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
[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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