Having the Status of Birthright Citizenship Is Not Sufficient to Make One an Article II “Natural Born” Citizen
Having the Status of Birthright Citizenship Is Not Sufficient to Make One an Article II “Natural Born” Citizen
By: Mario Apuzzo, Esq.
September 20, 2011
|Horace Gray, Associate Justice
of the U.S. Supreme Court
I just read an article regarding a debate going on in Liberia about Presidential and Vice-Presidential eligibility requirements. The issue is whether the residency has to be immediately before the election. The article may be read at http://allafrica.com/stories/201109200851.html.
The President or Vice-President eligibility requirements in Liberia are: (1) being a natural born citizen 35 years or more, (2) 10 years residence in Liberia 10 years prior to elections; (3) owner of unencumbered real property worth not less than 25,000; and (4) President and Vice-President must not come from the same county.
Note that the Liberian Constitution even considers those acquiring the status of “citizen” after birth as “natural born citizens.”
What struck me as interesting is that they treat their “natural born citizens” like the Founders and Framers treated plain “Citizens” of the United States (distinguished from “natural born” Citizens of the United States). What is also interesting is that Liberia considers a person to be a “natural born citizen” even if that status was not acquired at birth. Indeed, they have created a contradiction and oxymoron right in their own Constitution.
I suspect that Liberia is treating a “natural born citizen” just like the British treated their “natural born subject.” For the British, who followed the feudal and monarchial system of subjectship with allegiance to a sovereign King rather than a true republican system with voluntary membership and allegiance to the sovereign nation and its people through free choice made by a child’s parents who then pass that decision to their children, it did not matter if one was truly a “natural born subject” or even a naturalized subject, for they considered all their subjects to be “natural born subjects,” which conveniently for the King carried with it allegiance to the King for life.
The Founders and Framers did not adopt the same oppressive system for the constitutional republic. They rejected that a person was born into the allegiance of a King or any nation for life. They also rejected that one could be born with allegiance to more than one nation or later in life maintain multiple allegiance at the same time. Throughout the Constitution, they were careful to distinguish between a “natural born” Citizen of the United States and a “Citizen” of the United States. In their eyes, a “natural born” Citizen was born with sole and absolute allegiance and jurisdiction to the United States and its people. They gave Congress the power to add additional members to the new republic through naturalization, which could be granted to a person only if he or she swore or affirmed to have the same sole and absolute allegiance to the United States which a “natural born” Citizen acquired by nature at birth. So for the Founders and Framers, all the “citizens” of the republic, either by birth or naturalization, had sole and undivided allegiance and jurisdiction to the United States. Through this process, people could make a decision based on free will whether they first and then through them their children wanted to become members of the republic.
The Constitution gave Congress the power to make uniform the naturalization laws. Congress first exercised that power in 1790. The act of March 26, 1790, 1 Stat. 103, c. 3, provided for the naturalization of aliens and then provided that “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.”
The third section of the act of January 29, 1795, 1 Stat. 414, 415, c. 20, provided “that the children of persons duly naturalized, dwelling within the United States, and being under the age of twenty-one years, at the time of such naturalization, and the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States,” etc.
The fourth section of the act of April 14, 1802, 2 Stat. 153, 155, c. 28, carried into the Revised Statutes as section 2172, was: “That the children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject, by the government of the United States, may have become citizens of any one of the said States, under the laws thereof, being under the age of twenty-one years, at the time of their parents being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States.”
The provision that children born in the United States to alien parents was carried in all of the following naturalization acts, including that of 1804, 1855, and the Civil Rights Act of 1866 which required that the child be born in the United States and not be “subject to any foreign power.” Given the world-recognized doctrine of jus sanguinis (also utilized by our own Congress in 1790 to make children born out of the United States to U.S. citizen parents “natural born citizens” and starting with 1795 “citizens of the United States”), the only way such a child could be born not subject to any foreign power was to be born in the United States to U.S. citizen parents or to parents who had long lost any foreign nationality who at that time were American slaves and their descendents.
As we can see, Congress, in all of these acts, did not make any exception for children born in the United States. It simply said that any child of any person who naturalized would fall under the act. This is broad language and included also children that were born in the United States. If Congress meant to exclude children born in the United States from having to naturalize it surely knew how to do so by using simple language. Hence, Congress considered children born on U.S. soil to alien parents to be themselves aliens.
From a reading of the text of these acts, we can see that only non-naturalized persons, i.e., person not acquiring citizenship under these Congressional Acts could be “natural born” Citizens. From this legislative history, we can see that the only persons not needing naturalization, i.e., not needing any positive law to acquire U.S. citizenship, were the children born in the United States to U.S. citizen parents. This is confirmed by, among others, the following historical and judicial sources:
(1) Emer de Vattel, The Law of Nations, Sec. 212 (London 1797) (1st ed. Neuchatel 1758):
“§ 212. Citizens and natives.
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.”
(2) David Ramsay, A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789) . He said that after July 4, 1776, birthright citizenship was preserved only for a child born to U.S. citizens. He defined the “natural born citizens” as the children born to citizen parents. Concerning the children born after the declaration of independence, he said that birthright “[c]itizenship is the inheritance of the children of those who have taken part in the late revolution; but this is confined exclusively to the children of those who were themselves citizens….” Id. at 6. He continued that “citizenship by inheritance belongs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring….” Id. at 7; Finally, he said that citizenship “as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776….” Id. at 6.
(3) The Venus, 12 U.S. (8 Cranch) 253 (1814). Chief Justice John Marshall, concurring and dissenting for other reasons, cited Vattel and provided his definition of natural born citizens, and said: “Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says ‘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 indigenes are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.’” Id. at 289.
(4) Dred Scott v. Sandford, 60 U.S. 393 (1857). Justice Daniels concurring cited Vattel and the The Law of Nations and provided his definition of “natural born citizen” and removed Vattel’s references to “fathers” and “father” and replaced them with “parents” and “person.” He stated: “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 society cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights.” Again: I say, to be of the country, it is necessary to be born of a person who is a citizen; for if he be born there of a foreigner, it will be only the place of his birth, and not his country. . . .”
(5) Minor v. Happersett, 88 U.S. 162 (1875). Even though the Fourteenth Amendment had already been passed, Minor did not rely upon that amendment to define either a “natural born Citizen” or a “citizen.” Rather, it applied the “common-law” definition of those terms. Providing the same Vattelian definition without citing Vattel, and not in any way referring to the English common law, it held:
“The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens.”
Id. at 167-68.
Minor did not cite Vattel but as can be seen the Court’s precedential definitions of a “citizen” and a “natural-born citizen” are taken directly out of Vattel’s The Law of Nations, Section 212. Hence, when Minor said “common-law,” it was not referring to the English common law but rather to American common law which had its basis in citizenship matters in natural law and the law of nations. Minor also distinguished between “natural-born citizens” and “citizens.” When Minor spoke of the “common-law,” it referred to the “citizens” and the “natives or natural-born citizens,” explaining that there never had been any doubts that the children born in the country to “citizens” were the “natives or natural-born citizens.” So Minor concluded that any person who was a “natural-born citizen” was necessarily also a “citizen.” The Court, was not, however, willing to say that a child born in the country to parents who were not U.S. citizens was even a “citizen” under the Fourteenth Amendment, let alone a “natural-born citizen” under Article II. The Court added that “there have been doubts” as to whether that child was even a “citizen.” Having decided that such a child was not a “natural-born citizen,” it left the question of whether such a child was a “citizen” of the United States under the Fourteenth Amendment to another day.
It is important to understand that if the English common law prevailed in the United States to define national citizenship, the Court would not have stated that “there have been doubts” whether children born in the country to alien parents were citizens. Under English common law, there was no doubt that such children would have been “natural born subjects,” for under that law the citizenship of the parents was not a factor in determining subjectship when the child was born in the dominion of the King.
So as we can see from this case law, and especially from the precedential definition confirmed by Minor, a “natural born Citizen” was well-defined. All other persons not falling under the well-established American “common-law” definition of a “natural born Citizen,” who wanted to be “citizens” needed a Congressional Act (positive law) to gain membership in the United States which we call naturalization. And these latter persons became so naturalized either at birth or after birth only by Congress.
(6) All this continued unchanged until the U.S. Supreme Court, per Justice Horace Gray–who was appointed to the Supreme Court by President Chester Arthur whom history has recently shown was not a “natural born” Citizen (see the legal research of Attorney Leo Donofrio at http://naturalborncitizen.wordpress.com/2008/12/06/urgent-historical-breakthrough-proof-chester-arthur-concealed-he-was-a-british-subject-at-birth/ )–decided the famous case of U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). The question that Minor did not answer was answered by Wong Kim Ark, in which the United States argued that a child born in the U.S. to alien parents was not a “citizen” of the United States either under the Civil Rights Act of 1866 or the Fourteenth Amendment which had been adopted in 1868. Ruling against the government, Wong Kim Ark declared a child born in the country to domiciled alien parents to be a “citizen” of the United States under the Fourteenth Amendment.
Wong Kim Ark applied the Fourteenth Amendment and colonial-era English common law to determine whether a person born in the United States to domiciled alien parents was a “citizen” of the United States under that Amendment. With the Wong Kim Ark decision, even the judicial branch of government, like Lord Coke did in Calvin’s Case (1608), naturalized a person at birth. By doing so, it went beyond what as we have seen above Congress had always expressed in its naturalization statutes was a born “citizen” of the United States and expanded that “citizen” class. Indeed, Wong Kim Ark did not change the definition of an Article II “natural born Citizen.” Rather, it created another class of born “citizens,” those born in the United States to one or two alien parents. Congress had never considered these children to be born “citizens” of the United States. Rather, Congress had always required that these children naturalize, either derivatively when their parents became citizens if done before the child’s age of majority or on their own if done thereafter. These born “citizens” do not meet the definition of a “natural born” Citizen but because of the Wong Kim Ark decision are nevertheless granted a birthright citizenship through naturalization at birth. By naturalizing Wong at birth, the Wong Kim Ark decision, like Congressional Acts which also naturalize children at birth, also created the anomaly that these children are born with allegiance and jurisdiction to the United States and to the nations of their alien parents (through jus sanguinis citizenship), but are not despite our citizenship history required to give an oath of sole allegiance to the United States.
Hence, we now have three birthright citizenships, (1) one under Article II which gives the national status of “natural born Citizen” of the United States, (2) another under the Fourteenth Amendment, Wong Kim Ark, and 8 U.S.C. Sec. 1401(a) which gives the national status of born “citizen” of the United States to person born in the United States to one or two domiciled alien parents and “subject to the jurisdiction thereof,” and (3) another under Congressional Acts (8 U.S.C. Sec. 1401et seq.) which also gives the status of born “citizen” of the United States to children born out of the United States to one or two U.S. citizen parents. But because the Founders and Framers distinguished in Article II’s grandfather clause between “natural born” Citizens of the United States and “Citizens” of the United States (prior to the adoption of the Constitution, one could be a “Citizen” of the United States and be eligible to be President but for those born after its adoption, one had to be a “natural born” Citizen”), only a person who has Article II “natural born” Citizen status is eligible to be President. This means that only a person who was born in the United States to two U.S. citizen parents is eligible to be President.
This all brings us to putative President, Barack Obama. If Obama was born in Hawaii (a fact that he has yet to conclusively prove) and if his parents are Barack Obama and Stanley Ann Dunham (it is reported that these are his parents), he can be a Fourteenth Amendment and 8 U.S.C. Section 1401(a) born “citizen” of the United States, but he cannot be an Article II “natural born Citizen” of the United States which is the constitutional standard that he must meet to be eligible to be President and Commander in Chief of the Military. His mother, Stanley Ann Dunham, was a “citizen” of the United States at the time of Obama’s birth. But his father, being born in 1934 or 1936 in what was then the British colony of Kenya, was under the British Nationality Act of 1948, a Citizen of the United Kingdom and Colonies (“CUKC”). Obama himself by right of decent from his father under the same Act was also born a CUKC. Hence, because Obama was not born in the United States to United States citizen parents, he was not born under the sole and undivided allegiance and jurisdiction of the United States. Obama was not born with sole citizenship in the United States. Consequently, he was not born with unity of allegiance to and citizenship in the United States. Obama, therefore, cannot be an Article II “natural born Citizen” and is not eligible under Article II, Section 1, Clause 5 to be President and Commander in Chief of the Military, just as much as if he had not been at least 35 years of age or 14 years a resident of the United States.
Mario Apuzzo, Esq.
September 20, 2011