it was unclear what I meant. The most important keywords are

    “The majority opinion in Wong Kim Ark […] merely observed that: “The constitution nowhere defines the meaning of these words [citizen and natural born citizen]”

    The plural “these words” refers to “citizen” AND “natural citizen”. Thus, the constitution does not define it and we have to use other sources.

    I want to cite another comment found here: http://www.wdef.com/news/born_in_america_should_every_baby_born_in_the_u_s_get_citizenship/04/2008#comment-73511

    “The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. (see Minor v. Happersett, 21 Wall. 162; and Ex parte Wilson, 114 U.S. 417, 422; and Boyd v. United States, 116 U.S. 616, 624, 625; and Smith v. Alabama, 124 U.S. 465).

    The language of the Constitution, as has been well said, could not be understood without reference to the common law. (see Kent Com. 336; Bradley, J., in Moore v. United States, 91 U.S. 270, 274).”

    “In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” And he proceeded to resort to the common law as an aid in the construction of this provision. (see 21 Wall. 167).”

    “In Smith v. Alabama, Mr. Justice Matthews, delivering the judgment of the court, said:”

    “There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. 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. (see 124 U.S. 478).”

    The Fourteenth Amendment “was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States who would thereby have become citizens according to the law existing before its adoption. It is declaratory in form, and enabling and extending in effect.”

    All in all interpreting the law is much more complicated than we think and this is not done by one article and one opinion.

  4. jezekiah Says:

    germanist Says:

    All in all interpreting the law is much more complicated than we think and this is not done by one article and one opinion.

    100% agreement. I’m always willing to be persuaded. Thank you for the information. I’ll mull through it and get back to you.

    Common law is an interest of mine. Kudos for bringing it into the discussion.

  5. kwdavids Says:

    How many of the members of the Constitutional Convention ever read Emmerich de Vattel no one is saying. How many of them AGREED with Emmerich de Vattel no one could guess. When the Supreme Court wrestled with citizenship, they applied the principles of common law to the meaning of “natural born citizen”.

    I think US v Wong Kim Ark is very instructive. The Supreme Court (6-2) said:

    From the first organization of the national government under the constitution, the naturalization acts of the United States, in providing for the admission of aliens to citizenship by judicial proceedings, uniformly required every applicant to have resided for a certain time ‘within the limits and under the jurisdiction of the United States,’ and thus applied the words ‘under the jurisdiction of the United States’ to aliens residing here before they had taken an oath to support the constitution of the United States, or had renounced allegiance.

    This means that persons born of foreign parents in the United States are born under the jurisdiction of the United States in the language of the 14th amendment, not second-class or naturalized.

    Wong was decided under the principle of common law, rather than Swiss Philosophy, and arguing under common law the court said:

    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 Coke, 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.

    I do not think it too much of a stretch to go from “natural-born subject” to “natural-born citizen”.

  6. jezekiah Says:

    kwdavids Says: I do not think it too much of a stretch to go from “natural-born subject” to “natural-born citizen”.

    Beyond the fact that the terms subjects and citizens are in contradistiction to each other, I agree in principle with this assessment of the question.

    My only objection to to it is that under a monarchical system, such a classification of “natural born subject” has no effect on who will be the commander in chief of the armies and navies, as subjects never become kings.

    As citizens can become the commander in chief of the armies and navies is when the question of being a natural born citizen of far more importance.

  7. Bummer Says:

    Seems pretty simple to me…
    “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 natives, or natural-born citizens, are those born in the country, of parents who are citizens.”

    Both from your first post.

    Then your conclusion =

    ‘This means neither Barack Obama nor John McCain could be defined as natural born citizens’

    ???? I have a pretty good idea that Obama’s and McCain’s parents were citizens of the USA. Don’t you? So what the snag? They qualify? I do not understand your argument that they are ineligeble(?). The constitution set a precedent with “…at the time of the Adoption of this Constitution…”

  8. jezekiah Says:

    @ Bummer:

    John McCain was born in Panama, not on US soil. Thus, he’s not a natural born citizen.

    Barack Obama’s father was a Kenyan/British citizen. Thus, he’s not a natural born citizen either.

  9. hellenistic Says:

    The Panama Canal Zone was under U.S. Sovereignty at the time, so I would argue that it was very much United States soil. Obama was clearly born on American soil to at least one American citizen parent so I don’t see a problem there either.

    I have to agree with kwdavid in that suppositions based on alleged readings of some of our founding fathers do not necessarily constitute a precedent in legal history. What does stand are the cases and legal definitions that are quite detailed but unfortunately somewhat ambiguous on “natural born”.

    Finally, I have to agree with the author’s last point. This would be a non-issue if these legal loopholes and ambiguities were clarified; so enamored are our politicians with inconsequential but vote-centric issues that they leave such glaring problems in our most central systems.

  10. hurst198 Says:

    kwdavids says: (December 15, 2008 at 10:20 pm):

    “How many of the members of the Constitutional Convention ever read Emmerich de Vattel no one is saying. How many of them AGREED with Emmerich de Vattel no one could guess.”

    (1) Vattel was born in Switzerland, was a counselor (ambassador) for the Kingdom of Saxony, and wrote “Le Droit des Gens” (The Law of Nations) in the French language.

    (2) The work was translated into English, published in London in 1759 and went through numerous editions, including American editions of 1796, 1833 and 1852, the 1883 reprint of the 1852 edition being available on the internet. Vattel’s book was the most influential work on international and constitutional law in the period 1758-1900.

    (3) Ben Franklin wrote to Dutch diplomat Charles Dumas in 1775, “I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the law of nations. Accordingly, that copy which I kept, (after depositing one in our public library here, and sending the other to the College of Massachusetts Bay, as you directed,) has been continually in the hands of the members of our Congress, now sitting, who are much pleased with your notes and preface, and have entertained a high and just esteem for their author.”

    (4) John Adams thought so highly of Vattel that he considered him a father-figure, writing in his diary for February 1, 1763 after wasting his time, “I employed however, too little of my Time in Reading and in Thinking. I might have spent much more. The Idea of M. de Vattell indeed, [illegible] scowling and frowning, haunted me.”

    (5) James Madison, in his instructions to John Jay in Madrid on October 17, 1780, quoted Vattel concerning American rights to sail on the Mississippi, “An innocent passage (says Vattel) is due to all nations with whom a State is at peace.”

    (6) Delegates to the Continental Congresses met at Carpenters Hall, which was the building that also housed the Library Company of Philadelphia. The librarian reported that Vattel was the primary source read by the delegates during the First Continental Congress. The Founding Fathers were so familiar with the works of Vattel that nobody felt the need to define natural-born citizen, since Vattel had already done so.

    (7) The phrase “the law of nations” appears in Article 1 of the U.S. Constitution, “To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.”

    (8) John Marshall, Chief Justice of the United States 1801-1835, a leader in the fight for ratification of the U.S. Constitution, quoted from Vattel more than from any other authors on international and constitutional law.


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