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Thoreau: "Government is Best Which Governs Least"

Posts Tagged ‘natural law

Natural Born Citizens — Chapter 9: Allegiance

Allegiance to a country

The founding fathers would have been concerned with allegiance to the newly formed United States of America and their newly formed government.  Obviously, having defeated the British in the Revolutionary War securing their independence and sovereignty in their budding Nation, it was critical to the founders to have loyal patriots running the government.  It cannot be debated that the founders held the occupant to the Office of the President to a higher standard than any other office in the Federal Government by requiring a natural born citizen to be the office holder making no other position within the Federal Government held to the same standard of citizenship (with the exception that the Vice-President must also be held to this standard should he or she become President).  But why did the founding fathers require natural born citizenship for the President and no other office?  Clearly, as John Jay wrote in his letter to George Washington:

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…[i]

John Jay referred in his letter to “Command in Chief” as we understand today to be the Commander in Chief.  The U.S. President is the Commander in Chief of the armed forces.  To this point in the book, we have not been able to discern with certainty what John Jay meant by natural born citizen, so let us see if we can understand what was meant by Foreigner(s).  Returning to our dictionary.com site, foreigner is defined as: 

a person not native to or naturalized in the country or jurisdiction under consideration; alien.[ii]

Clearly under this definition, this is our first indication that maybe dual citizenship does not preclude one from being a natural born citizen.  Utilizing this definition for foreigner, it is clear that Barack Obama would not be considered an alien of the United States.  Being born in Hawaii and although having dual citizenship, he did possess U.S. citizenship through his Mother, so it would certainly appear that he would not be considered a foreigner or an alien.  Was this enough for him to satisfy what was meant by John Jay’s qualification of natural born citizenship status for the Presidency? 

After the U.S. Constitution was written and signed by our founding fathers, it had to be ratified by the States in order to become the Supreme Law of the land.  In an effort to get the people of New York State to support the ratification of the Constitution, the Federalist Papers were written and published in New York City newspapers to persuade the people.  As the FoundingFathers.info website explains:

In total, the Federalist Papers consist of 85 essays outlining how this new government would operate and why this type of government was the best choice for the United States of America. All of the essays were signed “PUBLIUS” and the actual authors of some are under dispute, but the general consensus is that Alexander Hamilton wrote 52, James Madison wrote 28, and John Jay contributed the remaining five.

The Federalist Papers remain today as an excellent reference for anyone who wants to understand the U.S. Constitution.[iii]

In my searches of the Federalist Papers, I find no discussion of the natural born citizen clause from Article II, Section 1.  Why?  If said provision and requirement is so critical to the Office, why is no further mention of it made in “selling” the Constitution to the people?  It may be as simple as the fact that the Federalist Papers sought to focus their essays on the contentious portions of the Constitution and opposition in general to a federal government rather than spend time on those areas without dispute.  Further, the role and responsibilities of the President as Commander in Chief were discussed in detail in the Federalist Papers even though no mention of the natural born citizen provision was made.  In the final analysis, it may simply be that the term natural born citizen was firmly rooted in the minds of the founders either through de Vattel’s definition or another definition they commonly knew, so the founders never questioned in their minds what was meant.  Was there any other evidence as to why the founders included this provision especially with respect to using the term natural? 

The founding fathers were learned men.  They had read and were versed in many subjects and literate in the writings and teachings of the political thinkers that came before them.  One such political thinker whom the founding fathers were profoundly familiar was Cicero.  In reading Cicero’s works on natural law, the founders concluded that:

The Law of Nature or Nature’s God is eternal in its basic goodness; it is universal in its application.  It is a code of “right reason” from the Creator himself.  It cannot be altered.  It cannot be repealed.  It cannot be abandoned by legislators or the people themselves, even though they may pretend to do so.  In Natural Law we are dealing with factors of absolute reality.  It is basic in its principles, comprehensible to the human mind, and totally correct and morally right in its general operation.[iv]

They created the Supreme Law of Land when they wrote the Constitution based on this idea of natural law.  Emmerich de Vattel’s The Law of Nations is a treatise on natural law as indicated by the full title of his treatise:  The Law of Nations or Principles of Natural Law.[v] 

If we study this idea of natural law in relation to birth, we have to conclude that God given birth rights has something to say on the subject, therefore, the parents citizenship must play a part in the birth rights of the child, and arguably must play at minimum an equal role to the place of birth of the child.   It is reasonable to conclude that this may be the very reason that de Vattel defined natural born citizen in the manner in which he did:  on the soil of the country to citizen parents of the country.

At this point, however, there is a very interesting issue that arises in our modern day society.  We can accept all of the above and yet find in modern times that to be in accordance with natural law that it now may only take one citizen parent and not two to be a natural born citizen.  Why do I make this claim?  I make the claim for these reasons.  Many scholars have argued that the citizenship of a child follows the citizenship of the father, but as Leo Donofrio pointed out the other day on his blog, earlier in our history a Mother’s citizenship could result from “derivative citizenship” meaning at the time a woman married she took on the citizenship of her husband.  In modern times, this is no longer true.  Automatic citizenship upon marriage is not the United States law today.  Therefore, we must now make a distinction between parents and give weight to one over the other which of course we do in practical applications of the law justly or unjustly where the rights of the Mother typically garners more weight.  Could it be said that even though the founding fathers were using de Vattel’s definition of natural born citizenship when they wrote natural born citizen into the Constitution that the definition is not the same today even if you ascribe to original intent Constitutional doctrine?  I think the answer is probably no, let me explain. 

We know that the founding fathers followed natural law in their political concepts of government.  Why is only one citizen parent under natural law, birth rights and natural born citizenship incompatible?  I would argue it is for this reason, allegiance.  As we discussed, in modern America, we no longer have the transfer of citizenship by marriage or “derivative citizenship” by marriage.  In the case of a foreigner marrying a U.S. citizen, the foreigner remains a foreigner with whatever citizenship status they possess at the time that they marry.  Their path to U.S. citizenship is altered in only that they have to wait a few less years to apply for U.S. citizenship and naturalization.  And it is this naturalization that is important to our discussion here not in the traditional sense but in what it can tell us about dual citizens that wouldn’t be naturalized.

The term naturalization in essence means to make natural what is not now natural.  In the case of citizenship, it is to make that persons’ new citizenship natural to him or her.  In other words, his or her citizenship is naturalized so that his or her citizenship can be in accordance with the laws of nature.  One of the processes of naturalization in the United States is to take a “Naturalization Oath of Allegiance.”  The oath is as follows:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the armed forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God.[vi]

Now we know that no natural born citizen need take an oath of allegiance.  However, what does it mean if we allow the definition of a natural born citizen to not include the citizenship of both parents, and if one of those parents is not a U.S. citizen thereby conferring that citizenship to the child?  How is it that the child does not by the laws of nature possess some allegiance to that foreign sovereign regardless if they are conscious of it or not?  This is the trouble that I have with using a definition apart from de Vattel’s because we can’t unequivocally say that the person does not possess at least a birth right allegiance to another nation.  Having a birth right allegiance to another nation can present unintended future consequences and certainly cannot guarantee sole and unencumbered allegiance to the United States of America.

In the next chapter of the book, I would like to summarize both the irrefutable facts and the opinions that cannot be known with certainty to layout what we have learned throughout our discourse thus far.  After summarizing what we’ve learned, we will move on to the next part of the book that will look at the reasons we have reached this crisis within our Constitution and how this crisis could have been avoided.


[i] 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

[ii] Dictionary.com  definition of the word “foreigner” — http://dictionary.reference.com/browse/foreigner

[iii] The Federalist Papers e-text — http://www.foundingfathers.info/federalistpapers/

[iv] The 5000 Year Leap A Miracle that Changed the World ©1981 by W. Cleon Skousen p. 40.

[v] The Law of Nations or Principles of Natural Law — http://www.lonang.com/exlibris/vattel/

[vi] Global Policy Forum “Naturalization Oath of Allegiance” — http://www.globalpolicy.org/component/content/article/171/29826.html

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Written by KJ Kaufman

August 27, 2009 at 10:17 am