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Archive for August 2009

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

Any reproduction of the content in this blog post must credit the author:  KJ Kaufman (aka:  curi0us0nefromthe60s) and must reference a link to this blog site https://hesnotmypresident.wordpress.com or link to the specific blog post cited.  You are free to distribute this content in order to educate the populous as long as you adhere to the aforementioned conditions.  Your cooperation in citing this source when reproducing, referencing or redistributing the content contained herein is greatly appreciated.

Natural Born Citizen — Chapter 1: Introduction

The circumstances that led to the natural born citizen issue

In April of 2008, Democratic Senators Claire McCaskill and Patrick Leahy introduced a Senate Resolution declaring that John Sidney McCain III is a natural born citizen as required under Article II, Section 1 of the United States Constitution for eligibility to the Presidency thus touching off what would later become one of the most significant political issues of our time.  In the end, we would ask ourselves on the one hand a simple, but on the other hand an extremely complex question.  Whom among us are natural born citizens?

According to the first portion of the resolution, Senators Leahy and McCaskill argued that the United States Constitution does not define the term natural born citizen; therefore, the most expedient way for Congress to show its belief that Senator McCain is a natural born citizen and eligible to run for the Office of President was to pass a non-binding Senate resolution confirming Senator McCain is a natural born citizen.

Within the resolution, Senator Leahy (D-VT) stated:

John Sidney McCain, III, was born to American citizens on an American Naval base in the Panama Canal Zone in 1936.  Numerous legal scholars have looked into the purpose and intent of the “natural born Citizen” requirement.  As far as I am aware, no one has unearthed any reason to think that the Framers would have wanted to limit the rights of children born to military families stationed abroad or that such a limited view would serve any noble purpose enshrined in our founding document.  Based on the understanding of the pertinent sources of constitutional meaning, it is widely believed that if someone is born to American citizens anywhere in the world they are natural born citizens.[i]

At a judiciary committee hearing on April 3, 2008, Senator Leahy went as far as to ask then Homeland Security Secretary Michael Chertoff, who was a former Federal Judge, the following:

You are the head of the agency that executes Federal immigration law.  Do you have any doubt in your mind–I mean, I have none in mine.  Do you have any doubt in your mind that he [John S. McCain] is constitutionally eligible to become President?

Secretary Chertoff.  My assumption and my understanding is that if you are born of American parents, you are naturally a natural-born American citizen.

Chairman Leahy.  That is mine, too.  Thank you.[ii]

As a consequence of John McCain’s place of birth, the bulk of the resolution and testimony therein relied on the premise that Senator McCain’s parents were both United States citizens.  It appears on the face of it that the resolution in part defines natural born citizenship as the person being born to United States citizen parents, but a funny thing happened on the way to the election.  Senator Barack Obama was not born to two United States citizen parents.  His father was an African national from Kenya.  At the time of Barack Obama’s birth, his father Barack Obama Sr. was a British citizen as Kenya at the time was a British colony.  You would imagine with the uncertainty surrounding McCain’s status which compelled the Senate to pass a non-binding resolution defining John McCain as a natural born citizen that they passed a similar non-binding resolution attesting to Barack Obama’s natural born citizenship, but they did not.  You might imagine that the main stream media launched a thorough investigation to detail the requirements of natural born citizenship to help the public determine whether or not either John McCain or Barack Obama were eligible to hold the Office of the Presidency, but surprisingly they did not.  Well, of course, the courts must have taken up the issue to ensure the people were voting for eligible candidates, but they too did not.  On November 4, 2008, the day of the General Election, millions of voters went to the polls blissfully unaware of any potential issue with the eligibility of the Republican and Democratic candidates.  Now some nine months after the election, the issue remains unresolved, no court since the ratification of the Constitution has definitively defined the term, and our current President may not be eligible to hold the office he currently occupies. 

This book looks at the issue of John McCain’s place of birth and Barack Obama’s father’s citizenship and how these circumstances relate to their natural born citizen status.  This book does not delve into any conspiracy theories or make the case that any that exist are legitimate.  This book simply views the natural born citizen requirement in Article II, Section 1 of the United States Constitution and attempts to have an intellectual discussion as to Mr. McCain’s and Mr. Obama’s status.  The intent is to begin a national dialogue on the subject because until there is a national debate, until the general populous is involved and informed and until the courts get involved, the issue remains Constitutionally problematic.  When you are finished reading this book, you will not have a definitive answer to the question who is a natural born citizen; however, the hope is that you will understand the very important questions related to this subject matter, how they affect our Constitutional Republic, and why it is critical that the subject matter no longer remain silenced and become a part of a national discussion to a point of final resolution.

[i] Senate Resolution on McCain’s Eligibility — http://leahy.senate.gov/press/200804/041008c.html

[ii] Senate Resolution on McCain’s Eligibility — http://leahy.senate.gov/press/200804/041008c.html

Any reproduction of the content in this blog post must credit the author:  KJ Kaufman (aka:  curi0us0nefromthe60s) and must reference a link to this blog site https://hesnotmypresident.wordpress.com or link to the specific blog post cited.  You are free to distribute this content in order to educate the populous as long as you adhere to the aforementioned conditions.  Your cooperation in citing this source when reproducing, referencing or redistributing the content contained herein is greatly appreciated.

Prologue to the Book on the “Natural Born Citizen” Issue

constitution_quill_penI have read numerous blog posts and articles on the U. S. Constitution’s Presidential natural born citizen requirement.   When speaking with my friends about the subject, it is interesting to discover the disparate views and the sometimes uninformed views on the subject.  I have come to the conclusion that the natural born citizen issue brings to light one of the fundamental issues before our country today, i.e., how does America view itself and how do Americans view ourselves in the globalist world view of the day?  Are we as Americans going to choose to participate in a world view of governance or are we going to cling to (not meant in a disparaging way, but utilized in its original form of hold closely, stick to) our United States Constitution? 

I find analogies in how one answers the world view question and how one views the natural born citizen issue once a person is fully cognizant of the requirement.  As a result, I realized there wasn’t a single source to find an intellectual discussion on the natural born citizen subject that tied the subject together in a book type format read from beginning to end.  In other words, I wanted to provide someone with an overview of the natural born citizen issue in book format allowing the reader to read the story from beginning to end and understand the significance of the issue.  I have now completed the book and posted it online here.  I continue to go back through each chapter fixing grammatical errors and tightening up my arguments.  My primary motivation in writing this book is to help educate other people.  I have decided to publish this completed book as a series of blog posts (the series of posts being the individual chapters of the book) here on my blog.

I have also been asked what credentials I hold to write such a book.  I happily admit that I am not a lawyer.  I am simply a fellow American concerned with the Constitution.  I have a Bachelor of Arts degree in Philosophy with an emphasis in ethics and a minor in English from Chapman University located in Orange, California.  I have never been of the opinion that one must hold a certain degree or for that matter a degree from an institution of higher learning specializing in a specific subject to understand that subject.  I hold that anyone with an inquiring mind and some time on his or her hands can learn and understand the following:  our nation’s history, the U.S. Constitution, U.S. legislation and Supreme Court cases.  All one really needs is a desire to apply himself or herself to such endeavors.  Hopefully when you finish reading my book, you will agree.

I ask that you share this content with your friends, family and associates to help further educate them on the issue.  Since this work is my intellectual property (where I have borrowed from others’ intellect, I have clearly sourced their content), all that I ask is that you credit my blog as your source.   I encourage all of you who read each chapter to participate in the comments section of the Chapter’s blog post so that we can open a national discussion on the overall subject and the subject matter contained in each Chapter.  I look forward to your comments and analysis regardless of what political side of the spectrum you come from and regardless of your political party affiliation if any.  I only ask that all comments are respectful of all views on the subject and that commentators remain civil.  Any participation in profanity or other posts lacking the decorum such a serious subject requires will not be posted or will be removed.


KJ Kaufman
A Natural Born Citizen
(formerly known in the blogosphere as curi0us0nefromthe60s and AZConservative)

Written by KJ Kaufman

August 5, 2009 at 3:56 pm