The US Constitution provides that only a natural born citizen is eligible to be President of the United States.
Recently, “birther” lawyer Mario Apuzzo — and others — have claimed that in order to be a “natural born citizen,” a person must have parents who were citizens at the time of that person’s birth, as well as be born on US soil.
In previous articles, we’ve looked at case law from the US Supreme Court (most importantly, US v Wong Kim Ark and Minor v Happersett) as well as some of the major legal and historical authorities.
In this article, we’re going to take an overview of the historical understanding of the term “natural born citizen.”
That’s right! In one series of posts, we’re going to get an understanding of what “natural born citizen” has meant throughout all of American history.
And we won’t just cover the points that are favorable to the conclusions we’ve reached in past articles, either. I’m going to include as many “birther-favorable” points as I’ve been able to come up with.
Of course, there’s much more that could be said about this subject than we will have time to cover in one extended article. Nevertheless, if you’re still wondering what Americans have always understood the term “natural born citizen” to mean, you should be able to gain a clear picture.
And if you have further questions about any particular point, I would invite you to research the matter for yourself. As we go along, I’ll give enough information to point the way for you to do further reading and research which will confirm the points we go over.
So let’s get started!
Sources of Information for the Historical Definition of “Natural Born Citizen”
Mr. Apuzzo is crystal clear in his statement that there “never has been any other definition” of “natural born citizen” except one that requires both birth “in the country” and “citizen parents.”
If this is the case, then we obviously ought to find clear and unambiguous evidence of that in the historical record.
In my quest for the historical meaning of “natural born citizen,” I’ve found dozens of possible sources that might give us indications as to what the phrase has historically meant. I mention in this article all the significant sources of information I was able to think of — including both those that seem to lend support the Apuzzo/ birther claim, and those that don’t.
For convenience’s sake, we’ll split our article up into parts. Part One will cover sources of information roughly before and up to the writing of the Constitution in 1787. So on this first page, we’ll cover:
- Actual known usages of the phrase “natural born citizen” before it appeared in our Constitution (from antiquity to 1787)
- The early laws of American Colonies and States (1600s to about 1820)
- Early naturalizations in American Colonies and States (1600s to 1800s)
- Any association of Swiss philosopher Emer de Vattel and the writers of the Law of Nations with the phrase (1600s to about 1820)
- Thomas Jefferson’s citizenship law for the Commonwealth of Virginia (1779, updated in 1783)
- Wording from a proposed treaty between the United States and France (1781)
- and the historical events regarding the use of the phrase at the Constitutional Convention itself (1787).
We’ll comment on each of our sources in turn (trying to keep the comments reasonably brief), before reaching our final conclusion on the historical evidence as to what “natural born citizen” has always meant. And at the end of the entire series, I’ll have a graphic that will give a bird’s-eye overview of the historical evidence.
Here we go!
Actual Known Usages of the Phrase “Natural Born Citizen” Prior to its Appearance in Our Constitution (antiquity to 1789)
The known usages of the exact phrase “natural born citizen” before its use in our Constitution don’t seem to lend much support to the idea that being one required two citizen parents.
I was able to find a total of NINE known usages of the precise phrase before it appeared in our Constitution; earlier, I wrote a full article on this topic.
None of these nine usages supports the birther/ Apuzzo claim.
In the end, I concluded, “…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” in English law, of course, always included virtually all children born in the country. This was true whether or not their parents were themselves citizens or subjects of England. (For further information on the English history and meaning of the term “natural born subject” and its origins in the English concepts of natural law, study this article.
The descriptive words “natural born” didn’t just suddenly appear in America. They were used for a long time in the phrase “natural born subject” before they were ever used in “natural born citizen.” And “natural born subject” was used in law in Maryland, at least, well back into the 1600s.
In New York, Maryland, Connecticut, Massachusetts, and North Carolina, use of the phrase “natural born subject” before the Revolution and the Constitution gave way to “natural born citizen” afterward, in exactly the same way that the word “subject” gave way to the use of the word “citizen.”
Laws were passed in Delaware in 1788 and in Pennsylvania in 1797 even after the writing of the Constitution, which referred to “natural born subjects.” And the 1793 Constitution of the State of Vermont also referred to “natural born subjects as well”
By 1799, though, the Pennsylvania law had changed its phrasing to “natural born citizen or citizens.” (The Vermont State Constitution uses the phrase “natural born subject” to this day.)
Also, as has been noted at this blog many times, the terms “natural born subject” and “natural born citizen” were for a time used absolutely interchangeably in law in the State of Massachusetts.
In 1838, Justice Gaston of the Supreme Court of North Carolina stated that the term “citizen” is “precisely analogous” to the term “subject:”
“Upon the Revolution, no other change took place in the law of North Carolina than was consequent upon the transition from a colony dependent on an European King to a free and sovereign State… British subjects in North Carolina became North Carolina freemen… and all free persons born within the State are born citizens of the State… 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, 1838
Justice Gaston’s opinion was later quoted approvingly by the US Supreme Court in US v Wong Kim Ark (1898).
All of this very strongly implies that the only difference between “natural born citizen” and “natural born subject” is simply the difference between a “citizen” and a “subject,” and that “natural born” means the same thing in both cases.
Early naturalizations in American Colonies and States (1600s to 1800s)
“William St. George” over at Mario Apuzzo’s blog wrote:
“It has occurred to me that early naturalization documents could serve as an indirect proof of what the nation believed in the early decades. Births in the USA indicated in these documents would show alien parentage. And not citizenship by birth. Woodman’s theory would maintain that no one ever born in the USA needed to be naturalized.”
a) In fact, all naturalization Acts and documents of which I am aware have had to do with the naturalization of persons from other countries.
In other words (aside from one exception which isn’t actually an exception, as I will note below), there are NO known naturalization documents for US-born persons which “show alien parentage” and “not citizenship by birth.”
After reading the above-mentioned poster’s suggestion, I went out and did additional research — to see whether I could turn up any Act or document to support the Apuzzo/ birther claim. Except for the one oddity we will cover below, a pretty fair search turned up nothing.
There does not seem to be the slightest indication that anybody born within the United States, or within an American State, ever needed to be or was naturalized by the US or by that State. And this lack of any known persons born on US soil who were subsequently naturalized as US citizens is further evidence against the Apuzzo/ birther position.
b) There does exist one single known incident that at first looks like an exception to the above.
The only instance I’ve ever located of a naturalization act passed in America on behalf of a person born in the United States was passed by the Vermont legislature in 1785. This Act naturalized a citizen of New Hampshire, and granted him “the freedom of the State of Vermont.”
However… this Act completely fails to support any claim by birthers.
Why? Because in the year 1785, Vermont was what has since been called “the Vermont Republic” — it was politically a completely separate nation outside of the United States of America!
Therefore, when the Vermont legislature naturalized a man from New Hampshire, they were truly naturalizing a citizen not just of another State of the Union (which they were NOT a part of yet), but a citizen of a foreign country — the United States of America.
So the act was very much like Canada naturalizing someone from the United States to be their citizen (except, of course, that Canada did not later join the USA).
Six years later, the independent State of Vermont — the “Vermont Republic” — gave up their independence and joined the USA as the 14th State of our Union.
The example thus reinforces what we already know — naturalization was always for those who were foreign-born.
c) Peeking ahead a bit, it also doesn’t seem that any American legislature ever passed any law providing for the “naturalization” of any class of people born in the United States or in that State or Commonwealth — except for laws that eventually naturalized Native Americans, or persons who were in territory that had previously not belonged to the United States. Or (possibly) former slaves, depending on the view you take.
Slaves were legally regarded as property, not people. It does not seem entirely clear by what mechanism freed slaves became citizens. Some said that they didn’t. But our legislators who passed laws to ensure citizenship for former slaves and other black Americans generally seemed to believe they were only codifying and clarifying what American law actually already was.
The Civil Rights Act of 1866 and the Fourteenth Amendment specified that all persons born in the United States (with the traditional limited exceptions of Indians, children of ambassadors, etc.) were American citizens. And that Act and Amendment were clearly geared toward ensuring the privileges of citizenship for all native-born black Americans. (Native-born Chinese people and Gypsies were mentioned in the debates as well).
However, those sponsoring the Civil Rights Act and the Fourteenth Amendment were clear in stating their opinion that that Act and Amendment were merely a declaration of the law as it already was.
While some laws provided that minor children of aliens being naturalized would become citizens along with their parents, there’s no indication this provision was ever needed for children who had been born on American soil. Such children were already US citizens simply by virtue of their birth. This is evident, for example, in Thomas Jefferson’s citizenship law for the Commonwealth of Virginia, which we’ll touch on in a minute.
d) Likewise, there doesn’t appear to be any mention in any law of any “alien” who was a “native of the United States.” Such a creature simply doesn’t appear to exist. Nor does there appear to be any mention of such a thing as “a native-born citizen” who was not a “natural-born citizen.”
So there appears to be no known evidence from any naturalization laws or documents, in the entire history of the American Colonies and States, and of the United States as a whole, to provide even the slightest support to the Apuzzo/ birther claim.
My research for this point included tracking down as many internet-published early “session laws” in all of the thirteen original colonies as I could fine available; plus additional searches for naturalization Acts, including advanced searches through Google Books.
Any association of Vattel and the writers of the Law of Nations with the phrase (1600s to about 1820)As we’ve seen in three previous articles, there is no known actual association of Vattel or any of the writers on the Law of Nations with the phrase “natural born citizen.” For full details, see:
- Vattel and “Natural Born Citizen”
- Natural Born Citizenship and the “Law of Nations”
- What the Writers on the Law of Nations Had to Say Relevant to Natural Born Citizenship
It has also been pointed out by French attorney “Lupin” (see comments below) that a solid translation of Vattel is not particularly kind to the Apuzzo/ birther claim. For more on Vattel viewed from the perspective of a French attorney with experience in editing English translations of Vattel’s work, see here.
Thomas Jefferson’s citizenship law for the Commonwealth of Virginia (1779 and 1783)
In 1779, Thomas Jefferson wrote a citizenship law for the Commonwealth of Virginia that provided that “all white persons born within the territory of this commonwealth” were Virginia citizens.
In spite of the fact that Mario Apuzzo has insisted on misinterpreting the clear words of this law to supposedly support his claims, the wording of the law provides clear support instead to the idea that citizenship in America was based on place of birth, without reference to citizenship status of parents.
[Note: I don't mean by this to exclude that in some instances people might also become citizens through jus sanguinis, or the "law of blood." Our mother country, England, certainly made use of both. Our first Congress specified a law stating that children born overseas to US parents were also to be regarded as "natural born citizens." And, as noted in a comment below, the Georgia Charter of 1732 provided that both those born in the province "and every of their children and posterity" should have "all liberties franchises and immunities of free denizens and natural born subjects."]
Wording from a proposed treaty between the United States and France (1781)
Mario Apuzzo claims, “The Founding generation knew that ‘les naturels, ou indigenes’ [in Vattel's 1758 book] meant ‘natural born Citizen.’ Here is some strong historical evidence of this. The French phrase, ‘sujects naturels,’ [sic] was used in a 1781 trade treaty between the United States and France. The French word ‘naturels’ was translated into English as ‘natural born.’ Here are the treaty provisions showing this understanding: The French: ‘ARTICLE III Les consuls et vice consuls respectifs ne pourront être pris que parmi les sujets naturels de la puissance qui les nommera’ was translated into English thus: ‘The respective Consuls and Vice Consuls shall only be taken from among the natural born subjects of the power nominating them.’ Journals of the Continental Congress, 1774-1789, Friday, July 27, 1781, accessed at http://lcweb2.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(jc0216)) . So, ‘naturels’ was understood to mean ‘natural born.’ This shows that when members of the founding generation, many of whom were fluent in French, read Vattel’s French term ‘naturels,’ they translated the clause into ‘natural born.’
The claim sounds plausible, but it is without any real merit. As ought to be obvious even to those who know no French, the word “naturel” in French (as an adjective) generally means “natural” — with very much the same meaning it has in English. A direct translation would therefore have been “natural subjects.” But in England and in America we used the phrase “natural born subjects,” so that’s how it was translated.
From a linguistic point of view, the plural adjective “naturels” does not mean “natural born.” Just as when one reads “natural” in English, “born” is not necessarily implied. The word means “natural.”
It is the entire phrase “sujets naturels” (“natural subjects”) that was translated as “natural born subjects.” So here we have the translation of a phrase, not a literal translation done word for word.
In fact, the incident clearly illustrates that not only the States, but the United States government itself, in the year 1781 — five years after the Revolution — spoke of their people as “natural born subjects.”
During that period of our history, the word “subject” in America began changing to “citizen,” but the transition did not occur everywhere instantly.
In fact, since “sujets naturels” was translated to “natural born subjects,” one could just as readily argue that “naturels” (as a noun) is an abbreviation of “sujets naturels” — and therefore means “natural born subjects,” which always included the children born in the country of alien parents.
Except, of course, that’s not how Vattel used the noun “naturel” in his 1758 book.
But Vattel’s usage does not seem to be quite typical, even of his day.
The 1694 Dictionnaire de l’Académie française gave as one definition of “naturel,” “A native inhabitant of a country,” e.g, “the French naturels,” “the naturel Spanish.” It further elaborated, “‘Naturel’ also means a man born, a man who has taken birth in a country, etc.” Later versions of this dictionary drop the last sentence, but none indicate that ancestry is required in order to be “a native inhabitant of a country.”
“Native” is defined as “having origin in a particular place or land.”
The Émile Littré Dictionary (1872) gives this definition: “Natural subjects of a sovereign; those who are born within his state.”
This dictionary also gives the “native inhabitant of a country” definition, using as an example a 1675 letter from Paul Pellisson, who wrote that the Sicilians in Paris, forced to accept the rule of France, said that a child prince (the Duke of Mayne, age 5) would be more agreeable than any other, because if he were sent to Messina to be put in power, the people would regard him as a Sicilian naturel.
Obviously, this specific use is one in which a person would have been regarded “as a naturel,” even though he was not born in a place and did not have citizen parents — simply because he was raised there from the age of five.
So a good deal of the time, the word “naturel” in French — even in Vattel’s day — simply meant someone who was from a place, without any regard as to whether his family was from there as well.
The word, in 1872, does also appears to carry with it some of the sense of the English word “native,” as shown in this remark: “Naturel, in the sense of native, is not used in speaking of civilized nations: One does not say, ‘the naturels of France, or of Spain.’” However, it was used less formally to refer to people from a particular locality: “the naturels of this province, of this village.”
The definitions and examples of these dictionaries can be found here.
In modern usage as well, the noun “naturel” appears to be ambiguous. It can be used in the sense of someone who is from a particular place — as in having been born there, without regard to citizenship of parents. Or, it can be used in the sense of a person who is indigenous, that is, whose entire family and ancestors came from the place where he is.
Even as a noun, the term is therefore ambiguous, and apparently always has been.
In short, there is once again nothing to the claim that this particular treaty translation is any evidence at all that the Founding Fathers meant the concept expressed in Vattel’s 1758 book when they used the English phrase “natural born citizen” in the Constitution.
The historical events regarding the use of the phrase at the Constitutional Convention itself (1787)
In July 1787, George Washington, while presiding over the Constitutional Convention, received a letter from John Jay which suggested that the President should be a “natural born citizen.”
Birthers have claimed that the Framers of the Constitution “rejected” Alexander Hamilton’s desire for the President to be “born a citizen” in favor of Jay’s term “natural born citizen.” However, there is no historical evidence to suggest this. In fact, the available historical evidence rather strongly suggests that the phrase represents a shared idea between two friends.
This article fully examines the relationship between the qualification that Alexander Hamilton wanted for President, and that proposed by John Jay.
To Be Continued in Part Two
This completes our list of sources of evidence from before the writing of the Constitution. This is a crucial period — because if the Framers of the Constitution decided to use the phrase “natural born citizen” to mean “born on US soil of two citizen parents,” they would have to have made that decision either before or at the Constitutional Convention in 1787.
And yet, there is no actual evidence known at all dating from before or during the Convention that would indicate that the Framers — or anybody else, for that matter — ever relied on Vattel for the meaning of “natural born citizen,” or ever used the term “natural born citizen” to mean “born on US soil of two citizen parents.” For example, the facts surrounding John Jay’s letter — far from supporting the birther claims — strongly suggest that the two terms mean exactly the same thing.
In fact, all available historical evidence from this period seems to indicate that “natural born citizen” was simply an American update of the ancient term “natural born subject.”
It’s possible, though, that we will find some record from after the Constitutional Convention that would indicate that such a conclusion is wrong. Maybe one of the Founders left a memoir that says, “We relied on Vattel for our concept of ‘natural born citizen.’” Or maybe we will find an authority who says, “‘Natural born citizen’ and ‘natural born subject’ are different, in that whereas a ‘natural born citizen’ requires citizen parents, a ‘natural born subject’ does not.”
We’ll continue our investigation in Part Two of this article.