He's Not My President?

Thoreau: "Government is Best Which Governs Least"

Natural Born Citizen — Chapter 2: Constitutional Requirements

Background information on the natural born citizen provision

The United States Constitution has a provision in it as to whom is eligible to be President of the United States.  Article II, Section 1, Clause 5 states that:

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; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen years a resident within the United States.[i]

As the Senators noted in their resolution on John McCain’s eligibility, the words natural born citizen were never defined in the Constitution, and, therefore, we are left to interpret what was meant by natural born citizen.  It is widely held that the inclusion of this clause in our Constitution was the result of a letter sent on July 25, 1787 by John Jay to George Washington.  It should be noted that John Jay later became the 1st Chief Justice of the United States Supreme Court.  The Honorable John Jay’s letter in part stated:

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…[ii]

Why didn’t the founders define natural born citizen?  They seemed to think enough of John Jay’s letter to include it in the Constitution, yet they also seemed to feel no desire to further enunciate or debate the term in their constitutional convention or in the federalist papers written to persuade passage of the Constitution.  Their actions seem to indicate that the term was very clear in their minds, that the meaning of the term natural born citizen was clear and that the meaning provided a “strong check” preventing “foreigners” from being elevated to the United States Presidency.

What evidence or customary understanding of the term natural born citizen would the founding fathers have been using during their drafting and deliberations of the United States Constitution?  At the time the Constitution was written, there were at least two legal theories that would have been invaluable to them:   1) Emmerich de Vattel’s legal treatise entitled The Law of Nations and 2) the practice of common law adopted in the several states. 

In Emmerich de Vattel’s legal treatise The Law of Nations, Chapter XIX, Section 212, natural born citizen was defined as follows:

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 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 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; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.[iii] (Emphasis added)

In accordance with this one paragraph from The Law of Nations, it can be concluded that John McCain and Barack Obama have a valid and significant issue when it comes to their natural born citizen status.  John McCain was born in the Panama Canal Zone.  Barack Obama’s father was not a citizen of the United States at the time of his birth, and through citizenship inheritance, Barack Obama was also a British citizen at birth.  According to de Vattel’s definition of natural born citizen neither man would therefore qualify as one.  According to de Vattel, in McCain’s case the United States would not be “the place of his birth” and in Obama’s case, the United States would “be only the place of his birth, and not his country.”

On the other hand, we have common law.  Common law in its broadest definition as dictionary.com defines it is:  “the unwritten law, esp. of England, based on custom or court decision, as distinct from statute law.”[iv]  In common law, if no precedent setting case has decided a matter than the case before the court is referred to as a case of “first impression.”  At the time of our Constitution, the law of England or British common law, stated in part:  “and therefore every child born in England of alien parents was a natural-born subject”[v] with exceptions that are not relevant to our discussion here.  Within this definition if United States citizenship were substituted for British subject, one might conclude that the common law definition makes Barack Obama a natural born citizen while still excluding John McCain from natural born citizenship.  What we have discovered through de Vattel’s definition of natural born citizen and the English common law understanding of natural born subject is that there is some importance attributed to both place of birth and the citizenship of the parents which brings us to the Latin terms of these conditions. 

The discussion on natural born citizens and/or subjects wrestles with the Latin terms jus soli meaning right of soil and jus sanguinis meaning right of blood.  These terms were well known in the late 18th century when our Constitution was being drafted.  Following these terms, we see that Barack Obama is said to be a citizen of the United States via jus soli while John McCain is a jus sanguinis United States citizen.  Neither Mr. Obama nor Mr. McCain seems (to be discussed and qualified later) to possess both jus soli and jus sanguinis in their citizenship qualifications.  According to Emmerich de Vattel, both jus soli and jus sanguinis were required to be a natural born citizen.  According to British common law, jus soli satisfies the requirement for a natural born subject.  Which concept were our founding fathers following?  What can we glean if anything from the provision they placed in Article II, Section 1 of the U.S. Constitution?

We know that they didn’t consider themselves natural born citizens, otherwise, they would not have included in the provision “or a citizen of the United States, at the time of the adoption of this Constitution”[vi] (otherwise known as grandfathering themselves in) which allowed the signors and their fellow citizens to be eligible provided adherence to the subsequent conditions to hold the office of the Presidency.  Unfortunately, the “grandfather clause” probably cannot shed definitive light on the subject.  Based on jus soli, the nation in which they were born was a British Colony and subject to the King of England, so even though they were born on land that later became the United States, at the time of their birth that was not the condition.  This leads us to the first indication that a person’s birth status cannot be changed via an act of rebellion, law or legislation.  In other words, the circumstances of one’s status at birth becomes immutable.  This certainly helps us to understand the “grandfather clause,” but it does not appear to provide us with a definitive answer as to who among us are natural born citizens.  We still need further inquiry to determine what it means to be a natural born citizen.  Now that we have opened the line of inquiry as to legislation with respect to natural born citizen, let’s move forward to acts of legislation on citizenship and the significant citizenship cases that followed within our courts.


[i] Cornell University Online Constitution — http://www.law.cornell.edu/constitution/constitution.articleii.html#section1

[ii] Columbia University Library – The Papers of John Jay — http://wwwapp.cc.columbia.edu/ldpd/app/jay/search?mode=search&action=search&match=all&p=1&aut=john+jay&submit=Search&recip=george+washington&keywd=natural+born+citizen&rep=&jayid=&y1=&m1=&d1=&y2=&m2=&d2=&sort=date&resPerPage=25

[iii] Constitution Society — http://www.constitution.org/vattel/vattel_01.htm

[iv] Dictionary.com common law definition — http://dictionary.reference.com/browse/common+law

[v] Findlaw.com – U.S. Supreme Court U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) — http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=169&invol=649

[vi] Cornell University Online Constitution — http://www.law.cornell.edu/constitution/constitution.articleii.html#section1

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9 Responses

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  1. Very nice article. My compliments. You have put this in better perspective than most any other article i have read on the subject.

    Another article i read stated that there is another place in the constitution, (i forget where in the constitution, but the article referenced and wrote out what it said) that referred specifically to the “law of nations” and lends credence to that being the test and the best way to interpret nbc. In other words, that’s what the writers of the constitution had in mind.

    Why the ^&^***&^%$%$^* won’t some judge take up the issue when it’s presented?

    yo

    August 8, 2009 at 5:23 pm

    • In Article I, Section 8 “the law of nations” is mentioned but it does not appear to be in reference to the actual treatise by de Vattel. I have a bout 12 chapters to this book already written. In the end the book will be 15-20 chapters in length and should exhaustively cover almost everything surrounding this issue.

      curi0us0nefromthe60s

      August 8, 2009 at 6:48 pm

  2. I hope you are willing to shed more light on the Vattel book. It would be nice to show the timeline of the translations as well as references proving when it was translated from English to French. According to some sources (I’m not saying that these sources are 100% correct), they claim that the first translation of Vattel’s book to contain the term natural-born citizen was in 1790, 3 years after the adoption of the US Constitution. This would mean that the founding fathers already had this term in mind before getting it from the Law of Nations, the only existing reference to me would see the English law(US was a colony of the British and thus borrowed a lot from them good/bad!) [Editor: You make a very valid point that I should do more research on Vattel and publish it in this book. Just so you know I only have one more chapter to write and post and then this book will be complete. At that time, I plan to go back to each chapter and refine my points, arguments and references. It will be at that time that I will address your valid point made in this comment.

    Also, how do we know for a fact that the founding fathers in article 2, section 8 were referring to a book written by a Swiss? How was referencing done by the founding fathers while writing the constitution. It seems like a really subjective way to reference law. Wouldn’t this tie the constitution to any book with phrases that match its title? [Editor: it is my belief that Article 2, Section 8 in the Constitution does NOT specifically refer to Vattel’s book; therefore, arguments made along these lines are moot. However, in the end, I believe it will be up to the U.S. Supreme Court to look at Article 2, Section 8 and make their determination.

    If Obama is a foreigner because of his dad, can the same logic be applied to children of single mom’s, who have children where the dad is “unknown”. Should we require paternity tests to prove that the presidential candidates dad is really who they are? Should this threshold have been applied to all the previous 42 presidents as well as their VPees and the current VP Joe Biden? [Editor: you bring up another valid point. It is this point that makes me believe that some clarification or amendment needs to be made to the Constitution regarding natural born citizen to keep with modern times. However, we must also understand that even if Article 2, Section 1, Clause 5 has some potential problems in modern day society, there is only one way to correct that and that is through the amendment process.

    I understand the serious concern of having a Manchurian foreign candidate and thus president, but if we believe that the entire US Government (FBI, CIA, Congress) mistakenly applied the law is a bit hard to swallow to me. If the US government was and is oblivious of this fact, this trail of logic implies that the same has been the case for the previous 42 presidents. However am willing to get a second opinion and accept well laid out rational arguments. [Editor: I am not a conspiracy theorist, and I do not believe a whole bunch of the people were in on it. What I think we have is a combination of ignorance in this country as well as some people who believe the Constitution is a “living” document that can change interpretation with respect to the changing times. Therefore, those same people believe that if a person was born here, then they are a natural born citizen. I disagree with them, but that is the point of this book. The term must be defined by the Supreme Court.

    Curious Dude

    September 24, 2009 at 3:07 pm

    • Thank you for your prompt and rational response.

      I have one clarification I want you to make. About the article 2, section 8, when you say that you belief that the Law of Nations book by Vattel was the actual reference, are you stating an opinion or a fact. Could you point me to a place where I can read more about how referencing was done in the constitution by its authors. If this aspect can be proved to me, I will concede this point. [Editor: my sincere aplogies, I meant to write does NOT and I left out the NOT in the original response. I have corrected my original response to include NOT.

      What’s your take on the 14th amendment as regards to African Americans which in my understanding gave citizenship to freed slaves and their children born thereafter? Were the first generation 14th amendment born African Americans natural-born citizens? If so does that mean we have a conflict or contradiction since the 14th amendment did not reference the need to have a US citizen father, yet the same amendment made a certain group of people natural-born citizens? Do you believe the 14th amendment should be re-written? And if so, wouldn’t that concede the confusion/ambiguity that is currently present? [Editor: I think the 14th Amendment presents a very unique issue and a problem for the laws of nature (and yes I mean nature here; not nations). I believe from a purely U.S. legal/Constitutional argument, you would have to conclude that those 14th Amendment black citizens (at the time the 14th Amendment was adopted) would not be considered natural born citizens because their parents were not considered citizens when they were born and, for me, your natural born citizenship status is immutable it never changes. However, having said that, I would say that in accordance with the laws of nature, all blacks born in this country after the Revolution and before the 14th Amendment should have been considered citizens, for to enslave a person is against the laws of nature; therefore, laws against a person’s citizenship based on their enslavement is in absolute contradiction with the laws of nature and inalienable rights granted by God. Enslaving Americans was in absolute contradiction with this Nation’s charter and is in my opinion the greatest wrong this country has ever known. Therefore, although in accordance with our laws, I believe that blacks born prior to the 14th Amendment cannot claim natural born citizenship, I take some small solice in the fact that the 14th Amendment finally righted this eggregious wrong regarding U.S. citizenship for blacks and those children born to 14th Amendment citizens are now considered natural born citizens and eligible for the Presidency.

      Curious Dude

      September 24, 2009 at 5:33 pm

  3. One becomes a citizen of the United States either by birthright (being born a citizen), or through naturalization. The word “naturalize,” which contains the word “natural” within it as an antecedent, is in the original constitution, and the similar rooted word “naturalization” is in the first act allowing people to become citizens, in 1790.

    Our Founding Fathers thus divided citizens into two categories — those who were citizens at birth, and those who became citizens after birth. A “natural born” citizen was one who was a citizen at birth — like, for example, Barack Obama and, apparently, the author of this book. Those who have been “naturalized” and are not eligible to be President of the United States include, for example, Orly Taitz and Jennifer Granholm.

    So, this book is basically a lot of bloviation, trying to disqualify the current President of the United States, who was popularly elected by a majority of those who voted in November 2008.

    Next!

    Biff Guiznot

    December 5, 2009 at 2:48 pm

    • You couldn’t be more wrong. The term naturalization means to make natural that which is not inherently natural.

      None of the Founding Fathers were natural born citizens; hence, the grandfather clause. The Founding Fathers became citizens of their newly formed country but could never be natural born citizens of the country even though they were born on her land.

      Barack Obama is a citizen of the United States but there is no law nor court case nor anything in the Constitution that proves him to be a natural born citizen. Barack Obama was a British Citizen at birth through inherentence from his father.

      How is a British Citizen at birth a natural born U.S. citizen?

      You may be willing to freely give up your Constitutional rights and call this author a bloviator. I refuse to allow my Consitutional guarantees to be whittled away so freely.

      We can disagree, but is it not best to do so in an intellectually honest way?

      When you can answer the question posed above as to how a British Citizen at birth can be a natural born U.S. citizen, then we can further the discussion.

      For now, you may wish to read more of the book rather than stop at Chapter 2 and claim you have all of the answers, answers that have yet to be decided in over two centuries of our Constitutional history.

      KJ Kaufman

      December 5, 2009 at 3:22 pm


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