Defining Natural-Born Citizen

by P.A. Madison on November 18th, 2008

“The common law of England is not the common law of these States.” –George Mason

What might the phrase “natural-born citizen” of the United States imply under the U.S. Constitution? The phrase has always been obscure due to the lack of any single authoritative source to confer in order to understand the condition of citizenship the phrase recognizes. Learning what the phrase might have meant following the Declaration of Independence, and the adoption of the Fourteenth Amendment, requires detective work. As with all detective work, eliminating the usual suspects from the beginning goes a long way in quickly solving a case.

What Natural-Born Citizen Could Not Mean

Could a natural-born citizen simply mean citizenship due to place of birth?

Unlikely in the strict sense because we know one can be native born and yet not a native born citizen of this country. There were even disputes whether anyone born within the District of Columbia or in the territories were born citizens of the United States (they were generally referred to as “inhabitants” instead.) National Government could make no “territorial allegiance” demands within the several States because as Madison explained it, the “powers delegated by the proposed Constitution to the Federal Government, are few and defined,” and those “which are to remain in the State Governments are numerous and indefinite.”

Jurisdiction over citizenship via birth within the several States was simply an exercise of a States “numerous and indefinite” powers. Early acts of Naturalization recognized the individual State Legislatures as the only authority who could make anyone a citizen of a State. James Madison said citizenship rules “have obtained in some of the States,” and “if such a law existed in South Carolina, it might have prevented this question from ever coming before us” (question of Rep. William Smith being a citizen or not).

Framer James Wilson said, “a citizen of the United States is he, who is a citizen of at least some one state in the Union.” These citizens of each State were united together through Article IV, Sec. II of the U.S. Constitution, and thus, no act of Congress was required to make citizens of the individual States citizens of the United States.

Prior to the Revolutionary War place of birth within the dominions of the crown was the principle criterion for establishing perpetual allegiance to the King, however natural citizenship via birth could require being born to a British subject depending on the era in question. After independence this perpetual allegiance to the crown was abandoned for the principle of expatriation.

It should be noted this allegiance due under England’s common law and American law are of two different species. Under the common law one owed a personal allegiance to the King as an individual upon birth for which could never be thrown off. Under the American system there was no individual ruler to owe a perpetual personal allegiance to.

Furthermore, unlike the British practice, States required everyone including aliens to take an oath of allegiance to the State as a condition of residency. Children born to these residents were considered born into the allegiance of the State. In addition to this, States also had specific laws that banned citizenship to alien born who were not resident aliens who had declared their allegiance. New York for example, responded through enactment of a law to the ruling in Lynch v. Clarke (1844) that had used common law rules of citizenship by birth to specifically exclude children born to “transient aliens, and of alien public ministers and consuls, etc.”

In other words, unlike under the common law, birth by itself did not create allegiance to anyone due merely to locality.

Could a natural-born citizen perhaps be synonymous with the British term “natural-born subject”?

It is very doubtful the framers adopted the doctrine found under the old English doctrine of allegiance to the King from birth. The British doctrine could create double allegiances, something the founders considered improper and dangerous. The American naturalization process required all males to twice renounce all allegiances with other governments and pledge their sole allegiance to this one before finally becoming a citizen.

House Report No. 784, dated June 22, 1874, stated, “The United States have not recognized a ‘double allegiance.’ By our law a citizen is bound to be ‘true and faithful’ alone to our government.” It wouldn’t be practical for the United States to claim a child as a citizen when the child’s natural country of origin equally claims him/her because doing so could leave the child with two competing legal obligations, e.g., military duty.

Under the old English common law, birth was viewed as enjoining a “perpetual allegiance” upon all to the King that could never be severed or altered by any change of time or act of anyone. England’s “perpetual allegiance” due from birth was extremely unpopular in this country; often referred to as absurd barbarism, or simply perpetual nonsense. America went to war with England over the doctrine behind “natural-born subject” in June of 1812.

Because Britain considered all who were born within the dominions of the crown to be its natural-born subjects even after becoming naturalized citizens of the United States, led to British vessels blockading American ports. Under the British blockade, every American ship entering or leaving was boarded by soldiers in search of British born subjects. At least 6,000 American citizens who were found to be British natural-born subjects were pressed into military service on behalf of the British Empire, and thus, the reason we went to war.

Fourteenth Amendment

Whatever might had been the correct understanding of “natural-born citizen” prior to 1866, the adoption of the Fourteenth Amendment certainly changes the view because for the first time we have a written national rule declaring who are citizens through birth or naturalization. Who may be born citizens is conditional upon being born “subject to the jurisdiction” of the United States – a condition not required under the common law. The legislative definition of “subject to the jurisdiction thereof” was defined as “Not owing allegiance to anybody else,” which is vastly different from local jurisdiction due to physical location alone.

This national rule prevents us from interpreting natural-born citizen under common law rules because it eliminates the possibility of a child being born with more than one claim of allegiance.

The primary author of the citizenship clause, Sen. Jacob M. Howard, said the “word jurisdiction, as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.

This remark by Howard puts his earlier citizenship clause remark into proper context: “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

United States Attorney General, George Williams, whom was a U.S. Senator aligned with Radical Republicans during the drafting of the Fourteenth Amendment in 1866, ruled in 1873 the word “jurisdiction” under the Fourteenth Amendment “must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment.” He added, “Political and military rights and duties do not pertain to anyone else.”

Essentially then, “subject to the jurisdiction thereof” means the same jurisdiction the United States exercises over its own citizens, i.e., only citizens of the United States come within its operation since citizens of the United States do not owe allegiance to some other nation at the same time they do the United States. This makes arguing the physical presence of being subject to laws silly because being subject to another countries laws while visiting makes no change to an aliens allegiance to their native country.

Natural-Born Citizen Defined

One universal point most all early publicists agreed on was natural-born citizen must mean one who is a citizen by no act of law. If a person owes their citizenship to some act of law (naturalization for example), they cannot be considered a natural-born citizen. This leads us to defining natural-born citizen under the laws of nature – laws the founders recognized and embraced.

Under the laws of nature, every child born requires no act of law to establish the fact the child inherits through nature his/her father’s citizenship as well as his name (or even his property) through birth. This law of nature is also recognized by law of nations. Sen. Howard said the citizenship clause under the Fourteenth Amendment was by virtue of “natural law and national law.”

The advantages of Natural Law is competing allegiances between nations are not claimed, or at least with those nations whose custom is to not make citizens of other countries citizens without their consent. Under Sec. 1992 of U.S. Revised Statutes (1866) made clear other nation’s citizens would not be claimed: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.

Rep. John A. Bingham commenting on Section 1992 said it means “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.” (Cong. Globe, 39th, 1st Sess., 1291 (1866))

Bingham had asserted the same thing in 1862 as well:

Does the gentleman mean that any person, born within the limits of the Republic, and who has offended against no law, can rightfully be exiled from any State or from any rood of the Republic? Does the gentleman undertake to say that here, in the face of the provision in the Constitution, that persons born within the limits of the Republic, of parents who are not the subjects of any other sovereignty, are native-born citizens, whether they be black or white? There is not a textbook referred to in any court which does not recognise the principle that I assert. (Cong. Globe, 37th, 2nd Sess., 407 (1862))

Bingham of course was paraphrasing Vattel whom often used the plural word “parents” but made it clear it was the father alone for whom the child inherits his/her citizenship from (suggesting a child could be born out of wedlock wasn’t politically correct). Bingham subscribed to the same view as most everyone in Congress at the time that in order to be born a citizen of the United States one must be born within the allegiance of the Nation. As the court has consistently ruled without controversy, change of location never changes or alters a persons allegiance to their country of origin except by acting in accordance to written law in throwing off their previous allegiance and consenting to a new one.

This of course, explains why emphasis of not owing allegiance to anyone else was the effect of being subject to the jurisdiction of the United States under the Fourteenth Amendment.

The constitutional requirement for the President of the United States to be a natural-born citizen had one purpose according to St. George Tucker:

That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence, which, wherever it is capable of being exerted, is to he dreaded more than the plague. The admission of foreigners into our councils, consequently, cannot be too much guarded against; their total exclusion from a station to which foreign nations have been accustomed to, attach ideas of sovereign power, sacredness of character, and hereditary right, is a measure of the most consummate policy and wisdom. …The title of king, prince, emperor, or czar, without the smallest addition to his powers, would have rendered him a member of the fraternity of crowned heads: their common cause has more than once threatened the desolation of Europe. To have added a member to this sacred family in America, would have invited and perpetuated among us all the evils of Pandora’s Box.

Charles Pinckney in 1800 said the presidential eligibility clause was designed “to insure … attachment to the country.” President Washington warned a “passionate attachment of one nation for another, produces a variety of evils,” and goes on to say:

Sympathy for the favorite nation, facilitating the illusion of an imaginary common interest, in cases where no real common interest exists, and infusing into one the enmities of the other, betrays the former into a participation in the quarrels and wars of the latter, without adequate inducement or justification. It leads also to concessions to the favorite nation, of privileges denied to others, which is apt doubly to injure the nation making the concessions; by unnecessarily parting with what ought to have been retained; and by exciting jealousy, ill- will, and a disposition to retaliate, in the parties from whom equal privileges are withheld.

And it gives to ambitious, corrupted, or deluded citizens, (who devote themselves to the favorite nation,) facility to betray or sacrifice the interests of their own country, without odium, sometimes even with popularity; gilding, with the appearance of a virtuous sense of obligation, a commendable deference for public opinion, or a laudable zeal for public good, the base or foolish compliances of ambition, corruption, or infatuation.

What better way to insure attachment to the country then to require the President to have inherited his American citizenship through his American father and not through a foreign father. Any child can be born anywhere in the country and removed by their father to be raised in his native country. The risks would be for the child to return in later life to reside in this country bringing with him foreign influences and intrigues, and thus, making such a citizen indistinguishable from a naturalized citizen.

Conclusion

Extending citizenship to non-citizens through birth based solely upon locality is nothing more than mere municipal law that has no extra-territorial effect as proven from the English practice of it. On the other hand, citizenship by descent through the father is natural law and is recognized by all nations (what nation doesn’t recognize citizenship of children born wherever to their own citizens?). Thus, a natural-born citizen is one whose citizenship is recognized by law of nations rather than mere local recognition.

Chairman of the House Judiciary Committee, James F. Wilson of Iowa, confirmed this in 1866: “We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except that of children born on our soil to temporary sojourners or representatives of foreign Governments.”*

When a child inherits the citizenship of their father, they become a natural-born citizen of the nation their father belongs regardless of where they might be born. It should be pointed out that citizenship through descent of the father was recognized by U.S. Naturalization law whereby children became citizens themselves as soon as their father had become a naturalized citizen, or were born in another country to a citizen father.

Yes, birth is prima facie evidence of citizenship, but only the citizenship of the nation the father is a member.

* Temporary sojourners like transient aliens were a description applied to aliens other than resident aliens. The difference being temporary aliens were here for temporary purposes, such as work, travel, visitation or school, who had no desire to become citizens or was prevented from becoming citizens by law. Resident aliens were those who desired to become citizens and had renounced their prior allegiances and had taken the legal steps to become citizens or reside within some state per state law.

UPDATE: In regards to questions about the citizenship of the mother: Mothers citizenship rarely ever influenced the citizenship of their children except in certain situations such as the father dying before the child was born or when the identity of the father was unknown.

Related: What “Subject to the Jurisdiction Thereof” Really Means

Related: Nothing Unusual about States Denying Citizenship to Alien Born Children

Related: Was U.S. vs. Wong Kim Ark Wrongly Decided?


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  1. Ben Blocker says:

    I have always considered it a weird argument that place of birth creates the required allegiance for citizenship for aliens yet the courts have been steadfast that change of location can never change ones allegiance. Go figure.

  2. Wilbur says:

    From reading all the material on the subject of natural born citizens I can’t help but conclude the following:

    1) Citizens of the united states was never properly defined by the framers mainly because only state law could define whom were born a citizen of the state. This explains I think the many early state laws that denied citizenship upon birth to non-resident aliens who had taken no oath of allegiance.

    2) Congress in 1866 recognized not all states recognized people of color as citizens and set out to define who were citizens of the united states through statute and amendment to the constitution.

    3) Congress decided to recognize all persons born or naturalized as citizens of the united states as long as they could not be claimed as subjects of another country.

    4) The 14th amendment was clearly designed to recognized only those politically attached to the nation (citizens) and no other.

    5) Just as a naturalized citizen cannot be claimed by any other foreign power as their citizens, neither can anyone born.

    Obama cannot be a citizen of the united states under the true meaning behind born or naturalized subject to the jurisdiction of the united states. Justice Gray himself confirmed this in Elk v Wilkins writing for the majority in defining subject to the jurisdiction as political attachment and not mere place of birth. This was in perfect agreement with acts of congress of 1866, 1868 and 1874. Elk is the only court case where the court was specifically asked to rule on what “subject to the jurisdiction” means. This question was not before the court in Wong Kim Ark.

    This crazy notion that place of birth controls citizenship is so contrary to written law makes you wonder how so many got carried away with such an easily debunked belief.

  3. geoff says:

    In Reply to JimAZtec: I have spent many hours thinking about whats causing this madness. The supreme court has never ruled to define NB other than in its accepted legal definition. Perhaps this deceit went far further than most thought, and reaced a point where to avoid anarcy the court remains silent. By doing so the court is violating their constitutional charter. The lesser of two evils? Media experts say art 14 and citizenship are what qualify the president. Most people belive that, why not just leave it there? Why I will continue to fight this is not whos in office, in some ways bush and mccain seem to be littlt better. Its what this will pry the door open to. The constitution is already in peril even before this mess sterted,[I know I cant type] This will take us to a place were we wont be able to come back from. Of all the dangers the framers wrote about this is the one issue they feared the most.

  4. JimAZtec says:

    Mike said: “The Wong decision also makes it plain that no matter what Madison or George Mason might have said, when deciding cases, the courts have relied on previous judicial decisions to resolve issues of this kind, including English judicial decisions (e.g., the “common law”), as the basis for the multitude of federal common law decisions cited in the Elk, Wong and Elg cases.”

    How come Elk was ignored then? Said Gray in Elk: “The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other.”

    How come Wong ignored the legislative intent or meaning placed on the words? John Paul Stevens: “A refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge’s refusal to consider legislative intent.”

    No matter how much spin or lipstick you try and place on Wong, it still suffers from zero support from history and defined legislative law. In other words, Wong will always be a deliberate judicial lie honored only those who lack honor themselves such as yourself.

  5. Mike says:

    Well, Chief Justice Roberts must think Obama’s qualified. So far he’s sworn the Big O in twice, and who knows what the future might have in store.

    And since Article 2 says “from date of adoption of this constitution”, the first time a natural-born citizen could have been elected would have been 1824, which would have been the first presidential election to take place more than 35 years after adoption of the Constitution, which was on September 17, 1787. Here’s the math: 1787, plus 35 years = 1822, plus two years until the next presidential election.

    In one of my earlier post, I used the term “authority” in the legal sense. In legal circles, that is a term of art, and means “legal authority binding on the courts,” usually in the form of a binding judicial decision. In the US, the US Supreme Court is the highest authority on federal questions, including constitutional interpretation. Quotes from the Framers are considered to be “secondary authorities.” They may be authoritative, but they are not binding on a court.

    On the McCain natural-born citizenship question, the issue was decided in England in the 13th century, and his citizenship was decided long before this country was settled. The cases and statutory authorities are cited in the Wong decision.

    The Wong decision also makes it plain that no matter what Madison or George Mason might have said, when deciding cases, the courts have relied on previous judicial decisions to resolve issues of this kind, including English judicial decisions (e.g., the “common law”), as the basis for the multitude of federal common law decisions cited in the Elk, Wong and Elg cases.

    Madison and Mason were undoubtedly great men and great thinkers, but if we are talking about American law, it is CJ Marshall and his colleagues and successors on the Supreme Court that we are required to rely on. If you are looking for the legal basis of the mainstream perspective on the question of whether or not Obama is a natural-born citizen, you might want to take some time and look at these decisions and the earlier cases cited in them.

    On a personal level, if you look at Obama’s history, you will see that he spent his most-formative years at an elite prep school and then attended a series of elite colleges and universities. All of them were in this country. His grandmother was a bank vice president. Of recent presidents, his educational background is closest to that of GWB. That’s the scariest thing about him.

  6. Mikey says:

    In Reply to geoff:

    I feel the same way. I am consumed by the angst of our generation (I am the same age as Obama) blowing up the charter that protects us from Government Tyranny. I am ashamed at the degree to which so many don’t seem to care or are so biased that they are willing to be blind to the breakage of National Law. I hear so many people say that “the term natural Born citizen is not defined in the constitution, so we can define it how we wish”, or “that is what it meant then, but not now”. The fact is that the term means the same now as it did then, and is every bit as precient as it was in 1788. There has been no Amendment to change it. There are volumes written about it’s meaning if one wants to extend a little intellectual effort. The term was even discussed recently by the senators during the writing of Resolution 511:

    EXCERPT OF SECRETARY CHERTOFF TESTIMONY FROM APRIL 2, 2008: (Resolution 511)

    ***

    Chairman Leahy. We will come back to that. I would mention one other thing, if I might,

    Senator Specter. Let me just ask this: I believe”“and we have had some question in this Committee to have a special law passed declaring that Senator McCain, who was born in the Panama Canal, that he meets the constitutional requirement to be President. I fully believe he does. I have never had any question in my mind that he meets our constitutional requirement. You are a former Federal judge. 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 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.

    They all heard it, talked about it and debated it. If Leahy thinks that a NBC is the product of Citizen parents, how could he support Obama? How could ANY OF THEM. They are all in violation of Article 6.

    I cried for my country on 1/20, if this injustice is allowed to stand, and Mob Rule is allowed to be the Law of the land, then my children may be living in “Venezuela” in the near future.

  7. Anonymous says:

    In Reply to rxsid:

    b.t.w. had they not put the ‘or’ part in there, 1811 would have been the first time our young country could have had an eligible POTUS (1776 + 35), asuming 14 years of residency of course.

  8. rxsid says:

    Barry can’t be a NBC because he had (admittedly) British citizenship at birth. So did the (majority…perhaps 100%?) founders of our country. They too were British citizens at birth….and they knew that they would not fit the NBC requirement. So….they grandfathered themselves in by a simple ‘or’ statement:

    Article II Section I (in part):

    “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”

    “or a Citizen of the United States, at the time of the Adoption of this Constitution”

  9. JimAZtec says:

    Mikey said: “Stare Decisis of Ark has been that anyone born in the US are citizens.”

    Not anyone, but those with a “permanent domicil 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.”

    The Federal govt. disagreed with the court for very good factual reasons.

  10. geoff says:

    In Reply to Mikey: Gentlemen; This crisis has affected me more than any other in my life. There are two reasons. My father is 84 and nearing the end of his life. His life like so many of his generation has been one of service to his country and its people. He grew up in the depresion, almost lost his life flying c47s over the hump in ww2. The GI bill allowed him to become a doctor, he practiced for almost 40 years. My father is of that generation that gave us the nation we have today. Perhaps that sounds too patriotic today but thats what they did. Now as their generation is passing quickly, I feel a scense of shame that our generation has allowed much of what their blood, sweat, and tears brought us to slip throught our hands. The very least I can do to honor them and all before us is to fight to preserve and protect our unique Constitution. The other reason is my one year old grandson. His life is just begining and I very much want to leave him a nation of liberty freedom and justice as was given to us. Our founders feared that our Charter could be lost in one generation if the people did not understand or defend it. 33 nations with freedoms and laws much like ours fell into destruction in the 20th century, more will in this century. It now appears that the Supreme Court has failed in its Constiutional duty as has the Congress,and the Presidency. If one aspect of the Constitution is unsurped as has article 2 been, then we no longer have a nation based on a foundation of law. The people of this nation it seems now will not be heard by its goverment. I close with this . There are four boxes that support freedom. Soap, Ballot, Jury,and Cartridge. God help us we may well have only the fourth box left to us now.

  11. Mikey says:

    In Reply to Mike:

    The jurisdictional phrase of the 14th Amendment as defined by Elk v. Wilkins was NOT only directed at Indians and diplomats, and your ingenuous logic is telling. The case was about an indian, the definition is the test used to make the decision, and the test is not only applicable to Indians.

    The writers and deliberators of that Amendment were very clear, and much is written about the fact that the phrase meant Complete Allegiance and Sole Jurisdiction to the US and NO OTHER FOREIGN POWER. Of course those born or naturalized in the US were WITHIN the jurisdiction of US Law (BCL) if they were not an indian or diplomat’s child. They were only Subject to the jurisdiction (sole allegiance to the US) if they were born with no other allegiance (not a dual citizen) or took the oath of Citizenship. That is Natural Law or National Law, not British Common Law. The 14A mirrored the Civil Rights Act of 1866 and Revised statutes 1992, which used the same language as Elk.

    Stare Decisis of Ark has been that anyone born in the US are citizens, due to the wrongly applied BCL doctrine to the jurisdictional phrase, but that is Clearly not the intent of the Amendment as written (as expressed clearly by the writers of the 14A). The decision in Ark though, wasn’t about who could be POTUS, and they never deemed Wong a NBC, only “citizen”.

    There are no court decisions that deem any person less than born in the US to citizen parents as NBC. There is no amendment that changes the meaning of NBC as understood by the framers from the contemporary “Law of Nations”. There have been NO precedent (except Chester Arthur, and fraud is NOT precedent) of a POTUS that does not fit this NBC model.

    The phrasing that is used by some to arrive at the conclusion that born in the US that “in other words, who at birth is a US citizen”, or “there are 2 types of citizens, those born and those naturalized” is false and ingenuous in it’s framing of the question. The framing should be more like “whom at birth is subject to the jurisdiction of the US and No Other Foreign Power?” A Natural Born Citizen of course! Obama, in stare decisis of ARK is a Native Citizen (his term is “fight the smears”, why doesn’t he say Natural Born? Hmmm), which is not the same as NBC. By his OWN ADMISSION, at birth his citizenship status “was governed by Great Britain”. How can that possibly be a NBC?

  12. JimAZtec says:

    Mike said: “As we know, Congress has the right to make legislation about citizenship, and the law of citizenship is based on the common law AND statutory law, and the decisions interpreting it, based on common law principles, including stare decisis.”

    Congress did make legislation and was crystal clear in words and actions to what their legislation was adopted to accomplish. You and and morons like J. Gray desire to turn a blind eye to the obvious truth and reinterprete history to your liken.

    Mike said: “As to George Mason, he was a distinguished member of the Constitutional Convention, and well known as an independent thinker. However, over time, many of his views have been rejected.”

    Now I am fully convinced you are a moron.

    Mike said: “In the Wong Kim Ark decision, the Supreme Court majority stated that at the time the Constitution was adopted, the common law of the US in the area of citizenship was the same as the common law of England.”

    So, was a child born to aliens in VA, VT, GA born a citizen of the United States? NO? How can that be, you said SCOTUS said the common law of US citizenship was the same as the common law of England! Hey Mike, can you point us to some pre-1866 U.S. Statute that says anyone born in any state is a U.S. Citizen regardless of who their parents were? Come on, put up for once!

    Mike said: “If JimAztec does not believe this, perhaps he might provide us with authority to back up his perspective on the sources of the US common law in 1789, when the Constitution was adopted.”

    James Madison:

    “A characteristic peculiarity of the Govt of the U. States is, that its powers consist of special grants taken from the general mass of power, whereas other Govt possess the general mass with special exceptions only. Such being the plan of the Constitution, it cannot well be supposed that the Body which framed it with so much deliberation, and with so manifest a purpose of specifying its objects, and defining its boundaries, would, if intending that the Common Law shd be a part of the national code, have omitted to express or distinctly indicate the intention; when so many far inferior provisions are so carefully inserted… As men our birthright was from a much higher source than the common or any other human law and of much greater extent than is imparted or admitted by the common law.

    James Madison to George Washington:

    “What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they wd. have done more, they would have brought over from G.B. a thousand heterogeneous & anti-republican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law.”

    I know, like a good little moron Mike is, he will say many of Madison’s “views have been rejected.” LOL

  13. Mike says:

    geoff, you are correct that IF the senate were to pass such a resolution, it would have no effect as against the constitution. And note that a resolution is not a law, but only a “sense of the Senate.” In order to become law, it would need to be passed by both houses of Congress, and then signed by the president.

    However, “Natural Born” IS most definately a matter of law, as can be seen from the differences of opinion between the majority and dissenting opinions in the Wong Kim Ark decision. The majority interpreted the Constitution in accord with common law principles, which are the principles of legal interpretation of this country dating back to its inception. The dissenters thought the matter should be decided in accordance with French law and the European notion of “Natural Law”, whatever that might mean. (I tend to believe that generally speaking, “natural law” is cited as an unchallengeable basis for what a proponent thinks is a good idea.) As we know, the dissenters didn’t have the votes to support their position.

    JimAztec draws the wrong conclusion from my statement about a national common law. As we know, Congress has the right to make legislation about citizenship, and the law of citizenship is based on the common law AND statutory law, and the decisions interpreting it, based on common law principles, including stare decisis. This does not mean that all statutes regarding citizenship are unconstitutional, only those that contravene the US Constitution. So, for example, if a law was passed that provided that in order to meet the “natural born citizen” requirement of Section 2, it was necessary for one’s grandparents also to have been citizens. I think such a law would clearly be unconstitutional, because it contravenes the legal meaning of “natural born citizen” by imposing additional requirements. That is in sharp contrast with a law that might, for example, clarify the legal status of a person born in the Panama Canal Zone during the US mandate, or a law regulating naturalization. Either would clearly be constitutional.

    As to George Mason, he was a distinguished member of the Constitutional Convention, and well known as an independent thinker. However, over time, many of his views have been rejected. We know from many souces, including Supreme Court decisions, that the US did have a common law at the time the Constitution was adopted. In the Wong Kim Ark decision, the Supreme Court majority stated that at the time the Constitution was adopted, the common law of the US in the area of citizenship was the same as the common law of England. If JimAztec does not believe this, perhaps he might provide us with authority to back up his perspective on the sources of the US common law in 1789, when the Constitution was adopted.

  14. JimAZtec says:

    Mike said: “Plainly, the Court believed that there IS a national common law used to interpret the US Constitution. Of course, that would include the citizenship clauses of Section 2 and the 14th Amendment.”

    If that was REALLY true then all citizenship laws enacted by the states since 1790 would had been unconstitutional, duh! Congress shot down this ill-conceived opinion on July 27, 1868 (same congress who approved the 14th) with the Rights of American Citizens Act: “That any declaration, instruction, opinion, order, or decision of any officers of this government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government.”

    George Mason was right, the common law of England was not the common law of the United States.

    You really should consider the accuracy of what you post, Mike.

  15. geoff says:

    In Reply to Mike: nb is not law it is a natural act. caselaw is about citizenship. founders intent is citizenship by a natural act not a law no one can question your allegence if it flows from your birth. i may be wrong but i do not find were sc has made a different definition from founders intent. sc can decide constitutionality but olny admendment can change it. why did senate pass resolution not law defining natural born as born of two citizen parents in april 2008. to me this a serious breech of the constitution.

  16. Mike says:

    I apologize if this reply is disjointed, I have been skipping back and forth from watching the inauguration and related ceremonials while writing it. (And did anyone notice that the usually unflappable Chief Justice Roberts muffed the oath of office when he recited it for the incoming president? Glad to know he’s human, too.)

    Back in the day, one of my teachers once said “The first rule of interpretation is read on.” I think that geoff and Jim might benefit from this observation.

    Jim said: “If this is REALLY true then Obama is not even a citizen because under the universal maxim of the common law children followed the condition of the father in cases of parents being of mixed races (partus sequitur patrem).”

    Well, actually, what the cited common law decisions (dating back to the 13th century) have uniformly held is that for those born in the country, citizenship follows place of birth.

    Jim goes on to say; “Of course Justice Swayne was terribly mistaken because there was no such common law of this country because each state was independent and had their own laws that determined who were born citizens of the state.”

    Actually, what the Supreme Court said about a national common law is; “There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.” 169 U.S. 655-656, citing Smith v. Alabama, 124 U.S. 478. Plainly, the Court believed that there IS a national common law used to interpret the US Constitution. Of course, that would include the citizenship clauses of Section 2 and the 14th Amendment.

    geoff asks; “Pres must be NB, Obama is not. SCourt cant rule agianst or change article 2,nor can congress. Olny admendment. Why is NOBODY saying this except us tin hats[?]” and again questions President Obama’s status as NBC. Aside from not taking even a moment to proofread, he also refuses to acknowledge over two centuries of precedent, dating back to the 1804 decision in the wonderfully named maritime case Charming Betsy (2 Cranch. 64). In response to geoff’s question, some might reply that only the staunchest of flat-earth tin hats would hold firm to their individual perspective on the meaning of Constitutional language in the face of over 200 years of uniformly contrary decisions from the Supreme Court.

    We should admire their firmness, while – perhaps – questioning their judgment.

  17. geoff hamilton says:

    In Reply to JimAZtec: Lets focus on admendment. Cons. is changed olny by admendment. There is an admendment in the congress waiting for the votes to move it. It would change NB in article 2. That tells me there is no Cons. change to artic. 2. It is the law. Pres must be NB, Obama is not. SCourt cant rule agianst or change article 2,nor can congress. Olny admendment. Why is NOBODY saying this except us tin hats.

  18. JimAZtec says:

    Mike quotes Wong Kim Ark: “Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England.’ “ËœWe find no warrant for the opinion that this great principle of the common law has ever been changed in the United States.”

    If this is REALLY true then Obama is not even a citizen because under the universal maxim of the common law children followed the condition of the father in cases of parents being of mixed races (partus sequitur patrem). The same thing had been upheld in this country see Ex parte Reynolds, Ludlam v. Ludlum to name a few.

    Of course Justice Swayne was terribly mistaken because there was no such common law of this country because each state was independent and had their own laws that determined who were born citizens of the state. If Swayne was correct then every person born within the District of Columbia would been US citizens (they were not.)

  19. Mike says:

    geoff hamilton said:

    “Agian [sic] the issue is not citizenship…. The founders were concerned about a leader with dual citizenship. Olny [sic] an admendment can chage [sic] that. there are none. It is not citizenship”

    Unfortunately, the Supreme Court disagrees. They said there are two kinds of citizenship; naturalized and natural-born. If you aren’t one, then you’re the other. To put it another way;

    “In U. S. v. Rhodes (1866), Mr. Justice Swayne, sitting in the circuit court, said: “ËœAll persons born in the allegiance of the king are natural- born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England.’ “ËœWe find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.’” United States v. Wong Kim Ark, 169 U.S. 649, 662-663 [cit. omitted.]

    Although this is not central to the decision in Wong, and therefore may be “dictum”, it is consistent with US Supreme Court decisions dating back to the inception of the Nation. I’m not expecting any immediate changes…. So enjoy the festivities, unless you live in DC, in which case its time to batten down hatches for the duration.

  20. Mike says:

    geoff hamilton said:

    “Agian [sic] the issue is not citizenship…. The founders were concerned about a leader with dual citizenship. Olny [sic] an admendment can chage [sic] that. there are none. It is not citizenship”

    Unfortunately, the Supreme Court disagrees. They said there are two kinds of citizenship; naturalized and natural-born. If you aren’t one, then you’re the other. To put it another way;

    “In U. S. v. Rhodes (1866), Mr. Justice Swayne, sitting in the circuit court, said: “ËœAll persons born in the allegiance of the king are natural- born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England.’ “ËœWe find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.’” United States v. Wong Kim Ark, 169 U.S. 649, 662-663 [cit. omitted.]

    Although this is not central to the decision in Wong, and therefore may be “dictum”, it is consistent with US Supreme Court decisions dating back to the inception of the Nation. I’m not expecting any immediate changes…. So enjoy the festivities, unless you live in DC, in which case its time to batten down hatches for the duration.