June 5, 2014
By Stephen Tonchen
The modern-day presidential eligibility debate focuses largely on HOW someone becomes a natural born citizen -- whether by birthplace, or parents, or both. Often overlooked are the more basic and fundamental questions: WHAT is a natural born citizen, and WHY was the "natural born citizen" provision added to the Constitution in the first place?
Foreigners and the presidency: A working draft of the U.S. Constitution, dated August 22, 1787, specified that the 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 several historical sources, the purpose of this last-minute wording change was to exclude "foreigners" from the presidency and thereby protect the presidency from "foreign influence". (See, for example, John Jay's Letter to George Washington, 25 July 1787, and section 1473 in Joseph Story's Commentaries on the Constitution, 1833).
From this information alone, it is self-evident that:
A U.S. citizen can be "foreigner" in some sense, but a natural born citizen is one who is not a foreigner, at least not in the same sense.
The Supreme Court has affirmed this fact. In Minor v. Happersett (1874), the Court explicitly stated that natural born citizens are "distinguished from" foreigners. Whatever a natural born citizen is or isn't, the one thing we know for sure is that a natural born citizen is someone who is not a "foreigner".
Moreover, natural born citizenship (as evidence by the word "born") pertains only to one's status at the time of one's birth. If you were not a natural born citizen when you were born, you might still be a U.S. citizen, but you are not, and can never become, a natural born citizen. Thus, the only "foreigners" that the constitutional "natural born citizen" provision can possibly exclude from the presidency are persons who were foreigners at birth.
From this information, it follows that:
Changing the presidential eligibility requirement 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 the phrase "natural born citizen" is understood to mean a U.S. citizen who was not a "foreigner" when he or she was born.
The meaning of the word "foreigner": In 2009, the Berkeley Journal of International Law published a comprehensive historical analysis of the words "foreigner" and "alien", as used in English and American legal writings during the late eighteenth century. The author, Anderson Berry, found that:
...the overwhelming majority of sources available to the drafters of the judicial bill [of 1789] define an "alien" as an individual who: 1) is foreign-born, and 2) resides in a sovereign's territory other than the one where he was born. 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]. (M. Anderson Berry, Whether Foreigner or Alien: A New Look at the Original Language of the Alien Tort Statute, 27 Berkeley J. Int'l Law. 316 (2009), pp.337-8, boldface emphasis added)
When the Constitution was being written, the word "alien" had a narrow and specific meaning. It referred to foreign-born adults who emigrate to, and establish residence in, the United States. In contrast, the word "foreigner" had a broad and widely-inclusive meaning. "Foreigners" included, not only persons born outside of the United States, but also persons who were citizens or subjects of a foreign country.
The first edition of Black's Law Dictionary defined "foreigner" as:
FOREIGNER. In old English law, this term, when used with reference to a particular city, designated any person who was not an inhabitant of that city. According to later usage, it denotes a person who is not a citizen or subject of the state or country of which mention is made, or any one owing allegiance to a foreign state or sovereign. (Henry Campbell Black, A Dictionary of Law, First Edition, 1891, p.506)
The Merrian-Webster dictionary defines "foreigner" as:
Full Definition of FOREIGNER
1: a person belonging to or owing allegiance to a foreign country (Merrian-Webster: foreigner)
From these definitions, it is apparent that:
Throughout U.S. history, the word "foreigner" has consistently referred, not only to persons born abroad, but also to persons who are citizens or subjects of, or owe allegiance to, a foreign government.
Foreigners born on U.S. soil: In a discussion regarding then-existing U.S.-law and the meaning of "jurisdiction" in the 14th Amendment citizenship clause, Senator Howard indicated that it is possible for some persons to be "foreigners" even if 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, 1866, p.2890, boldface emphasis added)
According to Senator Howard's understanding of federal law as it existed prior to the 14th Amendment, a child born on U.S.-soil does not acquire federal (U.S.) citizenship at birth, if such child is any one of the following at the time of its birth:
Though not a Federal citizen at birth, such a child might still be a State citizen according to the laws of some States. After gaining independence from Great Britian, some States enacted laws conferring State citizenship, at birth, to all free white persons born within the borders of the State, regardless of whether the parents were citizens or aliens (P.A. Madison, 2007).
Prior to 1857, it was widely assumed that a citizen of any State was automatically a citizen of the United States. But this assumption, despite its popularity, did not survive Supreme Court scrutiny. The States may confer State citizenship upon anyone they choose, but persons become Federal citizens only through Federal legislation or by Federal-court-recognized common law.
A State, by its laws passed since the adoption of the Constitution, may put a foreigner or any other description of persons upon a footing with its own citizens as to all the rights and privileges enjoyed by them within its dominion and by its laws. But that will not make him a citizen of the United States, nor entitle him to sue in its courts, nor to any of the privileges and immunities of a citizen in another State. (Syllabus, Scott v. Sandford, 1857)
Prior to the Civil War, there was no court ruling, other than Lynch v. Clarke -- and in particular, there was no federal court ruling -- supporting the viewpoint that mere birth on U.S. soil is sufficient to confer federal (U.S.) citizenship at birth:
Lynch v. Clarke  is the only antebellum [pre-Civil War] decision (and apparently the only reported case in our history) 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." (William Mayton, Birthright Citizenship and the Civic Minimum, 2007).
In his written opinion in U.S. v. Wong Kim Ark, Justice Horace Gray characterized several prior federal court decisions, including prior Supreme Court decisions, as supporting jus soli citizenship -- the notion that mere birth within the United States is sufficient to confer federal (U.S.) citizenship at birth. However, a careful reading of each of the cited cases reveals that Justice Gray misrepresented all of them. NONE of these cases supports the view that mere birth on U.S. soil is sufficient for U.S. citizenship at birth (see Amicus Brief).
Prior to the 1866 Civil Rights Act and the 14th Amendment, no Federal statute enacted by Congress, and no federal court ruling, conferred federal (U.S.) citizenship on the basis of birthplace alone. On the contrary, prior to 1866, the federal courts, including the U.S. Supreme Court, have consistently held that, if a child is born in the United States, of a father who owes allegiance to a sovereignty other than the united States, the child is not a federal (U.S.) citizen of any kind -- natural born or otherwise -- at birth.
In Inglis v. Trustees (1830), for example, the Supreme Court ruled that the plaintiff, even if born on U.S. territory, did not acquire U.S. citizenship at birth: his nationality at birth "followed that of his father", not his place of birth. (See also discussion regarding "common law" in Ex parte Reynolds (1879), beginning near the bottom of page 10).
Mere birth within the boundaries of a State was sufficient to confer State citizenship, but was not enough to confer Federal citizenship.
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)
Thus we observe:
A child born in the United States could be, at birth, both a citizen of a State (by virtue of birth within that State) and a citizen of a foreign country (by virtue of birth to parents who are citizens of that foreign country).
Therefore, mere citizenship by itself (at least at the State level) did not necessarily preclude foreign nationality. It was possible for a child, born on U.S. soil, to be both a citizen (of a State) and a foreigner at the same time.
The meaning of "natural born" in English law: In 18th-century English law, the phrase "natural-born subject" had a general meaning and a specific meaning. In 1608, Sir Francis Bacon explained that, generally speaking, a "natural-born subject" is anyone who acquires English "subject" status either "by birth, or by act of parliament" (Francis Bacon, Case of the Post-Nati of Scotland (1608), pp.648-649).
Aliens who are naturalized by acts of Parliament are "natural-born subjects" in the general sense:
An alien naturalized is "to all intents and purposes a natural born subject." (United States v. Rhodes, 1866).
Prior to 1604, English law did not clearly define the status, at birth, of children born on English soil, to alien parents. Although some early commentators, such as Thomas de Littleton (1407-1481), had expressed their belief that anyone born on English soil was an English subject, a review of early English case law does not support that viewpoint:
Who was an alien is less clear than that there thus developed a distinction between subject and alien. It is generally taken to be a necessary implication of the case of Eiyas de Rabayn (1290) that the jus soli alone applied. ... But it may be doubted whether the case shows more than that one born out of England was not a subject; it is not necessary authority for the proposition that anyone born in England was not an alien. ...
... Henry de Beaumont's ... mother was probably English since his father, John de Beaumont ... was an alien; ... although born in England, Henry must have been considered an alien and thus incapable of taking by descent whatever grant of lands his father received. ...
Thus, though it is possible to agree that the rule was that allegiance, and therefore nationality, was attributed at birth, it may be doubted whether it has been established that, prior to the seventeenth century, such attribution was either exclusively jure soli or jure sanguinis, or that allegiance was necessarily indelible. (Clive Parry, British Nationality Law, 1954.)
In 1604, Parliament enacted legislation clarifying the status, at birth, of children born on English soil, to alien parents. The 1604 law declared such children to be "denizens":
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, 21April 1604)
Such children, when born, were English subjects by act of Parliament, thus were "natural-born subjects" according to Francis Bacon's general definition of the phrase. As William Blackstone (1723-1780) pointed out in his Commentaries:
The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such (William Blackstone, Commentaries, Book 1, Chapter 10, 1765-1769, boldface emphasis added)
But in the more narrow and specific sense, you were a natural-born subject by birth (as distinguished from a natural-born subject by act of Parliament) only if you were born within the king's realm, of parents owing actual obedience (allegiance) of the king.
According to Anderson Berry's article (cited earlier), Giles Jacob's New Law Dictionary was "the most widely used English law dictionary" during the time period in which the Constitution was written. Jacob explains that children born on English soil, to alien parents, are "denizens" (persons who acquire English "subject" status artificially by human action or man-made law). In order to be "subject born" (an English subject naturally by birth), one must be born on English soil, to parents owing actual obedience (allegiance) to the English king:
And if one born out the king's obedience comes and resides in England, his children begotten and born here, are not aliens but denizens.
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. (Giles Jacob, A New Law Dictionary (1782), p.40, section titled "Aliens").
According Cunningham's law dictionary (which was the only law dictionary that James Madison ordered for the Continental Congress), "natural-born" (in the specific or literal sense) implies not only birth in a particular place, but also birth to parents who owe actual allegiance to the sovereign of that place:
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. (Timothy Cunningham, A New and Complete Law-Dictionary (1771), section titled "Aliens", p.95).
This leads us to our fourth point:
In 18th century England and its colonies, all children born on English soil (except the children of foreign diplomats and enemy aliens) were deemed to be "natural-born" in the eyes of the law, regardless of whether the parents were English or alien. But according to the legal writings that the Founding Fathers were familiar with and had relied upon, the phrase "natural-born", in the strict literal sense, meant birth within a realm, to parents owing actual allegiance to the sovereign of that realm.
Throughout U.S. history, several prominent and well-respected individuals have expressed their opinion that nearly all children born on U.S. soil are "natural born citizens", regardless of the status or condition of the children's parents. Although these opinions are understandable given the general meaning of "natural born" in English law, the presidential "natural born citizen" eligibility requirement in the Constitution makes little sense -- it doesn't exclude any foreigners not already excluded by the original "citizen" provision -- unless "natural born" is understood according its specific meaning: birth within a place, to parents owing actual allegiance to the sovereign of that place. Persons who are "natural born" in the specific sense are persons who, at birth, do not acquire foreign nationality from either their parents or their birthplace.
All of the above information, taken together as a whole, leads us to this conclusion:
The essential characteristic that distinguishes "natural born citizens" from other categories of citizens is not merely the presence of U.S. citizenship but also the absence of foreign citizenship at birth.
Appearance of conflict of interest: An attorney has an ethical duty to not represent a client in a negotiation or legal dispute with a third party if the attorney had a prior relationship with, or had previously received a gift from, that third party. A prior relationship with, or receiving a gift from, a third party creates an objective appearance of conflict of interest, which disqualifies an attorney from representing a client in matters involving that third party (or anyone closely tied to or allied with that third party).
Likewise, an individual should not represent the United States in its relations with foreign countries, if he or she was, at any time, a citizen of one or more of those foreign countries. The Framers of the Constitution understood a rather obvious and self-evident point of common sense: that the mere appearance of conflict of interest is sufficient reason to disqualify an individual from the presidency.
The preceding is based on a comment posted by the author in another forum.
For further information, see Benefiting From Obama's Ineligibility and Presidential Eligibility Tutorial.