We have only a few more bits of evidence to look at, from the 20th century and recent history. And we will also take a look at some quotes of what people have understood “natural born citizen” to mean throughout history.
Our sources for this section are:
- Charles Evans Hughes and Breckinridge Long (1916)
- Charles Curtis — and Other Vice-Presidents
- US Naturalization Regulations in the 20th Century
- A collection of quotes from some 70 legal authorities from throughout history regarding Presidential eligibility (1789 through 1800s, 1900s, 2000s)
- A collection of some 400 quotes on Presidential eligibility from Google Books (1789 through through 1800s, 1900s, 2000s)
- Additional research with Google Books seeking any Apuzzo/birther-favorable quotes not covered in the last two sources
- The obvious apparent meaning from the similar phrase “natural born subject”
- The 2011 Congressional Research Service report on Presidential eligibility
- And the recent-history track record of two-citizen-parent lawsuits in our courts (2008-2012)
Charles Evans Hughes and Breckinridge Long (1916)In 1916, Charles Evans Hughes resigned his seat on the US Supreme Court to accept the Republican nomination for President.
Hughes had been born in the United States of a father who was a Welsh immigrant. Although it appears that his mother was American, it also appears — as long as the account of Breckinridge Long, below, is accurate in this respect, that his father was not a US citizen at the time of Hughes’ birth.
Now being a Supreme Court Justice, one might think he would have some idea about what the law was in regard to Presidential eligibility.
Nonetheless, a St. Louis lawyer by the name of Breckinridge Long authored an article for the Chicago Legal News in which he alleged that Justice Hughes was not a natural born citizen on account of having had a Welsh father.
Long’s argument, in essence, was that since Hughes had previously possessed the right to choose whether to embrace British citizenship or American citizenship — a “dual allegiance” — he was not a natural born citizen.
As far as I can tell, nobody seems to have paid the slightest attention to Long’s article.
This argument (which I have of course heard before) raises a question. I personally was born in the United States, of US citizen parents. Therefore, by the birthers’ definition, I am clearly a natural born citizen.
At age 31, I went and spent close to 6 years in the United Kingdom. After 5 years of residence there, I had the legal right to become a British citizen, just as Charles Evans Hughes had because of his father’s British citizenship. It was an option I didn’t exercise, but I certainly could have.
Does that mean that at age 36, I somehow lost my natural born citizenship, simply by virtue of having lived in the UK?
For that and similar reasons, I don’t find Breckinridge’s argument compelling. Nonetheless, he made it.
Meanwhile, Hughes darn near defeated Woodrow Wilson for the Presidency — which was an excellent showing, as Wilson was then an incumbent President running for his second term.
Breckinridge Long, having helped Wilson with his reelection campaign — yes, he was a partisan opponent of Hughes — was appointed Third Assistant Secretary of State.
Hughes went on to become Secretary of State — no, he didn’t become Long’s boss; Long had resigned the year before. Later, in 1930, he returned to the United States Supreme Court — this time as our Chief Justice.
Breckinridge Long obviously made the birther argument. Yet Hughes, the Supreme Court and the nation obviously disagreed. So what are we to do with this bit of evidence?
I’m going to put it — mildly — into the birthers’ column.
Charles Curtis — and Other Vice-PresidentsIn 1928, Herbert Hoover and Charles Curtis were elected President and Vice-President of the United States, in a landslide.
Charles Curtis was “a member of the Kaw Indian tribe” and great-great-grandson to Kaw chief White Plume, who offered help to the Lewis and Clark expedition in 1804. Curtis spent much of his childhood on the Kaw reservation in Kansas, and spoke the Kaw language before he ever learned English.
Curtis’ father was 100% American. But his mother was an American Indian. According to the official Vice President Charles Curtis web site, Ellen Pappan, born in 1840, was 1/4th Kaw (or Kansa), 1/4th Osage, 1/4th Potawatomie, and 1/4th French.
For this reason, it’s been alleged that Curtis’ mother was not, and could not have been, a US citizen.
But not so fast.
Ellen Pappan married “Captain Jack” Curtis in 1859. Four years earlier, Congress had passed a law which said, “Any woman who is now or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized, shall be deemed a citizen.”
It appears that Charles Curtis’ mother was a US citizen at the time of his birth, after all.
I have found record of 3 other US Vice-Presidents who have been claimed to have had a non-citizen parent at birth:
- George Mifflin Dallas (1845-1849)
- Hubert Humphrey (1965-1969)
- and Spiro Agnew (1969-1973)
Vice-President Dallas’ father was born in Jamaica of Scottish heritage. It turns out that Alexander James Dallas became naturalized as a US citizen about 1786, some half-dozen years before his son George was born in 1792.
Vice-President Hubert Humphrey’s mother, Ragnild Kristine Sannes, was Norwegian. [Update: As Dr. Conspiracy notes in a comment below, she would have become a naturalized US citizen automatically by statute upon her marriage to Humphrey’s father. For this reason, Hubert Humphrey would have had two US citizen parents.]
Finally, Spiro Agnew’s father, Theodore Spiros Agnew (born Theodore Spiros Anagnostopoulos) was a Greek immigrant. A census record seems to indicate that Theodore was not a United States citizen at the time of Spiro’s birth. However, there appears to be conflicting evidence, so this can’t be taken as conclusive.
The bottom line is that we have at least two US Vice-Presidents — Humphrey and Agnew — who may have been born to at least one non-citizen parent. Nobody seems to have made an issue of it at the time.
Some would count the evidence regarding Spiro Agnew to be against the two-citizen-parent claim. Since the evidence is inconclusive, I don’t think it can be counted either way.
US Naturalization Regulations in the 20th CenturyIn 1907, Congress passed an “Expatriation Act,” which stripped American women who married non-citizens of their United States citizenship. It was therefore entirely possible for a woman to lose her natural born citizenship simply because she married a foreigner — even if all of her ancestors for generations had been American, and she herself was born 100% American, in America, and had never left the country.
The consequence for a woman marrying a foreigner was therefore the same as if she had committed treason: loss of citizenship. And if her new husband was an Asian, there was no pathway back for the wife to regain her lost citizenship.
All of which is to say: The passing of idiotic laws by the United States Congress, unfortunately, is nothing new. Surprisingly, at least from the perspective of a century later, the Supreme Court upheld the Expatriation Act in 1915, noting, “the identity of husband and wife is an ancient principle of our jurisprudence.”
By 1922, the tide, however, had begun to turn. Congress repealed a portion of the Expatriation Act. But it would take them until 1994 — another 72 years — to completely repair the damage.
In this context, some US regulations from the last century having to do with the reacquisition of lost citizenship mention both the terms “native-born” and “natural-born,” making clear that there is a difference between the two. For example, there is the following:
The words “shall be deemed to be a citizen of the United States to the same extent as though her marriage to said alien had taken place on or after September 22, 1922”, as they appeared in the 1936 and 1940 statutes, are prospective and restore the status of native-born or natural-born citizen (whichever existed prior to the loss) as of the date citizenship was reacquired.
The regulation therefore makes clear that there is, at least in some circumstances, some difference between “native-born” citizenship and “natural-born” citizenship.
Birthers have claimed that this is proof that “native-born” status is less than “natural-born” status. In reality, it’s only an indication that some difference or distinction exists between the two. The regulation itself does not pretend to define that difference.
Such a difference or distinction is completely, 100% consistent with the understanding that “native-born” status is something a bit more than “natural-born.” Or, in other words, the understanding that those born on United States soil — the “native-born” — are necessarily “natural born” citizens; whereas those born US citizens because they were born abroad to US citizen parents are only “natural born” — without also being “native born.”
Because of this fact, the language in such regulations and government documents does not constitute any evidence in favor of the idea that it takes two citizen parents in order to be a natural born citizen.
A collection of quotes from some 70 legal authorities from throughout history regarding Presidential eligibility (1789 through 1800s, 1900s, 2000s)
In 2009, a blogger called “NBC” posted a list of “Natural Born Quotes.”
These 68 quotes range from 1789 through 2008, and come from 62 different credible legal sources. They do not come from textbooks and newspaper articles. Instead, they come from judges, court cases, and American legal experts.
Of the 68 quotes, by my estimation:
- 47 provide clear evidence against the two-citizen-parent claim
- 15 provide some implied evidence against the two-citizen-parent claim
- 6 are neutral
- and 0 — not one single quote — provides any implied or clear evidence in favor of the two-citizen-parent claim.
If these quotes are representative, then the consensus of American judges and legal experts throughout American history appears abundantly clear: citizen parents are not required in order to be a natural born citizen.
Of course, the immediate — and quite reasonable — question will be: Have these quotes simply been cherry-picked to “disprove” the two-citizen-parent claim? We will look at that question shortly. But first, we will look at a much larger collection of quotes, compiled by a different researcher, from Google Books.
A collection of close to 400 quotes on Presidential eligibility from Google Books (1789 through through 1800s, 1900s, 2000s)
A second collection of quotes has been compiled from Google Books, here, by researcher “ballantine.” There are more than 400 quotes, but (as might be expected in a project of that size) a few are duplicates, at least some of which I’ve tried to filter out.
These quotes, obviously, come from books that Google has a record of. They are not necessarily from judges, court cases, or legal experts. They come from books, and so would better describe the public understanding of the meaning of “natural born citizen.” The quotes date from 1825 through 2010, and span the whole of American history.
I counted approximately:
- 360 quotes that would appear to provide a clear denial of the two-citizen-parent claim
- 17 quotes that are less clear, but would imply that the two-citizen-parent claim is wrong
- 16 quotes that were neutral, irrelevant, or unclear
- 0 quotes that state or imply that a US-born person has to have citizen parents in order to be eligible to the Presidency
The number of quotes that give evidence against the two-citizen-parent claim — 377 out of 393 — is very, very high. It is very difficult to imagine that someone could come up with this many quotes without giving an accurate understanding of what “natural born citizen” has always meant.
And the number of quotes giving support to the two-citizen-parent claim — 0 out of 393 — is very, very low. In fact, it really doesn’t get any lower than zero.
Even so, the question can — and should — be asked: Have these quotes simply been cherry-picked?
Additional research with Google Books seeking any Apuzzo/birther-favorable quotes not covered in the last two sources
To answer that very important question, I went on a mission to specifically find any possible quotes, in Google Books, that might support the two-citizen-parent claim.
I began with a Google Books Advanced Search (you can do this as well) for:
“president citizen parents thirty-five fourteen”
The “fourteen” describes the number of years of US residency required for Presidential eligibility This should return books that contain all of these terms, close together.
I searched up until the year 2008 (the year the birther claims started) and kept searching for birther-friendly definitions until I had hand-sifted through more than 1,000 results.
Most of these were irrelevant, but I did come up with about 20 quotes that contained the desired terms.
Virtually all of these were quotes like the following:
A child born of American parents while they were temporarily living abroad and who had retained their American citizenship, would be a natural-born citizen, and, so far as his birth is concerned, would be eligible to the Presidency. — Nation and state: a text-book on civil government (1905)
What is meant by a natural born citizen is partly defined by the clause in the fourteenth amendment, which provides that, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The Clause, “and subject to the jurisdiction thereof,” excludes from the operation of this rule the children born in this country to the ambassadors or other public ministers of foreign countries. Children born abroad of parents who are citizens of the United States are entitled to United States citizenship, if they choose to claim it. A President must also be thirty-five years of age… — Popular law library (1908)
After a good deal of time and effort, I could find only one quote that could even be argued as having the two-citizen-parent meaning. That was this one:
The Constitution requires citizenship by birth within the country, i.e. birth within the country, of parents who are not extra-territorial persons. — Political Science and Comparative Constitutional Law (1898)
The abbreviation “i.e.” is Latin for “id est,” and it means, “that is.” It is always used just before a phrase that is an explanation of the phrase that comes before it.
The explaining phrase can’t possibly refer to “birth within the country,” as that makes no sense at all. So the second phrase is clearly intended as an explanation of “citizenship by birth within the country.” It tells us what the author means by “citizenship by birth within the country.”
That is, “birth within the country, of parents who are not extra-territorial persons.”
Who are “extra-territorial persons?” The birther will say: “Non-citizens.”
But if that were the case, the author would have said, much more simply, “of citizen parents” — rather than using the complex phrase, “of parents who are not extra-territorial persons.”
“Extra-territorial persons” might possibly include:
- US parents who don’t normally reside in the United States
- Non-citizens, or
- Foreign ambassadors, foreign royalty, and invading armies
It can’t be the first, because by anybody’s definition — even the birthers — such children would be natural born citizens.
It can’t include the second, because the third group are non-citizens as well — so if it included both the second and third groups, the author would simply have said, “of citizen parents.”
Therefore, the term can only include the third group — the same exceptions that were always recognized in the common law.
A diligent search of Google Books, therefore, for any quote from 1787 through to 2008 failed to turn up even one single historical quote that supports the birther definition of “natural born citizen.”
The preceding three sources thus provide a very clear and decisive view of what the legal profession and public understanding of the term “natural born citizen” has been throughout American history.
Yes, it is possible to uncover a bare handful of quotes from people agreeing with the birther claim that it takes something more than birth on US soil to make a natural born citizen — if one looks hard, long, and deep enough.
But any such handful of quotes is completely and utterly overwhelmed with the absolute, massive avalanche of statements by the hundreds from all quarters, dating from the time of the Constitution until now, that birth on US soil makes a natural born citizen. And a good many of these, especially those from judges and the legal profession, are explicit that citizen parents are not required.
The obvious apparent meaning from the similar phrase “natural born subject”
It has been noted many times that when we became a country, the word “subject” became “citizen.”
Birthers claim that “natural born citizen” means something altogether different from “natural born citizen.” But the obvious and reasonable difference between “natural born citizen” and “natural born subject” isn’t a supposed difference between “natural born” and “natural born” —
It’s the difference between “citizen” and “subject.”
No one has ever produced one solid shred of evidence that anybody ever intended the “natural born” in “natural born citizen” to mean anything different from the “natural born” in “natural born subject.”
The 2011 Congressional Research Service report on Presidential eligibilityIn November 2011, Jack Maskell, a Legislative Attorney with the Congressional Research Service in Washington, DC, prepared and published a 50-page “Report for Congress” entitled, “Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement.
The report was immediately attacked by birther lawyer Leo Donofrio, who called it “propaganda.”
The Congressional Research Service, however, is intended to be non-partisan:
The Congressional Research Service (CRS) works exclusively for the United States Congress, providing policy and legal analysis to committees and Members of both the House and Senate, regardless of party affiliation…
CRS is well-known for analysis that is authoritative, confidential, objective and nonpartisan.
Donofrio’s criticisms are extraordinarily long-winded for the amount of actual substance they contain. After a good deal of reading and analysis, I came to the conclusion that Donofrio made a total of 5 different criticisms of this paper. I also came to the conclusion that three of those criticisms were simply untrue; one was doubtful; and one was true but barely significant in the light of Maskell’s entire paper.
The one true criticism was that Maskell incorrectly intimated that the father of Kwok Jan Fat, plaintiff in the case of Kwok Jan Fat v White, was a Chinese national when in fact Kwok’s father had become a naturalized US citizen.
This is one brief mention in the context of a massive 50-page paper with 233 footnotes. And many of those footnotes contain a dozen or more legal references! So the entire number of legal references in Maskell’s paper is far, far beyond 233.
Mr. Kwok merits one sentence in the entire paper, plus a very brief reference in two other footnotes — each of which has many other references. All mention of the case whatsoever could easily be erased from the paper and it would not remotely be missed.
Donofrio’s technique, then, appears itself to be blatant propaganda. He finds several false or insignificant bases on which to criticize Maskell’s paper — which is 50 pages long and complicated, and will never itself be read by the people he’s writing to. Then, on the basis of these few false or insignificant criticisms, he claims that the entire long, well-researched paper is “blatant propaganda.”
As an aside, Leo Donofrio has previously claimed to personally be the Paraclete, or the Holy Spirit of God on earth. This was documented by Donofrio himself.
The claim was obviously false.
The claim was publicly, knowingly, and deliberately made.
Those facts being established, Leo Donofrio is (factually speaking) a well-documented liar.
Anyone who wants to believe anything Leo Donofrio writes should ask himself: “Why am I giving any credence to anything written by a known and documented liar?”
We might ask such people: Is that your normal practice? Are you normally someone who is dedicated to following known and documented liars?
The fact that Leo Donofrio — who was obviously looking for any basis whatsoever on which he might criticize Maskell’s report — could only come up with one sentence out of 50 pages that was in error — testifies to the generally very strong reliability of Maskell’s work.
I myself have independently researched this issue for many months. I had skimmed Maskell’s paper earlier, but did not fully read it until a week or two ago. Part of this was quite deliberate: I wanted to reach my own conclusions.
I have found nothing in months of research that disagrees substantially with the conclusions reached by Jack Maskell.
Following are a couple of brief quotes from his paper:
Although a small faction of advocates now apparently attempt to cast doubt as to whether every native born U.S. citizen is a “natural born” citizen under the Constitution, all doubt in the judicial arena has been resolved for more than a century in favor of “natural born” status of such individuals who are citizens “by birth” or “at birth” (as having been born in and under the jurisdiction of the United States)…
The case law in the United States, as well as the clear historical record, does not support the argument or contention that there is some further or additional “subcategory” of “citizen” of the United States who, although native born and subject to the jurisdiction of the United States, is neither a “natural born” citizen nor a “naturalized” citizen.
And Maskell’s conclusion:
The constitutional history, the nearly unanimous consensus of legal and constitutional scholars, and the consistent, relevant case law thus indicate that every child born in and subject to the jurisdiction of the United States (that is, not children of diplomatic personnel representing a foreign nation or military troops in hostile occupation), is a native born U.S. citizen and thus a “natural born Citizen” eligible to be President under the qualifications clause of the Constitution, regardless of the nationality or citizenship of one’s parents. The legal issues regarding “natural born” citizenship and birth within the United States, without regard to lineage or ancestral bloodline, have been well settled in this country for more than a century, and such concepts date back to, and even pre-date, the founding of the nation.
The weight of more recent federal cases, as well as the majority of scholarship on the subject, also indicates that the term “natural born citizen” would most likely include, as well as native born citizens, those born abroad to U.S. citizen-parents, at least one of whom had previously resided in the United States, or those born abroad to one U.S. citizen parent who, prior to the birth, had met the requirements of federal law for physical presence in the country.
And the recent-history track record of two-citizen-parent lawsuits in our courts (2008-2012)
If you’ve read this far, congratulations on making it to our final bit of evidence!
If it takes citizen parents for a person born on US soil to be a natural born citizen, then you would expect our courts to rule that way.
To date, at least eleven state and federal courts — including the US Supreme Court — have either found or stated that citizen parents are NOT required to make a natural born citizen, or have given examples of people who were “natural born citizens,” who clearly did NOT have two US citizen parents. In this, I include the Supreme Court in US v Wong Kim Ark, as — contrary to the assertions by Mario Apuzzo and others — the Court quite clearly found that a person born on US soil of non-citizen parents was both a “citizen” and “natural born.”
Our eleven known cases include:
- US v. Wong Kim Ark, (US Supreme Court, 1898)
- Nwankpa v. Kissinger, 376 F. Supp. 122 (M.D. Ala. 1974)
- Diaz-Salazar v. INS, 700 F.2d 1156 (7th Cir. 1983)
- Mustata v. US Dept. of Justice, 179 F.3d 1017 (6th Cir. 1999)
- Tisdale v. Obama (US District Court for the Eastern District of Virginia, Richmond Division, 2012)
- Lynch v. Clarke (New York, 1844)
- Ankeny v. Governor of the State of Indiana, 916 NE2d 678, 688 (2009), (Ind. Supreme Court, Apr. 5, 2010)
- Farrar-Welden-Swensson-Powell v Obama (Georgia, 2012)
- Allen v Democratic Party (AZ Superior Court, Pima Co., 2012)
- Purpura & Moran v. Obama (New Jersey, 2012)
- Voeltz v. Obama (Florida, Leon Co., 2012)
This list includes the cases I know of as of July 2012 — but it will likely grow longer.
It’s Now Time to Summarize the Evidence, and Wrap This Up with a Final Conclusion.
In the final segment of this article, we will sum up the evidence as to the historical meaning of “natural born citizen” throughout history.