Scratching the Ish on Natural Born
Once again, we are seeing some on the right (and I’m sure there will eventually be some on the extreme left as well) who are claiming that certain GOP candidates for President of the United States should be struck from the ballot as they are not Natural Born Citizens within the meaning of the Eligibility Clause of the U.S. Constitution. To be fair, there has been much debate in the nation concerning the meaning of the clause in the Constitution requiring the President to be a, “natural born Citizen.” U.S. Const. art. 2, §1 going at least as far back as Republican Vice-Presidential candidate (and eventually President) Chest A. Arthur, but the issue has become a rally point since Philip Berg, a 2008 supporter of Hillary Clinton’s presidential campaign, challenged the status of her primary opponent, Senator Barack Obama.
Regarding President Barack Obama’s citizenship, the general focus has been speculation as to the true location of his birth. While there are other problems that would arise if he was, indeed, born outside the United States, birth on foreign soil alone would not violate the Constitution’s prohibition requiring that no one be elected President except a citizen who has been “natural born.”
For Nikki Haley, as Marco Rubio in 2016, the issue is not that they were NOT born in within the United States, but that they were born to parents who were not themselves already United States citizens.
While more learned scholars than I have attempted to determine what the Constitution means by the phrase, “natural born,” by looking at contemporary law, I have come to the opinion that the phrase means nothing more than a designation that the person seeking the office of President of the United States be a citizen from the moment of their birth, regardless of where that birth may have been.
First, it is important to establish the fact that there are only two ways for a person to acquire citizenship, 1. by birth, or 2. by naturalization.
Citizenship by birth through history came to occur by two methods. These two methods of birthright citizenship developed under the common law and are historically rooted in feudalism. The concepts are called jus soli, the “right of the land” and jus sanguinis, the “right of the blood.” These allowed a person to be a citizen by birth because they were either born under the jurisdiction of a nation or born to someone who had already acquired citizenship to that nation.
Birthright citizenship is distinguishable from naturalization which allowed citizenship to be conferred on an individual after birth by process of law. The U.S. Constitution discusses both types of citizenship, birthright and naturalization, throughout the document as it was originally drafted. It also makes the distinction that members of Congress can be those who have obtained their citizenship through naturalization as opposed to those who must be citizens from birth, as the President must be. A clue can also be found simply in the two terms. If one is a NATURAL citizen by birth, then one who isn’t a citizen at birth must be NATURALIZED. Or as Nobel Laureate Gerhard Herzberg once quipped, “A citizen is nothing more than an immigrant with seniority.”
Most contemporary laws will contain in their first section a list of definitions so their statutory construction will not be up to interpretation by the courts. Unfortunately, the Constitution does not include a list of definitions, requiring us to go to other sources to determine the meaning of the words and phrases. There is much debate on whether or not the meanings of words and phrases should change with the times or interpretation should focus on the original intent of the framers. If the desire is to focus on the original intent, then there are only a few sources available to us. The first place most scholars turn to in order to determine the contemporary meanings of words and phrases in the Constitution are the Federalist Papers.
Turning first to the Federalist Papers, there is little help in the area of immigration and naturalization. The phrase “natural born” appears nowhere in the series of writings by Jay, Hamilton, and Madison explaining the purpose of the Constitution. The Papers touch briefly on the concept found in Art. 1, §8, clause 4 of the Constitution outlining that Congress may establish a uniform rule for naturalization, but is otherwise silent on this issue. With no commentary on the issue to be found in the Federalist Papers, then the next best place to look is other contemporary legal writings in which the phrase “natural born” can be found.
One key source, one older than the Constitution, would be the British jurist William Blackstone’s Commentaries on the Laws of England, published in 1765. Blackstone noted, “The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it…The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien.” (William Blackstone, Commentaries 1:354, 357–58, 361–62)
Those who would claim that a candidate like Barack Obama, Marco Rubio, or Nikki Haley were NOT natural born citizens despite being born in Hawaii, Florida, or South Carolina rely on that French definition of the law that Blackstone mentions. They point to another publication, Swiss jurist Emmerich de Vattel’s The Law of Nations, as the primary source for legal definitions at the time of the founding. Benjamin Franklin received at least three copies of the 1760 English translation. Despite the importance they place on de Vattel and claims his work supplanted Blackstone’s, not once is de Vattel mentioned in the Federalist Papers while Blackstone is cited in Federalist Papers twice and the Common Law nearly a half-dozen times.
In the original French publication, de Vattel does not even use the term “natural born citizen,” but instead uses the phrase, “The naturals, or natives, are those born in the country to citizen parents” (Les naturels, ou indigenes, sont ceux qui sont nés sand les pays, de parens citoyens).
We all know familiar meanings of words change over time. In 1787, the word “cool” would have referred only to the temperature, not that something was “excellent or first rate.”
“Natural born” would have seemed to have undergone a change in meaning as well. Most people today would define the term to mean someone born within the national territory. Thus, if Barack Obama was born in Hawaii, he would be “natural born.” If he was born in Kenya, he would not be “natural born” because of the Immigration and Naturalization Act, at the time.
Black’s Law Dictionary provides support for that analysis. Black’s defines the term as, “a citizen born within the jurisdiction of a national government.”
The change in the plain meaning of the words and phrases that make up the U.S. Constitution has not only been the source of debate on the issue of immigration, but was part of the Democrat Party’s argument against the impeachment of President Bill Clinton. The Constitution provides for impeachment for “high crimes and misdemeanors.” The President’s defense team stated that the founders’ definition of “high crimes and misdemeanors” was different than today’s current and plain meanings of those words. In fact, there is much to support that argument, though I would guess the founders would have included perjury and obstruction of justice as part of the definition. If you were to use the modern meaning of “misdemeanor,” then a President could be impeached for a parking ticket.
The Constitution was ratified in 1787 and the first election took place in 1788. The First Congress (1789-1791) was sworn in January, 1789 and a little more than a year later established the new nation’s first naturalization law, the Act of March 26, 1790, ch. 3, 1 Stat. 103.
Several members of the Constitutional Convention were elected to serve in that First Congress, including:
Connecticut:
US House : Roger Sherman
US Senate: Oliver Ellsworth
William S. Johnson
Delaware:
US Senate: George Read
Richard Bassett
Georgia:
US House: Abraham Baldwin
US Senate: William Few
Maryland:
US House: Daniel Carroll
Massachusetts:
US House: Elbridge Gerry
US Senate: Caleb Strong
New Hampshire:
US House: Nicolas Gilman
US Senate: Langdon Strong
New Jersey:
US Senate: William Paterson
New York:
US Senate: Rufus King
Pennsylvania:
US House: George Clymer
Thomas Fitzsimmons
US Senate: Robert Morris
South Carolina:
US Senate: Pierce Butler
Virginia:
US House: James Madison
These individuals accounted for 21% of the First Congress.
In addition, each of the three writers of the Federalist Papers found themselves in each branch of government with Madison in the U.S. House, Hamilton in the Executive branch as Treasury Secretary, and John Jay as the first Chief Justice of the United States Supreme Court.
The Act of March 26, 1790 outlined several issues to establish the first U.S. law on naturalization, as per Congress’s authority to set forth a uniform rule.
The Act is additionally important as it is the only time in U.S. law where the phrase “natural born” is ever defined.
The Act stated, “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.” <emphasis added>
If words and meanings change over time, the likelihood is there was far less change in the meaning of the term “natural born” from 1787 to 1790 than there has been between 1790 and 2009.
Even by 1843, American jurists understood the meaning of the term to apply to those who were simply born in the territory or to the allegiance of the United States. While the definition cannot be found in higher court decisions, in Lynch v. Clarke and Lynch, Chancery Court of New York (1843), the Court held, “I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen” (see New York Legal Observer, Vol. 3 (1845)).
The argument against
The Heritage Foundation explores the issue in greater depth in their commentaries, The Heritage Guide to the Constitution. In it, the Heritage Foundation writes,
“Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, those persons born within the United States are “natural born citizens” eligible to be President. Much less certain, however, is whether children born abroad of United States citizens are “natural born citizens” eligible to be President. As early as 1350, the British Parliament approved statutes recognizing the rule of jus sanguinis, under which citizens may pass their citizenship by decent to their children at birth, regardless of place. Similarly, in its first naturalization statute, Congress declared that “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.” 1 Stat. 104 (1790). The “natural born” terminology was dropped shortly thereafter. See, e.g., 8 U.S.C. § 1401(c). But the question remains whether the term “natural born Citizens” used in Article II includes the parliamentary rule of jus sanguinis in addition to the common law principle of jus soli. In United States v. Wong Kim Ark (1898), the Supreme Court relied on English common law regarding jus soli to inform the meaning of “citizen” in the Fourteenth Amendment as well as the natural-born-citizenship requirement of Article II, and noted that any right to citizenship through jus sanguinis was available only by statute, and not through the Constitution. Notwithstanding the Supreme Court’s discussion in Wong Kim Ark, a majority of commentators today argue that the Presidential Eligibility Clause incorporates both the common-law and English statutory principles, and therefore, Michigan Governor George Romney, who was born to American parents outside of the United States, was eligible to seek the Presidency in 1968.”
The commentary by the Heritage Foundation brings up another important point, that the Supreme Court has stated multiple times that what constitutes citizenship is whatever Congress says it is. The U.S. Constitution, by not defining citizenship, and charging the Congress to establish a uniform rule, has made the Congress the final word about who is and who is not a citizen. The Court, even in modern times, has upheld Congress’s actions, even including gender discrimination in immigration laws and naturalization laws.
With that, it would seem that “natural born” is whatever Congress says it is. Since Congress has chosen not to say since 1790, we would have to rely on the last legal definition. However, even if the phrase is not in vogue in the current law, the current law still recognizes the principle that a child born to a U.S. citizen abroad is a citizen at birth and does not have to go through a naturalization process. For those who believe the Constitution should be followed as the founders originally intended, then the only way to define “natural born” is the way the founders did in that first Congress with the first naturalization act signed into law by the same man who had served as President of the Constitutional Convention, George Washington.
One thing is certain though, “natural born” does not require so-called “natural child birth,” as some activists have tried to convince others.
