Benefiting from Obama's Ineligibility

May 9, 2014

Copyright (c) 2013-2014, Stephen Tonchen

This article is intended for persons who are facing prosecution, fine, incarceration, capital punishment, deportation, loss of franchise, loss of revenue, loss of business opportunity, or other injury in fact, as a direct result of (a) a law that President Obama has signed, or (b) an offical action or decision by the President or one of his appointees.

If you are such a person, you may have standing to pursue a collateral attack against the injury-causing law, action or decision, on grounds that Barack Obama does not meet the presidential "natural born citizen" eligibility requirement specified in the U.S. Constitution [01].

A collateral attack does not seek to remove anyone from office. It merely asks the court to invalidate something that a government official has done or is about to do, on grounds that the official was not property appointed to, or does not meet the legal qualifications for, the office she or he is holding.

President Obama publicly admits that, regardless of where he was born, he was a foreign citizen at birth [02]. A widely-held modern-day opinion is that all persons born on U.S. soil, except the children of foreign diplomats and enemy invaders, are "natural born citizens", regardless of any other citizenship also acquired at birth. This opinion is based largely on two primary sources [03]:

After the 2008 presidential election, new information surfaced, casting doubt on the above two sources. Based on this new information (discussed later in this article), it appears that individuals who are foreign nationals at birth -- even if also U.S. citizens at birth -- are not natural born citizens. Therefore, the laws that President Obama has signed, and the official decisions that he and his appointees have made, appear to be vulnerable to collateral attack.

As a general rule, the official acts of an ineligible officeholder are valid and legally binding, and may not be challenged collaterally, despite the fact that he or she is holding office illegally (see de facto officer doctrine). However, there are important exceptions to this general rule. These exceptions may be beneficial to persons, groups and business which are adversely affected by an official act of President Obama or one of his appointees.


Contents

I. Background
II. Exclusive-Citizenship Theory
III. Birthplace-only Theory
IV. New Information 1: 18th Century English Law
V. New Information 2: Justice Gray's Reasoning
VI. Exceptions to the De Facto Officer Doctrine
VII. Conclusion
Disclaimer
Appendix 1: Sample Motion
Appendix 2: Laws Signed by President Obama
Appendix 3: Opinions of Note
Appendix 4: Federal Judges Appointed by President Obama
Footnotes
References
Copyright


I. Background

There are two reasons to doubt President Obama's "natural born citizen" status:

The Birthplace Issue: According to current literature published by the U.S. Citizenship and Immigration Service, a person must be born in the United States in order to be eligible to serve as President [04]. President Obama claims he was born in Hawaii on August 4, 1961 [05], but has not provided any court-admissible evidence supporting this claim [06]. There is anecdotal and circumstantial information indicating that he may have been born outside of the United States [07].

According to Dr. Edwin Vieira, one of this nation's foremost Constitutional scholars, the birthplace issue alone provides an opportunity to criminal defendants whose indictment and prosecution are a directly tied to a statute that President Obama had signed. Such defendants...

...undeniably have "standing" to challenge the indictment on the grounds that no statute...even exists, because the original "Bill which...passed the House of Representatives and the Senate" was never "presented to the President of the United States", and therefore could never "become a Law," inasmuch as the supposed "President," Barack Obama, being constitutionally ineligible for that office, was then and remains thereafter nothing but an usurper [See Article I, Section 7, Clause 2 and Article II, Section 1, 4] (Vieira)

The Dual Citizenship Issue: President Obama publicly acknowledges that he was, at birth, a citizen of a foreign country.

...at the time of his birth, Barack Obama Jr. was both a U.S. citizen (by virtue of being born in Hawaii) and a citizen of the United Kingdom and Colonies (or the UKC) by virtue of being born to a father who was a citizen of the UKC. (FactCheck.org: Obama's Kenyan Citizenship)

The fact that Barack Obama Jr. was born with foreign nationality (in addition to U.S. citizenship) is, by itself, sufficient reason to doubt his "natural born citizen" status (Why Obama is Ineligible -- Regardless of His Birthplace).

Prior U.S. Presidents: Anyone born after 1787 (the year the U.S. Constitution was adopted) must be a natural born citizen in order to be constitutionally eligible to serve as President [01]. All U.S. presidents who were born after 1787, except Chester Arthur and Barack Obama, were born in the United States, of parents who were both U.S. citizens. Moreover, all post-1787-born presidents (except Arthur and Obama) were, at birth, citizens of the United States exclusively and were not citizens or subjects of any foreign country.

Chester Arthur was elected Vice President in 1880, and became President after James Garfield's assassination in 1881. At the time, the general public did not know of Chester Arthur's foreign nationality at birth.

January 20, 2009 was the first time in history that the United States knowingly inaugurated a post-1787-born President who was, at birth, a citizen of a foreign country.

Two Theories: Throughout U.S. history, there has been two conflicting theories as to the meaning of "natural born citizen" in the U.S. Constitution.

Both theories are briefly summarized next.

II. Exclusive-Citizenship Theory

According to the exclusive-citizenship theory, a natural born citizen is one who is born in the United States and is, at birth, a citizen of the United States exclusively, i.e., is not a citizen or subject of any foreign country [10]. Five arguments are often cited in support of this theory:

(1) "Natural Born Citizen" in 18th-Century English Literature:

The phrase "natural born citizen" appeared in non-legal English-language writings prior to the U.S. Constitution (1787).

Although the above examples do not explicitly define "natural born citizen", the manner in which the phrase is used suggests that it means something more than mere birth in a particular place.

(2) "Natural born citizen" in Supreme Court Opinions:

The U.S. Supreme Court has never explicitly defined "natural born citizen". Nevertheless, in every instance in which a Supreme Court majority opinion or concurring opinion used the phrase "natural born citizen", it was always in reference to persons who were born on U.S. soil, to parents who were U.S. citizens.

(3) Purpose of the Natural Born Citizen Provision:

An earlier draft of the U.S. Constitution specified that the U.S. President must be a U.S. citizen. On September 4, 1787, the Philadelphia Convention changed the presidential eligibility requirement from "citizen" to "natural born citizen".

According to multiple historical sources, the purpose of this wording change (from "citizen" to "natural born citizen") was to exclude "foreigners" from the presidency, and thereby protect the presidency from "foreign influence" [12].

Thus it appears that a person who is a U.S. citizen can also be a "foreigner" in some sense, but a natural born citizen is one who is not a foreigner, at least not in the same sense.

When the Constitution was being written, the meaning of the word "foreigner" was not limited to persons born overseas. A citizen or subject of a foreign country was also a "foreigner" according to the 18th century meaning of the term [13].

Since natural born citizenship pertains only to one's status at the time of one's birth, the only "foreigners" that the natural born citizen provision could have possibly excluded were persons who were "foreigners" when they were born. It appears, therefore, that the wording change from "citizen" to "natural born citizen" could not have achieved its stated purpose -- it could not have excluded any foreigners not already excluded by the original "citizen" requirement -- unless "natural born citizen" refers to persons who are not "foreigners" (foreign-born or foreign citizens) at birth [14].

(4) Federal case law prior to the 14th Amendment.

Prior to the 1866 Civil Rights Act, all naturalization statutes enacted by Congress pertained only to foreign-born persons and their children. Prior to 1866, Congress did not pass any law regarding the status, at birth, of persons born on U.S. soil.

Perhaps the first most important thing to understand about national [federal] birthright is that there was no written national birthright rule applicable within the States prior to the year 1866. One will look in vain to find any national law on the subject prior to this year, or even any mention of the right to citizenship by birth under the United States Constitution (Madison (2007)).

Since there was no federal birthright citizenship law prior to 1866, the federal courts [15] used unwritten "common law" to determine the citizenship, at birth, of persons born on U.S. soil [16].

According to Ex parte Reynolds (1879), partus sequitur patrem (the offspring follow the condition of the father) was, and had always been, the "common law" governing the citizenship, at birth, of children born on U.S. soil:

...the principle handed down from the Roman civil law [is] that the owner of a female animal is entitled to all her brood, according to the maxim partus sequitur ventrem (the offspring follow the condition of the mother). But by the common law this rule is reversed with regard to the offspring of free persons. Their offspring follows the condition of the father, and the rule partus sequitur patrem prevails in determining their status. 1 Bouv. Inst., 198, § 502; 31 Barb. 486; 2 Bouv. Law Diet. 147; Shanks v. Dupont, 3 Pet. [28 U. S.] 242. This is the universal maxim of the common law with regard to freemen ... No other rules than the ones above enumerated ever did prevail in this or any other civilized country.

In the case of Ludlam v. Ludlam, 31 Barb. 486, the court says:

"The universal maxim of the common law being partus sequitur patrem, it is sufficient for the application of this doctrine that the father should be a subject lawfully, and without breach of his allegiance beyond sea, no matter what may be the condition of the mother."

The law of nations, which becomes, when applicable to an existing condition of affairs in a country, a part of the common law of that country, declares the same rule. Vattel, in his Law of Nations (page 101), says:

"As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, these children naturally follow the condition of their fathers and succeed to their rights. ... The country of the father is, therefore, that of the children, and these become true citizens merely by their tacit consent."

Again, on page 102, Vattel says:

"By the law of nature alone, children follow the condition of their fathers and enter into all their rights."

This law of nature, as far as it has become a part of the common law, in the absence of any positive enactment on the subject, must be the rule in this case. (Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879))

One of the sources of American "common law" was Vattel's Law of Nations (1758). According to Vattel, the citizenship of a child at the time of its birth is naturally that of its father, not its place of birth (Vattel, sections 212, 215 and 216) [17]. Throughout U.S. history, Vattel has been cited repeatedly by American courts, including the U.S. Supreme Court. For example:

In U.S. v. Wong Kim Ark (1898), Justice Gray asserted that the "common law", which determined the status at birth of children born on U.S. soil, was the jus soli principle of English common law. Everyone born on U.S. soil (except the child of a foreign diplomat or enemy invader) was a U.S. citizen at birth, regardless of whether the parents were U.S. citizens or aliens:

... 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. 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. (U.S. v. Wong Kim Ark, 1898)

However, Justice Gray's assertion does not appear to be historically or legally accurate. According to an Emory Public Law research paper published in 2007, a New York State case, Lynch v. Clarke (1844), is the only pre-Civil-War case in which an American court had ruled that birthplace alone determines U.S. citizenship at birth [19]:

Lynch v. Clarke [1844] is the only antebellum [pre-Civil War] decision ... that clearly finds that jus soli per Calvin's Case determines United States citizenship. Whatever light the case provides, though, should be adjusted by the fact that it is the unreviewed opinion of a single state-court judge and that shortly thereafter, in Ludlam v. Ludlam, that state's highest court, all justices concurring, spoke differently, saying that birthright citizenship depended on parentage rather than the "boundaries of the place." (Mayton)

Prior to the 14th Amendment, several prominent individuals had expressed their personal opinion or belief that all free white children born on U.S. soil were U.S. citizens by birth. But, according to actual federal court rulings prior to 1866, children born on U.S. soil, to foreign-citizen fathers, did not acquire U.S. citizenship at birth. The citizenship of such children was that of their fathers, not their place of birth. If such children were not even U.S. citizens at birth, they could not have been natural born citizens.

(5) 14th Amendment Citizenship Clause.

The "14th Amendment citizenship clause" (the first sentence of the 14th Amendment) guarantees U.S. citizenship to every person, regardless of race, who is both:

During the time period in which the 1866 Civil Rights Act and the 14th Amendment were being drafted and debated, various prominent individuals, including members of Congress, expressed their viewpoint that anyone born on U.S. soil is at least a U.S. citizen, if not also a natural born citizen [20].

Nevertheless, in the final draft of the 14th Amendment, a child born in the United States does not receive U.S. citizenship at birth unless the child is subject to U.S. "jurisdiction" at the time of its birth.

Persons who were involved in developing the 1866 Civil Rights Act and 14th Amendment -- specifically, Representative John Bingham (1815-1900), the father of the 14th Amendment, and Senator Jacob Howard (1805-1871), a member of the Joint Committee which drafted the 14th Amendment -- explained that the word "jurisdiction", as used in the 14th Amendement citizenship clause, means the absence of any foreign jurisdiction or allegiance.

Mr. TRUMBULL. ... The provision is, that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens." That means "subject to the complete jurisdiction thereof."
...
What do we mean by "subject to the jurisdiction of the United States?" Not owing allegiance to anybody else. That is what it means. (Congressional Globe, Senate, 39th Congress, 1st Session, p.2893)
Mr. HOWARD: ... I concur entirely with the honorable Senator from Illinois [Trumbull], in holding that 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. (Congressional Globe, Senate, 39th Congress, 1st Session, p.2895)

According to Representative Bingham and Senator Howard, federal (U.S.) law has always been that, if a child is born on U.S. soil, to a parent who owes allegiance to a sovereignty other than the United States, such child is not subject to U.S. "jurisdiction", hence does not acquire U.S. citizenship at birth. Thus, the citizenship clauses of the 1866 Civil Rights Act and 14th Amendment were declaratory of then-existing federal law (as established by the federal courts):

I find no fault with the introductory clause [of the 1866 Civil Rights Act], which is simply declaratory of what is written in the Constitution, that 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;... (Congressional Globe, 39th, 1st Sess.(1866), p.1291, center column, boldface emphasis added)
This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. (Congressional Globe: Senate, 39th Congress, 1st Session, 1866, p.2890, center column)

In the Slaughter-House Cases (1873), the Supreme Court acknowledged that the intent of the 14th Amendment citizenship clause was to exclude, from U.S. citizenship, the U.S.-born children of parents who are "citizens or subjects of foreign States", regardless of their diplomatic status:

The phrase, 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States. (Slaughter-House Cases, 1873)

Likewise, in Elk v. Wilkins (1884), children born on U.S. soil are not subject to U.S. "jurisdiction" and therefore do not acquire U.S. citizenship at birth, unless they are, at birth, "completely subject" to the "political jurisdiction" of the United States and owe the United States "direct and immediate allegiance" [21]:

The persons declared to be citizens are "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." 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.
...
Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes, (an alien though dependent power,) although in a geographical sense born in the United States, are no more 'born in the United States and subject to the jurisdiction thereof,' within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations. (Elk v. Wilkins, 1884)

Children born in the United States, of parents who owe allegiance to a foreign sovereignty, did not acquire U.S. citizenship at birth, according to the original meaning and intent of the 14th Amendment citizenship clause. If such children were not U.S. citizens at birth, they could not have been natural born citizens.

Summary: The exclusive-citizenship theory (which posits that natural born citizenship is pure, or exclusive, U.S. citizenship at birth) is consistent with:


III. Birthplace-only Theory

The birthplace-only theory asserts that any child born on U.S. soil (other than the offspring of a foreign diplomat or enemy invader) is, at birth, a natural born citizen of the United States. This theory is widely accepted in the modern-day legal community.

In 1991, the following definition of "natural born citizen" was added in Black's Law Dictionary:

Natural born citizen. Persons who are born within the jurisdiction of a national government, i.e. in its territorial limits, or those born of citizens temporarily residing abroad. (Henry Campbell Black, A Dictionary of Law, 6th Ed., 1991, p.1026)

The consensus of legal opinion is that anyone born in the United States is a natural born citizen:

Anyone born after the adoption of the U.S. Constitution in 1787 must be a "natural born Citizen" of the United States to constitutionally fill the office of President or Vice-President. ... Some debate exists as to the meaning of this phrase. Consensus exists that anyone born on U.S. soil is a "natural born Citizen." One may also be a "natural born Citizen" if, despite a birth on foreign soil, U.S. citizenship immediately passes from the person's parents. (Legal Information Institute: Natural Born Citizen)

According to an article published by the Yale Law School, there is near-universal acceptance of the consensus viewpoint:

There is near-universal agreement that all persons born within the United States are natural born (Bonner, p.3)

According to a Congressional Research Service memorandum (April 3, 2009), the weight of legal opinion is that anyone born in the United States, except the child of a foreign diplomat, is a natural born citizen:

The weight of scholarly legal and historical opinion appears to support the notion that "natural born Citizen" means one who is entitled under the Constitution or laws of the United States to U.S. citizenship "at birth" or "by birth," including any child born "in" the United States (other than to foreign diplomats serving their country) ... (Maskell, p.5)

Recent "Birther" Cases: As of October 2012, there have been over 175 "direct" legal challenges to Barack Obama's eligibility to serve as President (Birther Case List). "Direct" challenges (as distinguished from "collateral" challenges) are attempts to remove President Obama from office, or to remove his name from a state ballot, or to simply have a court declare him to be ineligible.

In a few instances, judges have expressed their personal opinion, or dicta, regarding the meaning of "natural born citizen" in the U.S. Constitution. In every instance in which a judge has commented on President Obama's eligibility, the comment has always been supportive of the birthplace-only theory (that all persons born on U.S. soil, except the children of foreign diplomats and enemy invaders, are natural born citizens). For example:

... we conclude that persons born within the borders of the United States are "natural born Citizens" for Article II, Section 1 purposes, regardless of the citizenship of their parents. (Judge David J. Dreyer, Ankeny v. Indiana, 2009)
It is well settled that those born in the United States are natural born citizens. (Judge John A. Gibney, Tisdale v. Obama, 2012)

The birthplace-only theory -- the notion that all persons born on U.S. soil (except the children of foreign diplomats and enemy invaders) are natural born citizens -- relies heavily on two primary sources: 18th century English law, and Justice Horace Gray's reasoning in U.S. v. Wong Kim Ark (1898).

After weighing the birthplace-only theory and exclusive-citizenship theories according to information that was available prior to 2008, we can understand why the consensus of legal opinion in the United States has been supportive of the birthplace-only theory.

Therefore, if given ONLY the information presented so far, it is most likely that the federal courts will rule that President Obama (assuming he was born on U.S. soil) is a natural born citizen eligible to serve as President.

However, after the 2008 presidential election, new information surfaced, which casts doubt on the birthplace-only theory and its two principal sources [23]. This new information is explained and documented in Presidential Eligibility Tutorial and is briefly summarized in the next two chapters.


IV. New Information 1: 18th Century English Law

One of the strongest and most compelling arguments supportive of the birthplace-only theory is the fact that, in 18th century English law, nearly every child born on English soil -- regardless of whether the child's parents were English or alien -- was a "natural-born subject" at birth. At first glanced, this one fact alone seems to suggest that, when the U.S. Constitution was being written, the phrase "natural born" implied birth in a particular place, without regard to the state or condition of one's parents.

But, upon closer examination of the 18th century English legal writings that the Framers of the Constitution were familiar with and had relied upon, we find that the phrase "natural born" referred to two distinct classes of persons: those who actually are "natural born" as a matter of fact, and those who are deemed to be "natural born" as a matter of law [24].

(1) "Subject" and "citizen" were NOT synonymous in 18th century English law:

When the U.S. Constitution was being written, Western Europe was divided into several kingdoms, each ruled by a monarch. Persons who owed permanent allegiance to a monarch were called "subjects" of that monarch.

Within each kingdom, there were local communities, called "cities", "towns" or "boroughs". The members of these local communities were called "citizens" [25].

In 18th century England and its American colonies, there were various ways by which you could become a "citizen" of an English city or town [26]. But the only way you could acquire English citizenship at birth was by patrimony. You could claim English citizenship by birth only if your father was a citizen at the time of your birth [27].

If a natural born citizen is one who is at least a "citizen by birth" (according to the 18th century English rules governing citizenship by birth), it would appear that you cannot be a natural born citizen unless, at minimum, your father was a citizen at the time of your birth.

(2) Natural-born subjects were either born or made:

The people residing in 18th century England were divided into two groups: "subjects" and "aliens". Subjects had property and inheritance rights; aliens did not. Some (but not all) English subjects were also "citizens" of an English city or town.

A person became an English "subject" in one of three ways:

Francis Bacon (1561-1626) is an attorney who successfully argued for the plaintiff in Calvin v. Smith (1608), a landmark English legal case that profoundly influenced both English and American nationality laws well into the 19th century. In his Report on Calvin's Case, Francis Bacon explained that, in English law, a "natural-born subject" is a person who is an English subject either "by birth, or by act of Parliament" [28]. Thus, during the 1600s and 1700s, there were two categories of natural-born subjects:

At least one federal Circuit Court Judge, Noah Haynes Swayne, understood that the phrase "natural born subject" referred, not only to English subjects by birth, but also to aliens naturalized by acts of Parliament:

An alien naturalized is "to all intents and purposes a natural born subject." (United States v. Rhodes (1866), p.10)

Persons who became English subjects by acts of the King were called "denizens". These "denizens" were "in a kind of middle state between an alien and a natural-born subject" (Blackstone). They were English subjects, but did not have the title or legal position of a "natural-born subject".

(3) "Naturalization" is a legislative act which transforms an alien into a natural-born subject:

Giles Jacob's New Law Dictionary was "the most widely used English law dictionary" during the time period in which the Constitution was written. It was first published in 1729. The 8th edition was published in 1762, the 9th in 1772, and the 10th 1782 (Berry).

Jacob defined "naturalization" as an act of Parliament by which an alien is turned into a "natural subject":

Naturalization, (Naturalizatio) Is where a person who is an alien, is made the King's natural subject by act of parliament; whereby one is a subject to all intents and purposes, as if he were born so. (Jacob, Naturalization)

Naturalization puts an alien in "exactly the same state" as if he were a subject by birth. Although the king had the power to endenize, only Parliament had the power to naturalize:

Naturalization cannot be performed but by act of parliament: for by this an alien is put in exactly the same state as if he had been born in the king's ligeance; except only that he is incapable, as well as a denizen, of being a member of the privy council, or parliament, &c. (Blackstone)

(4) Naturalization had two forms: private and public:

Naturalization was an act of Parliament which transformed an alien into natural-born subject. Such acts of Parliament were either private or public:

Thus, in 18th century England and its colonies, naturalization (acts of Parliament which transform aliens into natural-born subjects) had two forms:

(5) Native-born children of alien parents were, at birth, statutory denizens:

In 1604, Parliament passed legislation (a public act) which automatically conferred "denizen" status, at birth, to children born in England, of alien parents:

To place the Children, born within this Realm, of foreign Parents, in Degree for the first Birth or Descent only, as Aliens made Denizens, and not otherwise. (House of Commons Journal, Volume 1, 21 April 1604)

When the U.S. Constitution was being written, English legal literature affirmed that children born on English soil, of alien parents, were statutory "denizens". Such children were denizens made so by acts of Parliament, as distinguished from denizens made so by acts of the king.

(6) Statutory denizens were "natural-born subjects" in the eyes of the law:

In the 18th century, a person who was made a "denizen" by an act of Parliament (as distinguished from a person who was made a "denizen" by an act of the King) was a naturalized subject. English-born children of alien parents, like foreign-born children of English parents, were naturalized at birth by (public) statutes enacted by Parliament.

Furthermore as the law of England must favor naturalization as a branch of the law of nature, so it appears manifestly, that it doth favour it accordingly. For it is not much to make a subject naturalized by the law of England: it should suffice, either place or parents. If he be born in England it is no matter though his parents be Spaniards, or what you will: on the other side, if he be born of English parents it skilleth not though he be born in Spain, or in any other place of the world. In such sort doth the law of England open her lap to receive in people to be naturalized; which indeed sheweth the wisdom and excellent composition of our law ... (Bacon, Francis, pp.664-665)

Children born on English soil, to alien parents, were naturalized, at birth, by a public act of Parliament. As Francis Bacon explained in his Report on Calvin's Case, persons who become English subjects by acts of Parliament are "natural-born subjects" in the eyes of the law. Thus children born on English soil, to alien parents, received, at birth, the title, status and legal position of a "natural-born subject" with respect to property and inheritance rights. But in many ways, such children were still regarded as aliens. They had to pay aliens' duties (instead of single customs) and were barred from certain trades:

There is a curious passage in Hale's Treatise Concerning the Customs concerning aliens' customs in the 17th century. He says "If an alien come into England and have issue [child] here, he [the child] is a natural-born subject. Yet ... such a natural-born subject hath been decreed heretofore to pay aliens' duties..." Hargrave, Tracts, vol. I (1787) 210. Cf. the similar tendency to treat the native members of the foreign Protestant congregations as aliens.... The statute 12 & 14 Car. 2, c. 11 furthered the policy by disabling infant children of aliens from trade. (Parry, footnote 327).

When the U.S. Constitution was being written, all persons born on English soil (except the children of foreign diplomats and alien enemies) were, at birth, "natural-born subjects" (according to Francis Bacon's general definition of the term). But not all such persons were natural-born subjects for the same reason.

(7) Parliament never claimed to have the power to transform anyone into an actual or literal "natural-born subject":

During the 16th through 18th centuries, naturalization acts of Parliament did not say that naturalized subjects actually are natural-born subjects. In private and public acts of Parliament, naturalized subjects were always "deemed" or "taken" or "reputed" or "adjudged" to be natural or natural-born subjects.

In 1541, Parliament passed a law granting "natural subject" status to foreign-born children of English fathers. The law did not say that such children are natural subjects; it merely said that such children shall be "reputed and taken" as such:

[Children born overseas, of English fathers, shall be] from henceforth reputed and taken king's natural subject as lawful persons born within the Realm of England. (Statute 33 Henry VIII c.25, as quoted by Kim, p.158)

The Act of Anne did not say that foreign-born children, of English fathers, are natural-born subjects; such children were "deemed and adjudged" to be so:

The Act did not say in terms that the foreign-born child of natural born parents ... was himself a natural born subject. It said that he was to be "deemed and adjudged" to be such, albeit "to all intents, constructions and purposes whatsoever". (Parry)

The British nationality acts of 1730 and 1772 did not say that foreign-born persons, of English fathers, are natural-born subjects; each act said that such persons "shall and may be adjudged and taken to be, and are hereby declared and enacted to be, natural-born Subjects" (see British Nationality Act of 1730 and the British Nationality Act of 1772).

Mirroring the style of British nationality acts, the U.S. Naturalization Acts of 1790 and 1795 did not say that naturalized persons are citizens or natural born citizens of the United States. Rather, those acts merely said that each naturalized person shall be considered as a citizen or natural born citizen.

Both the English Parliament and the American Congress humbly acknowledged that they cannot do what only Nature herself can do: make someone actually or literally "natural born". At most, they can only deem or consider someone to be "natural born".

(8) Natural-born subjects made so by acts of Parliament were not "real" natural-born subjects:

According to Judge Yelverton (one of the judges who heard Calvin's Case in 1608), a person who acquires "subject" status by an act of Parliament is not a "real" subject. Such a person is merely deemed to be an English subject.

A parliament may make a man to be accompted as naturalised, and conclude every man to say but that he is so, but it can never make a man to be so indeede (Yelverton, as quoted by Galloway, p.157).

A series of 17th century English legal cases -- Foster v. Ramsey (1656), Collingwood v. Pace (1661-1664), and Craw v. Ramsey (1669-1670) -- affirmed Yelverton's understanding. Naturalization, whether by public or private act of Parliament, is a fiction of law which has no effect except in countries consenting to that fiction:

The law clearly held that naturalization equated an alien and a natural-born subject. Yet as Chief Justice Vaugham noted, native Irishmen were natural English subjects, although aliens naturalized in Ireland were not.
"The reason is, that naturalization is but a fiction of law, and can have effect but upon those consenting to that fiction: therefore it hath the like effect that a man's birth hath, where the lawmakers have power, but not in other places where they have not. Naturalizing in Ireland gives the same effect in Ireland as being born there, so in Scotland as being born there, but not in England, which consents not to the fiction of Ireland or Scotland, nor to any but her own."

A legal fiction could not in any absolute sense make an alien a natural-born subject, for this would mean that he would have "two natural princes, one where he was born and the other where naturalized." The idea was absurd as the supposition that a man could have "two natural fathers, or two natural mothers." (Kettner, pp.41-42)

In his Law Dictionary (1771), Cunningham explained that "naturalization" (an act of Parliament which transforms an alien into a natural-born subject) is a "fiction of law" which has no effect except in countries consenting to that fiction:

Naturalizing in Ireland is of no effect as to England; for naturalization is but a fiction of law, and can have effect but upon those only consenting to that fiction; therefore it has the like effect as a man's birth hath, where the law-makers have power, but not where they have not. Naturalizing in Ireland gives the same effect in Ireland as being born there; so in Scotland as being born there; but not in England, which consents not to the fiction of Ireland or Scotland, nor to any but her own. (Cunningham, p.97, in section entitled "Aliens")

(9) English subjects by birth were born within the king's realm, of parents owing actual allegiance to the king:

Calvin v. Smith (1608), also known as "Calvin's Case", is a landmark legal battle which profoundly influenced English and American nationality laws well into the 19th century. The facts of this case are as follows:

James Charles Stuart became king of Scotland in 1567, when he was only 13 months old. Queen Elizabeth died in 1603, at which time James inherited the English throne. Thus, from 1603 until his death in 1625, James was king of both Scotland and England simumtaneously.

In 1606, Robert Calvin was born in Scotland, to Scottish parents. Since he was born in a foreign country (Scotland), of alien (non-English) parents, Calvin was an alien in England according to then-existing English law.

Calvin was heir to some property in England. When he was denied his inhertance due to his "alien" status under English law, his gardians filed a lawsuit on his behalf.

In Calvin's Case, England's highest court established that every English subject is either:

The court defined subjects born as those born within the king's realm, of parents who are under the "actual obedience" [30] of the king. All other English subjects were subjects made.

There be regularly (unless it be in special cases) three incidents to a subject born. 1. That the parents be under the actual obedience [ligeance] of the King. 2. That the place of his birth be within the King's dominion. And, 3. The time of his birth is chiefly to be considered; for he cannot be a subject born of one kingdom that was born under the ligeance of a King of another kingdom, albeit afterwards one kingdom descend to the King of the other. (Coke, p.208)

In order to qualify as subject born, one must be born "within the allegiance" of the king. According to Francis Bacon (an attorney who argued for the plaintiff in Calvin's Case), the phrase "born within [or under] the allegiance of the king" is a figure of speech, referring to:

...children whose parents were at the time of their birth at the faith and obeisance of the king of England. (Bacon, Francis, pp.652-653) [31]

In his Report on Calvin's Case, Sir Edward Coke (1552-1634) emphasized that the status of a child, at the time of its birth, depends primarily on the allegiance or obedience of the parents, and only secondarily on the child's place of birth [32]:

...any place within the king's dominions may make a subject born, but any place within the king's dominions without obedience can never produce a natural subject. (Coke, p.208)
...it is nec coelum, nec solum [neither sky nor soil], but ligeantia [allegiance] and obedientia [obedience] that make the subject born (Coke, p.179)
Et si desit obedientia non adjuvet locus [And, if obedience is lacking, the place does not help]. (Coke, p.224)

The English legal definition of subject born is stated more concisely in Giles Jacob's New Law Dictionary (1782):

There are two incidents regularly that are necessary to make a subject born: first, that his parents, at the time of his birth, be under the actual obedience of the king; Secondly, that the place of his birth be within the king's dominions. (Jacob, p.40, Aliens)

In Calvin's Case, the English high court ruled that man-made laws enacted by Parliament may not deny property and inheritance rights to a child who is the king's subject by natural law. Since Calvin was born in territory (Scotland) of which King James was in actual possession, and since Calvin's parents, at the time of Calvin's birth, were Scottish subjects owing actual obedience (allegiance) to King James, the Court ruled that Calvin was subject born, a subject of King James by natural law. Consequently, by natural law, Calvin had property and inheritance rights in all territories belonging to King James, including England.

(10) Calvin's Case and the jus soli principle:

Nineteenth century authors, such as Albert Dicey (1835-1922) and Alexander Cockburn (1802-1880), wrote that, in English law, the place of one's birth largely determined one's nationality at the time of one's birth. But these sources are anachronistic; their writings did not appear until well after the Constitution was adopted. In order to understand the meaning of "natural born" in the U.S. Constitution, we must examine the legal writings that the Founding Fathers were familiar with and had relied upon during the time period in which the Constitution was written. These legal writings included Francis Bacon's and Sir Edward Coke's reports on Calvin's Case (1608).

In 1604, Parliament enacted a law that conferred automatic "denizen" status to English-born children of alien parents. At the time, a person made "denizen" by an act of Parliament (as distinguished from a person made "denizen" by an act of the king) was a naturalized subject; and all persons naturalized by acts of Parliament were deemed to be "natural-born subjects" (according to Francis Bacon's definition of the term).

As a consequence of the 1604 law, all persons born on English soil (except the children of foreign diplomats and alien enemies) acquired, at birth, the status or legal position of a natural-born subject, regardless of whether their parents were aliens or English subjects.

In his Report on Calvin's Case, Sir Edward Coke noted that aliens owe only "local" or temporary obedience to the king, yet their children, if born on English soil, are natural-born subjects (as a result of the 1604 law). Coke argued that, since the children of aliens are natural-born subjects, Calvin, who was born of parents owing "natural and absolute" allegiance to the king, ought to be a natural-born subject "so much the more so":

... [an alien friend] owed to the King a local obedience, that is, so long as he was within the King's protection: which local obedience, being but momentary and incertain, is strong enough to make a natural subject; for if he hath issue [a child] here, that issue [child] is a natural born subject: a fortiori [so much the more so] he that is born under the natural and absolute ligeance of the King (which as it hath been said, is alta ligeantia [high allegiance]) as the plaintiff in the case in question was, ought to be a natural born subject; for localis ligeantia est ligeantia infima et minima, et maxime incerta [local allegiance is something mean and small, and extremely uncertain]. (Coke(1608), p.179)

The outward visible effect of laws enacted by Parliament was jus soli. Nearly every person born on English soil acquired, at birth, the status or legal position of a "natural-born subject". In Calvin's Case, the Court acknowledged the jus soli effect of then-existing English law. But the Court did not regard jus soli as a principle of natural law. By natural law, it is the allegiance of one's parents, and not the placed of one's birth, that makes a "subject born":

Lord Coke's judgment did not affirm the jus soli as such; he did not lay down the principle that mere birth within the realm conferred the status of a subject, and then qualify it by two exceptions: what he did was to lay down a different principle, that what constitutes the person a subject at birth is the fact of his birth within the king's allegiance, and this carried with it the consequence that the two excepted classes were not subjects, because they were not born within the allegiance of the king. (Ross, p.7).

(11) Blackstone's Commentaries oversimplified 18th-century English nationality law:

Sir William Blackstone (1723-1780) is best known for a series of lectures he gave at Oxford University from 1753 through 1758. These lectures were later consolidated and published as Commentaries on the Laws of England (1765-1769) which became immensely popular and influential in the American colonies (Blackstone in America).

In the first edition of his Commentaries, Blackstone wrote that children born overseas, to English fathers, are natural born subjects. This statement is technically correct according to Francis Bacon's definition of "natural-born subject". However, during the 16th through 18th centuries, the English Parliament did not pass any law asserting that naturalized subjects are natural-born subjects; children who were naturalized at birth were "taken" or "reputed" to be natural-born subjects. In a later edition, Blackstone's Commentaries were revised to say that children born overseas, to English fathers, are deemed to be natural born subjects, which is more in line with the Parliament's actual words.

Likewise, Blackstone wrote that the English-born children of alien parents are natural-born subjects. In his Report on Calvin's Case, Lord Coke said the same thing: that the English-born "issue" (child) of an alien parent is a natural-born subject. Both statements are technically correct according to Francis Bacon's definition of "natural-born subject". But Parliament never actually said that English-born children of alien parents are natural-born subjects. Parliament merely said that such children are "Aliens made Denizens".

In Systematical View of the Laws of England (1777), Richard Wooddeson corrected Blackstone, explaining that English-born children of alien parents are "accounted" (considered as or deemed to be) natural subjects; at birth, they receive "the rights of naturalization" (Wooddeson, p.386).

(12) Cunningham's specific definition of "Natural Born Subject":

In the general sense (as defined by Francis Bacon), a natural-born subject is anyone who is an English subject either by birth or by act of Parliament [28]. According to this general definition, all English subjects (except persons made denizens by acts of the king) were natural-born in the eyes of the law.

But, according to some 18th-century sources that the Framers of the Constitution were familiar with and had relied upon, the phrase "natural born subject", in some contexts, refers specifically to subjects born (subjects by birth). Two such sources were:

Cunningham's Law Dictionary was the only law dictionary that James Madison ordered for the Continental Congress (Berry).

Both Matthew Bacon and Timothy Cunningham acknowledge the variety of ways that the phrase "natural-born subject" was generally used in English legal writings. Nevertheless, both sources contain the same specific definition of "natural-born subject":

All those are natural born subjects, whose parents, at the time of their birth, were under the actual obedience [allegiance] of our king, and whose place of birth was within his dominions. (Cunningham, p.95, section entitled "Aliens"; also Matthew Bacon, p.77)

Nearly all persons born on English soil were natural-born subjects in the general sense (according to Francis Bacon's general definition of "natural-born subject"). However, you were truly "natural-born", in the specific or literal sense, only if you are born in a country, of parents who are under the actual obedience (allegiance) of the sovereign of that country.

(13) The phrase "natural born", as used in the U.S. Constitution, makes sense only if it is understoond according to its specific meaning:

Prior to 2008, it was widely believed that, in 18th century English law, "natural born" meant birth in a particular place, without regard to the status or condition of one's parents. However, a review of 18th century English legal literature that the Framers of the Constitution had relied upon, reveals that, when the Constitution was being written, the phrase "natural born" had two meanings, depending on context.

All persons born on English soil (except the children of foreign diplomats and alien enemies) were natural-born subjects. But not all such persons were natural-born subjects for the same reason:

When the U.S. Constitution was being written, the Founding Fathers most likely understood "natural born" according to the term's specific meaning, for three reasons.


V. New Information 2: Justice Gray's Reasoning

In U.S. v. Wong Kim Ark (1898), the Supreme Court ruled that a child born on U.S. soil, of permanently-domiciled alien parents, acquires U.S. citizenship at birth.

... 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. (U.S. v. Wong Kim Ark, 1898)

Justice Horace Gray wrote the Opinion of the Court in the Wong Kim Ark case.

The Court's ruling, by itself, is not directly relevant to President Obama's eligibility, for two reasons:

Nevertheless, Justice Gray's reasoning, when carried to its logical conclusion, seems to support the birthplace-only theory, which posits that every child born on U.S. soil, except the offspring of a foreign diplomat or enemy invader, is a U.S. natural born citizen.

Justice Gray's reasoning in U.S. v. Wong Kim Ark can be divided into two parts:

The Court's ruling pertained only to Mr. Wong's citizenship. The Court did not need to decide, hence did not decide, Mr. Wong's eligibility to serve as U.S. President. Consequently, the portion of Justice Gray's reasoning which pertains to the meaning of "natural born citizen" in the U.S. Constitution is, at most, judicial dicta.

In U.S. v. Wong Kim Ark, the Supreme Court ruled that the U.S.-born children of permanently-domiciled alien parents are U.S. citizens. The Court did not rule that such children are natural born citizens. A Supreme Court ruling and the ratio decidendi on which the ruling is based -- even if erroneous -- are the law of the land. In pursuing a collateral attack, one does not need to, and one should not attempt to, re-litigate the Supreme Court's ruling in U.S. v. Wong Kim Ark.

However, unlike ratio decidendi which must be followed even if patently wrong, judicial dicta are not precedent when shown to be erroneous. Since Justice Gray's reasoning is erroneous (it is based largely on assertions which are provably false), it need not and should not be extended beyond the Court's actual ruling in the Wong Kim Ark case:

Since ... Justice Gray's opinion from Wong Kim Ark contains numerous objective errors with regard to Supreme Court decisions on citizenship prior to the 14th Amendment, the decision in Wong Kim Ark ought to be strictly confined to the holding, and should, therefore, only be applied to citizenship issues which involve the 14th Amendment. (Amicus Brief).

There are multiple problems inherent in Justice Gray's reasoning. Five of them are mentioned here:

(1) Justice gray ignored (ruled "not admissible") the 1866 congressional debates.

In his written opinion, Justice Gray admitted that his understanding of the word "jurisdiction," as used in the 14th Amendment citizenship clause, was based on presumption, not direct evidence. Justice Gray dismissed, as "not admissible", the transcripts of the 1866 congressional debates, in which the Framers had explained the meaning of "jurisdiction" in the 14th Amendment citizenship clause.

The words 'in the United States, and subject to the jurisdiction thereof,' in the first sentence of the fourteenth amendment of the constitution, must be presumed to have been understood and intended by the congress which proposed the amendment ... as the equivalent of the words 'within the limits and under the jurisdiction of the United States'... Doubtless, the intention of the Congress which framed and of the States which adopted this Amendment of the Constitution must be sought in the words of the Amendment, and the debates in Congress are not admissible as evidence to control the meaning of those words. (U.S. v. Wong Kim Ark, 1898, boldface emphasis added).

The Supreme Court did not consider evidence showing that the intended meaning of "jurisdiction" was full and complete U.S. jurisdiction and the absence of foreign jurisdiction. According to Justice John Paul Stevens, a refusal to consider such evidence is "inexcusable":

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. (Justice Paul Stevens, as quoted by Madison(2006))

(2) Justice Gray relied on an erroneous footnote in an early draft of an article by Horace Binney.

Horace Binney published three editions of his article titled The Alienigenae of the United States. The first two editions were privately published in December 1853. The Third (Final) Edition was published in the American Law Register in February 1854.

All three editions cite the Naturalization Act of 1790, which (when quoted correctly) states:

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: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States: (Naturalization Act of 1790; boldface emphasis added).

The first two editions of Binney's article misquoted the 1790 Act:

[T]hat 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 -- with a proviso, that the right of citizenship shall not descend to persons who had never been resident in the United States. (Misquote of Naturalization Act of 1790, in Binney (1st ed.), pp.21-22, and Binney (2nd ed.), p.21, boldface emphasis added).

In the misquoted version of the 1790 Act, foreign-born children do not receive U.S. citizenship solely by descent from their parents. The citizenship of such children depends on their subsequent residence in the United States. Based on the erroneous text, Binney added a footnote asserting that descent, by itself, is never sufficient to confer U.S. citizenship at birth:

The right of citizenship never descends in the legal sense, either by the common law, or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, 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. (Binney (2nd ed.), footnote, p.22).

In U.S. v. Wong Kim Ark, Justice Gray cited Binney's footnote, both in the Opinion of the Court and in the Court's ruling. But Binney's footnote is factually incorrect; it is based on a misquote of the 1790 Naturalization Act. In the final edition of Binney's article, the 1790 Naturalization Act was quoted correctly and the erroneous footnote was deleted. Binney's footnote, though erroneous and though deleted from the final version of Binney's article, nevertheless became one of the cornerstones of Justice Gray's reasoning in U.S. v. Wong Kim Ark (Binney Humiliates the Reputation of the United States Supreme Court).

(3) Justice Gray misrepresented earlier Supreme Court decisions:

In his reasoning, Justice Gray misrepresented four prior Supreme Court cases. He characterized these four cases as being supportive of jus soli citizenship (the notion that mere birth on U.S. soil, in most cases, confers U.S. citizenship at birth). In actuality, none of the four cases supports Gray's viewpoint:

Justice Gray mischaracterized and misrepresented all four of the above-mentioned Supreme Court rulings. In actuality, none of those rulings supports his contention that birthplace alone confers federal citizenship at birth (see Amicus Brief).

In addition, Justice Gray cited Justice Curtis' opinion in Scott v. Sandford (1857), but did so without disclosing that Curtis' opinion was a dissenting opinion. A dissenting opinion has no legal weight. Justice Gray made it appear as though Curtis' viewpoint was part of the Opinion of the Court, when in fact it was not. Justice Gray wrote:

In Dred Scott v. Sandford (1857) 19 How. 393, Mr. Justice Curtis said:
"The first section of the second article of the Constitution uses the language, 'a natural-born citizen.' It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.' 19 How 60 U.S. 576

And, to this extent, no different opinion was expressed or intimated by any of the other judges. (Justice Gray, Opinion of the Court, U.S. v. Wong Kim Ark, 1898)

Justice Gray gave the impression that, in Scott v. Sandford, all of the other judges agreed with Justice Curtis, that "natural born citizen" status is determined by birthplace alone. But this impression is factually incorrect. Justice Daniel, concurring with the majority in Scott v. Sandford, characterized the 1797 English-language Law of Nations definition of natural born citizen ("those born in the country of parents who are citizens") as unexceptionable (beyond criticism or objection). (Justice Daniel's Concurring Opinion, Scott v. Sandford, 1857).

(4) Justice Gray blurred the distinction between "actual" and "legal" natural-born subjects.

In 18th century English law, all persons born on English soil (except the children of foreign diplomats and alien enemies) were natural-born subjects, regardless of whether their parents were English or alien. But there was a distinction between those who were natural-born subjects by birth and those who were natural-born subjects by acts of Parliament. A person was a natural-born subject by birth if she or he was born within the king's realm, of parents whose actual obedience (allegiance) was to the king. All other so-called natural-born subjects -- incuding persons born on English soil, of alien parents -- were naturalized subjects. They acquired subjecthood, not by birth, but by a naturalizing statute enacted by Parliament (See prior section titled New Information 1: 18th Century English Law).

(5) Justice Gray had a compelling personal interest in Mr. Wong's citizenship at birth.

Prior to 2008, there was no evidence indicating judicial corruption or conflict of interest in the U.S. v. Wong Kim Ark decision. In 2008, Attorney Leo Donofrio published previously-undisclosed historical information which plausibly explains why Justice Gray's reasoning is riddled with factual errors and misrepresentations of American and English law. (See Historical Breakthrough - Chester Arthur).

Chester Arthur was born in Vermont in 1829. At the time of Chester's birth, his father, William Arthur, was a British subject, not yet a U.S. citizen. William became a naturalized U.S. citizen in August 1843, at which time his underage children, including Chester, received U.S. citizenship automatically, in accordance with then-existing Naturalization Acts.

Chester Arthur was elected Vice President in 1880. He became President when James Garfield was assassinated in 1881. Later that same year, President Chester Arthur appointed Horace Gray to the U.S. Supreme Court.

For health reasons, President Arthur did not seek a second term. He left office in 1884, and passed away in 1886. His dying wish was that all of his personal papers be destroyed. However, his family Bible and his father's naturalization records survived. Those documents show that, when Chester was born, his father was an alien, not yet a naturalized U.S. citizen.

President Arthur and Mr. Wong were born under similar circumstances. Each was born in the United States, of a permanently-domiciled alien father. If Mr. Wong did not acquire U.S. citizenship at birth, neither did President Arthur. If President Arthur was not a U.S. citizen at birth, he could not have been a natural born citizen, in which case neither his presidency nor his judicial appointments were Constitutionally valid.

Thus it appears the Supreme Court had to rule that Mr. Wong was a U.S. citizen at birth, in order to retroactively legitimize Arthur's presidency and judicial appointments, including Arthur's appointment of Horace Gray to the Supreme Court.

In light of these and various other problems, Justice Gray's reasoning cannnot be relied upon, and ought not be extended beyond the Supreme Court's actual ruling in U.S. v. Wong Kim Ark [33].

Conclusion: Based on information that was in the public domain prior to 2008, it would have been unwise, if not foolhardy, to pursue a court challenge to President Obama's "natural born citizen" status. But new information, which surfaced after 2008, impugns the birthplace-only theory and strengthens the exclusive-citizenship theory. Based on this new information, a collateral attack against a law that President Obama had signed, or an official action or decision by one of his appointees, should not be ruled out.

VI. Exceptions to the De Facto Officer Doctrine

Every elected or appointed public official falls into one of three categories:

The official acts of a usurper are null, void, and without legal effect. If the courts were to rule that President Obama is a usurper, all of his appointments, directives, executive orders, and all of the laws he had signed, could be declared invalid.

If the courts rule that Barack Obama Jr. is a de facto officer, then, the de facto officer doctrine would apply. Under this doctrine, President Obama's official actions are valid and legally binding, even though he is holding office illegally. However, there are exceptions to this de facto officer rule.

Not all federal courts recognize the de facto officer doctrine:

Several federal courts have abandoned the de facto officer doctrine entirely. In Silver v. United States Postal Service (9th Cir.1991) 951 F.2d 1033, the Ninth Circuit noted that only two federal circuits had adopted the doctrine, one circuit had limited the doctrine, and the United States Supreme Court in two cases had entertained challenges based on the Appointments Clause without considering the de facto officer doctrine. (Id. at p. 1036 fn. 2.) Similarly, in U.S. v. Gantt (9th Cir. 1999) 194 F.3d 987, the Ninth Circuit stated, "[f]ollowing the modern trend we choose not to ratify the actions of an improperly appointed officer of the United States under the ancient 'de facto officer' doctrine." (Id. at p. 998.) In both cases, the Ninth Circuit refused to apply the doctrine and reached the merits of whether the officer had been properly appointed. (Fair Political Practices v. Californians Against Corruption).

Other federal courts accept the de facto officer doctrine in general, but do not apply it in cases in which the actions of an ineligible officeholder violate the purpose of the eligibility requirement:

Several federal cases have refused to apply the de facto officer doctrine where the purpose of the appointment requirement is to protect the person subject to the authority of the judicial officer. For example, in several [military] draft cases, federal courts have allowed a defendant to challenge an induction order on the ground that the draft board was not properly constituted.

In U.S. v. Beltran (N.D.Cal.1969) 306 F.Supp. 385, the defendant successfully argued for an acquittal on the ground that the draft board members resided outside of their jurisdiction in violation of the federal appointment requirements. The district court noted that the purpose of this requirement was to promote impartiality, justice, and better decision-making in controversial cases. (Id. at p. 387-388.) Because these requirements were not just formalities, but were specifically designed to protect potential draftees from poor decisions, the District Court ruled that the de facto officer doctrine did not apply. (Id. at pp. 388-390.)

Other courts have reached the same decision on the same grounds (see U.S. v. Cabbage (6th Cir. 1970) 430 F.2d 1037, 1041-1042; U.S. v. Williams (E.D. Penn. 1970) 317 F.Supp. 1363; U.S. v. Machado (N.D.Cal.1969) 306 F.Supp. 995, 999-1002), although some courts have disagreed and held that this defense would not be permitted (see, e.g., Czepil v. Hershey (7th Cir. 1970) 425 F.2d 251). (Fair Political Practices v. Californians Against Corruption).

The de facto officer doctrine does not protect the official actions of an ineligible officeholder (consequently, those actions may be challenged collaterally) when the actions violate a right or protection that the eligibility requirement confers to persons subject to the officeholder's authority:

Although the de facto officer doctrine generally denies individuals an interest in enforcing title requirements, the doctrine should not apply when a qualification for a specific office aims to protect the individuals subject to that official's authority. A breach of these statutes gives individuals a sufficiently personalized injury to challenge official action on the ground of defective title. (Clokey, p.1135)

In general, the de facto officer doctrine does not apply in criminal cases and in cases in which a "non-frivolous constitutional" issue is raised.

Courts have developed certain exceptions to the de facto officer doctrine. Taken individually, the cases delineating these exceptions involve rather specific factual circumstances and can be narrowly confined. Collectively, however, they represent a gradual erosion of the doctrine. The Supreme Court itself has held that the doctrine does not apply where there is a "non-frivolous constitutional" challenge to an exercise of authority. In addition, one line of cases suggests that the doctrine cannot be reflexively invoked in criminal proceedings. One court has interpreted this series of cases as suggesting or requiring a balanced approach to the problem of the de facto authority. (Clokey, p.1126.)

In Andrade v. Lauer (1984), the DC Court of Appeals held that, if there is a Constitutional defect in an officer's title to the office he is holding, you may collaterally challenge the action of that officer, but only if (a) you bring your challenge soon after the action is taken, and (b) the agency involved was given adequate prior notice of the defect.

The court viewed the primary interests served by the de facto officer doctrine as protection of the public's reliance on past governmental actions and protection of the government's ability to take final and effective action. The court argued that these "core purposes" are served when a contestant brings the challenge soon after the adverse governmental action is taken and he demonstrates that the agency or department involved had reasonable notice of the title defect. Accordingly, the court would allow a collateral title challenge to proceed only where these two requirements have been met. (Clokey, pp.1127-1128).

Assuming that both requirements (adequate prior notice and timeliness of challenge) are met, the Andrade ruling opens the door to collateral attacks against President Obama's official actions:

Under the holding in Andrade v. Lauer, the Court of Appeals for the District of Columbia has held that the de facto officer's doctrine does not prohibit "collateral attacks" of official actions based upon a public officer's lack of eligibility. These are not quo warranto suits to remove the official; they are civil suits to challenge a specific action of that official.

In the Andrade case, the plaintiffs were Government employees who lost their jobs to "reduction in force" ordinances which cut whole departments from the Government budget. The plaintiffs sued alleging those who did the cutting were not Constitutionally qualified to make such decisions in that their appointments violated the appointments clause of the US Constitution.

The DC District Court held that the plaintiffs had no standing other than to bring a "direct attack" in quo warranto to remove the alleged usurper. But the DC Court of Appeals reversed and said the plaintiffs, who had suffered real injuries, could bring such an action on a case by case basis if they could prove their injury in fact (being fired) was caused by a Government official who was not eligible to serve.

They opened the door to a floodgate of litigation by an incredibly large field of possible plaintiffs who might challenge every single official action of the Obama administration on the basis that he isn't eligible. (Donofrio: Quo Warranto Legal Brief, pp.19-20)

In Ryder v. United States (1995), the petitioner, James Ryder, challenged the decision of the Coast Guard Court of Military Review, on grounds that two of the three judges comprising the court had not been appointed legally. The two judges at issue were appointed by the General Counsel of the Department of Transportation, in violation of the Appointments Clause of the Constitution.

The U.S. Supreme Court ruled in Ryder's favor. Three factors appear to have influenced to the Court's decision:

Some courts may allow eligibility challenges made by "reluctant defendants" in legal actions initiated by purportedly ineligible officeholders:

The [de facto officer] doctrine is typically used against a plaintiff who is suing an administrative agency. However, the Wisconsin Supreme Court has held that courts have the limited discretion not to apply the [de facto officer] doctrine when an agency sues a "reluctant defendant." In Trager, supra, 118 Wis.2d 204 [346 N.W.2d 756], a zoning board found that defendant Trager's garage violated a recently enacted zoning ordinance ... The county then sued Trager seeking a mandatory injunction that he remove his garage. ... The court noted that in many cases the party challenging the order is suing, but in some cases "the administrative agency initiates a civil proceeding to enforce the agency's decision and the party aggrieved by the decision ... seeks to defend against the enforcement action by challenging the validity of the agency decision". (County of Sauk, supra, 118 Wis.2d at pp.212 [346 N.W.2d at pp.760].) "Trager is the reluctant defendant in a court action initiated by the administrative agency." (Id. at 212 [346 N.W.2d at p.760].) (Fair Political Practices v. Californians Against Corruption).

At this time, we are not aware of any case in which a litigant with court-recognized standing has pursued a collateral attack against any of Obama's presidential actions [22]. Nevertheless, as increasingly larger numbers of persons and businesses are being uniquely harmed or injured by Obama Administration's official acts, it is only a matter of time before an injured party with proper standing files a collateral attack against one of those official acts.

The following factors may affect the strength of a collateral attack:


VII. Conclusion

Based on new information which supports the exclusive-citizenship theory and impugns the birthplace-only theory, President Obama does not appear to meet the presidential "natural born citizen" eligibility requirement specified in the U.S. Constitution.

The President's ineligibility may open the door of opportunity to persons and organizations who are suffereing, or are about to suffer, an injury in fact as a direct result of some official act of the President or one of his appointees.

If you are facing unique harm or injury as a direct result of a law that President Obama has signed, or a directive or executive order that he has issued, or an official action by one of his appointees, you may have standing to pursue a collateral attack against that law, directive, executive order or official action, based on evidence that the President is not a natural born citizen.

A collateral attack should not be undertaken without legal representation. A collateral attack would be in addition to other legal defenses or remedies you might choose to pursue.


Disclaimer

This article is for general information only and should not be construed as legal advice. You should seek professional legal assistance when considering whether a collateral attack based on President Obama's ineligibility is appropriate for your particular circumstances.


Appendix 1: Sample Motion

Montgomery Sibley has published a sample motion that criminal defendants may use to challenge an indictment, prosecution or conviction resulting from (a) a law that President Obama has signed, or (b) a prosecutorial decision by one of his appointees:

Sample Defendant's Motion to Dismiss

Appendix 2: Laws Signed by President Obama

Listed below are some laws that President Obama has signed. If you are charged with, are being prosecuted for, or have been convicted of, violating one of these laws, or if you have been denied any rights or benefits as a result of any of these laws, you might have standing to challenge the constitutionality of that law, on grounds that it was never signed by a constitutionally-eligible president.


Appendix 3: Opinions of Note

Throughout U.S. history, various individuals have expressed their opinions regarding the meaning of "natural born citizen" in the U.S. Constitution. These opinions, in and of themselves, have little legal authority and weight; they are not binding on any federal court. Nevertheless, one's understanding of the "natural born citizen" controversy is not complete without an awareness of these opinions. Here is a brief sampling:

Opinions Supportive of the Birthplace-Only Theory:

Opinions Supportive of the Exclusive-Citizenship Theory:


Appendix 4: Judges Appointed by President Obama

The Federal judges, listed below, were appointed by Barack Obama who, being Constitutionally ineligible to serve as President, does not have Constitutional authority to appoint anyone. As a general rule, the actions and decisions of a de facto judge are valid and legally binding; but there are exceptions to this general rule. When a de facto judge is notified of the defect in his appointment before he takes any action on a particular case, he should recuse himself from that case, especially if the case involves a challenge to Barack Obama's presidential eligibility. A judge's refusal to recuse himself or herself under such circumstances might provide a basis for appeal.

Supreme Court

Court of Appeals

District Courts

United States Court of International Trade

United States Tax Court

Source: List of federal judges appointed by Barack Obama (as of May 23, 2013)


Footnotes

[01] The U.S. Constitution states:
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; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. (U.S. Constitution: Article 2, Section 1, Clause 5)

Thus, if you wish to serve as President of the United States, you must meet three requirements:

  • Age Requirement: You must be at least 35 years old.

  • Residency Requirement: You must have been a resident of the United States for at least 14 years.

  • Citizenship Requirement: You must be a natural born citizen.

The Constitution makes a special exception for persons who were born before September 17, 1787, the date on which the U.S. Constitution was adopted. If you were already a U.S. citizen on that date, you do not need to be a natural born citizen in order to serve as President; your preexisting citizenship is sufficient to meet the presidential citizenship requirement.

Ten of the first twelve U.S. presidents were born prior to 1787, and were therefore not required to be natural born citizens (Citizenship Status of U.S. Presidents).

No one alive today qualifies for this exception. If you were born after September 17, 1787, mere U.S. citizenship is not enough: you must be a natural born citizen in order to be eligible to serve as President.

[02] During his 2008 presidential campaign, Barack Obama publicly admitted that he was a foreign national at birth:
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 (FactCheck.org, as quoted by Barack Obama Jr.'s Fight the Smears website)

FactCheck.org has confirmed President Obama's foreign nationality at birth:

...at the time of his birth, Barack Obama Jr. was both a U.S. citizen (by virtue of being born in Hawaii) and a citizen of the United Kingdom and Colonies (or the UKC) by virtue of being born to a father who was a citizen of the UKC. (FactCheck.org: Obama's Kenyan Citizenship)
[03] There is a distinction between primary and secondary sources.
  • Primary sources include federal court rulings, majority opinions of the U.S. Supreme Court, and documented historical evidence.

  • Secondary sources include state court rulings, obiter dicta, dissenting Supreme Court opinions, and opinions merely stated without supporting facts, reasoning or argument.

In a federal court, primary sources have greater legal authority and weight than do secondary sources.

Throught U.S. history, there have been numerous instances in which prominent individuals (senators, representatives, government officials, historians, commentators, state court judges, etc.) have expressed their opinion that, except in special cases, anyone born on U.S. soil is a U.S. citizen at birth. Among these prominent individuals, a few have also asserted that anyone born on U.S. soil is a natural born citizen. In general, these opinions are secondary in nature, hence have little or no legal authority or weight in a federal court (see Appendix 3: Opinions of Note).

There appear to be only two primary sources on which the birthplace-only theory is based: 18th-century English law, and Justice Horace Gray's reasoning in U.S. v. Wong Kim Ark (1898). As this article shows, both of these primary sources are impugned by new information which surfaced after the 2008 presidential election.

[04] According to literature published by the U.S. Citizenship and Immigration Service (USCIS), a person must be, at minimum, "native-born" (born in the United States) in order to be eligible to serve as President.
Another right of all citizens is running for federal office. Many naturalized citizens are elected to federal office. However, to be president or vice president, you must be born in the United States. (Your Government and You, p.1)
U.S. citizenship is required for many elected offices in this country. Naturalized U.S. citizens can run for any elected office they choose with the exception of President and Vice President of the United States, which require candidates to be native-born citizens. (Citizens Almanac, M-76, Rev. 8/13, p.4)
[05] According to his official birth narrative,

On the President's purported birthdate (August 4, 1961), Stanley Ann Dunham was 18 years old and a U.S. citizen; and Barack Obama Sr. was a foreign national who never became a U.S. citizen.

The President's birthplace is important because, given the age of his mother and nationality of his father, Barack Obama Jr. might not be a U.S. citizen if he was foreign born. The applicable U.S. law at the time of the President's birth is summarized here:

What are the rules for people born [outside the United States] between December 23, 1952 and November 13, 1986?

... When one parent was a US citizen and the other a foreign national, the US citizen parent must have resided in the US for a total of 10 years prior to the birth of the child, with five of the years after the age of 14. ...

Children born out of wedlock to a US citizen mother were US citizens if the mother was resident in the US for a period of one year prior to the birth of the child.

Source: The ABC's of Immigration

If President Obama was born in a foreign country, his U.S. citizenship, at the time of his birth, would have depended on the marital status of his mother.

  • If his mother was single at the time of his birth, he would have acquired U.S. citizenship at birth.

  • If his mother was married to Barack Obama Sr. (a foreign national), President Obama would not have acquired U.S. citizenship at birth. Stanley Ann Dunham, if married to a foreigner, would have been too young to confer U.S. citizenship to a foreign-born son. On the President's purported birth date (August 4, 1961), Stanley Ann was only 18 years old, thus had not resided in the United States for at least five years after having reached age 14.

According to USCIS literature, foreign-born persons, generally speaking, are not natural born citizens. However, given his unique circumstances, if Barack Obama Jr. was born in a foreign country, it is possible that he is not even a U.S. citizen.

[06] President Obama's published Long-form Certificate of Live Birth appears to be a fabrication, not the image of an actual 1961-era birth registration (Zullo Affidavit).

On or around August 8, 1961, someone registered Barack Obama Jr.'s birth with the Hawaii Department of Health. During the early 1960s, whenever a birth was registered in Hawaii, the Department of Vital Statistics automatically generated a birth announcement and sent it to the local Honolulu newspapers for publication. A birth announcement which appeared in the Honolulu Advertiser and the Honolulu Star-Bulletin establishes that President Obama's birth was registered in Hawaii in August 1961.

But, so far, the State of Hawaii has not disclosed the source of the information contained in President Obama's original birth registration. The source might have been nothing more than family member's uncorroborated statement.

Tim Adams claims that, while a senior elections clerk for Honolulu during the 2008 presidential election, he learned that Barack Obama's birth registration did not originate from a hospital located in the State of Hawaii (Affidavit by Tim Adams, Jan 20, 2011). According to Adams, the absence of an original hospital-generated birth certificate suggests that President Obama's birth either (a) was registered as an "unattended birth" (a birth which did not take place in a hospital and was not attended by a physician or midwife), or (b) took place outside of Hawaii (YouTube: Tim Adams interview).

[07] These sources suggest that Barack Obama may have been born in Kenya (previously known as British East Africa):

In 1991, a brochure published by his literary agent, Acton & Dystel, stated that Barack Obama was born in Kenya:

Barack Obama, the first African-American president of the Harvard Law Review, was born in Kenya and raised in Indonesia and Hawaii. (Obama's Literary Agent in 1991 Booklet)

The information in the brochure most likely came from Obama himself (Evidence Obama Born In Kenya Goes Beyond 1991 Brochure).

In a speech before the Kenyan National Assembly, James Orengo, the Kenyan Minister for Lands, indicated that President Barack Obama was born in Kenya:

If America was living in a situation where they feared ethnicity and did not see itself as a multiparty state or nation, how could a young man born here in Kenya, who is not even a native American, become the President of America? It is because they did away with exclusion. (National Assembly Official Report, Thursday, 25th March 2010, p.31)

During the second half of 1961, the U.S. Immigration and Naturalization Service (INS) issued a Certificate of U.S. Citizenship to a child which was born in East Africa, of a U.S.-citizen parent. There is speculation that the child was Barack Obama Jr.:

...an American consular officer issued a single Certificate of Citizenship to only one passenger arriving in the U.S. from the Kenyan region of Africa between July and December of 1961. The record shows demographic and status classifications for a passenger who was explicitly recorded at the INS Arrival Inspection Station as an individual being born to a U.S. citizen parent arriving from the Kenyan region of Africa between July 1st and December 31st, 1961. (INS doc found: U.S. Certificate issued to one East African-born child of U.S. citizen in 1961)

According to hand-written "line records" in the British National Archives (BNA), three births took place in Kenya -- one in 1958, another in 1960, and the third in 1961 -- to a father whose name closely resembles "Barack Obama". There is speculation that one of those births was that of President Obama:

The books containing hand written line records of vital events attributed to Obama are contained in Series RG36 of the Family Records section in the Kew branch of the BNA. The hand written line records first discovered in 2009, indicate several events were registered to the name Barack Obama (appears to be handwritten and spelled "Burack" and "Biraq") beginning in 1953 and include two births recorded in 1958 and 1960, a marriage license registration in 1954 and a birth in 1961. ... To date, Barack Obama II is the only known alleged son of Obama Sr. born after 1960 and before the independence of Kenya became official in 1963.
...
The line records do not specify the identity or names of the children, only gender. However, the line records are associated with index numbers of actual microfilm copies of certificates, licenses and registration applications filed in the archives. According to researchers, Obama's line records were discovered in Series RG36, reference books. Not surprisingly, when researchers specifically requested access to the relevant microfilm for the Obama birth registrations, they were told that the records were currently held under an outdated "privileged access" status, meaning researchers were denied access under Chapter 52, Sections 3 and 5 of the British Public Records Act of 1958. (Obama's Kenyan Birth Records Discovered in British National Archives; see also British National Archives show a son was born to Obama Sr. in 1961 in Kenya)

In a speech delivered prior to the 2008 presidential election, national security specialist Michael Shrimpton reported that, according to British Intelligence, Barack Obama Jr. was born in 1960, in Mombassa, Kenya.

Video excerpt of Shrimpton's speech (7 mins 6 secs)
[08] There is a difference between the two-parent theory and the exclusive-citizenship theory.

Vattel's Law of Nations, published in French in 1758 and translated into English in 1759, was immensely popular and influential in the New World, especially after the American Revolution. In 1797, the English translation of Vattel's work was updated to contain, for the first time, the phrase "natural born citizen":

The natives, or natural-born citizens, are those born in the country of parents who are citizens. (Vattel, section 212)

This 1797 Vattelian definition of "natural born citizen" is likely the origin of the two-parent theory, which posits that a natural born citizen is one who is born in the United States, of parents who are both U.S. citizens.

In contrast, the exclusive-citizenship theory asserts that your "natural born citizen" status depends solely on your own, and not your parents', nationality at the time of your birth. Your parents' citizenship is irrelevant, except to the extent that it affects your citizenship at birth. All children born on U.S. soil are natural born citizens of the United States -- without regard to their parents' status or condition -- as long as these children are not, at birth, citizens or subjects of any other country.

  • Various Engligh legal sources -- Sir Edward Coke's Report on Calvin's Case (1608), Giles Jacob's New Law Dictionary (1782), Matthew Bacon's New Abridgment of the Law (1736), and Timothy Cunningham's New and Complete Law-Dictionary (1771) -- do not state that the parents must be English subjects in order for their English-born children to be subjects by birth. These sources merely say that the parents must be under the actual obedience (allegiance) of the king.

  • Representative John Bingham did not say that parental citizenship was a requirement for natural born citizenship. He said that a natural born citizen is one who is born in the United States, of parents who do not owe allegiance to any foreign power. He never said that the parents had to be U.S. citizens in order for their children to be natural born citizens.

  • Attorney General Jeremiah Black did not assert that a natural born citizen is one born of U.S.-citizen parents. He merely said that a "native" (natural born citizen) is one who, from birth, never owed fealty to any sovereignty other than the United States.

  • The 14th Amendment citizenship clause does not mention parental citizenship as a requirement for U.S. citizenship. In order for a U.S.-born child to acquire 14th Amendment citizenship at birth, it is sufficient that the child be subject to U.S. jurisdiction when born.

According to the exclusive-citizenship theory, a child born in the United States, to parents who are stateless (have no political ties to any country) or are U.S. nationals (persons who owe allegiance to the United States exclusively but are not U.S. citizens), is at birth a citizen of the United States exclusively, hence is a natural born citizen.

[09] There is a difference between the birthplace-only theory and the citizenship-at-birth theory.
  • According to the birthplace-only theory, all persons born on U.S. soil (other than the children of foreign diplomats and alien enemies) are natural born citizens.

  • According to the citizenship-at-birth theory, all persons who acquire U.S. citizenship at birth are natural born citizens, regardless of birthplace. If you are born in a foreign country, to at least one U.S.-citizen parent, you acquire U.S. citizenship at birth, hence you are a natural-born citizen.

Attorney Pinckney G. McElwee subscribes to the birthplace-only theory, but finds numerous historical and Constitutional problems inherent in the citizenship-at-birth theory (McElwee).

The citizenship-at-birth theory implies that Congress has the power to confer "natural born citizen" status to any class of persons, by simply enacting legislation which confers citizenship to such persons at birth. But this implication is contrary to:

...the conventional and widely shared assumption that Congress lacks power to alter the meaning of the Constitution through legislation (Solum, p.29).

Congress may not change the meaning of the Constitution by legislatively changing the meaning of a term that the Constitution uses:

Thus the [Naturalization] Act of March 26, 1790 would be unconstitutional if it attempted to enlarge the rights of a naturalized citizen to be equal to those of natural-born citizens under the Constitution. ...it is not within the power of Congress to change or amend the Constitution by means of definitions of languages used in the Constitution so as to mean something different than intended by the framers... (McElwee, p.9)

In Rogers v. Bellei (1971), the U.S. Supreme Court ruled that, even though the foreign-born children of U.S.-citizen parents acquire U.S. citizenship at birth, such children are not U.S. citizens in any Constitutional sense. The only way a foreign-born child acquires U.S. citizenship at birth is by statute enacted by Congress:

Mr. Justice Gray has observed that the first sentence of the Fourteenth Amendment was "declaratory of existing rights, and affirmative of existing law," so far as the qualifications of being born in the United States, being naturalized in the United States, and being subject to its jurisdiction are concerned. (United States v. Wong Kim Ark, 169 U.S., at 688). Then follows a most significant sentence:
"But it [the first sentence of the Fourteenth Amendment] has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization."

Thus, at long last, there emerged an express constitutional definition of citizenship. But it was one restricted to the combination of three factors, each and all significant: birth in the United States, naturalization in the United States, and subjection to the jurisdiction of the United States. The definition obviously did not apply to any acquisition of citizenship by being born abroad of an American parent. That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action...

Further, it is conceded here both that Congress may withhold citizenship from persons like plaintiff Bellei and may prescribe a period of residence in the United States as a condition precedent without constitutional question.

Thus we have the presence of congressional power in this area, its exercise, and the Court's specific recognition of that power and of its having been properly withheld or properly used in particular situations. (Rogers v. Bellei, 401 U.S. 815 (1971), pp. 830-831, Emphasis added)

Regarding the Rogers v. Bellei case, Attorney Leo Donofrio commented:

In Rogers. v. Bellei, 401 U.S. 815 (1971), the U.S. Supreme Court confirmed that persons born abroad are not covered by the 14th Amendment, and therefore, their citizenship can be stripped from them by Congress, whereas Congress cannot strip citizenship from a 14th Amendment citizen, whether born or naturalized here.
...
National law has always required persons born abroad to be naturalized, whether born of citizen parents or not. Furthermore, those born abroad to citizen parents are subject to conditions precedent which Congress may impose upon them in order for them to remain U.S. citizens, whereas Congress has no such power over natural-born citizens, native-born citizens, or citizens naturalized in the U.S.

Again, not only are children of citizens born abroad not natural-born, the Supreme Court has held that their citizenship is subject to being stripped by Congress, since the Constitution does not directly provide for their citizenship, as it does for those born or naturalized in the United States. (Leo Donofrio, The Current INS Officially Recognizes A Delineation Between Natural-Born and Native-Born)

The only way a foreign-born person acquires U.S. citizenship at birth is by statute enacted by Congress. According to the U.S. State Department, if you receive "natural born citizen" status by a statute, you are not necesarily a natural born citizen in the Constitutional sense:

...the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes (U.S. State Department Foreign Affairs Manual: 7 FAM 1130, p.8)
[10] At first glance, it seems unconscionable that a foreign country would have the power to determine whether or not an American citizen is eligible to serve as President. Nevertheless, as a general rule, the U.S. State Department recognizes foreign citizenship laws, even when those laws affect children born in the United States.

The United States has treaties with foreign countries, in which the United States (at least implicitly) agrees to recognize the nationality laws of those foreign countries (see, for example, The Jay Treaty Strongly Indicates That Obama Is Not Eligible To Be President).

Moreover, every foreign nation has a legitimate and internationally-recognized right to confer its citizenship (at birth) upon the children of its citizens, even when those children are born on U.S. soil (Leo Donofrio, The State Department Has "Always" Recognized And Abided By Foreign Laws Concerning US Citizens Born With Dual Nationality).

[11] In Ancient Greece, there was a distinction between natural citizens (fysei polites) and naturalized citizens (demopoihtoi). A natural citizen was one whose citizenship, at birth, was exclusively that of both parents:
The right of attending and voting was enjoyed by all citizens of full age (generally supposed to be twenty, certainly not less than eighteen) ... and not labouring under any atimia or loss of civil rights. They were either (1) natural-born (fysei kai genei) citizens, born in lawful wedlock of parents both Athenians, or (2) demopoihtoi, presented with the freedom of the state, and enrolled in a deme, phratry, and tribe. The latter, however, were not qualified to hold the office of archon or any priesthood until the second generation. (Smith (1890))
[12] See, for example, John Jay's Letter dated 25 July 1787, and Joseph Story: Commentaries (1833), Section 1473).

"Foreign influence" does not necessarily imply disloyalty or national security risk. There is no reason to believe that naturalized citizens are less loyal to the United States than natural born citizens. Nevertheless, U.S. citizens who had been previously citizens of a foreign country might be "influenced", in subtle, indirect and unpredictable ways, by their past ties to that foreign country.

The Framers of the Constitution were not xenophobic. Although British law barred many naturalized English subjects from serving in Parliament, the Constitutional Convention rejected a proposal to similarly prevent naturalized citizens from serving in Congress. Thus, it does not appear that the Framers doubted the loyalties and intentions of foreigners who had renounced their foreign nationality and were now citizens of the United States exclusively.

However, the Framers were distrustful of the foreign governments to which naturalized citizens had previously owed allegiance. There are untold numbers of ways by which a foreign country, even a supposedly friendly one, might "influence" its former citizens towards making decisions which, though not harmful to the United States, are less than optimal to its interests. (See John Jay's essays "concerning the dangers of foreign force and influence" in The Federalist Papers).

The President's past ties to a foreign country might have unforeseen consequences. For example, if a dispute develops between allies of the United States, the disputing countries might question the impartiality of a U.S. President who was, at one time, a citizen of one of those countries.

As Attorney General Jeremiah Black explained, a person may serve as President only if he or she "never did owe fealty" to any sovereignty other than the United States.

There can be no doubt that naturalization does, pro facto, place the native and adopted citizen in precisely the same relations with the Government under which they live, except so far as the express and positive law of the country has made a distinction in favor of one or the other.
...
Here none but a native can be President.
...
A Native and a Naturalized American can go forth with equal security over every sea and through every land under heaven, including the country in which the latter was born. ... They are both of them American citizens, and their exclusive allegiance is due to the Government of the United States. One of them never did owe fealty elsewhere, and the other, at the time of his naturalization, solemnly and rightfully, in pursuance of public law and municipal regulations, threw off, renounced and abjured forever all allegiance to every foreign prince, potentate, State and sovereignty whatever, and especially to that sovereign whose subject he had previously been. (Black, boldface emphasis added)
[13] The word "foreigner" refers not only to foreign-born persons but also to persons who, regardless of birthplace, are citizens or subjects of a foreign country.
[According to] the overwhelming majority of sources available to the drafters of the judicial bill [of 1789], .... A "foreigner" is defined as an individual who: 1) is foreign-born, or more specifically, is a foreign citizen or subject, or 2) is a foreign-born individual residing extraterritorially [outside the sovereign's territory]. (Berry, pp.337-8)

According to the Merrian Webster dictionary, the definition of the word "foreigner" includes persons who owe allegiance to a foreign country:

Full Definition of FOREIGNER
1: a person belonging to or owing allegiance to a foreign country (Merrian Webster: foreigner)

The meaning of "foreigner" can also include "persons born in the United States":

This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. (Congressional Globe: Senate, 39th Congress, 1st Session, p.2890, May 30, 1866, boldface emphasis added)

When a (foreign-born) immigrant becomes a naturalized U.S. citizen, he relinquishes his foreign nationality but does not relinquish his national origin. He remains a "foreigner by birth":

Foreigner: A person born in a foreign country, or without [outside of] the country or jurisdiction of which one speaks. A Spaniard is a foreigner in France and England. All men not born in the United States are to them foreigners, and they are aliens till naturalized. A naturalized person is a citizen; but we still call him a foreigner by birth. (Webster: foreigner, 1828, boldface emphasis added)

Thus, it appears that, under some circumstances, the word "foreigner" can be used in reference to persons who are born on U.S. soil, and to persons who are currently U.S. citizens.

[14] If the Constitutional Convention had intended merely to exclude foreign-born individuals from the presidency, the phrase "native-born citizen" would have been "a much more apt" wording choice:
The fact that the Constitution says "natural" instead of native shows to my mind that the distinction was thought of and probably discussed. A natural born citizen would be one who by nature, that is by inheritance, so to speak, was a citizen, as distinguished from one who was by nativity or locality of birth a citizen. ... It seems to me that if the founders of the government had meant to confine the presidency to such of its citizens as were born upon the soil of the country, they would have used the word "native," which is a much more apt word than natural. (Bridgham)

In 1904, Alexander Porter Morse similarly noted that, if the Constitutional Convention had intended merely to exclude foreign-born persons from the presidency, "native-born," instead of "natural born," would have been sufficient:

At the time of the adoption of the Constitution, immigration was anticipated and provisions for naturalization would immediately follow the establishment of the government. Those resident in the United States at the time the Constitution was adopted were made citizens. Thereafter the president must be taken from the natural-born citizens. If it was intended that anybody who was a citizen by birth should be eligible, it would only have been necessary to say, "no person, except a native-born citizen"; but the framers thought it wise, in view of the probable influx of European immigration, to provide that the president should at least be the child of citizens owing allegiance to the United States at the time of his birth. (Morse)
[15] We distinguish between federal and state courts, because there was (and to some extent, still is today) a distinction between a state citizen (a citizen of a particular state) and a federal citizen (a citizen of the United States).

After gaining independence from Great Britain, some states enacted their own citizenship laws. These citizenship laws varied from state to state. But, in general, all free white persons born within the borders of a state were, at birth, citizens of that state, even if their parents were aliens. However, each state typically required aliens to swear allegiance to the state prior to settling anywhere within that state. Thus, as a general rule, children born within the boundaries of a state, of alien parents, were "born within the allegiance" of the state, i.e., were born of parents whose allegiance was to the state exclusively.

While all States could be said to have recognized birth within the State as a means of conferring State citizenship to all persons, it is important to realize these States also required of aliens who desired to become domiciled within their limits to first renounce any allegiances to other governments and pledge their allegiance solely to the State. Therefore, a child born to domiciled parents was "born within the allegiance" of the State even if the parents had not yet been naturalized. (Madison(2007))
... 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. (Madison(2008))

Prior to 1856, it was generally assumed that a citizen of any state was automatically a citizen of the United States. But, in Dred Scott v. Sandford (1856), the Supreme Court rejected this assumption. The Court explained that, on September 17, 1787 (the date on which the U.S. Constitution was adopted), all then-existing state citizens became also U.S. citizens. But, thereafter, new federal (United States) citizens were created either by federal laws enacted by Congress or "by birth" (as defined by federally-recognized common law). The states had the right to confer state citizenship upon anyone they chose, but state citizenship did not automatically result in federal citizenship, natural born or otherwise.

While all free white persons born within a state were, at birth, citizens of that state, federal law did not go so far. Children born in the United States, of alien parents, did not acquire federal (U.S.) citienship at birth. Such children became U.S. citizens when their parents became naturalized U.S. citizens.

Mr. Rodman hints, that it would have been sufficient for James McClure to have been born in the United States -- he is mistaken. The law of the United States recognizes no such claim. The law of Virginia, of 1792, does -- for, "all free persons born within the territory of this commonwealth," is deemed a citizen. The law of Virginia considers him as a son of the soil. An alien, as well as a citizen, may beget a citizen -- but the U. States' act does not go so far. A man must be naturalized to make his children such. ("Case of James McClure", The Alexandria Herald, Vol. I, No. 37, October 7, 1811, page 2, left-most column)

The birthplace-only theory (the notion that, in general, birthplace alone is sufficient to confer natural born citizenship) may have been a result of a confusion between state and federal citizenship laws. Although nearly all free white persons born within a state were, at birth, citizens of that state, federal law and federal court rulings prior to the 14th Amendment did not confer federal (U.S.) citizenship at birth to children born on U.S. soil, to parents who owe allegiance to a sovereignty other than the United States.

[16] In his book, Citizenship of the United States (1904), Fredrick Van Dyne acknowledged that, prior to 1866, common law determined the citizenship, at birth, of children born on U.S. soil.
The Constitution of the United States ... contained no definition of citizenship until the adoption of the 14th Amendment, in 1868; nor did Congress attempt to define it until the passage of the civil rights act, in 1866. Prior to this time the subject of citizenship by birth was generally held to be regulated by the common law, by which all persons born within the limits and allegiance of the United States were deemed to be natural-born citizens thereof. (Van Dyne, p.4)

Van Dyne recognizes a distinction between citizen and natural born citizen.

  • He affirms that, as a general rule, all persons born on U.S. soil were citizens (at least of the State in which they were born).

  • He cites sources which assert that all persons born on U.S. soil were natural born citizens, but stops short of embracing that viewpoint.

According to Van Dyne, a natural born citizen is one who is both (a) born within the limits (territory) of the United States, and (b) born within the allegiance of the United States. As Francis Bacon explained in his Report on Calvin's Case (1608), "born within the allegiance" of a sovereign is a figure of speech referring to children which are born of parents whose allegiance is to that sovereign (Bacon, Francis, pp.652-653).

The federal courts applied "common law" only to matters on which both the Congress and the U.S. Constitution were silent. Since Congress had enacted laws conferring citizenship to foreign-born adults and their children, the common law did not apply to such persons.

The notion that there is any common law principle to naturalized the children born in foreign countries, of native-born American father and mother, father or mother, must be discarded. There is not and never was any such common law principle. (Binney (3rd edition), p.203).
[17] Vattel's Law of Nations appears to have contributed to the partus sequitur patrem principle (whereby the status of a child follows that of its father). But Vattel does not appear to be the source of the phrase "natural born citizen" in the U.S. Constitution. The phrase "natural born citizen" did not appear in any English translation of Vattel's Law of Nations until 1797, a decade after the U.S. Constitution was written. The phrase "natural born" in the U.S. Constitution most likely came from English law, not Vattel.
[18] The Venus is an exampe of a case in which an American court cited Vattel's Law of Nations. In the majority Opinion of the Court, Justice Washington wrote:
The writers upon the law of nations distinguish between a temporary residence in a foreign country for a special purpose and a residence accompanied with an intention to make it a permanent place of abode. The latter is styled by Vattel "domicile," which he defines to be, "a habitation fixed in any place, with an intention of always staying there." Such a person, says this author, becomes a member of the new society, at least as a permanent inhabitant, and is a kind of citizen of an inferior order from the native citizens, but is nevertheless united and subject to the society without participating in all its advantages. This right of domicile, he continues, is not established unless the person makes sufficiently known his intention of fixing there, either tacitly or by an express declaration. (Justice Washington, Opinion of the Court, The Venus)

In his dissenting opinion, Chief Justice Marshall wrote:

The whole system of decisions applicable to this subject rests on the law of nations as its base. It is therefore of some importance to inquire how far the writers on that law consider the subjects of one power residing within the territory of another, as retaining their original character or partaking of the character of the nation in which they reside.

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."

"The inhabitants, as distinguished from citizens, are strangers who are permitted to settle and stay in the country. Bound by their residence to the society, they are subject to the laws of the state while they reside there, and they are obliged to defend it because it grants them protection, though they do not participate in all the rights of citizens. They enjoy only the advantages which the laws or custom gives them. The perpetual inhabitants are those who have received the right of perpetual residence. These are a kind of citizens of an inferior order, and are united and subject to the society, without participating in all its advantages."

"The domicile is the habitation fixed in any place with an intention of always staying there. A man does not, then, establish his domicile in any place unless he makes sufficiently known his intention of fixing there, either tacitly or by an express declaration. However, this declaration is no reason why, if he afterwards changes his mind, he may not remove his domicile elsewhere. In this sense, he who stops, even for a long time, in a place for the management of his affairs has only a simple habitation there, but has no domicile."

A domicile, then, in the sense in which this term is used by Vattel, requires not only actual residence in a foreign country, but "an intention of always staying there." Actual residence without this intention amounts to no more than "simple habitation." (Chief Justice Marshall, Dissenting Opinion, The Venus)

In The Venus case, Vattel is cited in both the majority opinion and the dissenting opinion.

[19] In his book, Citizenship of the United States (1904), Fredrick Van Dyne cited several pre-Civil-War cases which appear to support the notion that "all persons born in the United States were citizens thereof" (Van Dyne, pp.4-5). However, none of the cited cases, except Lynch v. Clarke (1844), affirms jus soli citizenship.
  • Murray v. The Charming Betsy (1804) pertained to the status of an individual who was born in Connecticut prior to the American Revolution. The individual was not a U.S. citizen by birth; he was a British natural-born subject who was expatriated from Great Britain by the Treaty of Paris (1783) and by choice became a citizen of the newly-formed Republic.

  • In Inglis v. Trustees Of Sailor's of Snug Harbor, 28 U.S. 99 (1830), the Plaintiff was born in New York during the Revolutionary War. His father was a British subject who never became an American citizen. The Plaintiff's exact birthdate was unknown. During the Revolutionary War, control of New York alternated between American and British forces. The Court ruled that, even if New York was under American control at the time of the Plaintiff's birth, the Plaintiff did not acquire U.S. citizenship at birth. He was a British subject at birth, not an American citizen, because his nationality at birth "followed that of his father".

  • In Shanks v. Dupont, 28 U.S. 242 (1830), Ann Scott was born in South Carolina when it was a British colony, under British rule. But her father adhered to the American cause. Ann was American, not British, because "...children born in a country, continuing while under age in the family of the father, partake of his national character, as a citizen of that country".

  • In McCreery v. Somerville, 22 U.S. 354 (1824), the Plaintiffs were born in the United States, of an alien father. The syllabus of the McCreery case states that the Plaintiffs were "native-born citizens" of the United States. But a syllabus is not law. In the McCreery case, the syllabus is incorrect. The Court ruled that, in Maryland, you may not inherit from a living ancestor. Consequently the Plaintiffs' citizenship was irrelevant. Regardless of whether they were or were not U.S. citizens, they could not inherit from a relative who was still alive. (The McCreery v. Somerville Funeral)

  • Lynch v. Clarke (1844), a New York State case, is the only pre-Civil-War case supportive of jus soli citizenship. According to a later New York Case, Ludlam v. Ludlam (1883), each country has the right to enact written laws which confer citizenship, at birth, to persons born within the country's territory. But by unwritten natural law, the citizenship of a child, at the time of its birth, is that of its father, not its place of birth.

Van Dyne cited several invividuals who had expressed their opinion that mere birth on U.S. soil was sufficient to confer U.S. citizenship at birth, but prior to the Civil War, there was no federal statute and no federal court ruling supportive of that viewpoint.

[20] It is not unusual for a public figure to briefly and concisely state a general rule, without mentioning the various exceptions to that rule. In March 1868, Representative John Bingham commented that, as a general rule, persons born on U.S. soil are natural born citizens:
Who does not know that every person born within the limits of the Republic is, in the language of the Constitution, a natural-born citizen? Who does not know, therefore, that all the natural-born persons in the United States, men, women and children, are citizens of the United States? (Bingham, Congressional Globe, House of Representatives, 40th Congress, 2nd Session, p.2212, March 28, 1868)

Six years earlier, Representative Bingham mentioned the same general rule -- that birth on U.S. soil confers natural born citizenship:

Who are natural-born citizens but those born within the Republic? Those born within the Republic are citizens by birth -- natural-born citizens. (Congressional Globe, 37th Congress, 2nd Session, p.1639, April 11, 1862)

However, on other occasions, Representative Bingham acknowledged that there are exceptions to the general rule. Among these exceptions are U.S.-born children of parents who owe allegiance to a sovereignty other than the United States. Such children are not natural born citizens:

All from other lands, who, by the terms of your [congress'] laws and in compliance with their provisions become naturalized, are adopted citizens of the United States; all other persons born within the Republic, of parents owing allegiance to no other sovereignty, are natural-born citizens. Gentlemen can find no exception to this statement except what is said in the Constitution in relation to Indians. The reason why that exception was made in the Constitution is apparent to everybody. The several Indian tribes were recognized at the organization of this Government as independent sovereignties. They were treated as such; and they have been dealt with by the Government ever since as separate sovereignties. Therefore they were excluded from the general rule. (Congressional Globe, 37th, 2nd Sess.(1862), p.1639, April 11, 1862)

As a general rule, persons born on U.S. soil are natural born citizens. However, there are exceptions to this general rule. Sometimes, when the general rule is discussed, the exceptions are generally understood and need not be explicitly listed or mentioned. Among these exceptions are children born on U.S. soil, of parents who owe allegiance to a sovereignty other than the United States. Prior to the 14th Amendment, federal courts have consistently ruled that such children do not acquire federal (U.S.) citizenship at birth. If such children were not U.S. citizens at birth, they were not natural born citizens.

[21] In U.S. v. Wong Kim Ark (1898), Justice Gray asserted that the decision, in Elk v. Wilkins (1884), was applicable to Native American Indians only. But the actual wording of the Court's decision in Elk v. Wilkins does not support that assertion. The U.S.-born child of a father whose owes allegiance to any sovereignty other than the United States does not acquire U.S. citizenship at birth. A Native American Indian tribe is a sovereignty separate from (though dependent on) the United States. Therefore, the U.S.-born children of parents who owe allegiance to an Indian tribe do not acquire U.S. citizenship at birth. In this respect, Indian tribes were regarded the same way as any other foreign nation.
[22] In Purpura v. Sebelius, the plaintiffs attempted a collateral attack, arguing that the ObamaCare law (HR3590: Patient Protection and Affordable Care Act) is unconstitutional because it was signed by a Constitutionally-ineligible President. Since ObamaCare affects the public in general and does not harm the plaintiffs a unique or particularized manner, the court ruled that the plaintiffs do not have standing to challenge the constitutionality of the ObamaCare law.
[23] Prior to the 2008 presidential election, the Heritage Foundation had already concluded that the birthplace-only theory is "historically and legally inaccurate":
According to the Citizenship Clause of the Fourteenth Amendment, those who are born here must also be subject to the jurisdiction of the United States. The popular concept of "birthright citizenship" -- that anyone born while in the United States is automatically a U.S. citizen -- is historically and legally inaccurate. Only a complete jurisdiction of the kind that brings with it an exclusive allegiance is sufficient to qualify for the grant of citizenship. Immigration reform legislation, especially if it includes a temporary worker program, must correct this misunderstanding. In order to do so, Congress should reassert its constitutional authority to clarify this question. (Heritage Foundation: Essential Requirements for Immigration Reform", May 10, 2007, section labeled "Clarify birthright citizenship", boldface emphasis added)

New information which surfaced after the 2008 presidential election reaffirms and reinforces the Heritage Foundation's conclusion.

[24] It is not unusual for an English word or phrase to have an "actual" meaning and a "legal" meanings. A tomato is actually a fruit; but by law, it is deemed a vegetable (Supreme Court Rules that Tomatoes are Vegetables). There is a distinction between "actual" (physical) custody of a child, and "legal" custody (Difference Between Physical and Legal Custody). If you have physical contact with and control over an object, you are in "actual" possesion of it; but, if you place the object in a safety deposit box in a bank, you still possess the object, but only in a "legal" (or "constructive") sense; you are no longer in "actual" possesion of it (Legal Definition of 'Possession'). The underage dependents living in your home may be your children in fact (your actual biological offspring) or your children in law (your children by marriage or adoption). Likewise, during the 18th century, "natural born" had both an "actual" meaning and a "legal" meaning. All English subjects (except persons made denizens by the king) were natural-born subjects in law, but only English subjects by birth were natural-born subjects in fact.
[25] In his Commentaries (1765-1769), William Blackstone used the word "subject" to refer to members of the English nation, and the word "citizen" to refer to the freemen of an English city. This passage, from Blackstone's Commentaries, illustrates how the English word "citizen" was used in English writings prior to the American Revolution:
In some cases, the sheriff of London's certificate shall be the final trial: as if the issue be, whether the defendant be a citizen of London or a foreigner, in case of privilege pleaded to be sued only in the city courts. (Blackstone's Commentaries, Bk 3, Chap 22, emphasis added)
[26] Apprenticeship was the most-frequently-used pathway to urban citizenship:
In sixteenth century London, for example, it has been estimated that 90 per cent of Londoners became citizens through apprenticeship (Withington, p.29)

Most literature of local citizenship in England during the early modern period [1500-1800] focused on London. In it, freeman is the equivalent of citizen. ...London historians tell us that during most of the early modern period, citizenship was mainly identified with apprenticeship and the exercise of a specific trade, craft, or occupation. Most admissions to freedom were acquired on the basis of apprenticeship... (Herzog, p.178)

[27] In eighteenth-century English cities and towns, "citizenship by birth", also called "citizenship by patrimony", was available:
...only to the legitimate and natural children of a male (or, since 1976, female) Freeman who were born after their parent's own Freedom admission. (City Freedom Archives)

You could claim English urban "citizenship by birth" if, at the time of your birth, your father was a citizen:

It may be assumed that those who claimed the franchise by birth were the sons of well-to-do freemen (Seybolt, p.4)
Freedom by patrimony was granted to sons of citizens who requested admission to freedom under the auspices of the guild to which their father belonged. (Herzog, p.178)
[28] In his Report on Calvin's Case (1608), Francis Bacon explained that, in English law, were were four categories or "degrees" of persons: 1) alien enemies, 2) alien friends, 3) denizens, and 4) natural-born subjects. Persons became natural-born subjects either by birth or by acts of Parliament.
The first degree of persons ... is an alien enemy; that is, such a one as is born under the obeisance of a prince or state that is in hostility with the king of England. To this person the law giveth no benefit or protection at all ...

The second person is an alien friend, that is, such a one as is born under the obeisance of such a king or state as is confederated with the king of England, or at least not at war with him. To this person ... the law doth indue him but with transitory benefit, that is, of movable goods and personal actions. ...

The third person is a denizen, using the word properly, (for sometimes it is confounded with a natural born subject): this is one that is subditus insitivus, or adoptivus, and is never by birth, but only by the king's charter... To this person the law giveth an ability and capacity abridged, not in matter, but in time. ... For if he purchase freehold after his denization, he may take it; but if he have purchased any before, he shall not hold it: so if he have children after, they shall inherit; but if he have any before, they shall not inherit. ...

The fourth and last degree is a natural born subject, which is evermore by birth, or by act of parliament; and he is complete and entire. (Bacon, Francis, pp.648-649, boldface emphasis added)

Earlier in English history, a "denizen" was an English subject by birth. By the time Calvin's Case was decided in 1608, "denizen" came to mean just the opposite. A "denizen" was a person who acquired English "subject" status artificially by statute or royal charter.

[29] When the U.S. Constitition was being written, "naturalization" meant the acquisition of nationality either by petition or by statute. However, in modern-day U.S. law, the word "naturalization" refers to naturalization by petition only. "Naturalization" is used only in reference to the process by which someone becomes a U.S. citizen after her or his birth:
The term "naturalization" means the conferring of nationality of a state upon a person after birth, by any means whatsoever. (U.S.C. Title 8, Chapter 12, Subchapter I, § 1101, (a)(23), boldface emphasis added)

Today, if you acquire U.S. citizenship (at birth) by statute enacted by Congress, you are not regarded as a citizen by "naturalization"; but neither are you deemed a natural born citizen in the Constitutional sense.

...the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes (U.S. State Department Foreign Affairs Manual: 7 FAM 1130, p.8)
[30] In Lord Coke's Report on Calvin's Case, "obedience" and "ligeance" are synonymous and are used interchangeably. "Ligeance" (the precursor to the modern-day word "allegiance") comes from "liege" which, in Feudalism, refers to absolute loyalty and fidelity to one, and only one, lord exclusively:
There is nothing in feudal theory or practice to prevent a man from having more lords than one. In such a case he owes fealty to both; he is ad fidem utriusque domini. But he can owe liege fealty (ligeantia) to one only. He can have two lords, but not two liege lords. This was a fundamental maxim of feudalism. Unus et idem duorum dominorum homo ligius esse non potest.
...
But as feudalism grew and prospered, ... it became clear that there was no liege fealty possible or lawful, save that which was due to the king himself. He was the only liege lord because he was the supreme lord of all. His claim of fidelity and obedience was above all others. All faith or fealty which a man owed to any other lord was subject to that which he owed to his lord the king. ... So it came about that allegiance took on its modern meaning, and came to signify exclusively the fidelity due from a subject to his king, he being the only person by whom fidelity of so absolute a sort could be lawfully demanded. (Salmond, pp.51-52)

While residing in England, an alien owes "local" (temporary) allegiance to the English king, but his natural allegiance remains to his country of origin.

Hence it became necessary to distinguish between two sorts of allegiance -- that which is personal, permanent, and absolute, as being due from natural subjects, and that which is merely local, temporary and qualified, as being due from aliens by reason of their residency, and which in the strict theory of feudalism is not truly allegiance at all. (Salmond, p.52)

It appears, therefore, that "actual obedience" means "actual ligeance"; and "ligeance", in the natural or literal sense, means allegiance to one, and only one, sovereign exclusively.

[31] Francis Bacon's explanation of the meaning of the phrase, "born within the allegiance", helps to clarify a comment by Circuit Court Justice Noah Haynes Swayne in United States v. Rhodes (1866).
All 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. (United States v. Rhodes (1866), p.7)

As Francis Bacon (1561-1626) explained, the phrase "born within the allegiance" is a figure of speech which means "born of parents who are within the allegiance" (Bacon, Francis, pp.652-653). Thus Justice Swayne's comment could be understood as:

All persons born [of parents who are] in the allegiance of the King are natural-born subjects, and all persons born [of parents who are] in the allegiance of the United States are natural-born citizens.

Justice Swayne knew, or should have known, these facts regarding English law:

  • Although subjects and aliens both owe allegiance to the king, the nature of their allegiance is different.
    Hence it became necessary to distinguish between two sorts of allegiance -- that which is personal, permanent, and absolute, as being due from natural subjects, and that which is merely local, temporary and qualified, as being due from aliens by reason of their residency, and which in the strict theory of feudalism is not truly allegiance at all. (Salmond, p.52)
  • There is also a distinction between a natural-born subject by birth and a natural-born subject by act of Parliament. Aliens who are naturalized by acts of Parliament are deemed to be natural-born subjects for all intents and purposes:
    An alien naturalized is "to all intents and purposes a natural born subject." (United States v. Rhodes (1866), p.10)
  • A natural-born subject by birth is one who is born within the king's realm, of parents owing actual obedience (allegiance) to the king:
    All those are natural born subjects, whose parents, at the time of their birth, were under the actual obedience [allegiance] of our king, and whose place of birth was within his dominions. (Cunningham, p.95, section entitled "Aliens"; also Matthew Bacon, p.77)
  • The English-born children of alien parents are statutory denizens; they are not subjects by birth; rather, they are naturalized, at birth, by a law enacted by Parliament in 1604.
    To place the Children, born within this Realm, of foreign Parents, in Degree for the first Birth or Descent only, as Aliens made Denizens, and not otherwise. (House of Commons Journal, Volume 1, 21 April 1604)
  • Natural-born subjects by birth are actual natural-born subjects. Naturalized subjects -- natural-born subjects by acts of Parliament -- are not true or literal natural-born subjects: they are merely deemed to be natural-born by a fiction of law, which has no effect except in countries consenting to that fiction:
    A parliament may make a man to be accompted as naturalised, and conclude every man to say but that he is so, but it can never make a man to be so indeede (Yelverton, as quoted by Galloway, p.157).
    .. naturalization is but a fiction of law, and can have effect but upon those only consenting to that fiction (Cunningham, p.97, in section entitled "Aliens")

In light of the above information, Justice Swayne's comments can be further clarified as:

All persons born [of parents who are] in the [actual] allegiance of the King are [actual] natural-born subjects, and all persons born [of parents who are] in the [actual] allegiance of the United States are [actual] natural-born citizens.
[32] In Ludlam v. Ludlam, the New York State Court of Appeals understood that, according to Calvin's Case, the nationality of a child at the time of its birth is naturally determined by the allegiance of the child's parents, not the child's place of birth:
The decision upon the plea in Calvin's Case, which was merely repeating what was decided in Cobbledike's Case as early as the reign of Edw. I. (see Calvin's Case, p. 9 b), necessarily implies that a child may owe allegiance to the king (i. e., not merely local or temporary, but natural and permanent allegiance), although born out of the king's dominions; and also that this was a broad general rule, not confined to a few exceptional cases
...
Now, upon what ground can allegiance in such cases be claimed? If natural allegiance, or allegiance by birth, does not depend upon boundaries or place, as Calvin's Case asserts, upon what does it depend? There can be but one answer to the question. It is impossible to suggest any other ground for the obligation than that of parentage. It must, I apprehend, be transmitted from the parents to the child, or it could not exist. (Ludlam v. Lundlam, p.603)
[33] For further information about problems inherent in U.S. v. Wong Kim Ark, see Amicus Brief and Was U.S. vs. Wong Kim Ark Wrongly Decided?
[34] Foreign citizenship at birth, by itself, does not influence one's judgment in later life. The decisions that one makes during adulthood are influenced primarily by one's upbringing and education, not one's citizenship at the time of birth. However, children born with foreign nationality are more likely to be raised by foreign citizens, and are more likely to be raised in a foreign country, than children born with exclusive U.S. citizenship.

Often, the reason a child is born with foreign nationality is closely tied to the reason such child is raised and educated by foreigners. In Obama's case, the reason he was born with British/Kenyan nationality is the same reason he was raised in Indonesia from 1966 through 1971: his mother's preference for husbands who are foreign nationals.

According to the exclusive-citizenship theory, the "natural born citizen" provision excludes, from the presidency, persons who were born with foreign nationality. By excluding such "foreigners" from the presidency, the provision reduces the probability of inaugurating a President who had been raised in a foreign country or by foreign citizens.

When President Obama takes an action or makes a decision which appears to have been influenced by his Indonesian upbringing (particularly, the action or decision reflects attitudes and perspectives which are more typical of Indonesian society than of the United States), such action or decision is vulnerable to collateral attack because it has the objective appearance of a "foreign influence" which would have been less likely if he had been, at birth, a citizen of the United States exclusively.


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