Investigating the Obama Birth Mysteries

[To start at the very beginning, click here.] 

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-Presidents

In 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 Century

In 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.”

Not one.

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 eligibility

In 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:

Federal:

• 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)

State:

• 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.

[To start at the very beginning, click here.] 

“Four Supreme Court Cases”

In the fall of 2009, a blog called “The Post & Email” ran an article which claimed that four US Supreme Court cases had defined the term “natural born citizen.”

The four cases named were The Venus (1814), Shanks v Dupont (1830), Minor v Happersett (1875), and US v Wong Kim Ark (1898). We’ve looked at two of these already. The other two have been analyzed and discussed at length; and we will summarize what they actually mean in this section, with links to more info.

The author of the article, “John Charlton,” seems to have since retired from the scene. But others took up the mantra, such as Leo Donofrio (now also retired) and Mario Apuzzo. They have claimed, particularly, that Minor v Happersett provided a “binding precedent” that two citizen parents are required to be eligible to be President. The claim has obviously been directed at the current President of the United States, Barack Obama. Literally dozens of lawsuits have followed across the country challenging his eligibility.

As an aside, it has bothered me somewhat that there seemed to be almost no information available as to who this “John Charlton,” founder of The Post & Email, actually was. No professional details. No real contact information. No nothing. Who was this shadowy, semi-anonymous figure? I finally began to wonder whether he might actually be a well-connected political operative of some sort running a clandestine smear campaign, or simply a pseudonym for the Post & Email’s current editor, Sharon Rondeau.

Although it wasn’t particularly easy to find out, I now know a very good deal about the founder of The Post & Email, the author of the “Four Supreme Court Cases” article. No, I won’t publish any of his personal details, as he has chosen to keep those private. Suffice it to say, he does exist, and he is not Sharon Rondeau. Nor is he a famous person. As far as I can tell, he doesn’t seem to be some well-connected political operative, either. His profession is neither politics nor law, and he appears to be just what he claimed to be — a “citizen journalist.”

Be that as it may, those who seek to take on such a role have a responsibility to report accurately to the public. And this author, whether inadvertently or not, has stirred up a good deal of mischief through his authoritative-sounding misinterpretation of Constitutional law.

There’s another lesson here, for those who read things on the internet: If someone is not willing to step forward and provide full details of exactly who they are and what their qualifications are, that in itself may be an indication that any information from that source ought to be fully and personally confirmed before you believe it.

Of course, that can be said of a lot of things, and being able to personally identify someone is no guarantee at all that they are providing good information. There are plenty of publicly-identifiable people telling complete falsehoods. But at least it’s a start.

Having tested and evaluated those cases, we will now go over the last of the four, and touch on a couple of other late 1800’s matters as well. Our sources for this period of American history include:

• US Supreme Court: Minor v Happersett (1875)
• Alexander Porter Morse’s Writings on Citizenship (1881, 1904)
• Chester A. Arthur’s Presidency (1881-1885)
• Elk v Wilkins and Chester A. Arthur’s State of the Union Speech (1884)
• US State Department Policy in the 1880s & 1890s
• US Supreme Court: US v Wong Kim Ark (1898)

US Supreme Court: Minor v Happersett (1875)

Minor v Happersett was an 1875 case in which the Supreme Court ruled that being a citizen did not give Virginia Minor, or any other woman, the right to vote. As someone has aptly pointed out, the ruling in this case was voided by the Nineteenth Amendment!

1. That raises the obvious question of how a case whose ruling was entirely voided by Constitutional Amendment could possibly set a “binding precedent” as to anything.

Aside from that, the claim that this case means one has to have two citizen parents to be President has been beaten to death, and is false for several other reasons as well.

2. The statement referenced by birthers was clearly and demonstrably obiter dictum — a non-binding side comment.

3. The case gave no “definition” for “natural born citizen.”

4. The Court never said that citizen parents are required to be a natural born citizen.

5. The statement that it did is based on twisted and invalid logic.

6. Even if the Court had given such a definition, and even if it had said what the birthers claim it says, it would have been overruled by the later case of United States v Wong Kim Ark.

In addition to all of the above, at least one court has quite specifically ruled that Minor v Happersett does not say what Mr. Apuzzo and other birthers claim it says.

Alexander Porter Morse’s Writings on Citizenship (1881, 1904)

Alexander Porter Morse was an American lawyer, who wrote an 1881 treatise on citizenship, and a 1904 law journal article on whether the children born overseas of US parents were eligible to the Presidency.

For the sake of brevity, I won’t attempt to analyze his writings here, except to say that Morse does seem to have been of the view that the US-born children of aliens were not, or at least shouldn’t be, eligible to become President. His most pertinent comment is:

If it was intended that anybody who was a citizen by birth should be eligible, it would only have been necessary to say, “no person, except a native-born citizen”; but the framers thought it wise, in view of the probable influx of European immigration, to provide that the president should at least be the child of citizens owing allegiance to the United States at the time of his birth. It may be observed in passing that the current phrase “native-born citizen” is well understood; but it is pleonasm and should be discarded; and the correct designation, “ native citizen” should be substituted…

The question is, what importance should we attach to Mr. Morse’s opinion? The birther tendency seems to be to claim that anyone who favors their position is a legal Albert Einstein, and anyone who does not, no matter how esteemed, doesn’t know what he’s talking about. In fact, one forum post in 2010 immediately hailed Morse as a “top international lawyer.”

He certainly seems to have been competent enough, as he was the government’s lawyer before the US Supreme Court in the infamous Plessy v Ferguson case (1896) which ruled that racial segregation was legal. Plessy v Ferguson remained US law until overturned in 1954 by the equally famous Brown v the Board of Education, which paved the way for our modern racially-integrated society.

But that seems to have been pretty much Morse’s only claim to fame. So what value should we attach to an opinion in a law journal article — which, by the way, appears to be the only law journal article that Morse ever wrote? As “SnakeDoctor” in the above-mentioned forum thread immediately notes:

Legally speaking, treatises are not controlling anywhere or for anyone. Law Journal articles are the legal equivalent of an op-ed. Anyone, particularly any “legal scholar” or professor (no matter whether they’re right or wrong) can write a treatise.

When writing about a legal subject — particularly Constitutional law — treatises and law journal articles are among the lesser sources to cite.

Nonetheless, Morse’s writings are a point in favor of the birthers’ claim.

Chester A. Arthur’s Presidency (1881-1885)

In 2008, Leo Donofrio claimed to have uncovered “proof” that Arthur had concealed the fact that his father had not naturalized as a US citizen until after Arthur was born, in order to avoid being “outed” as having been ineligible for the Vice-Presidency and Presidency. This was claimed because some of the things Arthur had said about ages and dates turned out not to match records, and particularly, apparently, because Chester Arthur had had his papers destroyed.

As a result, Arthur has been claimed by some birthers to have been the “original usurper.”

Oddly enough, one of the papers that survived, and is present in the Library of Congress’ Chester Alan Arthur papers, is his father’s 1843 naturalization certificate. If Arthur wanted to conceal his father’s naturalization date, that does seem rather odd.

In fact, it turns out that Arthur’s political opponents did assert he was ineligible for the Presidency — but not for the reason Donofrio claims. A man named Arthur Hinman was apparently hired to dig up dirt on Arthur. He first alleged that Arthur had been born in Ireland. Why Ireland? It was well known and published in contemporary biographies of Arthur, that Arthur’s father had immigrated to the United States from Ireland.

When that was shown to be false, he alleged Arthur to have been born in Canada, instead of Vermont. Hinman wrote a book entitled, “How a British Subject became President of the United States.”

Hinman in fact goes into an entire biography of Arthur’s father, detailing his birth in Ireland, education in Belfast, and emigration first to Canada and then the United States. And yet, even though he goes to great length in an attempt to show that Arthur is ineligible, not once does he attempt to make the case that he is ineligible by reason of his father having been an Irishman. He doesn’t even ask the question.

The entire incident, then, is not evidence for the two-citizen-parent claim, but at least weak evidence against it. Given the lengths that Hinman went to in an attempt to prove Arthur’s ineligibility, it can be presumed that if people had understood the children of foreigners not to be natural born citizens, Hinman would have exploited that angle. He did not.

As an aside, if Chester Arthur was a “usurper,” he was certainly an odd one. During the Republican convention of 1880 — where Arthur had just been asked to run for Vice President — he stated to Sen. Roscoe Conkling of New York (who had just told him that Garfield was sure to lose) “The office of the Vice-President is a greater honor than I ever dreamed of attaining. A barren nomination would be a great honor.“

When Arthur made it to the carefree, do-nothing post of Vice-President, he would seem to have been as happy as a pig in mud.

And when President Garfield was shot, Arthur was horrified. According to historian Neil A. Hamilton:

Arthur never wanted more than the vice presidency and followed every report about the president’s health with an anxiety that caused him to lose weight and withdraw from his friends. When it looked like Garfield might live, Arthur said, “As the President gets better I get better, too.”

For the next two and a half months, while Garfield lingered near death, Arthur refused to take the reins as acting President.

Upon learning the news that President Garfield had finally died, Arthur hid in his townhome in New York, put his head in his hands, and — according to his servants — “sobbed uncontrollably.”

No one, including Chester A. Arthur, seems to have wanted a Chester A. Arthur Presidency. But once in the office, he made the best of it and attempted to do a creditable job. Quoting the Wikipedia article on Arthur:

As journalist Alexander McClure would later write, “No man ever entered the Presidency so profoundly and widely distrusted as Chester Alan Arthur, and no one ever retired… more generally respected, alike by political friend and foe.” Although his failing health and political temperament combined to make his administration less active than a modern presidency, he earned praise among contemporaries for his solid performance in office. The New York World summed up Arthur’s presidency at his death in 1886: “No duty was neglected in his administration, and no adventurous project alarmed the nation.”

Personally, I have come to quite like Chester A. Arthur.

Elk v Wilkins and Chester A. Arthur’s State of the Union Speech (1884)

I mention this only because a birther named Tracy Fair has claimed that an 1884 speech by President Arthur provided evidence that he knew he was ineligible. In that speech, Arthur said:

“An uniform rule of naturalization such as the Constitution contemplates should, among other things, clearly define the status of persons born within the United States subject to a foreign power (section 1992) and of minor children of fathers who have declared their intention to become citizens but have failed to perfect their naturalization. A just and uniform law in this respect would strengthen the hands of the Government in protecting its citizens abroad and would pave the way for the conclusion of treaties of naturalization with foreign countries.”

This claim, like so many other birther claims, has been shown to be false. Arthur’s speech clearly had reference to the recent Supreme Court case of Elk v Wilkins, which had ruled that an American Indian who had been born in a tribe, but then had separated himself from that tribe, was not a US citizen and could not participate as one without first going through a naturalization process.

Such a situation was less than satisfactory. But in spite of Arthur’s plea to do something about the matter, it would not be fixed during his Presidency, or his lifetime.

It should be mentioned in regard to the Elk case itself that John Elk was found not to be a United States citizen; and the reason for this ruling was not that he had been born of “non-citizen” (that is, immigrant) parents. The reason was that he had been born under and as part of a different sovereign government altogether — that of an Indian tribe.

As such, he was not born subject to US law or “subject to the jurisdiction of the United States.” Because of this, Native Americans born under their tribal governments were declared not to be US citizens — at least, not until they naturalized. This is an altogether different situation from the children of immigrants who came to our shores, participated in the mainstream of our society, and were subject to United States laws in exactly the same way that the native born members of our society were.

This state of affairs was eventually (mostly) fixed by Congress in 1924 by the Indian Citizenship Act, which opened the doors of citizenship much wider for Native Americans. By 1948, Native Americans possessed full voting rights as well.

US State Department Policy in the 1880s & 1890s

In the 1880s, the State Department changed its policy regarding children born in the United States of non-citizen parents, whose parents then removed the children to another country.

In 1880, Secretary of State William Evarts wrote:

“A person born in the United States has a right, though he has intermediately been carried abroad by his parents, to elect the United States as his nationality when he arrives at full age.”

Just five years later, however, Secretary of State Freylinghuysen was of a different mind.

Under Freylinghuysen and subsequent Secretaries of State, passports were denied to US-born persons whose parents had removed them from the country during their childhood. These State Department policies have been discussed more fully in a separate article.

Although the changed State Department policies did not affect those born on US soil who never left the country, they did serve as a later basis — as we will see in Part 6 — for Democratic activist Breckinridge Long to raise questions about the 1916 Presidential candidacy of Republican Charles Evans Hughes.

They can therefore be counted as being evidence that is at least somewhat favorable to the birther ideal of what a natural born citizen is.

US Supreme Court: US v Wong Kim Ark (1898)

Now we come to the Big Kahuna of US citizenship cases.

Wong Kim Ark was a young man detained upon entering San Francisco from China, on the grounds that he was not a citizen of the United States. The Chinese Exclusion Acts prevented Chinese people from becoming US citizens.

But Wong was born in the United States. His case reached the Supreme Court in 1898, with the Court ruling in his favor.

Birthers such as Mario Apuzzo have claimed that the Supreme Court “only” found young Mr. Wong to be a “citizen” but specifically “stopped short of” finding him to be a natural born citizen.

The claim is simply false. The Supreme Court not only found Wong was a citizen — they also found — as an “irresistible” “conclusion” that he was “natural born.”

If someone is both “natural born,” and a “citizen,” then that makes that person a natural born citizen.

It really isn’t that hard, folks.

Here are a couple of quotes from the Court:

“The foregoing considerations and authorities [that is, the Court’s entire discussion to date] irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.

The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.

Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. 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 Rep. 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.” It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides…”

The Court also made clear that for the purposes of this discussion, “citizen” and “subject” were “precisely analagous.” So even though they, in quoting Lord Coke to add his authority to the discussion, use the term “natural born subject,” they found no essential difference between a “natural born subject” and a “natural born citizen.”

They also clearly state that the same rule in regard to children of alien parents had applied for centuries, in England, in the Colonies, and in the United States:

“It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.

III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established.”

As well, even the dissent in the case recognized the implication that Wong Kim Ark would one day be legally qualified to run for President:

“I submit that 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.”

A more detailed discussion of the case is available here. There is far more that can be said about the decision than I have attempted to go into either here or in the larger article. For example, the Court used the term “natural born” some three dozen times in their ruling. And that discussion was part of the core rationale for the case, so it clearly created a binding precedent.

That binding precedent is one of the most significant reasons why birthers lose every single Vattel-driven “natural born citizen” case that they bring into our courts.

For those who consult the larger article, I would like to commend to you the comments of BrianH, who has done some further analysis of the case.

We Are Now In the Home Stretch of Our Look at What “Natural Born Citizen” Has Meant Throughout History.

In Part Six, we will take a quick tour of the understanding of “natural born citizen” in the 20th century and today, as well as reference a few sources for quotes from those who have spoken about the topic.

Then we’ll bring everything together in our final Conclusion.

 
As we’ve seen in the 1856 Presidential election campaign of John Charles Fremont, there never seems to have been any problem in recognizing that persons born in the United States to non-citizen parents were natural born citizens.

By the 1880s, however, the US State Department started to take a more restrictive view toward children of non-citizens who were removed as minors by their parents to other countries.

The policy of the State Department in regard to such people, in fact, seems to have changed at some point between November of 1880 and January of 1885.

In November of 1880, Secretary of State William Evarts wrote to Michael J. Cramer, our Ambassador to Denmark:

“A person born in the United States has a right, though he has intermediately been carried abroad by his parents, to elect the United States as his nationality when he arrives at full age.”

This policy, which appears to have been the policy of the United States from the founding of the country, may have been changed under the next Secretary of State, James Blaine, who wrote the following year:

“The child born to an alien in the United States loses his citizenship on leaving the United States and returning to his parent’s allegiance.”

So the policy under Mr. Blaine at least appears to be different.

It is interesting to note that Secretary of State Blaine seems not to have been trained as a lawyer. Three times he attempted to study law. It is unclear to me whether he managed any real legal training at all.

It is also not entirely clear whether Blaine’s doctrine actually represents the point at which the policy changed, or whether it is simply that the policy at that time was a complicated one.

It could be that children born on US soil of alien parents were regarded as US citizens for as long as they were in our country, and that if taken abroad during minority they “lost” their citizenship — but still kept the right to reclaim and reassume that citizenship upon reaching their age of majority.

Policy Under Frederick Freylinghuysen

By 1885, under Blaine’s successor, Frederick Frelinghuysen, the right of a US-born child carried abroad to be a US citizen upon reaching adulthood was actively denied.

Freylinghuysen’s policy, in direct conflict with that of Evarts, seems to have been based not only on the policy of his predecessor Blaine, but also on misunderstandings or misinterpretations of the earlier laws providing for naturalization of foreign-born children of a person being naturalized, and of Section 1992 of the United States Revised Statutes — the Civil Rights Act of 1866.

In 1885, Freylinghuysen wrote:

“The first case, of Ludwig Hausding, appears to have been decided according to the law and the facts. It is stated that, having been born in the United States of a Saxon subject, he was removed to his father’s native land, where he has ever since remained, although his father has subsequently become a citizen of the United States. You refused a passport on the ground that the applicant was born of Saxon subjects, temporarily in the United States, and was never ‘dwelling in the United States,’ either at the time of or since his parent’s naturalization, and that he was not, therefore, naturalized by force of the statute, section 2172, Revised Statutes…

Not being naturalized by the force of the statute[s] [which allowed for naturalization of minor children of persons being naturalized, and of the widow and children of an alien who had declared an intention to become a US citizen but who died before completing naturalization], Ludwig Hausding could only assert citizenship on the ground of birth in the United States; but this claim would, if presented, be untenable, for by section 1992, Revised Statutes, it is made a condition of citizenship by birth that the person be not subject to any foreign power.

It goes without saying that nothing changed in the Civil Rights Act of 1866 between November of 1880 and January of 1885. What changed, instead, was the State Department.

Freylinghuysen interpreted the Civil Rights Act as restrictive, when its purpose had been inclusive; as creating new law, when it was understood by its proponents to be merely declaratory of the law as it already existed; and its wording — “not subject to any foreign power” — as meant to exclude US-born children of non-citizens, when — as we’ve seen in the section on the 1866 debates — that was never the intention of any of those who crafted and passed the law.

Self-Contradiction?

But Freylinghuysen’s policy seems to have been confused and contradictory. Just two years earlier, in 1883, he wrote, quoting Attorney General Bates from 1862:

“Under the fourth section of the act of April, 1802, to establish a uniform rule of naturalization, &c., such children, if dwelling in the United States, are declared citizens. That section [continues the Attorney General], provides, in brief, that the children of persons duly naturalized under any of the law of the United States, &c., being under the age of twenty-one years at the time of their parents being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States.

The section, of course, refers to children born out of the United States; since the children of such persons born within the United States are citizens without the aid of statutory law.”

So did Freylinghusyen change his mind between 1883 and 1885? Perhaps he believed that earlier Attorney General Bates’ opinion had been correct, but that it had been abrogated by the Civil Rights Act of 1866, and then applied his misinterpretation of that Act to his decision.

Or, it’s possible that Mr. Freylinghuysen used whatever justification he could find in order to implement a restrictive policy in regard to citizenship and the issuance of passports, and ignored those parts of law or opinion which he found on a particular occasion inconvenient. It seems difficult at this point to know, at least without a far more thorough survey of Freylinghuysen’s records and writings than I’m prepared to undertake.

In any event, similar restrictive policies seem to have been applied under several succeeding Secretaries of State: Thomas Bayard (1885-1889), James Blaine again (a second stint, from 1889-1892), and Walter Gresham (1893-1895).

These policies made things more difficult for some children removed to other countries by their parents. Even so, none of the Secretaries of State between 1880 and 1900 (or anybody else during that period, for that matter) ever seems to have contended that a US-resident American-born child of non-citizen parents, who took up his American citizenship, was not a natural born citizen or would be thereby disqualified from serving as President. The example of John Charles Fremont was still relatively fresh. And, as covered elsewhere, the political enemies of Chester A Arthur did in fact claim that he was ineligible — alleging first that he had been born in Ireland, and then that he had been born in Canada — but they seem never to have even thought of the possibility that he might be ineligible by virtue of having had a non-citizen father.

Still, the restrictive State Department policies of the 1880s and 1890s are themselves generally favorable to the birthers’ two-citizen-parent claim. It was the existence of such policy, in fact, that was later emphasized by Breckenridge Long in his 1916 attempt to discredit Republican Charles Evans Hughes’ candidacy for the Presidency.

The fact that the policy represented a clear change from earlier understanding and policy, however, is not favorable to the two-citizen-parent claim. And the policy itself was doomed to disappear, struck down by the US Supreme Court in such decisions as US v Wong Kim Ark (1898) and Perkins v Elg (1939).

[To start at the very beginning, click here.] 

In this part, we’ll turn our attention to the developments in citizenship law after the 1857 Dred Scott decision.

The first significant development we’ll note is an 1862 Opinion on Citizenship written by Abraham Lincoln’s Attorney General, Edward Bates. Then, after the Civil War, there was a great debate in Congress regarding rights and citizenship for the 4 million freed slaves. Finally, we’ll look at an 1872 case that is sometimes used to support the birther claim.

Our sources for this period of American history will include:

• Opinion of Lincoln’s Attorney General Edward Bates (1862)
• The Senate and House debates on the Civil Rights Act of 1866 and the Fourteenth Amendment (1866)
• A statement from US Supreme Court Justice Samuel Freeman Miller in the Slaughter-House Cases (1872)

Opinion of Lincoln’s Attorney General Edward Bates (1862)

In the late summer of 1862, Captain Francis Martin, a Revenue Service inspector at Perth Amboy, New Jersey, made what ought to have been a routine boarding of a coal ship — the Elizabeth and Margaret — for inspection.

Although the ship had already been boarded twice without incident in July, Martin on this occasion — for whatever reason — detained the ship, on the grounds that the skipper, a Mr. David Selsey, was “a colored man.”

According to a 1793 law regulating the “coasting” trade, captains of such boats were required to be US citizens — and the Supreme Court, as we saw in Part 3, had ruled 5 years earlier that African Americans were not, and could never become, United States citizens.

Inquiries of what to do about Mr. Selsey and the “eight or ten” African American skippers in the area went up the line to Secretary of the Treasury Salmon P. Chase.

Secretary Chase, in turn, consulted the Attorney General.

The result was a 27-page letter to Mr. Chase, in which Bates wrote:

We have natural-born citizens (Constitution, article 2, § 5), not made by law or otherwise, but born. And this class is the large majority; in fact, the mass of our citizens; for all others are exceptions specially provided for by law. As they became citizens in the natural way, by birth, so they remain citizens during their natural lives…

The Constitution itself does not make the citizens (it is, in fact, made by them). It only intends and recognizes such of them as are natural — home-born — and provides for the naturalization of such of them as were alien — foreign-born — making the latter, as far as nature will allow, like the former…

As far as I know, Mr. Secretary, you and I have no better title to the citizenship which we enjoy than “the accident of birth” — the fact that we happened to be born in the United States. And our Constitution, in speaking of natural-born citizens, uses no affirmative language to make them such, but only recognizes and re-affirms the universal principle, common to all nations, and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic.

If this be a true principle, and I do not doubt it, it follows that every person born in the country is, at the moment of birth, prima facie a citizen; and he who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the “natural-born” right as recognized by the Constitution in terms the most simple and comprehensive, and without any reference to race or colour, or any other accidental circumstance.

Since birthers claim there is a huge distinction between the terms “natural born citizen” and “natural born subject” (with the former somehow requiring citizen parents while the latter does not) we might also note Bates’ opinion on that matter:

In my opinion it is a great error, and the fruitful parent of errors, to suppose that citizens belong exclusively to republican forms of government. English subjects are as truly citizens as we are, and we are as truly subjects as they are.

In this, Bates agreed with Judge Gaston of North Carolina, who earlier had stated, in essence, that the only real difference between a citizen and a subject was that a citizen’s allegiance was to the entire body of people in the nation, while a subject’s allegiance was to a king.

Bates dismissed the importance of the Dred Scott ruling, concluding,

“I give it as my opinion that the free man of color, mentioned in your letter, if born in the United States, is a citizen of the United States, and, if otherwise qualified, is competent, according to the acts of Congress, to be master of a vessel engaged in the coasting trade.”

On hearing of Bates’ official letter, the New York Times proclaimed, “The Dred Scott Decision Pronounced Void.” The Revenue Service went back to ignoring Scott v Sandford. David Selsey and the other African-American skippers continued to ply their trade along the coasts of the United States, just as they had done for years. And the stage was set for Congress to believe, contrary to Chief Justice Taney’s opinion, that they possessed the authority to pass the Civil Rights Act of 1866.

The Senate and House debates on the Civil Rights Act of 1866 and the Fourteenth Amendment (1866)

Four years later, the Civil War was ended, and a bloodied nation had begun to rebuild — differently, this time.

This time, the institution of slavery would be swept away.

In December, the Thirteenth Amendment had begun to achieve what Lincoln’s Emancipation Proclamation had only touched on — it had outlawed slavery in the United States, and (in name, at least) it had set free some 4 million Americans.

What kind of rights, if any, these newly freed Americans would actually have would require a lot more work.

The Civil Rights Act of 1866 was intended to assure basic civil rights for the newly freed slaves. Along the way, a debate naturally arose regarding whether African Americans were United States citizens. It became obvious that the bill should issue a declaration to that effect.

The idea was to affirm that all persons born in America — not just white people — were citizens. Indians in tribes, however, were a problem. They did not participate in United States society. They lived as members of separate, sovereign nations even though on United States soil. They were subject to United States laws only to the extent that they left their tribes and entered the white man’s world. Otherwise, they were accountable only to tribal law. In that sense, they were simply not subject to the jurisdiction of the United States government.

Some of our Senators and Representatives strenuously opposed the recognition that black Americans were citizens. A few also opposed such recognition for members of other ethnic groups, particularly Chinese people and Gypsies. The sentiment of this group was summed up by Senator Garrett Davis of Kentucky:

“It is a white man’s government. I say that the
negro is not a citizen.”

Davis’ faction, opposed to both the Civil Rights Act and to the Fourteenth Amendment which would follow, would have been much larger — but for the fact that the Confederate states, defeated in the war, were at that time not allowed any representation in Congress!

Against those of Davis’ mind were aligned such champions of liberty and civil rights as Senators Lyman Trumbull of Illinois and Jacob Howard of Michigan, Representatives James Wilson of Iowa, John Bingham of Ohio, Lot Morrill of Maine, Burton Cook of Illinois, and others. On occasion, the confrontation was direct:

Trumbull: Will the Senator from Kentucky allow me to ask him if he means to assert that negroes were not citizens of any of these colonies before the adoption of the Constitution?

Davis: I will come to that presently.

Trumbull: I understood him to assert that they were not citizens when the Constitution was adopted in any of the states, and to challenge contradiction.

Davis: I say they were not.

Trumbull: Does the Senator wish any authority to show that they were? If he does, I will state that I have before me —

Davis: When I get through you can answer me.

Trumbull: I understood the Senator to challenge me to produce any proof on that point, and I thought he would like to have it in his speech. I can assert that by a solemn decision of the supreme court of North Carolina they were citizens before the adoption of the Constitution.

Davis: If the honorable Senator will allow me, I will get along with my remarks.

Trumbull: I think you will get along better by not being exposed in your statements.

The Civil Rights Act passed. But it was not enough. The Dred Scott decision left the haunting prospect that the bill might be declared unconstitutional, or that a future Congress might repeal it.

To prevent such a thing from happening, our Senators and Congressmen introduced the Fourteenth Amendment to the Constitution, which was successfully adopted by 1868.

Birthers have taken several quotes from the debates on the Civil Rights Act of 1866 and the Fourteenth Amendment completely out of their context, using them to “proof-text” their claim that it takes citizen parents to be a natural born citizen.

It is a gargantuan task to actually read the debates. Just the House debates for the Civil Rights Act alone took up two entire weeks of floor time, with some 40 speeches being made.

Having made the effort earlier this year to diligently work my way through the entire debates, for both house of Congress and for both the Civil Rights Act and the Fourteenth Amendment, I can tell you with complete authority that these laws absolutely do NOT mean what the birthers claim they mean.

The Civil Rights Act says, “…all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”

The Fourteenth Amendment similarly declares, “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 birthers claim that these clauses exclude children born on US soil of non-citizen parents from natural born citizenship. In spite of the out-of-context quotes from Lyman Trumbull, John Bingham and Jacob Howard put forth by birthers, the claim is simply and categorically false.

The ONLY persons, born on US soil, intended in these debates to be excluded from citizenship (including “natural born” citizenship) were Indians in tribes and the traditional historical exceptions from the English common law: the children of ambassadors, foreign royalty, and occupying armies.

People argued about black Americans, on the basis of their race. They argued — a little bit, at least — about Chinese people and Gypsies, on the basis of their race, and of their relative isolation from the mainstream society.

But not once in the entire debates did any Senator or Representative — including those who were opposed to the measures — ever maintain that the children born on US soil of white, European non-citizen immigrants were not natural born citizens, or that such persons had ever been excluded from being natural born citizens.

The quote from Lyman Trumbull that is abused by birthers (“What do we mean by “complete jurisdiction thereof?” Not owing allegiance to anybody else. That is what it means.“) was a response to the suggestion that Indians in tribes would be declared citizens. The full quote is as follows:

That means “subject to the complete jurisdiction thereof.” Now, does the Senator from Wisconsin pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United States? What do we mean by “complete jurisdiction thereof?” Not owing allegiance to anybody else. That is what it means. Can you sue a Navajoe Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we would not make treaties with them. If we want to control the Navajoes… Do we pass a law to control them? Are they subject to our jurisdiction in that sense?

The phrase “subject to the complete jurisdiction thereof” simply means fully subject to United States laws.” In that sense, all immigrant non-citizens are “subject to the complete jurisdiction thereof.”

And yet birthers take the quote of context, and present it as if Trumbull were speaking of non-citizen immigrants, when he clearly was not.

A previous article dealt with the quote from Representative John Bingham similarly taken out of context and used by birthers to “proof-text” their claim.

Finally, the following passage illustrates and clarifies the understanding of our Senators on this issue:

Mr. WADE. The Senator from Maine suggests to me, in an undertone, that persons may be born in the United States and yet not be citizens of the United States. Most assuredly they would be citizens of the United States unless they went to another country and expatriated themselves…

Mr. FESSENDEN. Suppose a person is born here of parents from abroad temporarily in this country.

Mr. WADE. The Senator says a person may be born here and not be a citizen. I know that is so in one instance, in the case of the children of foreign ministers who reside “near” the United States, in the diplomatic language. By a fiction of law such persons are not supposed to be residing here, and under that fiction of law their children would not be citizens of the United States, although born in Washington. I agree to that, but my answer to the suggestion is that that is a simple matter, for it could hardly be applicable to more than two or three or four persons; and it would be best not to alter the law for that case.

So according to our Senators, the ONLY people born in the United States who would not be citizens at and by birth, were those from the traditional common-law exceptions: children of royalty, ambassadors, and occupying armies. Even if a child were born in the United States of people here on a temporary visit, the understanding of our Senators, during the debate, was that such a child would be born a US citizen.

And they were not at all concerned about that prospect. That was the last that was said of it.

The next week, Senator Jacob Howard, while reintroducing the topic, said something that (like every other quote they cite from the debates) has been stripped of its context and misrepresented by the birthers:

This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.

Birthers claim that “foreigners, aliens” is something different from “who belong to the families of ambassadors or foreign ministers.”

Grammatically, the sentence is structured to imply that all three are simply a restatement of the same thing. By “foreigners” and “aliens” Howard means those who “belong to the families of ambassadors or foreign ministers.” Or, an alternate reading is that “foreigners” means “aliens who belong to the familes of ambassadors,” etc. In any case, the sentence completely lacks the “and” or “or” between the words that would mean that they are something different.

Aside from that: we know from the Senate record that Senator Howard was present in the room, speaking, just before Senator Wade began, and only minutes before Fessenden asked his question above: “Suppose a person is born here of parents from abroad temporarily in this country?” And we also likewise know — for certain — that Howard was present after Senator Wade finished his speech.

And Jacob Howard made no objection to Wade’s reply — that the only exceptions those traditionally recognized, such as the children of foreign ministers. Senator Howard also strongly implies, in his reintroduction, that he has been present to hear every word.

Therefore it is clear that Jacob Howard was simply restating the same thing that Senators Fessenden and Wade had concluded the previous week, which he had been in the chamber to hear.

The consensus, indeed, of these debates — and it was a consensus on all sides — was that, at least as it concerned the “desirable” races, children born on US soil of non-citizen immigrant parents were themselves United States citizens. It does not seem that this fact was contested even one single time in the entire long course of the debates.

For this reason, these debates are further evidence against the birther claim.

Many other quotes from these debates are available here.

We will wrap up this important phase of history by looking at a Supreme Court case that is sometimes cited in favor of the birther claim.

A Statement from Justice Samuel Freeman Miller in the Slaughter-House Cases (1872)

The city of New Orleans, in the mid 19th century, was an awful place to live if you wanted clean drinking water. A mile and a half upstream, slaughterhouses gutted 300,000 animals a year. One presumes it was easier to float fully-laden boats downstream to the city and return upstream empty, than doing things the other way around.

As a result, New Orleans drinking water was constantly contaminated with animal entrails, dung, urine, and blood. This led to 11 cholera outbreaks in just 37 years.

The state legislature passed a law requiring the butchers to relocate to the south of the city. More than 400 butchers banned together and sued, alleging that their rights under the new Fourteenth Amendment (which was color-blind in its civil rights wording) had been violated. The result was the consolidation of several lawsuits into one, which reached the Supreme Court in 1872 as the Slaughter-House Cases. This case was the first Supreme Court interpretation of the Fourteenth Amendment. And as we’ve seen, it was really about civil rights.

However, in his Opinion, Justice Samuel Freeman Miller makes a statement that touches on citizenship.

Now the Fourteenth Amendment begins:

“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.”

In the majority opinion, Justice Miller says:

“The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”

Once again, we have a statement in the Supreme Court which — on its face — seems to support the Apuzzo/ birther claim, since it says that “children of… citizens or subjects of foreign States born within the United States” were not “subject to its jurisdiction.”

But once again, it quickly gives way to serious problems.

The Supreme Court in US v Wong Kim Ark (1898) examined this exact comment, but classified it as non-authoritative dicta:

“This was wholly aside from the question in judgment and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to authorities, and that it was not formulated with the same care and exactness as if the case before the court had called for an exact definition of the phrase is apparent from its classing foreign ministers and consuls together — whereas it was then well settled law… that consuls… are subject to the jurisdiction, civil and criminal, of the courts of the country in which they reside.”

All of which says, quite clearly, that the statement was simply a non-authoritative side comment.

In addition, the 1898 Court said that when push came to shove, the statement clearly did not represent a committed opinion of the 1872 Court on the status of US-born children of aliens:

“That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment is manifest from a unanimous judgment of the Court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench…”

The majority Opinion from 1898 then quotes the very passage of Minor v Happersett (a case we will look at in Part 5) that birthers quote to “support” their claim — but it does so as evidence against such a claim!!

Third, as noted above, a careful and honest reading of the Congressional debates on the Civil Rights Act of 1866 (which paved the way for the Fourteenth Amendment) and of the debates on the Fourteenth Amendment itself make it clear that the statement is simply not true. Again, as noted, the ONLY people our Congressmen in those debates regarded as “not subject to the jurisdiction of the United States” were Indians under tribal government, and children born here of foreign ambassadors and royalty and invading armies.

The statement by Justice Miller, then, was simply and clearly erroneous. And as an erroneous statement — which was also recognized as non-authoritative dicta by the later Court — it fails to give any support to the two-citizen-parent claim.

To Be Continued in Part Five

If you’ve read this far, know that the hard part is behind us. There’s not that much further to go.

In Part Five, we’ll complete the journey to the 20th century, pausing briefly to look at two Court cases — the one that Mario Apuzzo and other birthers claim settled the “natural born citizen” issue… and the one that actually did.

And we might just find a new voice in the birthers’ favor along the way.

[To start at the very beginning, click here.] 

Having examined the meaning of “natural born citizen” during the lifetime of the Founders, let’s look at what it meant between that time and the US Civil War.

The founding of the new nation brought some uncertainty about citizenship for some who happened to leave the country after the Revolution — especially in the case of children taken to England by their parents. The parents, at least, had been British subjects. Then the Revolution came. Who was a US citizen? Who was a subject of the Crown?

Some of these questions would return to haunt children born during the period of separation of the two countries — typically when the time came to pass on an inheritance.

As well, the nation had been founded with a dire sickness at its core: the evil of slavery. In the last two weeks of the Constitutional Convention, a deal had been struck which would guarantee the continuation of the slave trade for a further 20 years. But it was a deal with the Devil. And as George Mason had ominously, prophetically, warned his fellow delegates on August 22nd:

“Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a Country. As nations can not be rewarded or punished in the next world they must be in this. By an inevitable chain of causes & effects providence punishes national sins, by national calamities.”

Ironically, George Mason was, after George Washington, the second largest holder of slaves in Fairfax County, Virginia. He apparently found himself unable to embrace in personal commitment what his head and heart both knew and felt to be true. Or perhaps he convinced himself that his slaves were in a better situation serving his family than they would be if he freed them in 1790 Virginia. In any event, upon his death 5 years after the Convention, none of his slaves were freed.

The slavery problem, and the division between free and slave states, would eventually lead to the 1857 Dred Scott case. That was a case that involved citizenship. It has also been called the worst Supreme Court decision in US history.

Our sources for this stretch of history center around the court cases that struggled with these issues of citizenship. They are as follows:

• US Supreme Court: Shanks v Dupont (1830)
• US Supreme Court: Inglis v Sailors’ Snug Harbor (1830)
• New York State: Lynch v Clarke (1844)
• A statement from legal expert Horace Binney (1853)
• The curious case of John Charles Frémont (1856)
• And a statement from US Supreme Court Justice Peter Daniel in the case of Scott v Sandford (1857)

US Supreme Court: Shanks v Dupont (1830)

Mario Apuzzo has claimed that this case supports his claim:

Even our United States Supreme Court in 1830, per Justice Story, clearly established that merely being “born in a country” did not equate to being a “natural born Citizen.” Rather, the Court also required “citizen” parents. In Shanks v. Dupont, Justice Story, writing for the Court in 1830, stated:

“Whether she was of age during this time does not appear. If she was, then her birth and residence might be deemed to constitute her by election a citizen of South Carolina. If she was not of age, then she might well be deemed under the circumstances of this case to hold the citizenship of her father; for children born in a country, continuing while under age in the family of the father, partake of his national character, as a citizen of that country.”

And this statement comes from the majority Opinion.

As is frequently the case with birthers, however (sorry, but it’s true) Mr. Apuzzo strips the quote from its context.

This particular case is a complex mishmash of competing interests.

We have a woman who was born a British subject on American soil while that soil belonged to England. She was an American at the Declaration of Independence — at which time she may or may not have been a minor. She then married an English officer and moved to England, becoming once more a British subject. Finally, she died, leaving five British children in England, who were suing for a share of their grandfather’s South Carolina estate in a now independent America.

The property in question itself began as part of an English colony. The English colony then declared independence and became part of the United States. The property was captured and held by the British; and then eventually it was given back to the United States of America.

In addition to the revolving nationalities of both Ann Shanks and her father’s property on James Island, the case also concerns:

• the election of American colonists upon Independence, to be either American or British
• how the capture of a territory affected the citizenship of its inhabitants
• how a father’s nationality affected that of his minor children
• and how a husband’s nationality affected that of his wife.

And the principle mentioned by Story has to do not with citizenship in an established country, but the division of people and land during the great divorce between the American Colonies and Britain. It is one principle of many used to decide the case.

Let’s look again at the passage Apuzzo quotes:

“Whether she was of age during this time does not appear. If she was, then her birth and residence might be deemed to constitute her by election a citizen of South Carolina. If she was not of age, then she might well be deemed under the circumstances of this case to hold the citizenship of her father; for children born in a country, continuing while under age in the family of the father, partake of his national character, as a citizen of that country.”

During this time… during what time? Mr. Apuzzo somehow leaves out that highly relevant point.

“…at the time of the Revolution, and afterwards… until December, 1782.”

So the question had nothing to do with citizenship in a settled country. The principle laid down was this: Ann Shanks, like all American Colonists, was born a British subject. If she was “of age” from 1776 to December of 1782, then she had clearly chosen — as an adult — to embrace American citizenship.

If she was a minor at that time, however, she could not make the choice for herself, and it could be presumed her father had made a choice on behalf of his minor child. Her father had adhered to the American cause, so it could be presumed that in either event, the choice had been made that she was going to leave British subjecthood and become an American.

Shanks v Dupont simply doesn’t have to do with the citizenship of a child born into a settled country. For that reason, it doesn’t lend any support to Apuzzo’s claim. And this fact is about to become clear when we consider what the exact same Justice said in our next case.

US Supreme Court: Inglis v Sailors’ Snug Harbor (1830)

That Mr. Apuzzo’s claim regarding Shanks v Dupont is of no value is shown by a quote from the exact same Justice who wrote that Opinion — Justice Joseph Story — in the similar case of Inglis v Sailor’s Snug Harbor, which was decided the exact same month as Shanks v Dupont:

That the father and mother of the demandant were British born subjects is admitted. If he was born before 4 July, 1776, it is as clear that he was born a British subject.

If he was born after 4 July, 1776, and before 15 September, 1776, he was born an American citizen, whether his parents were at the time of his birth British subjects or American citizens. Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth.

If he was born after 15 September, 1776 [the date when the British troops took possession of the City of New York and its surroundings], and his parents did not elect to become members of the State of New York, but adhered to their native allegiance at the time of his birth, then he was born a British subject.

Note the key quote from the passage above: If he was born after 4 July, 1776, and before 15 September, 1776, he was born an American citizen, whether his parents were at the time of his birth British subjects or American citizens. Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth.

And note also that Justice Story applies that principle of “the common law” to a child born of British subjects on what was by that time independent United States soil.

Mr. Apuzzo claims, lamely, that Justice Story “must have done some soul searching and realized that in America children followed the citizenship of their parents until the age of majority at which time they could chose what citizenship they wanted.”

But Supreme Court Justices don’t say state in one court case that “nothing is better settled” than a particular legal principle, and then claim the exact opposite the very same month.

Mario Apuzzo has noted, correctly, that Justice Story’s opinion in Inglis was not the majority opinion. But he avoids several key points.

First, the Court specifically said their majority opinion on the citizenship question was not based on a very extended examination, as it wasn’t necessary to examine that question at all. They had already decided that John Inglis had no legal right to the property in dispute even if he was legally capable of inheriting it. Therefore, it was unnecessary to determine whether he was capable of inheriting as a US citizen.

“It is not, however, deemed necessary to go into a very extended examination of the other questions, as the opinion of the Court upon the one already considered is conclusive against the right of recovery in this action.”

Second, the case was not at all about the citizenship status of children born on US soil once the dust had settled from the Revolution. Like Shanks, it was about the division of the people in America who were in the process either of becoming American citizens or staying British subjects. It was, in essence, about custody of the “children” in the great divorce between England and America.

“This question as here presented does not call upon the Court for an opinion upon the broad doctrine of allegiance and the right of expatriation under a settled and unchanged state of society and government. But to decide what are the rights of the individuals composing that society, and living under the protection of that government when a revolution occurs, a dismemberment takes place, new governments are formed, and new relations between the government and the people are established…”

Third, the Court never stated that John Inglis was born an alien. They made it plain that because he was born in New York during the formation of the country, he had possessed the right to choose to become an American — even though he had left the country with his British-choosing father at a very early age. They also made it clear that since he was about 45 years old when the case was finally brought, and he had never chosen to come back to America and participate as an American citizen, it was too late now. He had clearly, in their view, “adopted and ratified the choice made for him by his father:”

“John Inglis, if born before the declaration of independence, must have been very young at that time and incapable of making an election for himself, but he must, after such a lapse of time, be taken to have adopted and ratified the choice made for him by his father, and still to retain the character of a British subject, and never to have become an American citizen…

If born after 4 July, 1776, and before 15 September of the same year, when the British took possession of New York, his infancy incapacitated him from making any election for himself, and his election and character followed that of his father, subject to the right of disaffirmance in a reasonable time after the termination of his minority, which never having been done, he remains a British subject and disabled from inheriting the land in question.”

The only difference, in fact, between the opinion of the majority and that of Justices Story and Johnson, was that in the view of the former, the United States was still forming in the early months after the Revolution, and Inglis was born during the period in which people were making that choice. Therefore, in their view, that gave John Inglis the right to choose to be an American citizen, but not automatic citizenship in the new country. And because Inglis had never made that choice in a timely manner, he was incapable of making it now.

In the contrasting view of Story and Johnson, the United States was already formed, and John Inglis was born an American, and was still an American, even though he had left as a very young child, and had never returned to the US for more than 40 years.

Therefore, the only directly applicable evidence in this case is Story’s quote about it being well settled that those born in a country are citizens of that country. Inglis is therefore evidence against the birther claim.

New York: Lynch v Clarke (1844)

This precedent-setting case — later cited by the US Supreme Court — found that the US-born child of non-citizen parents, even though those parents did not settle in the United States permanently, was a natural-born citizen:

My conclusion upon the facts proved is, that Julia Lynch was born in this state of alien parents, during their temporary sojourn. That they came here as an experiment, without any settled intention of abandoning their native country, or of making the United States their permanent home…

It is indisputable that by the rule of the common law of England, if applied to these facts, Julia Lynch was a natural born citizen of the United States…

One remarkable thing about this case is that — although Judge Sandford mentions the English common law in the passage above, the case was ultimately decided not based directly on the English common law, but on American common law. And this case, and its conclusion, was later cited approvingly by the US Supreme Court.

This obviously ruins Mario Apuzzo’s claim that American common law based on the law of nations created a “birther” definition of “natural born citizen.”

Judge Sandford also finds, very directly and clearly, that a child born on US soil to alien parents is eligible for the Presidency:

The only standard which then existed, of natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the Constitution? I think not. The position would be decisive in his favor that by the rule of common law, in force when the constitution was adopted, he is a citizen.

A full article on this very interesting case is now available.

A statement from legal expert Horace Binney (1853)

Leo Donofrio, Mario Apuzzo and others have made much of a quote by US legal expert Horace Binney in US v Wong Kim Ark which they claim implies that the US-born child of non-citizen parents may be a citizen, but not a natural born citizen:

Wong Kim Ark itself distinguished between a child born in the country to one or two alien parents and a child born in the country to citizen parents, telling us that while both are “citizens,” only the latter is a “natural born Citizen.” Wong said: “‘The child of an alien, 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.’ p. 22, note.” Wong Kim Ark, at 666-67 (citing and quoting Binney’s 1853 pamphlet on citizenship).

As I have pointed out elsewhere, if I say that my neighbor’s tomatoes are just as good as the organic tomatoes from the grocery store, that is not a statement that my neighbor’s tomatoes are not organic. They might well be. Or, they might not be. The statement itself does not tell us. It only tells us that they are as good as the organic ones from the grocery store.

Here as elsewhere, Mr. Apuzzo cherry-picks an ambiguous statement that can be interpreted to say what he wants, and claims that it proves what he wants to prove — while simultaneously ignoring or denying a clear and directly applicable statement by the exact same authority which directly contradicts his claim.

In the exact same book the former statement comes from, Mr. Binney writes:

But the law of France rejects the principle of the English law, and of our own laws, that birth within the limits and jurisdiction of France, makes a Frenchman, or a natural-born citizen or subject of France, absolutely, and provides only for the acquisition of that character by the child so born, on his complying with certain formalities in the course of the year that ensues his arrival at the epoch of his majority.

What does Binney tell us the principle is in English and American law? That birth within the limits and jurisdiction of [the country referenced] makes a “natural-born citizen or subject… absolutely” — in other words, with no further conditions at all. No “formalities” as are required in France. No naturalization. No nothing.

Horace Binney therefore clearly and directly contradicts the claim.

For more details, see the article on Horace Binney at this site.

The curious case of John Charles Frémont (1856)

The first Presidential candidate of the Grand Old Republican Party was born to a non-citizen father who never became a US citizen.

What’s more, John Charles Frémont practically bragged about the fact during his 1856 Presidential election campaign.

A lot of folks have the impression that Abraham Lincoln was the young Republican Party’s first candidate for President. But he wasn’t. John Charles Frémont paved the way for Lincoln, and undoubtedly made Lincoln’s election possible.

And as the official, authorized, Campaign Edition of Frémont’s biography notes, he was born in Savannah, Georgia, to a French citizen who was “a devoted lover of his country” and who, when John was still four years old, “prepared to return once more to his native land.” John’s mother was American.

But before the elder Frémont could leave for France with his wife and three children, including John, he fell ill after a hunting expedition, and died.

That Jean Charles Frémont never became a naturalized American citizen is entirely obvious, from the following two facts:

• We are very clearly and repeatedly told that his intention was to get back to his beloved native country of France; and
• The 1802 Naturalization Act quite clearly required all persons becoming naturalized US citizens to take an oath “to renounce forever all allegiance and fidelity to any foreign prince, potentate, state or sovereignty whatever, and particularly, by name, the prince, potentate, state or sovereignty whereof such alien may, at the time, be a citizen or subject.”

In other words, the elder Frémont would have had to completely renounce his French citizenship in order to become a US citizen.

The biographical facts noted above also appeared in other accounts of the life of John Charles Frémont that were published during the 1856 campaign.

It is obvious that Presidential candidate John Charles Frémont would not have publicized his father’s non-citizen status in his election campaign materials if he had thought that doing so would cause a problem. And indeed, there is not the slightest hint that anybody ever thought that Colonel Frémont’s birth to a non-citizen father was any impediment whatsoever to his eligibility for the Presidency.

These facts, then, are a solid indication that nobody in 1856 believed that the correct definition of “natural born citizen” required either two citizen parents or (as a few people have contended for) a citizen father.

By the way, Frémont was so famous in his day that there are cities, and streets in cities, named after him all over the United States. My own city of Springfield, Missouri, has a fairly major street, an elementary school, and a shopping center all named after Colonel John C Frémont.

A Statement from Justice Peter Daniel in the Case of Scott v Sandford (1857)

Last one for this section of history!

This is the infamous Dred Scott case, and Daniel quotes the favorite “birther” passage from Vattel’s Law of Nations. He even quotes the 1797 translation, which uses the phrase “natural born citizens:”

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 society cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights.

Again:

I say, to be of the country, it is necessary to be born of a person who is a citizen, for if he be born there of a foreigner, it will be only the place of his birth, and not his country. The inhabitants, as distinguished from citizens, are foreigners who are permitted to settle and stay in the country.

There are, however, four problems with using this quote from Justice Daniel to establish the meaning of “natural born citizen.”

The first problem is that it was part of the most odious Supreme Court decision in history; and Justice Daniel, elsewhere in his same opinion, found that

• a) 62-year-old Mr. Dred Scott was “strictly property, to be used in subserviency to the interests, the convenience, or the will, of his owner,” and
• b) African Americans were not “persons,” but had been historically regarded as mere property, and as such could not be parties at all — much less equals — in any compact or form of government in the United States.

Clearly such a judicial opinion would NOT be regarded as Constitutional today.

The second problem is that Daniel didn’t cite this passage from Vattel in order to make the point that it required citizen parents to be a natural born citizen. He cited it for the sole purpose of supporting point a) above — his point that Dred Scott was property, not a citizen, and therefore did not possess any of the rights of a citizen (such as the right to sue in court). Using it to support the birther idea is therefore a misapplication of the quote.

Again, this quote from Vattel was merely part of the rationale for a judge to rule that a person… was not a person.

The third problem is that Daniel’s opinion was not the majority opinion. It was a separate opinion. It agreed in most respects with the majority opinion — but it was solely Daniel’s own opinion and was not joined by any other Justice on the Bench. This particularly includes the quote from Vattel, which was not found in any other Justice’s opinion in the case.

And the fourth problem is that in the exact same case, in a dissenting opinion, Justice Benjamin Curtis directly contradicted the two-citizen-parent idea! His relevant quote is as follows:

The first section of the second article of the Constitution uses the language, “a natural-born citizen.” It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.

For these four reasons, the misapplied quote from Justice Daniel — particularly considered together with Justice Curtis’s direct contradiction of it — really provides no evidence to help the Apuzzo/ birther claim.

To Be Continued in Part Four

The nation that had been founded with the words, “We hold these truths to be self-evident, that all men are created equal…” now faced a situation in which some men were declared by the nation’s highest Court to be, legally speaking, not men at all, but mere property.

They were also told that they were NOT created equal, and that they were NOT endowed by their Creator with certain inalienable rights. They were told that they were not, and could never become, citizens.

To address this disconnect with one of the nation’s founding principles would require not only the freeing of several million persons then held as slaves, but new statements enshrined in law, that would guarantee those millions the same rights held by others. Ultimately, it would require a Constitutional Amendment.

In Part Four, we will look at natural born citizenship as understood in the Civil Rights Act that followed the Civil War, in the Fourteenth Amendment, and beyond — to the beginning of the 20th century.

[Note: This post began as a portion of Part 3 of this blog’s final article. It has been split out to make a post of its own.] 

Previously at this blog, we’ve looked at Mario Apuzzo’s claim that American common law established a definition of “natural born citizen” — a definition which excludes the children born on US soil of alien parents from being natural born citizens (and therefore, from Presidential eligibility).

At that time, I was not aware of any case in which American common law seemed to have settled that question.

So you can imagine my at least mild surprise when I discovered recently that there is an American court case which stated that American common law does define whether a child born on US soil of alien parents is a natural born citizen.

The case is an interesting one. It involves a dispute over the ownership of some valuable land in New York State. The land had a spring that produced mineral water which was then sold to the public, producing a large and ongoing yearly income. (The same property is today a park in Saratoga Springs, NY).

The business, Lynch & Clarke, was owned by Thomas Lynch and Dr. John Clarke until Mr. Lynch’s death in 1833.

The Stage is Set for a Confrontation

Julia Lynch, Thomas’s niece, was born in the spring of 1819 in New York City to Thomas’ brother Patrick and his wife. Both of these were British subjects who lived in Ireland, but resided temporarily in the United States. Before Julia was six months old, the entire family moved back to Ireland — and there they stayed.

But there was a third brother, Bernard, who moved to the United States after Thomas’s death, became an American citizen, got special clearance to inherit Thomas’s property if there were no other heirs, and sued John Clarke and his own niece, Julia Lynch. He claimed that he should have a half-interest in the property and business and that Julia should get nothing.

The case therefore was Lynch v Clarke and Lynch (1844), but it is usually known by its abbreviated title of Lynch v Clarke.

Under the laws at the time, neither Julia Lynch nor her uncle could inherit from Thomas Lynch if they were not US citizens — except by special permission. If Julia was already a US citizen, however, then any property that had belonged to her uncle was legally hers, and her other uncle was due nothing.

As of 1844, Bernard was trying to get his hands on what had belonged to his brother Thomas, and to cut his niece out. The case therefore turned on the question of Julia’s citizenship. And citizenship, the court determined, was not a state issue but a national one.

The question therefore was: Is a child born in the United States of alien parents who are only temporarily here, a United States citizen?

And to answer that question required determining what the law of the United States was.

A State Case that Examined National Law

The answer, the court said, was to be found in the American common law. Here are excerpts from Judge Lewis Sandford’s decision in that case:

It is an indisputable proposition, that by the rule of the common law of England, if applied to these facts, Julia Lynch was a natural born citizen of the United States. And this rule was established and inflexible in the common law, long anterior to the first settlement of the United States, and, indeed, before the discovery of America by Columbus… This was settled law in the time of Littleton, who died in 1482.

Foreigners arriving here intermediate the Declaration of Independence and the adoption of the constitution, became citizens or aliens, according to the laws of the several states where they resided; and the children of aliens born here during that interval, became citizens in those states, because,
as will presently be shown, the common law was in that respect, the law of all the states…

In reference to… those who were born here of alien parents — it is claimed that the common law continued in force, which will be a subject for inquiry presently. Whether it did or did not, their condition was to be ascertained by a national law…

At the formation of our present national government, the common law prevailed as a system of jurisprudence, in all the thirteen states which then constituted the nation…

It is indifferent whether we say that we inherited the common law, or the principles of the common law. There is no doubt but that in all the thirteen colonies, it was the common origin of our jurisprudence…

Judge Tucker says that an alien in America was entitled to many more rights than an alien in England…

[I include the above comment because it makes it clear that American policy and law was more embracing of foreigners than English law. Therefore, as a land which eagerly welcomed new immigrants in order to build our population and fortunes, America undoubtedly would have been more embracing of the children of such immigrants as well. Yet even under English law, the children born within the country of alien parents were natural-born subjects, and thus equal with all other native-born persons in having the highest possible status of membership in that society. The above comment also references St. George Tucker, whom Mario Apuzzo (falsely) claims supports his position.]

It may then be safely assumed, that at the Declaration of Independence, by the law of each and all the the thirteen states, a child born within their territory and ligeance respectively, became thereby a citizen of the state of which he was a native. This continued unchanged to the time when our National Constitution went into full operation. There is no evidence of any alteration of the rule in any of the states during the period that intervened; and the references which will be made under another head, show conclusively that there had been no intermediate change in their policy…

[Judge Sandford also makes the point that terms in the Constitution are to be understood in reference to their definitions from the English common law, by noting that the Framers of the Constitution provided no definition for the terms “impeachment, felonies, treason, bribery, indictment, cases in equity, bankruptcy, attainder, and writ of habeas corpus,” “all of which were unknown even by name, to any other system of jurisprudence than the common law.”]

The Constitution of the United States contains no clause declaring who shall be citizens, nor is there any act of Congress which applies to the case of Julia Lynch. The necessity for a rule or principle applicable to this subject, and co-extensive with the nation, has existed ever since the adoption of the constitution, and cases to which it is applicable, have been arising constantly since that period. The states parted with their control of the matter to the federal government. Therefore, there must have been a national principle or rule of law, co-eval with the existence of the Union, governing the subject. And the question whether Julia Lynch was or was not a citizen, must be determined by the national unwritten law. [That is, the American common law.]

It is a necessary consequence, from what I have stated, that the law which had prevailed on this subject, in all the states, became the governing principle or common law of the United States. Those states were the constituent parts of the United States, and when the union was formed, and further state regulation on the point terminated, it follows, in the absence of a declaration to the contrary, that the principle that prevailed and was the law on such point in all the states, became immediately the governing principle and rule of law thereon in the nation formed by such union.

If there had been any diversity on the subject in the state laws, it might have been difficult to ascertain which of the conflicting state rules was to become, or did become, the national principle. And if such diversity had existed, it is reasonable to believe that the framers of the constitution would have borne in mind, and enacted a uniform rule, or authorized Congress to establish one. The entire silence of the constitution in regard to it, furnishes a strong confirmation, not only that the existing law of the states was entirely uniform, but that there was no intention to abrogate or change it.

The term citizen, was used in the constitution as a word, the meaning of which was already established and well understood. And the constitution itself contains a direct recognition of the subsisting common law principle, in the section that defines the qualification of the President. “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,” &c.

The only standard which then existed, of natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the Constitution? I think not. The position would be decisive in his favor that by the rule of common law, in force when the constitution was adopted, he is a citizen.

Judge Sandford later says the exact same thing that St. George Tucker stated earlier, that the laws of the United States regarding naturalization are in harmony with the English (and American) common law rule of citizenship at birth:

In harmony with the certainty of the common law rule respecting natives born, are our statutory provisions for the admission of aliens to the rights of citizen.

Then:

Upon principle, therefore, I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen.

Judge Sandford also deals with the claim Mr. Apuzzo makes, that the child “follows the condition of the parent:”

Before parting with this subject, I will examine further the grounds on which the citizenship of Julia Lynch was denied. It was assumed to be an indisputable proposition, that by the international or public law, she was an alien; for that by the public law, the child follows the political condition of the parent…

The rule contended for, is one confined to countries which derived their jurisprudence from the civil law, and is more properly a rule of the civil law, than one of the public law, or law of nations.

[Sandford then reviews various authorities before concluding:]

These references show that the rule which the complainant derives from the writers on public law is not even in theory, clearly defined or uniformly held.

He then states that “the most approved authorities, do not deviate from the rule of the common law, any farther than Judge Story has suggested that it reasonable to deviate.” He notes that such a rule would be unworkable and is inconsistent with English and American practice, and says:

With these remarks, I dismiss the argument founded on the rule of the public law, its fitness and adaption to the spirit of our institutions.

Judge Sandford finally concludes:

In conclusion, I entertain no doubt but that Julia Lynch was a citizen of the United States when Thomas Lynch died. She therefore inherited the property in controversy, if Thomas Lynch had any estate therein, to the entire exclusion of the complainant, who was then an alien, and incapable of taking by descent.

Ouch. Take that, Bernie! You tried to take everything from your niece. Instead, Thomas’s share belongs to Julia, and you don’t get a single dime.

History does not seem to record whether Julia Lynch sent her uncle a bottle of mineral water as a consolation prize.

But back to the 21st century. The take-away for today is: Yes, there is at least one court case that stated that American common law determines whether a child born on US soil is a natural born citizen.

According to Judge Sandford, every single one of the original thirteen states adopted the rule from English common law that says a child born in the country, even to alien parents, is “natural born.”

Because each state adopted that rule, it became the common law of each and every state.

And because that common law rule was absolutely uniform throughout every one of the original 13 states, it became a national principle or common law for the entire country upon their Union.

Therefore, according to American common law, the child born on US soil anywhere in the country was a natural born citizen — without any regard at all as to whether his or her parents were US citizens at the time.

Is a child born on US soil of non-citizen parents eligible to become President? According to Sandford — who was later cited approvingly by the US Supreme Court in the decisive citizenship case of US v Wong Kim Ark — there’s no reasonable doubt about that question:

“Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the Constitution? I think not.”

By every other single principle of law, the birthers have been completely out of luck. And as it turns out, their final refuge — a plea to American common law — destroys their claim as well.

[To start at the very beginning, click here.] 

In Part 1 of this article, we looked at the available historical clues up to the writing of our Constitution, for the meaning of “natural born citizen.”

In this part, we’ll see what people understood “natural born citizen” to mean in early America — roughly from the time the Constitution was written until 1825. This was about the lifetime of most of the Founders and Framers.

Our sources of information include:

• Early foreign-language translations of the Constitution (1787 to about 1820)
• David Ramsay’s treatise on citizenship (1789)
• The 1797 Translation of Vattel’s Law of Nations
• The Naturalization Acts of 1790, 1795, 1802, and 1855
• America’s first legal text, by Zephaniah Swift (1795)
• Constitutional commentary and law text by early American legal expert St. George Tucker (1803)
• The James McClure citizenship case (1811)
• US Supreme Court: The Venus (1814)
• My own search of quotes regarding Presidential eligibility from within the lifetimes of those who wrote our Constitution. (late 1700s to about 1820)
• And A View of the Constitution of the United States, by US District Attorney William Rawle (1825)

Early foreign-language translations of the Constitution (1787 to about 1820)

What did those who made early foreign-language translations of our Constitution, and commentaries about it, understand the Presidential eligibility clause to mean? In my search, I focused on French and Spanish, as those are the languages after English that I know best. Following are the examples I found:

French:

“Personne, à moins d’être citoyen-né, ou d’avoir été citoyen des États-Unis, au moment…” (1788)

“Nobody, without being a born citizen, or having been a citizen of the United States at the time…” (1788)

This quote alone would seem to be virtually authoritative. It was written and published the year after the Constitution itself, by Phillip (Filippo) Mazzei, Thomas Jefferson’s next-door neighbor at Monticello, and close personal friend!

Thomas Jefferson was in Paris at the time of the Constitutional Convention. But as one of our most important Founding Fathers — About.com ranks him in the top three, with George Washington and John Adams and above even “Father of the Constitution” James Madison — and soon to be President himself, Jefferson would most certainly have known what the Founders and Framers meant by “natural born citizen.”

Phillip Mazzei’s book was published in Paris in 1788, while his close friend Jefferson was in that city. In fact, Jefferson had been there for 4 years. As well as working on his book, Mazzei had been traveling and promoting American ideals. Jefferson would have been a key American contact in Paris, then the largest and most important city in continental Europe. And it appears that if Mazzei had had any doubt as to what a phrase in the Constitution meant, Jefferson would have been near at hand to provide an answer.

And Mazzei tells us, one year after the Constitution was written, that “natural born citzen” means a “born citizen;” that is, someone who was born a citizen.

“Nul, excepté un naturel né Citoyen, ou un Citoyen des Etats-Unis,à l’époque del’adoption de cette Constitution, ne sera éligible à l’office de Président.” (1792)

Our second quote appears to go for a more literal rendering —

“No one except a ‘natural,’ born a citizen…” (or possibly, “No one except a ‘natural-born citizen’) (1792)

This translation was done by a friend of another Founder, who was present at the Constitutional Convention — Ben Franklin. And it uses the word “naturel,” which was also used by Vattel.

But as we’ve seen in Part 1, that word is and always has been ambiguous in its meaning. Yes, it can mean that a person is indigenous — that his family and ancestors came from the place where he lives. BUT — it can just as well simply mean that a person was born in or grew up in a place. “Native” seems to be a good English equivalent.

And in clarifying what he meant by the term, Franklin’s friend did not write, “born in the US of citizen parents.” He wrote, “born a citizen.”

“Nul ne sera éligible a l’office de président, s’il n’est pas né citoyen des États-Unis…” (1799)

“No one shall be eligible to the office of President, if he is not born a citizen of the United States…” (1799)

The same. “Born a citizen.”

“Aucun individu, autre qu’un citoyen né dans les États-Unis…” (1826)

“No individual, other than a citizen born in the United States…” (1826)

This translation is especially interesting, as it comes from Auguste Levasseur, who was Private Secretary to the Marquis de Lafayette during an extended voyage and visits in America. The Marquis, you will recall, was mentioned in Part 1. And because of the extreme closeness of this translation to our greatest Founding Fathers, it is also virtually authoritative.

In 1824 and 1825, Lafayette visited the United States, calling particularly on four of our most prominent Founding Fathers: James Madison, John Adams, Thomas Jefferson, and James Monroe. All four of these men had been or actively were, in the case of Monroe, Presidents of the United States!

The Marquis had also served under, and was a friend of, our first President, George Washington — and he also visited with John Adams’ son John Quincy Adams, who would soon be President as well.

Madison was the “Father of the Constitution,” and Washington had presided over the Convention in which it was written.

Here we have a man who had been specially named as a “natural born citizen” of the State of Maryland — so he would have a compelling personal reason to understand exactly what the term meant. He is personal friends with the first six Presidents of the United States — including Washington and Monroe. At the time the book is written, the Marquis is friends with five men who have already themselves been President, and one who soon will be.

And he tells us — through the detailed record of his Personal Secretary for his American journey — what “natural born citizen” means.

It means “a citizen born in the United States.”

“Le président doit être citoyen né des États-Unis…” (1826)

“The President must be a born citizen [or born a citizen] of the United States… (1826)”

“Nul, s’il n’est citoyen natif…” (1829)

“No one, unless he is a native citizen…” [The leading French dictionary defines “natif” as “possessed from birth; innate; natural.”] (1829)

And one final French translation:

“Nul ne peut être Président, a moins qu’il ne soit né dans les États-Unis…” (1837)

“No one can be President, unless he is born in the United States…”(1837)

Spanish

Maybe it’s just French? What do early Spanish translations say?

“Ninguna persona, escepto un natural nacido ciudadano…” (1821)

“No person except a natural, a born citizen…” or “No one except a natural born citizen…” (1821)

“El presidente es elejido entre todos los ciuidadanos nacidos en los Estados Unidos, de edad de treinta y cinco años…” (1825)

“The President is elected from among all citizens born in the United States, of the age of thirty-five years…” (1825)

“No podrá ser presidente nadie que no haya nacido ciudadano delos Estados-Unidos, ó lo sea al tiempo de adoptarse esta constitucion…” (1837)

“No one can be President who has not been born a citizen of the United States, or who is one at the time of the adoption of this Constitution…” (1837)

“El presidente debe ser ciudadano nacio en los Estados-Unidos…” (1848)

“The President must be a citizen born in the United States… (1848)”

Italian

Finally, in order to get three languages, I went and found one in Italian as well:

“Non potrà essere eletto al posto di Presidente se non quegli, che sarà nativo degli Stati-Uniti, o naturalizzato al tempo, che si adotti questa Constituzione…” (1790)

This one was published in 1790 — just 3 years after the Constitution was written — and so it once again provides a very contemporary understanding of the meaning of the qualification.

“No one may be elected to the post of President except a native of the United States, or who is naturalized at the time of the adoption of this Constitution…” (1790)

An Italian dictionary defines “nativo” (in Italian) as “having to do with place of birth; natural; having been born in a place.”

Two of twelve translations or commentaries attempt to produce a literal rendering of “natural born citizen.” One states that the President must be a “native citizen,” with “native” defined as “innate, natural, or possessed from birth.” One says “native of the United States,” with native defined as “having to do with place of birth; natural; having been born in a place.”

All of the remaining translations state that a person must be born a citizen, or born in the United States, in order to be eligible. And the two most authoritative translations state clearly that it means a “born citizen,” or a “citizen born in the United States.”

Not one of the twelve states or implies that citizen parents are required.

David Ramsay’s treatise on citizenship (1789)

Mario Apuzzo and the birthers have claimed that a 1789 treatise by Revolutionary War historian, American patriot and early American politician David Ramsay supports their claim that it takes two citizen parents to be a natural born citizen.

Ramsay does state his opinion that citizen parents are required in order to be an American citizen. However:

• his treatise makes no reference to the status of children born on US soil of immigrant parents;
• it was a marketing piece written to lobby Congress for his sore-loser campaign to have William Loughton Smith (who beat Ramsay in an election for the House of Representatives) declared ineligible;
• the point about citizen parents is directly supportive of his personal sore-loser goal; and
• his campaign — and his views on citizenship — were resoundingly (thirty-six to one!!) repudiated by our leaders in the House of Representatives, led by none other than James Madison, the “Father of the Constitution,” who clearly declared that when it comes to the allegiance that makes for citizenship, “in general place is the most certain criterion; it is what applies in the United States.”

For all of these reasons, David Ramsay’s treatise clearly did not represent the views of the Founding Fathers, and cannot establish any guide at all as to what they considered the phrase “natural born citizen” to mean. It does, however, provide an illuminating quote from Madison: “In general place… is what applies in the United States.”

Smith himself — some will note — quoted Vattel in his defense. The fact is, he had both of the kinds of ties that were mentioned by James Madison — jus soli (the law of the soil) and jus sanguinis (the law of blood).

Historically, in England, jus soli was the primary rule. But there were also laws that stated that a person born overseas of English subject parents was also to be regarded as just as much a natural born subject as those born on English soil.

The purpose of Ramsay’s treatise, and the slapdown by Madison and others

Ramsay’s claims were directly in support of his goal to have Smith found ineligible.

Madison was pronouncing the accepted general principle of citizenship among the Founders, and referred to it as an “established maxim.”.

Additional discussion and information regarding David Ramsay’s citizenship dissertation.

The 1797 Translation of Vattel’s “Law of Nations”

Earlier, we saw that there is no known historical record that the Founding Fathers or Framers of the Constitution were referring to Vattel’s concept of citizenship in their use of the term “natural born citizen.” We also saw that no writer on the Law of Nations appears to have ever used the phrase, and that the first time anybody seems to have translated Vattel’s word “indigènes” to mean “natural born citizens” was in 1797, 10 years after the eligibility clause was writen.

Confronted with this reality, Mario Apuzzo made the claim that the translator of the 1797 edition of Vattel’s book translated “indigènes” as “natural born citizens” because he understood the mindset of the American Founding Fathers, and understood that when they used the phrase “natural born citizen” in the Constitution, they were referring to Vattel’s concept of citizenship.

The claim is unsupported by any evidence at all. In fact, when you consider what we actually know about the 1797 translation, it goes beyond being simply invalid. In fact, it would not be inaccurate to describe the claim as “ridiculous.”

This is because the 1797 edition was translated by an anonymous Englishman in London — and published in that city as well. The 1797 edition therefore had nothing to do with the United States at all.

The Naturalization Acts of 1790, 1795, 1802, and 1855

Mario Apuzzo has made the claim that these Naturalization Acts “abrogated” American rules on the citizenship status of children born on US soil to non-citizen parents.

However, a law doesn’t “abrogate” (or nullify) a matter which it does not address.

If Congress passes a law providing a tax break for Americans residing overseas, that doesn’t affect the tax rates of Americans who live in America.

Likewise, these laws — which addressed the citizenship status of foreigners who wanted to become naturalized US citizens and of children born to US citizens abroad — did not address the citizenship status of any person born in the United States.

There are, however, a couple of aspects of these laws that complicate the “natural born citizen” issue at least somewhat.

First, our First Congress in 1790 passed a law providing that persons born abroad to US citizens were to be “considered as natural born citizens.” This flies somewhat in the fact of the claim that it requires two citizen parents plus birth on US soil to be a natural born citizen.

Secondly, there was a change from 1790 to 1795 that is worth noting: The 1795 Congress changed the wording from “considered as natural born citizens” to “considered as citizens of the United States.”

In the past I’ve stated that there are only “natural born” and “naturalized” citizens. And that still appears to be true for all persons born on US soil. However, it seems to me that the 1795 Congress — or at least the House committee that drafted the new law, as there seems to have been no debate at all about the change on either the House or Senate floor — must have intended to withdraw Presidential eligibility for children born abroad of US citizen parents.

What does this mean for such persons today? Obviously, it introduces more doubt regarding the eligibility of such persons than would otherwise be the case. Still, most scholars seem to believe that “natural born citizen” is equivalent to “citizen at birth,” and that such persons are eligible. This was the opinion, for example, of Laurence Tribe and Ted Olson in 2008, when considering the case of John McCain.

In our litigious society, it seems inevitable that if and when such a person is elected, the issue will be settled by the Supreme Court. I think (as do many other people) that the Court would rule in favor of the candidate. One possible argument in favor of such a ruling might well be that even if the 1795 Congress had intended to withdraw natural born citizenship from those born overseas, the intention of subsequent Congresses in passing the naturalization laws that apply today was not to withhold such natural born citizenship. And I think that would be a very plausible argument to make. It certainly seems that more recent courts and Congresses have understood such persons to be eligible.

But we don’t know for certain how a future Supreme Court would rule. Some more discussion on this matter is available here.

One further comment on those born Americans overseas: In a worst-case scenario, if the Supreme Court were to rule that Congress had withdrawn natural-born citizenship status in 1795 from the children born abroad of U.S. citizens and had never rescinded that withdrawal, the outrage of the electorate who elected the candidate would almost certainly demand a remedy, and a remedy seems apparent. Similar to what the Congress did for John McCain in 2008, it seems to me that our legislators could simply pass a law retroactively establishing that all persons so born are to be considered as natural born citizens for all legal purposes.

Since any Supreme Court ruling based on the 1795 change in law would imply that Congress has the power to define whether foreign-born Americans were to be counted among our natural-born citizens, such a law would likely pass the approval of the Supreme Court. And since the Presidential eligibility clause states that no person who is not a natural born citizen is eligible to the Office of President — and instead of stating that no person can be elected, or chosen, to serve in that Office, it seems to me that a person so elected could then legally assume the Office to which he or she had been elected.

Of course, I am not a lawyer; your mileage may vary, etc.

Meanwhile, neither the 1795 change nor any other provisions in the 1790, 1795, 1802 and 1855 Naturalization Acts have any bearing on the status of those born on US soil, for the simple reason that they don’t address their status. On the contrary, when the 1790 provision recognized children born overseas to US citizen parents as “natural born” citizens, it made clear that — in that instance, at least — both qualifications were not required for “natural born citizen” status.

More discussion of this (including the text of those Acts) is available here.

America’s first legal text, by Zephaniah Swift (1795)

In 1795 and 1796, Zephaniah Swift published the first home-grown legal text of our new country. It was subscribed to by a “Who’s Who” of American leaders, including 3 Presidents and half the US Supreme Court.

In that text, Swift wrote (among other relevant things): “The children of aliens, born in this state, are considered as natural born subjects, and have the same rights with the rest of the citizens.”

A full article discusses Mr. Swift and his legal treatise.

Mario Apuzzo has objected that Swift was writing only in regard to state citizenship, and a citizen of a state is not necessarily a citizen of the United States. That may be. However, we will see in Part 3 that by 1844, we have a judicial ruling which found, after a long and careful analysis, that the laws in all thirteen of the original states were similar, and they all operated on the same principle.

So while Swift’s evidence may not be conclusive, it still appears to be a good indication of how the Founding generation handled citizenship through the new country, and of what they understood “natural born” to mean.

The Constitutional commentary and law text by early American legal expert St. George Tucker (1803)

Swift is not the only early American legal expert to speak on the issue. St. George Tucker, arguably the most important legal expert in the early United States, provides evidence as well.

Mario Apuzzo chooses quotes from Tucker which touch peripherally on the issue, and which do not specifically mention children born on US soil of non-citizen parents at all. He then uses those in an attempt to “force” Tucker to support his position — while ignoring and/or denying those things that Tucker had to say that were more directly relevant.

In Tucker’s edition of Blackstone’s Commentaries, Tucker footnotes a passage that states, “The children of aliens, born here in England, are generally speaking, natural-born subjects, and entitled to all the privileges of such,” by noting that all of the important citizenship laws for the Commonwealth of Virginia and the United States are in agreement.

Apuzzo claimed first that the footnote only means that the American laws agree with each other. When the obvious falsehood of this meaning was pointed out, he then claimed that the footnote actually refers to the sentence following the one it footnotes, and not the sentence that it is a footnote to.

A full article and discussion of St. George Tucker’s relevant comments is here.

The James McClure citizenship case (1811)

I mention this because it has been claimed as important historical evidence. Mario Apuzzo even calls it a “smoking gun.”

In 1811, a man named James McClure was arrested and held by France as an “English prisoner” (they were at odds with the English at the time). McClure had been born in South Carolina of a naturalized father, but then moved to England at age 10 and was now about 26 years old. Because of these facts, some American authorities were divided on whether he was an American citizen.

In October of that year, someone using the pseudonym of “Publius” wrote a letter to a newspaper, expressing a (tentative) opinion that McClure was not a US citizen.

Leo Donofrio claimed that “Publius” was President James Madison, and that the letter therefore represented the law in the United States. Donofrio has since retired from the scene, but Mario Apuzzo has taken up his mantra.

The claim is without merit, because

a) there’s no good reason to believe that “Publius” was President Madison reusing the famous, decades-old pseudonym he had used with Alexander Hamilton and John Jay in writing the Federalist (1787-1788),
b) there are a few hundred thousand other people it could have been, and
c) the Madison Administration shortly thereafter came to McClure’s rescue, declaring him to the French to be an American citizen.

Mr. Apuzzo has also claimed (falsely) that “The James Madison Administration found that James McClure was a naturalized “Citizen of the United States” under the Naturalization Act of 1802.”

But nothing in the letter from the Madison administration said that James McClure was a naturalized citizen. On the contrary, specific mention was made of the fact that McClure was born in Charleston, South Carolina. No mention was made of the citizenship status of his father.

The McClure case therefore provides no evidence to support the claim, and in fact provides some evidence against it.

US Supreme Court: The Venus (1814)

In 2009, John Charlton of “The Post & Email” claimed that this Supreme Court case defined the meaning of “natural born citizen.” This particular case cited the passage from Vattel that birthers claim supports the two-citizen-parent theory.

Shortly after war was declared in the War of 1812, a ship called the Venus was captured by an American privateer. It turned out that the ship was jointly owned by James Lenox and William Maitland, and was registered in America. However, while Lenox and Maitland were both American citizens — Maitland was originally British but had naturalized as an American — Mr. Maitland was at that time living in England.

The main question in the case of The Venus, however, was not citizenship. Not much distinction was made of the fact that Maitland was a naturalized citizen, or even that he had originally been from Britain. The real question was this: To what degree is an American citizen currently residing in a foreign country participating as an American, and to what degree is he participating as a member of the country where he is living?

The claim that the case of The Venus supports the idea that it takes two citizen parents to make a natural born citizen suffers from several problems.

First, Vattel was not cited in the majority opinion, but in Justice Marshall’s dissent. This immediately weakens the argument considerably.

Secondly, Marshall did not cite the passage from Vattel in order even to make a point about citizenship, per se, but about the degree to which resident aliens resemble citizens of the country where they are residing. Here is the preface to Marshall’s Vattel quote:

The whole system of decisions applicable to this subject rests on the law of nations as its base. It is therefore of some importance to inquire how far the writers on that law consider the subjects of one power residing within the territory of another, as retaining their original character or partaking of the character of the nation in which they reside.

Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says…

After quoting Vattel, he continues:

A domicile, then, in the sense in which this term is used by Vattel, requires not only actual residence in a foreign country, but “an intention of always staying there.” Actual residence without this intention amounts to no more than “simple habitation.”

Third (and most critically) Marshall did not even quote the translation of Vattel which uses the phrase “natural born citizens,” but one which says, in English, “natives or indigenes.”

For all of these reasons, the case of The Venus gives no support to the idea that it takes two citizen parents to make a natural born citizen.

My own search of quotes regarding Presidential eligibility from within the lifetimes of those who wrote our Constitution. (late 1700s to about 1820)

I did a series of Google Books Advanced Searches for evidence of what people understood the meaning of “natural born citizen” to be, up to the year 1820.

The search uncovered quotes such as “The President is Commander-in-Chief of the army and navy, and of the militia when in active service… He must be a native born citizen, not under thirty-five years of age….”

The search found no quotes to imply that anyone ever believed that Presidential candidates, born on US soil, had to have citizen parents as well.

A View of the Constitution of the United States, by US District Attorney William Rawle (1825)

William Rawle was United States District Attorney for Pennsylvania, and author of A View of the Constitution of the United States of America, published in 1825 (2nd Edition 1829).

In that work, he said:

…he who was subsequently born a citizen of a state, became at the moment of his birth a citizen of the United States. Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.

Mario Apuzzo claims that Rawle “provides no source from the Founding era which supports his definition of a “natural born Citizen.” Basically, he just provides his unsupported personal opinion.”

But William Rawle, who was a personal friend of Benjamin Franklin, was appointed the United States District Attorney for the State of Pennsylvania just 4 years after the Constituton was written — only 3 years after it was ratified.

And Pennsylvania was certainly one of the largest and most important of only 13 or 14 States of the United States of America (depending on whether Vermont had yet joined), having also the second largest city in the country, Philadelphia, which was only slightly smaller than New York City.

As a leading legal authority and a close personal friend of one of our core Founders and Framers — Franklin, along with Washington, Madison and Hamilton, was at the Constitutional Convention — Rawle is an authoritative Founding-Era source.

Rawle’s quote above was later referenced approvingly by Judge Sandford in the important New York State case Lynch v Clarke (1844), which in turn was referenced by the US Supreme Court in the key citizenship case United States v Wong Kim Ark.

To Be Continued in Part Three

In the early United States, during the lifetime of the Founding Generation, we have found no historical support for the idea that people understood “natural born citizen” to mean anything other than “born a citizen” or “born in the United States.”

In Part Three, we’ll look at what people understood of the term during the Antebellum period following that generation, as the poisonous pill of slavery that the Founders had swallowed in order to bring a new nation together slowly ate at America’s insides, and helped drag us down the inexorable path to civil war.

“Your… argument is absurd given that historically a “natural born Citizen” had only one definition, i.e., a child born in the country to citizen parents. There never has been any other definition. So your attempt to go looking for one or inventing one is contrary to the historical record and case law of our U.S. Supreme Court.” — Mario Apuzzo, responding to a critic at his blog

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 early laws of American Colonies and States (1600s to about 1820)

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.”

Not one.

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.

Famous Letter from Jay to Washington Proposed a Constitutional “Natural Born Citizen” Clause

In the summer of 1787, leaders from across America were gathered in Philadelphia in a convention that would create a new Constitution for the fledgling United States.

On July 25th, Founding Father and US Secretary of Foreign Affairs John Jay — who was stuck up in New York — wrote a letter to General George Washington, the presiding officer of the Constitutional Convention. In that letter, Jay said:

“Permit me to hint whether it would not be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government, and to declare expressly that the Command in chief of the American army shall not be given to, nor devolve on, any but a natural born Citizen.”

On September 2, Washington wrote a reply in which he said, “I thank you for the hints contained in your letter.” And on September 4, the “natural born citizen” clause for Presidential eligibility appeared in a draft of the Constitution reported from the Committee of Eleven.

The “natural born citizen” requirement was approved, with no objection or debate from any member of the Convention, on the 7th.

But John Jay was not the only person known to have wanted a birth-related requirement for the man ultimately in charge of our nation’s armed forces. Among the 55 delegates to the Convention, there was one other person who is known to have entertained such an idea.

Alexander Hamilton Thought the New President Should Be “Born a Citizen.”

On June 18, 1787 (a month before Jay’s letter) Alexander Hamilton submitted to the Convention a sketch of a plan of government. Several copies (with some variations) of this plan have survived.

Hamilton’s plan called for a chief executive — but called that executive a “Governour” rather than a “President.” The plan mentioned no eligibility requirements for this chief executive.

Notable in Hamilton’s plan was that both Senators and the Governour would be elected “for good behavior” — which really meant for life. Although members of the Convention seem to have felt Hamilton’s plan was well thought-out and workable, it was a non-starter. The proposed life terms were a turn-off. Many of the delegates also didn’t like the similarity of Hamilton’s plan to the British system, and they did not want to establish some new kind of monarchy. As a result, the plan was never seriously considered.

About the end of the Convention, two months later, Hamilton gave a paper to James Madison which he said represented the Constitution he would have wanted. Hamilton had stated its principles in the course of the deliberations. Preeminent Constitutional historian Max Farrand notes that this paper “was not submitted to the Convention and has no further value than attaches to the personal opinions of Hamilton.”

Hamilton’s later, more complete “draft constitution” provided:

“No person shall be eligible to the office of President of the United States unless he be now a Citizen of one of the States, or hereafter be born a Citizen of the United States.”

Was Jay’s Letter a “Correction” of Hamilton’s Proposal?

In an 2010 article entitled, “Is Being a Born Citizen of the United States Sufficient Citizenship Status to be President? The Founders and Framers Emphatically Decided It Was Not!” Commander Charles Kerchner claims that the Framers of the Constitution rejected Hamilton’s proposal that the President should be “born a citizen” and instead implemented a different requirement — that he be a “natural born citizen.”

“Hamilton’s suggested presidential citizenship eligibility requirement was that a Citizen simply had to be ‘born a Citizen’ of the USA, i.e., a Citizen by Birth. But that citizenship status was rejected by the framers as insufficient. Instead of allowing any person “born a citizen” to be President and Commander of the military, the framers chose to adopt the more stringent requirement recommended by John Jay, i.e., requiring the Citizen to be a “natural born Citizen”, to block any chance of the person with foreign allegiances or claims on their allegiance at birth from becoming President and Commander of the Military. No person having any foreign influence or claim of allegiance on them at birth could serve as a future President. The person must be a “natural born citizen” with unity of citizenship and sole allegiance to the United States at birth.

Jay’s proposal… added the additional adjective before “born Citizen” that was proposed by Hamilton. And that word and adjective “natural” means something special from the laws of nature that modifies just being born a Citizen of the USA… Natural means from nature by the facts of nature of one’s birth. Not created retroactively after the fact by a man-made law. A natural born Citizen needs no man-made law to bestow Citizenship on them. The added adjective “natural” comes from Natural Law which is recognized the world over as universal law and which is the foundation of the Law of Nations which was codified by Vattel in 1758 in his preeminent legal treatise used by the founders…”

[Note: In a separate article, I’ve talked about the natural law origin of the term “natural born citizen,” which in reality is different from what Cdr. Kerchner claims.]

Kerchner’s major claim is that “born a citizen” and “natural born citizen” mean two different things, with “natural born citizen” requiring birth on US soil to two US citizen parents at the time of birth. And in order to support this claim, he states that the Founding Fathers rejected Hamilton’s eligibility requirement in favor of John Jay’s.

There are some problems with this claim.

The first problem is that Jay underlined the word “born” and not the word “natural.” If Jay was correcting Hamilton’s idea of what the qualification should be, why do this? Why not underline “natural” instead? It doesn’t make sense.

The second problem has already been noted, in passing: The Constitutional Convention did not reject Hamilton’s proposal in favor of Jay’s for the simple reason that Hamilton’s wording was never on the table.

The sketch of the plan which Hamilton presented on June 18th to the Convention contains no eligibility requirements for the “Governour” at all. Kerchner has entirely confused this with the much more complete and very different “draft constitution” given by Hamilton to James Madison at the end of the Convention.

As Farrand notes, the latter “was not submitted to the Convention and has no further value than attaches to the personal opinions of Hamilton.”

And the fact that Hamilton’s suggestion in his private document that the President (note the change in terminology) should be “born a citizen” was not adopted by the Convention through any informal channels is conclusively shown by the fact that no eligibility requirements for President appeared in the August 6th draft of the Constitution.

If the Convention had adopted Hamilton’s idea, it would most certainly have appeared in that draft.

Nor do the words “born a citizen” appear even once in any of the Convention notes — indicating that Hamilton’s supposed “proposal” was never even a topic of public debate. The only place these words appear is in Hamilton’s private paper given to Madison at the Convention’s end.

Kerchner therefore claims that the Framers of the Constitution “rejected” a “proposal” by Hamilton that was never made in any public presentation, and never brought to the floor for any debate or decision. And even if Hamilton spoke about his preferences to others during the course of the deliberations, his “born a citizen” qualification was never adopted by the Convention.

Collapse of a Claim

Kerchner’s claim that the Framers of the Constitution “emphatically decided” to “reject” Hamilton’s wording in favor of Jay’s, then, collapses completely.

The fact that Alexander Hamilton said “born a citizen” and that John Jay said “natural born citizen” therefore does not imply that the Framers rejected one in favor of the other, or that the two similar phrases mean different things.

But the history of Jay’s letter is about to become more interesting yet.

Who Was John Jay’s Inside Man at the Constitutional Convention?

It is clear that the details of the proceedings in Philadelphia were kept a tight secret, limited only to those who were “in the know.” If you weren’t at the Convention, then you had to have some sort of very special connection with somebody who was, in order to have any idea whatsoever what the delegates were talking about.

You had to know somebody.

The Constitutional Convention lasted for more than four months. The delegates took up the matter of the Presidency (or “Executive”) on July 17th. They then skipped a day and began speaking earnestly about the Presidency on the 19th.

It was two to three days’ journey from Philadelphia (where the Convention was) to New York City (where John Jay was).

John Jay’s letter was dated the 25th, only 6 days after the Convention began discussing the Presidency in earnest.

It is clear, therefore, that John Jay knew somebody — that he had an “inside line.” But who was it?

Was it George Washington, to whom he wrote on the 25th of July?

John Jay and George Washington

John Jay and George Washington were friends — since at least the late 1770s.

But in spite of that fact, the idea that Washington was feeding Jay detailed information on the Convention’s proceedings seems very unlikely. No letters have survived which would indicate that — and if there had been any such letters, at least some would likely have survived.

Could Washington have sent Jay a draft of the Constitution? Again, the prospect is extremely unlikely. As we’ve noted, the Convention’s proceedings were kept secret; and no one — least of all Washington — would have risked sending notes of the Convention to New York. Beyond that, any such draft would have had to be laboriously hand-written. There were no photocopiers in those days.

And remember, Hamilton’s eligibility requirement was not adopted or even debated by the Convention. So even in the extremely unlikely event that somebody did send a draft of the Constitution from the Convention to Jay, any such draft would not have contained Hamilton’s eligibility requirement!

Having personally been to important decision-making conventions, and interacted with those who are in charge of such conferences, I can further tell you from personal experience that the “top man,” invariably, is exceedingly busy. In addition to the constant responsibility of keeping everything flowing, and the constant activity of meetings, cutting back-room deals, and smoothing over ruffled relationships between key players, even in the quieter moments literally everybody wants a piece of the Chief.

The top man in a major convention might find time to write a note home, might even find the time to answer some important correspondence — but a person in that position does not generally have any time to play the role of informant to some person outside the proceedings.

In fact, we have an almost iron-clad indication that General George Washington — who by then was recognized as America’s elder statesman and who would soon be unanimously elected the first President of the United States — was not John Jay’s “inside man.”

It took George Washington — at the very least — about 4 weeks just to write a brief, two-paragraph reply to John Jay’s letter.

For all of the above reasons, the idea of John Jay getting detailed convention information from Washington seems very highly unlikely.

But if George Washington wasn’t John Jay’s “inside man…” who was?

Out of the 55 Delegates Who Gathered in Philadelphia, There Is One — and Only One — Likely Candidate for John Jay’s “Inside Man.”

Jay’s contact would most likely have been someone from his own State. And while other States sent as many as eight delegates to the Convention, the State of New York only ever fielded three.

At the beginning of July, two of those delegates, disgusted and horrified that the Convention had decided to scrap the Articles of Confederation and write an entirely new Constitution, resigned the proceedings in protest and left in anger — never to return.

Those two delegates — John Lansing and Robert Yates — took a very different philosophical view to John Jay, so neither would likely have sent him any information at all. In any event, both of them shipped out some time between July 5th and July 10th. At the very latest, this was one week before the conversation turned to the matter of the Presidency. Therefore, neither of those men could possibly have been Jay’s informer on those proceedings.

The one remaining New York delegate was from New York City, just as John Jay was.

And that city, in 1787 as now, was America’s largest. But back then, it had only about 30,000 people.

In a city of that size, all of the movers and shakers in a particular industry know each other. This would have been true even in the days of transportation by horseback. And in fact, the one remaining New York delegate is known to have been a personal friend and colleague of John Jay — since at least 1775, before the Revolution, when our delegate was still a student at what is now Columbia University.

Unlike Lansing and Yates, he shared Jay’s exact same political philosophy. Both men were Federalists. Both men were also anti-slavery — and had worked together as abolitionists.

That delegate had tried very hard, in fact — unsuccessfully — to get his friend John Jay admitted as a fourth New York delegate to the Convention! So when that attempt failed, it only made sense that our delegate would keep Jay apprised of the proceedings.

That delegate would also soon involve John Jay on an absolutely critical and historic project to get the proposed new Constitution ratified, and in that quest the two would co-author — with James Madison — the famous “Federalist Papers.” These would be published as a series of 85 newspaper articles which for 10 months would relentlessly urge adoption of the new Constitution. And they would ultimately succeed.

Finally, that delegate is known to have made the two-day trip back and forth from the Convention to New York so often that he could practically be described as a “commuter.”

That delegate was Alexander Hamilton.

Surely it is no coincidence that the only two men, out of the 55 Convention delegates plus the few knowledgeable outsiders, who are known to have wanted a birth requirement for Presidential eligibility, were close friends and colleagues.

It is not at all difficult to picture Alexander Hamilton and John Jay sitting in a study during one of Hamilton’s frequent returns to New York, discussing the Convention proceedings and the possible provisions that might be put into the document.

Who it was that actually came up with the idea that the President should be a native citizen is lost to history. Was it John Jay, or was it Alexander Hamilton? We will never know.

One thing seems quite clear, though.

There was never any conflict between John Jay’s idea of that requirement, and Alexander Hamilton’s.

They were both expressions of the same idea.

For the past 3 years, a few people have been pushing the idea that the Constitutional term “natural born citizen” comes from “natural law” or the “law of nature” — and that by the law of nature, “it takes two citizens to make a natural born citizen.”

The point is to claim that if (like our current President) you were not born to two US citizen parents, then you’re not Constitutionally eligible to be President.

Sometimes the reasoning goes like this:

“It takes two horses to make a baby horse. This is the law of nature. Therefore, it must take two citizens to make a ‘natural born citizen.'”

One example of such reasoning can be found here.

And part of this claim, in fact, is TRUE. The Constitutional phrase “natural born citizen” contains the word “natural” because it does come from an understanding of “natural law.”

It’s just not the understanding of natural law that these folks are promoting.

Our English-Language Legal Terminology Came Mostly from the Land that Gave Our Nation Birth

In order to understand the natural law origin of the term “natural born,” we have to look at what that term historically meant — and why.

The United States of America was born from thirteen English colonies. Every single one of these Colonies achieved its independence from England. We thus inherited the English language, as opposed to some other language, and with it most of our legal terminology.

The words “natural born” are in our Constitution because the term “natural born citizen” derives directly and absolutely from an almost identical English legal term — “natural born subject.”

“Birther” lawyer Mario Apuzzo, however, claims that we got the concept of “natural born citizen,” instead, from a Swiss philosopher — Emer de Vattel — and from the body of international law prevalent at the time of our country’s founding, called “the Law of Nations.”

But in spite of Mr. Apuzzo’s claims, there is no real evidence whatsoever to suggest that this is the case. It’s clear, for example, that neither Vattel nor any other major writer on the Law of Nations EVER defined the term “natural born citizen” — or even USED the term… even one single time.

And the phrase “natural born” is a very specific idiom. Those words don’t just occur together at random. It is a very characteristic legal term of art.

Legally speaking, that exact term of art — “natural born” — was only ever used in ONE sense prior to its appearance in our Constitution — and that is the sense of the English common law. This was the body of law that had been created, over centuries, by English judicial decisions and precedents.

For at least 180 years before the writing of our Constitution, in fact, the term “natural born subject” had been commonly first in English law, then in American law.

Now Mario Apuzzo makes a big deal of the fact that the English didn’t use the exact phrase “natural born citizen.” But to the English, nobody, legally speaking, was called a “citizen.” England was a monarchy. So every single person in the Kingdom — except for the King or Queen, who was the “Sovereign” — was called a “subject.”

We, of course, didn’t like the word “subject,” and all that it implied, so we changed the word to “citizen.”

And along the way, “natural born subject” became “natural born citizen.” Not that it was that big a deal. For at least a little while in America, some people continued to use the older terminology.

In fact, for a while, the two terms were used interchangeably in the law in at least one of the early United States.

The term was never, EVER used in connection with Emer de Vattel’s concept of citizenship, until 10 years after the Constitution was written.

At that time — in 1797 — an anonymous translator in London published a new British translation of Vattel’s work, in which he translated the word “indigenes” (which implies “indigenous people”) using the phrase “natural born citizens.”

At one point, Mario Apuzzo claimed that this British translator must have used the phrase because he understood that the (American!) Founding Fathers meant Vattel’s concept when they wrote the words “natural born citizen” in our Presidential eligibility clause, and was representing the meaning of the American Founding Fathers in this translation of Vattel.

This seems to be a fairly good example of “birther” dedication to making the facts fit the theory.

The Natural Law Origin of the Term “Natural Born”

The term “natural born” dates from — at the very least — the year 1607 and the English legal case called “Calvin’s Case.”

This was heard the same year that the English established their very first lasting colony in the New World — Jamestown. So at the time, there was only one single tiny, struggling European settlement in all of what would later become the Thirteen Colonies, and then the United States.

But the term seems to go back even further than that. It is used numerous times in the writeup of Calvin’s Case, and the usage there strongly suggests that it was not a new term at the time.

So at a bare minimum, the term “natural born” is now more than 400 years old. And it had already been in use for close to 200 years before the writing of the Constitution.

It was argued in Calvin’s Case, though, that certain people going as far back as the time of Maud the Empresse were “natural born subjects.” Her time was in the 1100′s. So it’s possible that the term itself might approach 1000 years in age.

And the word “natural” is in “natural born subject” because it WAS a reference to natural law.

Behind The Term Are Concepts that Date Back Two Thousand Years.

England during the Middle Ages was an officially Christian nation. Many ideas on how things should be done in law therefore had their origins in Judeo-Christian thought, from the Bible and from Christian theology.

In the medieval English philosophical and legal understanding, in fact, the “law of nature” and the “law of God” were all the same thing — because it was God himself who had set up the “law of nature.”

And by that law, it was officially reckoned by English authorities that a person born within a particular kingdom was obligated to obey the authority that God had placed in charge of that particular kingdom.

As one born within the kingdom, he owed a natural allegiance to that kingdom. And in turn, the King was also bound by divine and natural law to his subjects: to provide justice, protection, and righteous government.

And the King, or Queen, was responsible to God for his diligence in so doing.

In fact, under James I — the same King James who commissioned the King James Bible — the theory gained currency in Britain that the king answered solely to God, and not to any earthly authorities. This theory of “divine right” did not wear particularly well, however. James’ son Charles was tried and executed for treason (all the while protesting his “divine right”), and the doctrine was fully and officially abandoned with the overthrow of James’ grandson, King James II.

So much for “divine right.”

But while “divine right” didn’t last, there was never any doubt about the basic principle that God had set up laws of nature, in which one had a natural relationship to the Kingdom under which one was born.

This philosophy of natural law behind the term “natural born subject” (and “natural born citizen”) has clear roots in Paul’s Epistle to the Romans, Chapter 13. This passage was actually quoted by Lord Coke in Calvin’s Case. And Calvin’s Case has served as a foundational precedent for citizenship law in England — and in America — ever since.

What Lord Coke Said About Natural Law and “Natural Born” Subjects

Calvin’s Case was heard by all of the Justices of England together, while Sir Edward Coke was Chief Justice of Common Pleas. Here are a few of Lord Coke’s comments — and yes, this is from a court case decided by what might be called the English “Supreme Court”:

The Law of Nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction; and this is lex aeterna [eternal law], the Moral Law, called also the Law of Nature…

And the Apostle saith, Omnis anima potestatibus sublimioribus subdita sit [Every soul is subject to more sublime powers]. And these be the words of the great Divine, Hoc Deus in Sacris Scripturis jubet, hoc lex naturae dictari, ut quilibet subditus obediat superio. [Here God in the Holy Scriptures wills it to be laid down as the law of nature that every subject should obey the sovereign…]

By this Law of Nature is the Faith, Ligeance, and Obedience of the Subject due to his Sovereign or Superiour…

This Law of Nature, which indeed is the eternal Law of the Creator, infused into the heart of the creature at the time of his creation, was two thousand years before any Laws written, and before any Judicial or Municipal Laws…

But between the Sovereign and the subject there is without comparison a higher and greater connexion: for as the subject oweth to the King his true and faithful ligeance and obedience, so the Sovereign is to govern and protect his Subjects, regere et protegere subditos suos [to rule and protect the subjects]…

By all which it evidently appeareth, that they that are born under the obedience, power, faith, ligealty, or ligeance of the King, are natural subjects, and no aliens.

Lord Coke and the Justices of England therefore regarded earthly Kingdoms as divinely ordained and earthly Kings as deriving their power of the Laws of Nature and Divine Law. Therefore, anyone born within a particular Kingdom was naturally subject to that Kingdom and its King. The idea is derived from the writing of St Paul in the book of Romans (which is quoted above by Sir Coke):

Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. — Romans 13:1, King James Version (1611)

Sir Coke (who was later quoted in the landmark 1898 US citizenship case of US v Wong Kim Ark) also noted, in the same case, that any alien present in England under the permission of the King had an allegiance which, although temporary, was strong enough that if he had a child in the country, that child was a natural born subject:

“…which local obedience, being but momentary and incertain, is strong enough to make a natural subject; for if he hath issue [that is, a child] here, that issue is a natural born subject.”

This precedent of the English common law as to what made a “natural born subject” was carried over into the English Colonies in America, and was never changed, but continued to apply here. While the theological underpinning may have faded somewhat, the precedent did not. And when we changed “subject” to “citizen,” that precedent and that meaning became part of our definition of “natural born citizen.”

And that is why mere birth on US soil, without regard to the citizenship of a person’s parents — except for the centuries-long exceptions of children of ambassadors, foreign royalty, and invading armies — is by itself sufficient to make a child a “natural born citizen” of the United States.

Yes, it’s a matter of “natural law” — but it’s not the kind of “natural law” that says “it takes two horses to make a horse.”

It’s “natural law” ultimately derived — if we trace it back far enough — from the Biblical principles that God has established governments and that people ought to obey legitimate authorities; and from the idea following from that, that it is natural for a person to be a member of the realm in which he or she was born.