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Natural Born Citizen — Chapter 7: Natural Born Citizen Remains Debatable

Further information on defining natural born citizen

As we can see from reviewing the case law, the definition of natural born citizen remains undefined by the courts and debatable within the public.  From a practical point of view, the definition really comes down to exactly what has already been discussed:  is it enough to simply be born here, or does it also require that both of your parents were U.S. citizens at the time of your birth, jus sanguinis (right of blood)? 

One of the important issues that clouds this debate is that many people confuse the term citizen and the term natural born citizen.  In the court cases we have reviewed so far, no one was conferring natural born citizen on any of the parties to the cases including those citizens described in the 14th Amendment.  This book is concerned with this special type of citizenship, i.e., natural born citizenship.  The only time natural born citizenship in the United States is required is to hold the Offices of President and Vice-President of the United States.  You do not need to be a natural born citizen to be a Senator, nor to be a Representative in the House.  You don’t have to be a natural born citizen to be Governor of a state, Mayor, or a City Council person.  You do not need to be a natural born citizen to enjoy any of the rights guaranteed to you in the first 10 Amendments of the U.S. Constitution.  Do not these facts on their very face seem to imply or at least lead to the argument that there is something uniquely special about natural born citizenship?  If so, what would that uniqueness be?  Is it unreasonable to think that the uniqueness might just in fact be as de Vattel wrote:  “The natives, or natural-born citizens, are those born in the country, of parents who are citizens [?]”  But what is most important is what our U.S. Constitution and how our current law can guide us in ascertaining a decision.  As the Chief Justice wrote in the Minor v. Happersett decision, “[t]he Constitution does not, in words, say who shall be natural-born citizens.  Resort must be had elsewhere to ascertain that.”[i]  Remember, the opinion written in the Minor v. Happersett case was written after the 14th Amendment was ratified and became a part of the Constitution, so when the opinion in the case makes the above statement, the 14th Amendment is included in that statement meaning the 14th Amendment does not define natural born citizen either.

We have already pointed out that the founding fathers studied de Vattel to the extent that Benjamin Franklin admitted to The Law of Nations use in the Continental Congress.  As a result, the founders would have been aware of his definition of natural born citizen at the time of their writing of the Constitution.  We have looked at the Nationality Act of 1790.  We have reviewed the 14th Amendment and the cases of Minor v. Happersett as well as U.S. v. Wong Kim Ark.  We have not, however, in detail looked at the provision in the 14th Amendment that states “subject to the jurisdiction thereof.”  As a reminder, the 14th Amendment begins:

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.[ii]

There is no doubt that when Barack Obama was born in Hawaii, he would have been subject to the territorial jurisdiction of the United States meaning the laws of the United States and the laws in the State of Hawaii, but would he also be politically subject to the jurisdiction thereof, or did he also hold political jurisdiction via the British Naturalization Act of 1948 to the country of England?  The question we have been debating here is would he have qualified as a natural born citizen?  Is a British citizen at birth a natural born U.S. citizen?

During the Presidential Campaign of 2008, Barack Obama’s campaign put up a website called Fight the Smears (www.fightthesmears.com) in order to debunk any rumors that surfaced about him during the campaign.  One of the rumors surfacing in June of 2008 questioned whether or not Barack Obama was born in Hawaii.  In response to this smear, Barack Obama’s website posted a page on their website debunking this rumor, by showing a digital copy of Barack Obama’s “Certification of Live Birth” from the state of Hawaii.  The website page included an article written by the Washington Post as well as a website post from FactCheck.org where the first (Washington Post) attempted to confirm that he was born in Hawaii while the latter (FactCheck.org) addressed his citizenship.  The page on the Fight the Smears website[iii] debunking the Hawaiian birth certificate smear is depicted below:

fightthesmearsbirthing

At the top of the webpage is the website’s official statement on the matter, and it reads in its entirety as follows:

Smears claiming Barack Obama doesn’t have a birth certificate aren’t actually about that piece of paper – they’re about manipulating people into thinking Barack is not an American citizen. 

The truth is, Barack Obama was born in the state of Hawaii in 1961, a native citizen of the United States of America.

Next time someone talks about Barack’s birth certificate, make sure they see this page.[iv]

The next item on this page of the website was the digital copy of his Certification of Live Birth from the state of Hawaii.  The next item was an extract from The Washington Post article (with a link to the article) stating:

 The Washington Post[v] Debunks Smears, Confirms Barack’s Citizenship

 “The truth: Sen. Barack Obama, born in Hawaii, is a Christian family man with a track record of public service.”

And the final portion of this page on his website showed the statement by Factcheck.org clarifying Barack Obama’s citizenship:

FactCheck.org[vi] Clarifies Barack’s Citizenship

“When Barack Obama Jr. was born on Aug. 4, 1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.‘s children.

Since Sen. Obama has neither renounced his U.S. citizenship nor sworn an oath of allegiance to Kenya, his Kenyan citizenship automatically expired on Aug. 4, 1982.”

In the official statement on the Fight the Smears website, Barack Obama is said to be a “native born citizen.”  The Washington Post extract on the website makes no mention of citizenship.  And the FactCheck.org statement on the website states:

Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948.  That same act governed the status of Obama Sr.’s children.[vii]

At the time the FactCheck.org statement was posted on the Fight the Smears website, sometime in late August or early September of 2008, some people were astounded to see this admission.  These folks made the argument that the website posting proved that Barack Obama had at a minimum held dual citizenship at the time of his birth, and that as a British subject at birth he could not possibly be a natural born citizen.  It did not matter to them that the FactCheck.org statement went on to say that Barack Obama’s Kenyan citizenship expired on August 4, 1982.  For them, this was enough to prove that Barack Obama was not in fact and by his own admission a natural born citizen.  For if his citizenship was governed by an Act of the British Government then he must be subject to their political jurisdiction in some manner.  The logical question being, can a person who possesses dual citizenship at birth be a natural born citizen?   This of course is the seminal question of our discussion.  Barack Obama’s Fight the Smears website refers to him as a native born citizen.  Is there in fact a difference between native born and natural born citizens?

Prima facie evidence suggests when we look at the definitions of native born versus natural born we see no differentiation in the definitions.  Dictionary.com defines native born as:  “born in the place or country indicated,” (definition having its origins from 1490 to 1500) and defines natural born as “a native born” (definition has its origin from 1575 to -85).[viii]  According to Dictionary.com the term native born has its origins prior to the term natural born which logically allows for the later to derive its definition from the former.  As a result, one can conclude that according to Dictionary.com, the case is closed, natural born equals native born.  In fact, in de Vattel’s definition of natural born he somewhat alluded to the terms as equals when he stated:  “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.”  If natives is equal to native born then de Vattel would also be stating that they are equal.  It is not clear, however, if de Vattel is in fact using the term natives in place of native born.  Interestingly, no other online dictionary defines natural born, and my Second College Edition of The American Heritage Dictionary (albeit is a bit dated) also does not define the term natural born while it does provide the same definition for native born as dictionary.com.  Can we conclude that these other dictionaries do not define the term natural born citizen because we do not possess a definition as has been argued to this point in the book?

To this point, in the various chapters of the book, we have discussed different types of citizenship including:  natural born citizens, native born citizens, U.S. citizens and naturalized citizens.  Although our endeavor is to define the term natural born citizen, it might be helpful to find a finite definition for each of these terms.  Our friend, M Publius Goat at the Country First website has put together a citizenship chart which is depicted as follows:

citizenship chart

Reprinted with Permission

The chart is a little bit hard to read in our reproduced copy of it, but if you click on the chart it will take you to a larger version of the chart.  In order to assist with what is depicted above, here is the breakdown of citizenship:

Citizen of the U.S. = born to at least (1) U.S. citizen parent, or born in the U.S.A., or naturalized as a U.S. citizen

Born Citizen of the U.S. = born in the U.S.

Naturalized Citizen = not born in the U.S. and citizenship rights gained by the process governed by federal statute.

Natural Born Citizen = Both parents U.S. citizens (of any type above) and born in the U.S.A.

I highly recommend that you click on the chart and see the logical definitions and relationships between the types of citizens.

The chart provided makes a lot of sense and logically it appears to give us a clear understanding of the various types of citizenship.  Unlike the proponents of Barack Obama’s natural born citizenship status, I am not just going to point to this chart and claim our work is done, that we now have a definitive answer as to all of our natural born citizenship questions.  This is an excellent start, and lays out citizenship logically for us, but we still have the duty to confirm the chart in accordance with our Constitution and subsequent Amendments and Federal Statutes.  The definition of natural born citizen is becoming much clearer to us as we proceed through these discussions, but we are not arrogant enough to think that we can unequivocally define that which has not been defined within our Constitutional and legal system.  It should be noted that it is not that those whom are opponents to Barack Obama’s natural born citizenship status are saying Barack Obama is definitely not a natural born citizen even though they are fairly sure he is not, they are simply saying at the very least that they have no definitive way of knowing for sure if he is.  As a result, the matter must be decided to protect our nation ensuring adherence to its Constitution.  If a person whom is not a natural born citizen is allowed to occupy the Office of the President of the United States in usurpation, then there is no other law contained within the Constitution that must also be abided.  Should this occur, then the result is anarchy and our nation no longer exists as a Constitutional Republic bound by the rule of law.  Furthermore, there would be nothing to prevent someone from becoming President of the United States whom is not a natural born citizen and has ill intentions whom would do irreparable harm to our nation as a result of becoming President. 


[i] Findlaw.com – U.S. Supreme Court Minor v. Happersett, 88 U.S. 162 (1872) — http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=88&invol=162

[ii] Cornell University Online Constitution – http://www.law.cornell.edu/constitution/constitution.amendmentxiv.html

[iii] Fight the Smears Birth Certificate Page — http://www.fightthesmears.com/articles/5/birthcertificate.html

[iv] Fight the Smears Birth Certificate Page — http://www.fightthesmears.com/articles/5/birthcertificate.html

[v] Washington Post “In Flag City USA, False Obama Rumors Are Flying”  http://www.washingtonpost.com/wp-dyn/content/article/2008/06/29/AR2008062901871_pf.html

[vi] FactCheck.org article: Does Barack Obama have Kenyan citizenship?  http://www.factcheck.org/askfactcheck/does_barack_obama_have_kenyan_citizenship.html

[vii] Fight the Smears Birth Certificate Page — http://www.fightthesmears.com/articles/5/birthcertificate.html

[viii] Dictionary.com website:  the definitions of natural born and native born – http://dictionary.reference.com

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.

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Natural Born Citizen — Chapter 6: U.S. v. Wong Kim Ark

Citizenship case of a child born on U.S. soil to Chinese nationals

Wong Kim Ark alleged that he was born in the United States in 1873 to parents of Chinese decent whom were subjects of the emperor of China. In August of 1895, Wong Kim Ark was returning to the United States from a temporary visit to China wherein he was refused permission to land (dock) at the port of San Francisco by the collector of customs and was restrained of his liberty based solely upon the pretense that he was not a citizen of the United States.[i]

This case, like the Minor v. Happersett case, occurred after the ratification of the 14th Amendment.  Proponents of Barack Obama’s natural born citizenship status point to the following passage from the opinion written by Justice Gray[ii]:

The foregoing considerations and authorities irresistibly lead us to these conclusions: The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Coke, 6a, ‘strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’; and his child, as said by Mr. Binney in his essay before quoted, ‘If born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.[iii] (Emphasis added)

Proponents that say Barack Obama is a natural born citizen point to the highlighted portion above concluding that is as much a citizen and the natural born child of a citizen are equivalents in that sentence.  Thus, a child born in the United States of a foreigner domiciled in the United States is a natural born citizen child.  

First, it can be unequivocally argued that the justices in their affirmative opinion above found Wong Kim Ark to be a 14th Amendment U.S. Citizen.  There can be no dispute of this fact regardless of the soundness of the Justices’ arguments.  It should also be noted that while domiciled in the U.S. and again in accordance with the 14th Amendment that “every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States” was the additional argument that the opinion of the court was making.

The crux of the ruling though for our purposes is how it relates to the natural born citizen status of an individual and in the highlighted text above, the Justices clearly state:  and his child (snip) [i]f born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.  These twenty-seven words may ultimately decide the eligibility of Barack Obama to hold the Office of the President of the United States. 

The twenty-seven word sentence is the last portion of a much longer sentence, but because it has immediately before it a semi-colon, it stands alone as a complete thought.  The portion of the sentence that has been removed (snipped) is a parenthetical statement and is not necessary to the complete thought of the sentence.  The parenthetical portion that has been snipped is utilized in the sentence to cite an authority.  The fourteenth word of the sentence is the word as (the second time the word as is used in the twenty-seven word sentence) and is one of the most important words in understanding when deconstructing the sentence. 

When as is used in this context it is used as a subordinate conjunction.  Subordinate conjunctions compare two things, but they do not compare two like things.  In order to compare to equal things, correlative conjunctions are used.  In the sentence that we have extracted from the paragraph it is clear that a subordinate conjunction is being used, and in a subordinate conjunction there is a dependent clause and an independent clause. 

In our sentence, the independent clause is is as much as a citizen and the dependent clause is as the natural-born child of a citizen.  The relationship between the two clauses is in fact a comparison though.  It is a comparison between two types of American children.  One child is a child born in America and the other is a natural born American child.  They are not equivalent though because they are separated by a subordinate conjunction rather than a correlative conjunction.  The two children represented in the dependent and independent clauses being discussed are clearly two different children, but they are purposely being compared to one another.  In the independent clause, the child is a citizen even though his parent is a foreigner domiciled in the U.S.  In the dependent clause the child of the citizen is a natural born child.  In the independent clause, the child of the foreigner domiciled in the U.S., although the child is concluded to be a citizen, the foreign parent domiciled here is not necessarily a citizen.  Whereas, in the dependent clause, the parent of the natural born child is in fact a citizen, the parents as well as the child are both citizens.  Two completely different children are being compared to one another making use of the grammatical construct of a subordinate conjunction and determining that both children are citizens but not natural born citizens.  This is a critical point and should not be obfuscated.

Proponents of Barack Obama’s natural born citizen status could easily agree with the above grammatical analysis and still come to the same conclusion that Barack Obama is a natural born citizen.  They might argue even if the subordinate clause in question in itself is not comparing two equivalent children what the Justice is saying is that these two different children are as the final portion of the sentence states “and by operation of the same principle.” [iv]  On the other hand, those analyzing the sentence without deconstructing the sentence grammatically may conclude, just on the face of it, or in accordance with their first impression when they read the sentence appears to equate these two children implying that they are both natural born citizens.

In order to understand the Wong Kim Ark case one must know the history of the day.  At the time, the Chinese people were beholden to the Emperor of China.  The Wong Kim Ark case took very serious the notion of subject to the jurisdiction thereof not only in the sense of jurisdiction held by a nation while you were residing in it as to that nation’s laws, but actual allegiance to the nation in which you were residing.  The Wong Kim Ark case had to wrestle with the ability for a Chinese resident of the United States having legal allegiance under the 14th Amendment to the United States versus some political allegiance they have to give to the Emperor of China.  In the sentence we have been studying, remember we only took the last part of the sentence after the semi-colon, but the sentence is part of a greater thought on “subject to the jurisdiction thereof.”  The justices concluded in this sentence that both children (the child of resident aliens and the natural born child of a citizen) were both by operation the same principle.  Does this actually prove they were both therefore natural born citizens?

Justice Gray in writing the opinion of the court in this case went into a very a lengthy explanation of natural born citizens and subjects.  In the opinion, he writes:

It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.

III. The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established. [v]

On the other hand, Chief Justice Fuller whom wrote the dissenting opinion in the Wong Kim Ark case stated the following:

Before the Revolution, the views of the publicists had been thus put by Vattel: ‘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.’ Vatt. Law Nat. bk. 1, c. 19, 212. ‘The true bond which connects the child with the body politic is not the matter of an inanimate piece of land, but the moral relations of his parentage. … The place of birth produces no change in the rule that children follow the condition of their fathers, for it is not naturally the place of birth that gives rights, but extraction. [vi]

We, therefore, have two differing opinions within this one case of the subject of natural born citizen.  Granted, weight must be given to the case’s opinion rather the case’s dissent.  However, for those whom are still convinced that the Wong Kim Ark case unequivocally argues that a child born on U.S. soil regardless of the status of their parents’ citizenship is a natural born citizen, I ask the following question.  Why did Justice Gray not make this argument, place these words in the final paragraph of the courts’ decision when he wrote:

The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties, were to present for determination the single question, stated at the beginning of this opinion, namely, 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. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.[vii] (Emphasis added)

Justice Gray could have written, becomes at the time of his birth a natural born citizen of the United States, but he did not use this qualification.

The problem with the original quoted passage from Wong Kim Ark and in particular the sentence that we have been deconstructing is that the sentence is just poorly constructed especially for use within a precedent setting legal opinion.  This sentence could have been constructed in a much clearer fashion which would have obviated the confusion we have today regarding Wong Kim Ark’s case and its relationship to the natural born citizen subject.  And as stated in the last paragraph, Justice Gray could have removed all doubt in the final paragraph of his written opinion.  In fairness to the Justice, the Wong Kim Ark case was not a case that required Wong Kim Ark to be a natural born citizen.  The case simply needed to prove that Wong Kim Ark was a 14th Amendment citizen.  It would have been convenient today if the quoted passage was more clearly defined in terms of natural born citizen status in a subsequent sentence by the Justices, but they felt no compelling reason to clear up any issues with regard to natural born citizens as their case did not require such a ruling.

As a result, it appears to this author that Wong Kim Ark really does not add precedent nor provide a final clarification of the natural born citizen definition, nor did the Minor v. Happersett case as to our legal impression of what was meant by natural born citizen.  Therefore, we remain without a legal definition of the term natural born citizen by our courts.

For a more thorough discussion on the Wong Kim Ark case please see the following discussions at the following website links:

http://naturalborncitizen.wordpress.com/2009/07/30/justice-horace-gray-clearly-indicated-wong-kim-ark-was-not-a-natural-born-citizen/

http://people.mags.net/tonchen/birthers.htm#ref14

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


[i] 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

[ii] Justice Gray was appointed by President Chester Author.  There has been question as to whether or not Chester Author usurped the Presidency of the United States.  For a thorough discussion on this topic please see Leo Donofrio’s blog posts on this subject at http://naturalborncitizen.wordpress.com

[iii] 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

[iv] 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

[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] 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

[vii] 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

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.

Written by KJ Kaufman

August 21, 2009 at 10:24 pm