And he maintains that this specific meaning is substantially different from the extremely similar “term of art” natural born subject– which does, in fact, have a known and centuries-long history and specific meaning.
But, as always, there are significant problems with Mr. Apuzzo’s claim.
One obvious problem is that early American state legislatures — with a few exceptions which we will shortly see — only began using the term “natural born citizen” after it appeared in our United States Constitution in September of 1787.
And when they did, they used it in exactly the same ways that they had previously used “natural born subject” and “natural born person.”
In fact, the Massachusetts legislature, early in our American history, used the terms “natural born citizen” and “natural born subject” completely interchangeably.
And nobody seems to have ever noted any particular distinction between the two, either — except that we were no longer “subjects” to a king, but “citizens” of a free nation.
“A Very Specific Meaning Which Comes Down Through the Ages” Equals… Nine Known Occurrences?!??
A second major problem is that prior to its use in the Constitution, there are only a handful of known examples of the exact phrase “natural born citizen” — in law, or in any place else.
Mario Apuzzo claims that the term’s definition comes from “the Law of Nations.” But, as detailed in this blog’s two most recent articles, the term was never used — not even once — in any relevant work by any of the major writers on the Law of Nations. And it doesn’t appear to have ever been used even once by any minor writer on the Law of Nations, either.
For this reason, Mr. Apuzzo’s claim that the term was defined by the Law of Nations is now clearly shown to be false.
The Known Occurrences of “Natural Born Citizen” Before the Term Appeared in Our Constitution Are So Few, We Can Actually List Them.1) The term appears in 1720, in London, in A proposal for printing in English, the select orations of Marcus Tullius Cicero. This quotes Cicero as having stated that the Smyrneans claim Homer (the famous Poet) to be their “natural born citizen.”
2) The term also appears in 1758, in The Roman Antiquities of Dionysius Halicarnassensis, as translated into English by Edward Spelman.
In this story, a woman named Veturia pleads with her son Marcius not to lead the Volscians in an attack against his home town of Rome, but to broker peace instead. She fears that Marcius won’t take her advice, because it would make him look ungrateful to the Volscians, who had given him “all the advantages, which their natural born citizens are intitled to.”
3) Then, in 1774, a translation by J. Patsall was published of Quintlian’s Institutes of the Orator. This was an ancient Roman manual on how to be a public speaker.
In that book, Quintilian advises his pupils, “Therefore, If possible, every word, and the very tone of voice, should bespeak the natural born citizen of Rome, that the language may be purely Roman, and not so by a right different from birth and education.”
The advice was simple, and sound: If you want to go to Rome and impress the crowds, don’t go sounding like a foreigner, or a hick from the sticks. Learn to speak in public using a standard accent and intonation.
It’s advice that newscasters and weather presenters still follow today.
Quintillian, of course, was not writing a legal treatise. He was writing a manual on how to be a successful public speaker.
Now to claim that because one particular Englishman translated Quintillian’s public-speaking advice by telling pupils to speak like a “natural born citizen” — a different translator used the word “native” — that the Founding Fathers of the United States, over in America, read that translation, interpreted the phrase “natural born citizen” as “born in a country of two citizen parents” (which it doesn’t say), and then used that to define a key term is the American Constitution is simply — to use the technical term for it — cuckoo.
And yet, Mr. Apuzzo actually implies (in his 199-page legal brief, filed in Kerchner v Obama) that this is what happened.
All three of the translations above were done in London, by Englishmen.
So why didn’t they use the term “natural born subject?” “Subject” implies an obligation of allegiance to the King. And they knew that in Rome, people weren’t called “subjects.” They were called “citizens.”
So the British translators of these three works simply changed the word “subject” in “natural born subject” to “citizen” — just as we did, years later, for the “natural born citizen” clause of the Constitution.
None of these three brief mentions of the phrase “natural born citizen” — and all of them consist of one use only — occurred in any legal document or even in any philosophical treatise on government or on law.
“Natural Born Citizen” Debuts in America: 1777 — 1786
4) In November of 1777, the Continental Congress drafted the Articles of Confederation, the predecessor to our Constitution. The following wording appeared in one or more drafts of the Articles of Confederation:
“And for the more certain preservation of friendship and mutual intercourse between the people of the different States in this Union, the Citizens of every State, going to reside in another State, Shall be entitled to all the rights and privileges of the natural born free Citizens of the State to which they go to reside.”
The phrase “natural born” was dropped from the final draft.
There are two interesting things to note here. The first is the phrase used: “natural born free Citizens” rather than “natural born citizens.” This suggests that our modern term of art “natural born citizen” had not yet quite taken shape. The Founding Fathers knew they didn’t like the word “subject,” but don’t seem to have quite settled yet on the exact wording that would replace “natural born subject.”
The second thing is the dropping of the words “natural born,” while keeping “free citizens.” This descriptive phrase was dropped in a way that suggests it is just that — a descriptive phrase with its own specific meaning, which could be applied to “subject,” “citizen,” or “free citizen” (“natural born” was also used with “person” in an earlier Maryland law).
All of this suggests that most of the “term of art” is in the adjective phrase — “natural born” — which can equally be applied to “people,” “subjects,” “free citizens,” or “citizens.”
5) By the fall of 1784, word began spreading across the American countryside that all sides had ratified the Treaty of Paris, bringing an end to the Revolutionary War.
A new nation was officially born.
In December, the grateful citizens of Maryland passed a law expressing their appreciation to the Marquis de Lafayette. This French nobleman and military man had come to our shores, served as a general under George Washington, been wounded, acted as a hero, and even returned to France in the middle of the war to drum up additional French support.
As a result, the State of Maryland declared Lafayette — and all of his male heirs forever — “deemed, adjudged and taken to be” natural born citizens of the State of Maryland:
“Be it enacted by the General Assembly of Maryland — that the Marquiss de la Lafayette and his Heirs male forever shall be and they and each of them are hereby deemed adjudged and taken to be natural born Citizens of this State and shall henceforth be intitled to all the Immunities, Rights and Privileges of natural born Citizens thereof…”
It was with this Act that the State of Maryland switched from giving people who were to be naturalized the rights of “natural born subjects” — which they had been doing at least since the early 1700s, to giving such persons the rights of “natural born citizens.” But there appears to be no practical difference between the two.
6) The term appears in a 1785 letter from future President John Adams to future President Thomas Jefferson:
“The Briton’s alien’s duty is a very burdensome thing, and they may carry it hereafter as far upon tobacco, rice, indigo, and twenty other things, as they now do upon oil. To obviate this, I think of substituting the words ‘natural born citizens of the United States,’ and ‘natural born subjects of Great Britain,/ instead of ‘the most favored nation.’”
The interesting thing to note here is that the term “natural born citizens” (for Americans) is used right alongside and in the exact same way as the term “natural born subjects” (for the British).
This strongly suggests that our Founding Father John Adams understood it to have exactly the same meaning — except, of course, for the distinction of freedom between “subject” and “citizen.”
7, 8 and 9) The State of Massachusetts, in the mid-1780s, also began referring to “natural born citizens.”
In February of 1785, the Massachusetts legislature passed “An Act for Naturalizing Nicholas Rousselet and George Smith.”
This act decreed that the aforementioned persons should be “deemed, adjudged and taken to be citizens of this Commonwealth, and entitled to all the liberties, rights and privileges of natural born citizens.”
In Februrary of the next year, it was “An Act for Naturalizing Michael Walsh.”
This Act naturalized an immigrant by the name of (not suprisingly) Michael Walsh, and provided (again) that he should be “deemed, adjudged and taken to be a citizen of this Commonwealth, and entitled to all the liberties, rights and privileges of a natural born citizen.”
Finally, in July of 1786, the legislature passed a similar “Act for Naturalizing Jonathon Curson and William Oliver.”
Examples 4 through 9 represent the only American usages, and the only legal usages of the term “natural born citizen,” that I’ve been able to locate, prior to the adoption of the Presidential eligibility clause.
Were there others? Most likely. But if there are, they seem to be buried in history; and as far as I can tell, no one has produced them yet.
The Interesting Thing About the American and Legal Usages of the Term “Natural Born Citizen”
Now the interesting thing about these pre-Constitutional usages, is that most of them were used absolutely synonymously with the term “natural born subject.”
Actually, the Massachusetts legislature, in fact, is known to have used the two terms interchangeably.
So not only does the known American and legal usage of the term prior to the Constitution fail to support Mr. Apuzzo’s claim — it provides additional evidence that — except for the difference between “subject” and “citizen” — “natural born citizen” meant exactly what “natural born subject” had always meant.
And “natural born subject” had always included — with extremely limited exceptions (children of ambassadors, foreign royalty, invading armies) — all children born in the country, even of non-citizen parents.
This new information thus adds still more substance to the already large mountain of evidence that it does not — and never did – require citizen parents for any child born in the United States to be a “natural born citizen.”