Natural Born Citizen — Chapter 3: The Naturalization Act of 1790
Temporary clarification by the Congress of natural born citizen
In looking at the term natural born citizen, we must also look to other indications of what the founders were thinking during and shortly after the time of drafting and ratifying the Constitution. In Article I of the U.S. Constitution, the founders vested legislative powers in the Congress. One of those enumerated powers vested in the Congress was the power to “establish a uniform rule of naturalization.”[i] In accordance with this power, the Congress passed The Naturalization Act of 1790.
Some proponents of Senator McCain’s and some opponents of Barack Obama’s status as a natural born citizen point no further than to The Naturalization Act of 1790 legislated during the Second Session of the First Congress. The following portion of the Act discussed natural born citizen as follows:
And the children of such persons so naturalized, dwelling within the United States, being under the age of twenty-one years at the time of such naturalization, shall also be considered as citizens of the United States. And the children of citizens of the United States that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States: Provided also, That person heretofore proscribed by any State, shall be admitted as a citizen as aforesaid, except by an act of Legislature of the State in which such person was proscribed.[ii]
The legislation makes the case that John McCain is in fact a natural born citizen as the legislation clearly states: “And the children of citizens of the United States that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens.” Therefore, proponents of John McCain’s natural born citizen status appear to have the definition they need to assert John McCain is a natural born citizen, but unfortunately, this is not the case.
The Naturalization Act of 1790 as quoted above does not stand today in its original form and is not the final legislation on naturalization and citizenship. The Naturalization Act of 1790 has been revised numerous times, and in 1795 the words natural born citizen were repealed from the act altogether.[iii] It remains important, however, that just three years after the United States Constitution was written and two years after it was ratified, the legislature placed significant importance on jus sanguinis. In The Naturalization Act of 1790, they seemed to place significance on jus sanguinis rather than jus soli. So why did the legislature redact this definition a mere five years later? The answer could be as simple as the Congress realized that they did not have the power granted in Article I, Section 8 of the Constitution to define natural born citizen within their powers to enact naturalization laws. Their power was to create legislation with respect to the naturalization of persons as U.S. citizens. Many argue that the status of natural born citizen cannot come under naturalization legislation because it is a “natural” condition that one holds at birth, and is not a condition that naturalization legislation can confer upon a person.
In the non-binding Senate Resolution that we looked at to open the book, the resolution stated as part of its arguments for affirmation of John McCain’s natural born citizen status the following:
Whereas such limitations would be inconsistent with the purpose and intent of the ‘‘natural born Citizen’’ clause of the Constitution of the United States, as evidenced by the First Congress’s own statute defining the term ‘‘natural born Citizen <snip>”[iv]
The Senate Resolution is clearly referencing The Naturalization Act of 1790 here, but they do not go on to state that the natural born citizen definition was later repealed from this legislation. Why would they leave out such a critical caveat? Could it be because there would still be questions as to John McCain’s status? Also important, in using this argument, was the Senate not begging the question that a natural born citizen must be of citizen parents? And if they were begging this question, then wouldn’t it appear to them that Barack Obama may have some issue when it came to natural born citizen status? Barack Obama co-sponsored this resolution. Are we to believe that in the resolution’s own wording and arguments that Mr. Obama did not see a significant problem with his own natural born citizenship status? Yet, neither the Senate nor Mr. Obama ever brought to light this significant issue. The American People were never made aware that through the Senate’s own non-binding Resolution, the United States Senate was begging the question that jus sanguinis plays a part in natural born citizen status.
In fairness to the Senators, let’s give them the benefit of the doubt at this point and let’s look into further legislation and court cases that were not covered in the non-binding Senate Resolution to see if the Senators at least had something more to go on in their deliberations as to who is and who is not a natural born citizen.
[i] Cornell University Online Constitution, Article I, Section 8 — http://www.law.cornell.edu/constitution/constitution.articlei.html#section8
[ii] Harvard University Library “The Naturalization Act of 1790 — http://ocp.hul.harvard.edu/immigration/outsidelink.html/http://nrs.harvard.edu/urn-3:HLS.LIBR:981715
[iii] The Library of Congress Naturalization Act of 1795 — http://rs6.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=537
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