Defining Article 2, Section 1 in Context


By: Nancy Salvato

According to Article II, Section 1 of the United States Constitution, no person except a “natural born citizen” (citizen at birth) shall be eligible to the office of President.

The question that needs to be answered definitively is what exactly is a “natural born citizen”? To understand this phrase, we need to look at the context in which it was written.

It is clear that the Framers included that phrase in the requirements for Commander in Chief because they wanted to ensure loyalty to the US Constitution and not give undue influence to any one country, group, or person.

“On March 25, 1800, [Charles] Pinckney made the only documented statement by one of the Founders connecting the Electoral College and the presidential eligibility clause. The Founders “knew well,” he said that to give to the members of Congress a right to give votes in this election, or to decide upon them when given, was to destroy the independence of the Executive, and make him the creature of the Legislature. This therefore they have guarded against, and to insure experience and attachment to the country, they have determined that no man who is not a natural born citizen, or citizen at the adoption of the Constitution, of fourteen years residence, and thirty-five years of age, shall be eligible…” – Yinger

Hamilton wrote, in Federalist Essay 68,

“Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors.”

St. George Tucker wrote in St. George Tucker’s Treatise on the Constitution (1803),

“That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence, which, whereever it is capable of being exerted, is to be dreaded more than the plague. The admission of foreigners into our councils, consequently, cannot be too much guarded against; their total exclusion from a station to which foreign nations have been accustomed to, attach ideas of sovereign power, sacredness of character, and hereditary right, is a measure of the most consummate policy and wisdom. It was by means of foreign connections that the stadtholder of Holland, whose powers at first were probably not equal to those of a president of the United States, became a sovereign hereditary prince before the late revolution in that country. Nor is it with levity that I remark, that the very title of our first magistrate, in some measure exempts us from the danger of those calamities by which European nations are almost perpetually visited. The title of king, prince, emperor, or czar, without the smallest addition to his powers, would have rendered him a member of the fraternity of crowned heads: their common cause has more than once threatened the desolation of Europe. To have added a member to this sacred family in America, would have invited and perpetuated among us all the evils of Pandora’s Box.” – Blackstone’s Commentaries

George Washington, our 1st President, warned,

“Passionate attachment of one nation for another, produces a variety of evils…Sympathy for the favorite nation, facilitating the illusion of an imaginary common interest, in cases where no real common interest exists, and infusing into one the enmities of the other, betrays the former into a participation in the quarrels and wars of the latter, without adequate inducement or justification. It leads also to concessions to the favorite nation, of privileges denied to others, which is apt doubly to injure the nation making the concessions; by unnecessarily parting with what ought to have been retained; and by exciting jealousy, ill- will, and a disposition to retaliate, in the parties from whom equal privileges are withheld.

And it gives to ambitious, corrupted, or deluded citizens, (who devote themselves to the favorite nation,) facility to betray or sacrifice the interests of their own country, without odium, sometimes even with popularity; gilding, with the appearance of a virtuous sense of obligation, a commendable deference for public opinion, or a laudable zeal for public good, the base or foolish compliances of ambition, corruption, or infatuation.” – Washington’s Farewell

Fourteenth Amendment (1868)
The Fourteenth Amendment established that US citizenship is the primary citizenship in this country, and that state citizenship depends upon citizenship of the United States and the citizen’s place of residence. The States have no power to restrict their citizenship to any classes or persons.

The Fourteenth Amendment established a written national rule declaring, “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 author of the citizenship clause, Senator Jacob M. Howard (MI) described the clause as excluding not only Indians but “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.”Full and complete jurisdiction precludes citizenship to any person who was beholden to any sovereignty other than a U.S. state or the federal government.

The author behind the equal protection clause of the 14th Amendment, Rep. John A. Bihgham (OH) referenced Section 1992 of the Revised Statutes.

“Every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.” (Cong. Globe, 39th, 1st Sess., 1291 (1866))

Therefore, the status of “natural born citizen” would seem to be conditional upon being born “subject to the jurisdiction” of the United States and not being born with more than one allegiance if understood within the context of the time when it was written. This would seem to prevent us from interpreting natural-born citizen under common law rules because it eliminates the possibility of a child being born with more than one allegiance. However, the courts set the precedent that under the common law rule of jus soli -the law of the soil- persons born in the United States generally acquired U.S. citizenship at birth. P.A. Madison

United States v. Wong Kim Ark (1898)
In delivering the opinion of the Supreme Court for United States v. Wong Kim Ark, when determining “whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution,” Justice Gray stated,

“In construing any act of legislation…regard is to be had not only to all parts of the act itself, and of any former act of the same lawmaking power of which the act in question is an amendment, but also to the condition and to the history of the law as previously existing, and in the light of which the new act must be read and interpreted.”

Because the Constitution does not define “natural born citizen” it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.”

To defend his argument, Justice Gray cited several cases which established precedent for the court’s decision, “The question must be answered in the affirmative.”

United States v. Rhodes (1866)
Mr. Justice Swayne, said, “Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England.”

“The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem — and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.”

Minor v. Happersett (1875)
Chief Justice Waite’s court opinion included a definition of natural-born citizens based on the common-law at the time of the US Constitution’s passage and subsequent legislation. His opinion diverges slightly from Justice Swayne’s.

“At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [p168] parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.”

Dissenting Opinion in U.S.v. Wong Kim Ark (1898)
Chief Justice Fuller objected to the idea that the only thing “natural born” ever meant in the first place was that the individual in question was born on U.S. soil:

“[I]t 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.”

E. de Vattel’s Law of Nations (1758)
“The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as a matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children.”

At issue, then, is whether or not a parent must be a citizen in allegiance to the U.S. Constitution in order for a person born under the jurisdiction of the United States to be considered a “natural born citizen”.

The definition of “natural born citizen” as it currently stands takes the following into consideration.

State Dept. Foreign Affairs Manual
â–ª U.S. laws governing the acquisition of citizenship at birth embody two legal principles:

1. Jus soli (the law of the soil), a rule of common law under which the place of a person’s birth determines citizenship. In addition to common law, this principle is embodied in the 14th Amendment to the U.S. Constitution and the various U.S. citizenship and nationality statutes.

2. Jus sanguinis (the law of the bloodline ), a concept of Roman or civil law under which a person’s citizenship is determined by the citizenship of one or both parents. This rule, frequently called “citizenship by descent” or “derivative citizenship”, is not embodied in the U.S. Constitution, but such citizenship is granted through statute. As laws have changed, the requirements for conferring and retaining derivative citizenship have also changed.

Title 8, Section 1401, of the U.S. Code provides the current definition for a natural-born citizen.

â–ª Anyone born inside the United States and subject to the jurisdiction of the United States, which exempts the child of a diplomat from this provision

â–ª Any Indian or Eskimo born in the United States, provided being a citizen of the U.S. does not impair the person’s status as a citizen of the tribe

â–ª Any one born outside the United States, both of whose parents are citizens of the U.S., as long as one parent has lived in the U.S.

â–ª Any one born outside the United States, if one parent is a citizen and lived in the U.S. for at least one year and the other parent is a U.S. national

â–ª Any one born in a U.S. possession, if one parent is a citizen and lived in the U.S. for at least one year

â–ª Any one found in the U.S. under the age of five, whose parentage cannot be determined, as long as proof of non-citizenship is not provided by age 21

â–ª Any one born outside the United States, if one parent is an alien and as long as the other parent is a citizen of the U.S. who lived in the U.S. for at least five years (with military and diplomatic service included in this time)

Separate sections confer citizenship on persons living in US territories as of a certain date, and usually confer natural-born status on persons born in those territories after that date. Concerning the Panama Canal Zone and the nation of Panama, the law states that anyone born in the Canal Zone or in Panama itself, on or after February 26, 1904, to a mother and/or father who is a United States citizen, was “declared” to be a United States citizen. The terms “natural-born” or “citizen at birth” are missing from this section.

When Arizona Senator John McCain ran for president, some theorized that because McCain was born in the Canal Zone, he was not actually qualified to be president. However, it can be argued that section 1403 applied to a small group of people to whom section 1401 did not apply. McCain is a natural-born citizen under 8 USC 1401(c): “a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person.” Not everyone agrees that this section includes McCain – but absent a court ruling either way, the 2008 a resolution sponsored by Sen. Claire McCaskill and co-sponsored by Sen. Hillary Clinton, Sen. Thomas Coburn, Sen. Patrick Leahy , Sen. Barack Obama, and Sen. Jim Webb recognizing that John Sidney McCain, III, is a natural born citizen and which was introduced and passed Senate without amendment stands. This resolution stated that John Sidney McCain, III, is a “natural born Citizen” under Article II, Section 1, of the Constitution of the United States (Michigan Law Review).

Although President Obama has a Kenyan father, and was later adopted by an Indonesian National, the fact that his mother was a citizen should legitimize his being born a U.S. citizen. It is unlikely his birth certificate would indicate that he is born of some other lineage, however his birth certificate is sealed and the public does not have access to his records.

What is equally relevant to his current legitimacy as president is whether his citizenship was renounced when he moved to Indonesia with his mother and adopted father and attended a Muslim school.

In 2004, A bill (S.2128) to define the term “natural born Citizen” as used in the Constitution of the United States to establish eligibility for the Office of President was introduced by Sen. Don Nickles and was cosponsored by Sen. James Inhofe and Sen. Mary Landrieu. The bill never became law.

There is a need to have an acceptable definition of natural-born citizen that cannot be politicized. The definition must be ensconced in the Constitution. Whether common law ideas or Vattel’s ideas prevail, we need to define what is to be acceptable in our Commander in Chief. Furthermore, evidence of birth in allegiance to the United States must be required of all candidates for president of the United States. All of the arguments made by the Framers regarding foreign influence must be taken into consideration because they knew then as we know now; the sovereignty of our great nation is at risk.

Sources:

Yinger

http://faculty.maxwell.syr.edu/jyinger/Citizenship/myths.htm

Blackstone’s Commentaries

http://press-pubs.uchicago.edu/founders/documents/a2_1_1s18.html

Washington

http://avalon.law.yale.edu/18th_century/washing.asp

Fourteenth Amendment to the United States Constitution

http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution

Elbel

http://www.thesocialcontract.com/artman2/publish/tsc1703/It_s_Time_to_Revisit_the_14th_Amendment.shtml

P.A. Madison

http://federalistblog.us/2006/12/us_v_wong_kim_ark_can_never_be_considered.html

GRAY, J., Opinion of the Court : SUPREME COURT OF THE UNITED STATES
United States v. Wong Kim Ark

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZO.html

P.A. Madison

http://federalistblog.us/2008/11/natural-born_citizen_defined.html

WAITE, C.J., Opinion of the Court: SUPREME COURT OF THE UNITED STATES
Minor v. Happersett

http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0088_0162_ZO.html

Fuller

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZD.html

Vattel

http://www.thebirthers.org/USC/Vattel.html

ACQUISITION OF U.S. CITIZENSHIP BY BIRTH IN THE UNITED STATES

http://www.state.gov/documents/organization/86755.pdf

US Code

http://www.law.cornell.edu/uscode/8/1401.html

McCain’s Citizenship and Constitutional Method

http://www.michiganlawreview.org/firstimpressions/vol107/spiro.htm

Why Senator John McCain Cannot be President: Eleven Months and a Hundred Yards Short of Citizenship

http://www.michiganlawreview.org/firstimpressions/vol107/chin.htm

The Origins and Interpretation of the Presidential Eligibility Clause in the U.S. Constitution: Why Did the Founding Fathers Want the President To Be a “Natural Born Citizen” and What Does this Clause Mean for Foreign-Born Adoptees?

http://faculty.maxwell.syr.edu/jyinger/Citizenship/history.htm

The Revised Statutes

http://famguardian.org/TaxFreedom/CitesByTopic/expatriation-RS1999-1868.pdf



Nancy Salvato is the President and Director of Education and the Constitutional Literacy Program for BasicsProject.org, a non-profit, non-partisan 501(c)(3) research and educational project whose mission is to re-introduce the American public to the basic elements of our constitutional heritage while providing non-partisan, fact-based information on relevant socio-political issues important to our country, specifically the threats of aggressive Islamofascism and the American Fifth Column. She serves as a Senior Editor for The New Media Journal. She received her BA in history from Loyola University and her M.Ed.in Early Childhood Education from National-Louis University. She is certified to teach in grades K-9 and 6-12 and as a teacher has worked with students in preschool, 1st, 5th, 6th, 7th, 8th, 9th, 11th, and 12th grades. She has also worked as an adjunct instructor at the graduate school level. She continues to augment her education and areas of expertise by taking college courses and participating in a variety of workshops. She currently earns her living as the VP of Compliance and Program Expansion at a graduate school of education.

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