Obama Presidential Eligibility - An Introductory Primer

Last revised: June 8, 2010
The most current version of this document is found at
http://people.mags.net/tonchen/birthers.htm

Introduction

The U.S. Constitution was adopted on September 17, 1787 [01]. Anyone born after that date must be a "natural born citizen" in order to be eligible to serve as president of the United States [02].

According to Dr. Lawrence Solum, a law professor at the University of Illinois College of Law, we know two things for sure about the meaning of "natural born citizen":

People who are born in the United States, of parents who are U.S. citizens, are definitely, without doubt, natural born citizens.
People who acquire U.S. citizenship through naturalization are definitely not natural born citizens [03].

But what about foreign-born children of U.S.-citizen parents? And what about U.S.-born children of non-citizen parents? Such children are U.S. citizens by law; but are they natural born citizens? So far, Federal law, the Constitution and the courts have not answered these questions.

In 2004, Senator Don Nickles predicted that, if these questions remain unanswered, they will someday become "a real issue":

The definition of this term ["natural born citizen"] is an issue that has been debated in legal circles for years and has never been ruled on by the courts. Clarification is needed before this becomes a real issue. (Nickles)

Senator Nickles' prediction has come true. Today, an increasing number of Americans are concerned that Barack Obama, whose father was a Kenyan native, might not be a "natural born citizen" and therefore might not be eligible, under the Constitution, to serve as president [04].

Members of the mainstream news media generally believe that all persons born in the United States are "natural born citizens", regardless of their parents' citizenship. But this belief, though widely held, is not consistent with what the Supreme Court has said over the past 136 years, nor it is consistent with American and English history [05].

According to the Heritage Foundation, the belief that birthplace alone is sufficient to confer U.S. citizenship (in the Constitutional sense) is "historically and legally inaccurate":

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 [at birth] is sufficient to qualify for the grant of citizenship [under the Constitution]. (Heritage Foundation: Immigration Reform)

Six years after the 14th Amendment became part of the U.S. Constitution, the U.S. Supreme Court -- in Minor v. Happersett (1874) -- commented that, if you were born in the United States and both of your parents were U.S. citizens at the time of your birth, you are, without doubt, a natural born citizen. In the same case, the Supreme Court also remarked that, if you were born in the United States but your parents were not both U.S. citizens when you were born, your natural born citizenship is in doubt [06].

The Supreme Court has never resolved this "doubt" because, until now, there has never been any need to do so. With only two exceptions, every U.S. president who was born after 1787, was born in the United States, of parents who were both U.S. citizens. The two exceptions were Chester Arthur and Barack Obama. When Chester Arthur ran for office in 1880, he lied to newspaper reporters about his family history (and later burned most of his family records), thereby obscuring the fact that, at the time of his (Chester's) birth, his father (William Arthur) was British subject, not a U.S. citizen (Historical Breakthrough - Chester Arthur).

President Obama publicly admits that his father was a Kenyan native who never became a U.S. citizen. At birth, President Obama acquired British/Kenyan citizenship by descent from his father. Thus, the 2008 election was the first time in history that the United States knowingly elected a post-1787-born president whose parents were not both U.S. citizens. Moreover, 2008 was the first time that the U.S. knowingly elected a post-1787-born president who was a foreign citizen (in addition to being a U.S. citizen) at the time of his birth [07].

U.S.-born children of non-citizen parents are U.S. citizens by modern-day law, but there is unresolved doubt as to whether such children are Constitutional natural born citizens. This doubt is not based on the imaginings of tin-foil-hat-wearing conspiracy theorists on the lunatic fringe of society. This doubt comes from what the Supreme Court has actually said, as well as a variety of other historical and legal sources which are presented and discussed here.

This Primer introduces the Obama Eligibility Controversy, in question-and-answer format, for a non-technical general audience. We've double-checked the facts presented here, cited their sources, and believe them to be correct. Please contact us if you find any material in this Primer that you believe to be inaccurate.

1. What is a "birther"?
2. What are the eligibility requirements for president?
3. Why do birthers think Barack Obama might not be eligible to serve as president?

4. Where should we begin looking for the original Constitutional meaning of "natural born citizen"?: 4.1 Modern-day word usage
4.2 U.S. Constitution and Early Naturalization Acts
4.3 U.S. Federal Law
4.4 English Literature
4.5 U.S. Supreme Court

1. What is a "birther"?

When the term "birther" was coined in 2008, it originally meant:

someone who believes Obama was not born in Hawaii or that he's not a U.S. citizen. (Are you a birther?)

According to a New York Times article (November 18, 2009) by Leslie Savan, "birther" was created by conservative bloggers Ed Morrissey and Steve Gilbert:

But despite its usefulness for liberals, birther probably wasn't birthed by them. Birther seems to have been coined about a year ago, separately, by the conservative bloggers Ed Morrissey and Steve Gilbert. Last December, in dismissing the birth-certificate argument as a "canard," Gilbert wrote, "The 'birthers' are the new 'truthers.' " (Savan)

David Weigel believes he was first to coin the term "birther":

I think I originally coined the term "Birthers" to describe the people who think the state of Hawaii and its time travel machine are concealing the truth about Obama's birth on the roof of a mosque in Kenya. (Weigel)

The New Oxford American Dictionary defines "birther" as:

a conspiracy theorist who challenges President Obama's U.S. birth certificate.

The Online Slang Dictionary defines "birther" as:

a person who believes -- against evidence -- that Barack Obama was born outside of the United States (Online Slang Dictionary: birther).

In October 2008, two lawsuits -- Donofrio v. Wells and Wrotnowski v. Bysiewicz -- argued that, regardless of his place of birth, Barack Obama is ineligible to serve as president because he acquired British/Kenyan citizenship, at birth, by descent from his father. (See Why Obama is ineligible -- regardless of his birthplace). From that point on, the "birther" issue was no longer limited to the President's birth certificate and place of birth. Today, most "birther" plaintiffs and lawyers, who are challenging Obama's eligibility in court, acknowledge that the eligibility issue is about both the President's place of birth and his British/Kenyan citizenship at birth.

This Primer defines "birther" as anyone who has a fact-based reason to suspect that the "conditions" of Barack Obama's birth -- his place of birth and/or his foreign citizenship at birth -- are not consistent with the presidential eligibility requirements set forth in the U.S. Constitution. This definition of "birther" is based, in part, on a commentary, titled A Constitutional Crisis is Brewing, published on the birther website.

As the birthers, we are pointing out that the conditions of Barack Hussein Obama, II's birth is [sic] not only important, but critical to the constitutional order of our Nation. (A Constitutional Crisis is Brewing)

Birthers are people who are aware of facts -- not mere conjecture or speculation -- indicating that Barack Obama's legal status at birth might disqualify him from serving as president. The President's circumstances and activities after his birth -- his purported adoption and citizenship in Indonesia, his alleged use of a foreign passport, his apparent acquisition and use of multiple social security numbers, etc. -- are of interest, but are not the issues which define who the birthers are [08].

2. What are the eligibility requirements for president?

Article II Section 1 of 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.

This means that, in modern times, you cannot legally or legitimately serve as president of the United States, unless you are:

at least 35 years of age,
a resident of the United States for at least 14 years, and
a natural born citizen.

Regarding the third requirement ("natural born citizen"), the Constitution makes a special exception for persons who became U.S. citizens before September 17, 1787, the date on which the U.S. Constitution was adopted. Such persons may serve as president, even if they are not natural born citizens [09].

Today, no one qualifies for this special exception. No one alive today was a citizen when the Constitution was adopted. In modern times, if you wish to be president, it is not enough to be a U.S. citizen -- you must be a U.S. natural born citizen.

3. Why do birthers think Barack Obama might not be eligible to serve as president?

Birthers believe (or at least suspect) that Barack Obama is not a natural born citizen. They say that, in order to be a natural born citizen, you must meet two requirements:

a birthplace requirement (you must be born in the United States), and
a parental citizenship requirement (both of your parents must be U.S. citizens at the time of your birth) [10].

There is some question as to whether President Obama meets the birthplace requirement. Unsubstantiated rumors suggest he might have been born in Kenya [11]. There is also speculation that the President might have been born in Canada [12].

Far more importantly, Obama publicly acknowledges he does not meet the parental citizenship requirement. His father was a Kenyan native who never became a U.S. citizen.

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. ... In other words, 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: Does Barack Obama have Kenyan citizenship?)

Birthers believe, based on their understanding of American and English history, that an individual must be U.S.-born of U.S.-citizen parents in order to be a natural born citizen [13]. If the birthers' understanding is correct, Barack Obama is not a natural born citizen and is therefore not eligible to serve as president. But is the birthers' understanding correct?

4. Where should we begin looking for the original Constitutional meaning of "natural born citizen"?

In this Primer, we begin by looking in places where the Constitutional meaning of "natural born citizen" is not found. Listed below are five sources which do not adequately define "natural born citizen" as used in the U.S. Constitution.

Modern-day word usage
U.S. Constitution and Massachusetts Naturalization Acts
U.S. Federal Law
English Literature
U.S. Supreme Court

Even though these sources do not have what we are looking for, we examine them first because they give us important clues, background information and context that we will need later.

4.1 Modern-day word usage: In the popular press and contemporary legal writings, the term "natural born citizen" is often construed to mean either (a) anyone who is a U.S. citizen at birth, or (b) anyone who is born in the United States. For example, Black's Law Dictionary defines "natural born citizens" as:

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. (Black's Law Dictionary, 6th Ed., 1991)

The modern-day "consensus" of 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)

But the Supreme Court has never accepted this "consensus" opinion. On the contrary, in 1874 -- six years after the 14th Amendment became part of the U.S. Constitution -- the Supreme Court expressed "doubts" concerning the viewpoint that all persons born in the U.S. are citizens (natural born or otherwise) regardless of their parents' citizenship [06]. Since these doubts came from the Supreme Court, only the Supreme Court can resolve them. So far, it has not.

The Heritage Foundation declares categorically that the "consensus" opinion is historically and legally inaccurate:

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 [at birth] is sufficient to qualify for the grant of citizenship [under the Constitution]. (Heritage Foundation: Immigration Reform)

According to Law professor, Dr. Lawrence Solum, there are only two things we know for sure about the Constitutional meaning of "natural born citizen":

U.S.-born children of U.S.-citizen parents are definitely, without doubt, natural born citizens; and
natural born citizenship is established only at birth and cannot be acquired after birth through naturalization.

Except for these two points, the meaning of "natural born citizen" remains unsettled and unclear [03].

4.2 U.S. Constitution and Massachusetts Naturalization Acts: The U.S. Constitution, and the Naturalization Acts of Massachusetts (1776-1790), use the term "natural born citizen" but do not define it.

According to the U.S. Supreme Court, the meaning of "natural born citizen" is not found in U.S. Constitution:

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. (Minor v. Happersett, 1874)

In 2008, the Senate passed a nonbinding resolution, expressing the opinion that John McCain is a natural born citizen [14]. The resolution acknowledged that "natural born citizen" is not defined in the U.S. Constitution [15]:

Whereas the term 'natural born Citizen', as that term appears in Article II, Section 1, is not defined in the Constitution of the United States; (Senate Resolution 511)

4.3 U.S. Federal Law: No existing Federal law defines "natural born citizen"; and no existing Federal law specifies who is, and who is not, a "natural born citizen". Modern-day laws use the word "citizen", but the term "natural born citizen" does not appear in any existing Federal statute [16].

In 1790, Congress passed the Naturalization Act of 1790, which used the term "natural born citizen" in connection with foreign-born children of U.S.-citizen parents:

And the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens (Naturalization Act of 1790)

Five years later, Congress repealed the 1790 Act and replaced it with the Naturalization Act of 1795. In the 1795 Act, the words "natural born" were deleted, leaving just "citizens":

... and the children of citizens of the United States born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States. (Naturalization Act of 1795)

Throughout history, Congress has enacted various laws that confer U.S. citizenship to certain children at birth. For example, the 1866 Civil Rights Act stated:

All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States (1866 Civil Rights Act)

But after 1790, Congress never again passed any law containing the term "natural born citizen".

In 2004, Senate Bill S.2128: Natural Born Citizen Act gave a definition of "natural born citizen", but it never became law.
In 2008, the U.S. Senate passed Resolution 511 regarding presidential candidate John McCain's natural born citizenship, but the resolution was nonbinding and had no legal effect.

As of the time of this writing, there is no Federal statute that explicitly defines who is, and who is not, a natural born citizen.

4.4 English Literature: We are not aware of any English-language literature which, prior to the writing of the Constitution, explicitly defined "natural born citizen". Nevertheless, the manner in which the English-language phrases "natural citizen" and "natural born citizen" were used from the 16th through the 18th centuries might provide clues regarding the Constitutional meaning of "natural born citizen".

Bodin:

In 1576, French political philosopher, Jean Bodin (1530-1596), published his most famous work, Les Six livres de la Republique ("The Six Books of the Republic").

Bodin's Republique became known in England soon after the first French edition was published in 1576. Richard Knolles began the translation for the first English edition in 1603, in the immediate aftermath of James's accession to the throne, and several years after Bodin's death. (Price, p.132)

Even before the English translation was completed in 1606, English speaking people -- many of whom knew French -- were already reading and appreciating Bodin's work.

Bodin's political works were well-known in early seventeenth-century England. One historian claimed that in 1600 no other political writer was cited in England "more often or more favorably" than Bodin. Another historian cited a dozen treatises from the Elizabethan and Stuart periods making use of Bodin's formulation of the idea of sovereignty. James himself, in The Trew Law of Free Monarchies, written in 1598, derived many of his ideas from Bodin... (Price, p.131)

Bodin defined "citizen" as a free subject who submits to authority for the greater good [17].

When the head of the family leaves the household over which he presides and joins with other heads of families in order to treat of those things which are of common interest, he ceases to be a lord and master, and becomes an equal and associate with the rest. He sets aside his private concerns to attend to public affairs. In so doing he ceases to be a master and becomes a citizen, and a citizen may be denned as a free subject dependent on the authority of another. (Bodin)

According to Bodin, the "natural citizen" of a society is someone who acquires citizenship, at birth, from at least one of his parents:

Just as slaves can be slaves either by birth or by convention, so citizens can be either natural or naturalized. The natural citizen is the free subject who is a native of the commonwealth, in that both, or one or other of his parents, was born there... The naturalized citizen is one who makes a voluntary submission to the sovereign authority of another, and is accepted by him as his subject. (Bodin)

Patsall:

The twelve-volume classic, Institutio Oratoria, by Marcus Fabius Quintilianus, was written during the first century AD. It was popular in Europe during the 15th and 16th centuries:

...enthusiasm for Quintilian spread with humanism itself, reaching northern Europe in the 15th and 16th centuries. Martin Luther, the German theologian and ecclesiastical reformer, claimed that he preferred Quintilian to almost all authors, "in that he educates and at the same time demonstrates eloquence, that is, he teaches in word and in deed most happily" (Wikipedia: Quintilian)

When the U.S. Constitution was being written (1787), there were two English translations of Institutio Oratoria: one by Guthrie (1756) and one by Patsall (1774). (Greschak).

Institutio Oratoria contains this Latin sentence:

Quare, si fieri, potest et verba omnia et vox huius alumnum urbis oleant, ut oratio Romana plane videatur, non civitate donata. (Quintilianus, Institutio Oratoria, Book 1, Chapter VIII, as quoted by Greschak)

Guthrie (1756) translated the above sentence as:

Therefore we ought, if we possibly can, to bring our Language and Pronunciation to that Purity, that they may seem to be the Natives of our Country, and not naturalized into her. (William Guthrie's translation of Institutio Oratoria, as quoted by Greschak)

Patsall (1774) translated the same sentence differently:

Therefore, if possible, every word and the very tone of voice, should bespeak the natural born citizen of Rome, that the language may be purely Roman, and not so by a right different from birth and education. (Patsall, p.55)

The two English translations seem to imply that the "native", or "natural born citizen", of Rome was someone who was "purely" Roman, presumably from birth.

Vattel:

In 1758, Swiss philosopher, Emmerich de Vattel published Le Droit des Gens ("The Law of Nations"). It was written in French, and was popular in America, both before and especially after the American Revolution [18]. Some of the Founding Fathers knew enough French to read Vattel's work in its original form.

In Law of Nations, Book 1, Chapter 19, Vattel discussed two concepts: citizen and native. A child acquires, at birth, the citizenship of its father, regardless of where the child is born (Vattel, §212,215). However, if your place of birth is within the country of your parents' citizenship, you are (at birth) more than just a "citizen" of your parents' country -- you are also a "native" or "indigene" of that country [19].

The original French-language version of Vattel's Law of Nations contained this sentence:

Les naturels, ou indigenes, font ceux qui font nes dans le pays, de parens citoyens. (Des citoyens et naturels)

The first English translation of Law of Nations, published in 1759, rendered the above sentence as:

The natives, or indigenes, are those born in the country, of parents who are citizens.

These words were quoted, verbatim, by the Supreme Court in The Venus (1814).

In an updated English translation published in 1797, the word "indigenes" was changed to "natural born citizens":

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

In the English translation (1606) of Bodin's Republique, Patsall's translation (1774) of Institutio Oratoria, and a later English translation (1797) of Vattel's Law of Nations, "natural citizenship" and "natural born citizenship" implied something more than birth in a particular place.

4.5 U.S. Supreme Court: So far, the U.S. Supreme Court has not given a full or complete definition of "natural born citizen". In 1874, the Court reiterated the 1797 English-language Law of Nations definition of "natural born citizen":

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.
At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.
Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.
For the purposes of this case, it is not necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens (Minor v. Happersett, 1874)

In 1874, the Supreme Court said, in effect:

The meaning of "natural born citizen" is not found in the U.S. Constitution.
There is no doubt that, if you were born in the United States and both of your parents were U.S. citizens at the time of your birth, you are a natural born citizen.
Throughout American history, some "authorities" have expressed the opinion that all children born in the United States, regardless of their parents' citizenship, are U.S. citizens at birth and possibly natural-born citizens as well. This opinion remains in doubt.

In U.S. v. Wong Kim Ark (1898), the Supreme Court discussed birthright citizenship at length, but did not decide whether birthplace alone confers natural born citizenship. The Court ruled that Wong was a citizen, but did not rule that he was a natural born citizen. (For further discussion regarding Wong Kim Ark, see Question 14).

To summarize, persons born in the U.S., of parents who are U.S. citizens, are definitely, without doubt, natural born citizens. The above-listed sources do not establish conclusively, one way or the other, whether natural born citizenship extends to U.S.-born children of non-citizen parents.

5. In a nutshell, what is the Obama eligibility controversy?

The following information comes directly from Barack Obama's "Fight the Smears" website:

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. Since Sen. Obama has neither renounced his U.S. citizenship nor sworn an oath of allegiance to Kenya, his Kenyan citizenship automatically expired on Aug. 4, 1982. (FactCheck.org, as quoted in Obama's "Fight the Smears" webpage regarding his birth certificate, emphasis added).

The above information raises this question:

If Barack Obama was born in the United States but, at the time of his birth, his father was a citizen of a foreign country and not a U.S. citizen, does Barack Obama meet the Constitutional "natural born citizen" requirement for presidency?
In other words, even if Barack Obama were a U.S. citizen at birth, can he be a U.S. natural born citizen if his citizenship status at birth was "governed", even if only partially, by the laws of a foreign country?

Obama eligibility supports say "Yes". They believe there are only two kinds of American citizens: naturalized and natural born. A naturalized citizen is someone who becomes a citizen after his or her birth, through a legal process called "naturalization". A natural born citizen is anyone who is a U.S. citizen at birth. Since President Obama was born in the United States and was therefore a U.S. citizen at the time of his birth, he is a natural born citizen, regardless of his parents' citizenship [20].

Contrarians say "No". They believe that, when the Constitution was written, the term "natural born citizen" referred to individuals who were, at birth, citizens of the United States only and were not citizens at birth of any other country. Some children are born with dual nationality. They acquire U.S. citizenship at birth; they also acquire foreign citizenship at birth, either from their birthplace or by descent from their parents. While these children are U.S. citizens at birth, they are not natural born citizens. In order to be a natural born citizen of the United States, you must not be a citizen, at birth, of any foreign country; which means, you must be born in the United States, of parents who were exclusively U.S. citizens at the time of your birth [21].

Thus we have two opposing viewpoints regarding the meaning of "natural born citizen". Which one is correct? So far, the Supreme Court has not answered this question because, until now, there was no reason to. Now, the Supreme Court needs to do its job and answer the question.

6. Does the birthers' viewpoint have any historical or legal merit?

As a general rule, birthers say there are two ways by which a person acquires citizenship: by man-made law, and by natural law. Every country has a right to enact man-made laws which grant citizenship to just about anyone. However, a "natural born citizen" is a person who acquires citizenship, at birth, in accordance with natural law. According to English natural law theory, subjecthood naturally depends on both the place of one's birth and the allegiance of one's parents at the time of one's birth. According to European natural law theory, citizenship is naturally acquired, at birth, by descent from one's parents, specifically one's father, regardless of one's place of birth. Thus, one cannot be a natural born citizen unless one's parents (or at least one's father) were citizens at the time of one's birth [22].

The following information is cited in support of this viewpoint:

In 1789, two years after the Constitution was adopted, David Ramsay questioned whether William Loughton Smith was eligible to serve as a U.S. Representative from South Carolina. Ramsay argued that one acquires citizenship as a natural right at birth only if one's parents were citizens at the time of one's birth:
[Birthright citizenship] ... is confined exclusively to the children of those who were themselves citizens. ... The citizenship of no man could be previous to the declaration of independence, and, as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776. ... From the premises already established, it may be farther inferred, that citizenship, by inheritance, belongs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring. (Ramsay)

Since a citizen of any state was automatically a citizen of the United States, Smith claimed he was a U.S. citizen by virtue of being a South Carolina citizen according to South Carolina State law [23]. Even though he was born before the United States came into existence, he was nevertheless a South Carolinian by birth, having been born in South Carolina, of a South Carolinian father.
...my ancestors were amonst the very first settlers in South Carolina... Vattel says, "The country of the father is that of the children, and these become citizens merely by their tacit consent." (William Loughton Smith, as quoted in The Documentary history of the first Federal elections, 1788-1790, Volume 1, pp.176,178)

Although they disagreed over precisely how and when Smith became a U.S. citizen, Ramsay and Smith agreed that children naturally acquire citizenship, at birth, by descent from their fathers. (See Mario Apuzzo, Founder and Historian David Ramsay Defines a Natural Born Citizen in 1789)
In Tuan Anh Nguyen v. INS (2001), Justice Ginsberg acknowledged that, throughout most of U.S. history, children inherit, at birth, their father's citizenship:
If Congress went back to the way it was when everything was determined by the father's citizenship, go back to before 1934,... Suppose Congress wants to restore the way it was, the way it was for most of our nation's history, that the father's citizenship gets transferred to the child, not the mother's? (Justice Ginsberg, as quoted in Natural-Born Citizen per Justice Ginsberg?)
Every U.S. president who was born after 1787 -- except Barack Obama and Chester Arthur -- was born in the United States, of parents who were both U.S. citizens. In 1880, the voting public seemed unaware that, when Chester Arthur was born, his father was not yet a naturalized U.S. citizen [24]. The 2008 election appears to be the first time in American history that the United States knowingly elected a post-1787-born president whose parents, at the time of his birth, were not both U.S. citizens.
While running for vice president in 1880, Chester Arthur told outright lies (and later burned nearly all of his family records) thereby obscuring the fact that, when he was born, his father was a British subject and not a U.S. citizen (Historical Breakthrough - Chester Arthur). If "natural born citizen" meant anyone born in the United States, regardless of parental citizenship, why did Chester Arthur go through so much trouble to obfuscate his family history? Did he believe that his birth to a non-citizen father made him ineligible to serve as president or vice president? In 1884, President Arthur admitted that there were doubts regarding the legal status of a U.S.-born person (such as himself) whose father intended to become a naturalized U.S. citizen but had not yet done so:
Our existing naturalization laws also need revision. ... Section 2172, recognizing the citizenship of the children of naturalized parents, is ambiguous in its terms... An uniform rule of naturalization, such as the Constitution contemplates, should, among other things, clearly define the status of persons born within the United States subject to a foreign power and of minor children of fathers who have declared their intention to become citizens... (Chester Arthur, 1884, as quoted by Long)
On March 9, 1866, Representative John Bingham of Ohio, considered the father of the 14th Amendment, said the following in a speech before the House of Representatives:
[I] find no fault with the introductory clause [S 61 Bill], 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. (John Bingham, 1866, as quoted in Defining Natural Born Citizen)
Occasionally, the U.S. Supreme Court has used the word "citizen" in reference to individuals who were either not born in the United States or not born of U.S.-citizen parents. Such individuals were U.S. citizens by law or by naturalization. But the Supreme Court has never referred to such persons as natural born citizens. In those few cases in which the Supreme Court has declared an individual to be a "natural born citizen", the individual was always U.S.-born to U.S.-citizen parents. For example, in Perkins v. Elg (1939), the Supreme Court referred to Marie Elizabeth Elg as a natural born citizen. Miss Elg was born in the United States in 1907. A year before her birth, her father became a U.S. citizen by naturalization, and her mother acquired U.S. citizenship through marriage. Thus when Miss Elg was born, both of her parents were U.S. citizens.
In 1797 (a decade after the Constitution was adopted), the English translation of Emmerich de Vattel's, Law of Nations was revised to include the term "natural born citizen". The revised English translation sheds light on the late 18th-century meaning of "natural born citizen":
The natives, or natural born citizens, are those born in the country, of parents who are citizens. (Vattel, §212)
In 1874, in Minor v. Happersett, the Supreme Court affirmed the definition of natural born citizen which had appeared in the 1797 English translation of Vattel's Law of Nations:
...it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. (Minor v. Happersett, 1874)
In Minor v. Happersett, the Supreme Court expressed "doubts" regarding the citizenship of U.S.-born children whose parents were not both U.S. citizens. In Wong Kim Ark (1898), the Supreme Court examined these "doubts", but did not render any decision or ruling pertaining to natural born citizenship. The Court ruled that Wong was a citizen; it did not rule that he was a natural born citizen. To date, the Supreme Court has never answered the question as to whether natural born citizenship extends to children of non-citizen parents.

This information does not prove the birthers' case. But it show that birthers have a rational basis for questioning Barack Obama's presidential eligibility.

7. What was the original purpose of the presidential "natural born citizen" requirement?

In Alexander Hamilton's first draft of the U.S. Constitution, an individual was eligible to serve as president if he or she was either (a) a U.S. citizen when the Constitution was adopted, or (b) "born a citizen" of the United States:

No person shall be eligible to the office of President of the United States unless he be now a citizen of one of the States, or hereafter be born a citizen of the United States. (Works of Alexander Hamilton, p. 407).

In a letter to George Washington, dated 25 July 1787, John Jay (1745-1829) recommended changing the presidential eligibility requirement from "born a citizen" to "natural born citizen". The stated purpose of the change was to exclude "foreigners" from the presidency:

Permit me to hint whether it would not be wise and seasonable to provide a strong check to the admission of foreigners into the administration of our national government; and to declare expressly that the command in chief of the American army shall not be given to, nor devolve on any but a natural born citizen. (John Jay, Letter to George Washington, 25 July 1787)

Apparently, someone who was "born a citizen" of the United States might also be a "foreigner" in some sense, but a "natural born citizen" was someone who was not a foreigner, at least not in the same sense and/or to the same extent.

In August 1787, Jay's recommendation was accepted. The Constitutional presidential eligibility requirement was changed from "born a citizen" to "natural born citizen":

It was originally proposed in the Constitutional Convention that the presidential qualifications be a "citizen of the United States." It was so reported to the Convention, by the Committee which had it in charge, on the 22nd day of August, 1787. It was again referred to a Committee, and the qualification clause was changed to read "natural born citizen," and was so reported out of Committee on September the 4th, 1787, and adopted in the Constitution. (Long, p.7)

A contemporaneous comment by Alexander Hamilton suggests that a purpose of the "natural born citizen" provision was to prevent foreign powers from placing a "creature of their own" in the Office of President:

Nothing was more to be desired, than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of Republican government, might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? (Alexander Hamilton, Federalist No. 68, March 14, 1788, emphasis added)

St. George Tucker (1752-1827) explained that the purpose of the natural born citizen provision was to exclude foreigners from the presidency:

That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted) is a happy means of security against foreign influence, which, wherever it is capable of being exerted, is to be dreaded more than the plague. The admission of foreigners into our councils, consequently, cannot be too much guarded against... To have added a [foreign] member to this sacred family in America, would have invited and perpetuated among us all the evils of Pandora's Box. (St. George Tucker, as quoted in Madison(2008))

According to U.S. Supreme Court Justice Joseph Story (1779-1845), early patriots were eligible to be president, even though they were naturalized citizens and not natural born citizens. But after their generation passed away, only natural born citizens were eligible to be president. The reason for this "natural born citizen" requirement was to exclude foreigners from the presidency.

It is indispensable, too, that the president should be a natural born citizen of the United States; or a citizen at the adoption of the constitution, and for fourteen years before his election.
This permission of a [pre-1787-born] naturalized citizen to become president is an exception from the great fundamental policy of all governments, to exclude foreign influence from their executive councils and duties. It was doubtless introduced (for it has now become by lapse of time merely nominal, and will soon become wholly extinct) out of respect to those distinguished revolutionary patriots, who were born in a foreign land, and yet had entitled themselves to high honours in their adopted country. A positive exclusion of them from the office would have been unjust to their merits, and painful to their sensibilities.
But the general propriety of the exclusion of foreigners, in common cases, will scarcely be doubted by any sound statesman. It cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interposes a barrier against those corrupt interferences of foreign governments in executive elections, which have inflicted the most serious evils upon the elective monarchies of Europe. Germany, Poland, and even the pontificate of Rome, are sad, but instructive examples of the enduring mischiefs arising from this source. (Story)

Precedent for foreign exclusion: It was not unusual for a nation to exclude foreigners from its highest levels of government. The Jewish Torah, for example, prohibited the appointment of a foreigner as king:

One from among your brethren you shall set as king over you; you may not put a foreigner over you, who is not your brother. (Deuteronomy 17:15, RSV)

In 1701, the English Parliament passed a law barring from public office any foreign-born person whose parents, at the time of his birth, were not English natural-born subjects:

...no person born out of the Kingdoms of England, Scotland, or Ireland, or the dominions thereunto belonging (although he be naturalized or made a denizen), except such as are born of English parents, shall be capable to be of the Privy Council, or a member of either House of Parliament, or to enjoy any office or place of trust, either civil or military, or to have any grant of lands, tenements or hereditaments from the Crown, to himself or to any other or others in trust for him; (Act of Settlement, 1701)

It did not matter how loyal you were to the English king. It did not matter that you had completely renounced all foreign ties and allegiances. It did not matter that you had sworn an oath of exclusive allegiance to the king. If you were a "foreigner" at the time of your birth, you were not eligible to hold any public office in England, even if you were no longer a "foreigner" according to English law.

Definition of "foreigner": In 2009, the Berkeley Journal of International Law published a comprehensive historical and legal analysis of the words "foreigner" and "alien", as used in American and English legal writings during the late eighteenth century. The article concludes that, when the U.S. Constitution was being written:

A person was an "alien" in the United States if he or she was a permanent U.S. resident but not a U.S. citizen; and
A "foreigner" was native, citizen or subject of a foreign country, regardless of her or his current residence [25].

When foreigners become permanent legal U.S. residents, they are no longer just "foreigners"; they become "aliens" as well.

...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]. (Berry, pp.337-8)

In Blackstone's view, the main difference between "alien" and "foreigner" was residency:

...according to Blackstone, an "alien" is an individual who: 1) is foreign-born, or is a foreign citizen or subject, 2) resides (temporarily or otherwise) in a sovereign's territory other than the one where he was born, 3) is expressly or impliedly bound to the sovereign in exchange for protection, and 4) therefore does not owe obedience to, or is legally dependent upon, a foreign sovereign.
A "foreigner": 1) could have all the aforementioned characteristics of an "alien," 2) could be an invading soldier, robber, or pirate, or 3) a priory-dwelling monk, an ambassador, or even a prince, or 4) any foreign-born individual located extraterritorially, or 5) could be an individual residing in a different city or parish than the one mentioned.
The main difference between "alien" and "foreigner" for Blackstone revolves around residency. An "alien" resides in a sovereign's realm other than the one in which the alien was born, where a "foreigner" can reside as such, but can also reside extraterritorially or simply not deserve or expect protection. (Berry, p.343)

When the U.S. Constitution was being written, the prevailing definition of "foreigner" included foreign subjects and citizens, regardless of their place of residence [26].

Dual citizenship: When the thirteen colonies became independent States, each State had the right to decide, for itself, the citizenship status of any child that was either (a) born in that State, or (b) born of parents who were citizens of that State. Any child who was "born a citizen" of a State, according to the laws of that State, was automatically a citizen of the United States [27].

States were not required to limit themselves to any "natural law" theory of birthright citizenship. Each State had the right to grant "citizenship by birth" to:

children born in the State, of parents who were citizens of a foreign country; and
children born in a foreign country, of parents who were citizens of the State [28].

Such children might be born with dual nationality. Each such child might be, at birth, both (a) a citizen of the State, and (b) a "foreigner", i.e., a citizen or subject of a foreign country.

For example, when the U.S. Constitution was being written, a child was an English subject, at birth, if such child was either (a) born in the U.S., of English parents, or (b) born in England, of U.S. citizen parents. Depending on the applicable State law, someone who was "born a citizen" of a State might also be a British subject by birth.

...children and grandchildren, born of British parents in foreign countries, are British-born subjects; yet these, no doubt, by the laws of the respective foreign countries, are also deemed natural-born subjects there. I am aware of the difficulties which such persons may labor under with these double claims of allegiance upon them. ...the king cannot reckon upon the full and absolute obedience of such persons, because they owe another fealty besides that due to him... (Reeve, emphasis added)

Limited Scope: Natural born citizenship is acquired only at birth [29]. Therefore, the presidential natural born citizen provision, in the Constitution, did not prevent, and could never have prevented, the inauguration of a president who had developed foreign ties after she or he was born. At most, the provision could only exclude persons who were "foreigners" at birth.

When the Constitution was written, there were only two ways that a child could be a "foreigner" (a citizen or subject of a foreign country) at birth:

by being born in a foreign country; or
by being born of parents who were citizens or subjects of a foreign country.

If you were born in the United States and your parents were exclusively U.S. citizens at the time of your birth, you were, without doubt, completely free of foreign influence at birth -- you were, without doubt, not a foreign citizen at birth and not under any foreign legal jurisdiction at birth. On the other hand, if you were born outside of the United States or if your parents were not exclusively U.S. citizens when you were born, you might have been, at birth, both a U.S. citizen and a "foreigner", i.e., a citizen or subject of foreign country.

Since natural born citizenship is acquired only at birth, the presidential natural born citizen provision cannot exclude persons who had become foreigners after they were born. At most, the provision can only exclude persons who were foreigners at birth.

But in order for the provision to accomplish even this narrow and limited purpose (the exclusion of people who had foreign ties at birth), the term "natural born citizen" had to mean someone who was, at birth, a citizen of the United States exclusively, and was not, at birth, a citizen or subject of any foreign country.

Summary: In August 1787, the Framers of the Constitution changed the presidential eligibility requirement from "born a citizen of the United States" (in the draft version of the Constitution) to "natural born citizen of the United States" (in the final version adopted in 1787). The sole purpose of this last-minute wording change was to exclude "foreigners" from the presidency. From this information, we can surmise that someone who is "born a citizen" of the United States could also be a "foreigner", but a "natural born citizen" is not a "foreigner", at least not in the same sense [30].

Since "natural born citizenship" is acquired only at birth and cannot be acquired after birth, the "natural born citizen" provision in the Constitution pertains only to one's legal status at the time of one's birth. The provision does not (and never could) bar, from the presidency, persons who became "foreigners" after they were born. The wording change -- from "born a citizen" to "natural born citizen" -- could, at most, only exclude persons who were foreigners at birth.

But in order to fulfill even this rather narrow and limited purpose (the exclusion of persons who were foreigners at birth), "natural born citizen" must have meant a person who was, at birth, a citizen of the United States exclusively. In other words, the change from "born a citizen" to "natural born citizen" would not have made sense -- it would not have excluded foreigners from the presidency -- unless "natural born citizen" meant a person who was not a foreigner at birth.

8. What is the difference between a "Constitutional" and a "statutory" natural born citizen?

"Constitutional natural born citizen" refers to the term "natural born citizen" when it appears in the Constitution or in a Constitution-related document such as a Supreme Court decision. It refers to the meaning of "natural born citizen" in the Constitution, whatever the Supreme Court ultimately decides such meaning to be.

"Statutory natural born citizen" refers to someone who is deemed a "natural born citizen" as a result of a Federal or State law.

Currently, there is no Federal law that explicitly defines "natural born citizen" or explicitly conveys "natural born citizenship" to anyone. However, existing laws are sometimes understood or interpreted as conveying natural born citizenship to certain individuals at birth. At this point, we do not pass judgment on these understandings and interpretations. We merely say that, if someone is deemed to be a "natural born citizen" pursuant to a law or statute, we refer to such person as a "statutory natural born citizen".

A statutory natural born citizen is not necessarily the same thing as a Constitutional natural born citizen. The U.S. State Department warns against confusing the two concepts:

...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 (Top of page 9, in U.S. Department of State Foreign Affairs Manual -- 7 FAM 1130)

If we were to define "natural born citizen" to mean anyone who is a "citizen at birth", our definition of "natural born citizen" would be statutory because it would depend on the statute or law which defines "citizen at birth". Under existing law, all children born in the United States (except the children of foreign diplomats) are "citizens at birth". Therefore, under existing law, almost all children born in the U.S. -- including children of illegal immigrants -- could be regarded as statutory natural born citizens.

H.R.1940, also known as the Birthright Citizenship Act of 2007, would change the existing law so that it would no longer grant "citizenship at birth" to children of illegal immigrants. If Congress were to pass H.R.1940, it would alter the meaning of "citizen at birth", and therefore would alter our statutory definition of natural born citizen. If H.R.1940 were enacted, the U.S.-born children of illegal immigrants could no longer be regarded as statutory natural born citizens.

To summarize:

"Statutory natural born citizen" is the meaning of "natural born citizen" when such meaning depends on a Federal or State law. As Federal and State laws change, the meaning of "statutory natural born citizen" changes accordingly.
"Constitutional natural born citizen" is the meaning of "natural born citizen" as used in the Constitution.

If Barack Obama was born in Hawaii, he could be regarded as a statutory natural born citizen. But a statutory natural born citizen is not necessarily a Constitutional natural born citizen.

9. Wouldn't the most recent modern-day statutory meaning of "natural born citizen" take precedence over the original Constitutional meaning?

Not necessarily. The only proper and legitimate means of changing the Constitution is the Constitutional Amendment process. Congress cannot change the Constitution by simply passing a law. Nor can the Constitution be changed by someone's understanding or interpretation of an existing law.

Neither Congress nor society can change the meaning of the Constitution by redefining a word or term that the Constitution uses. As the U.S. State Department has warned (see Question 8), we cannot assume that "natural born citizen" by modern-day statute or modern-day word usage is the same thing as "natural born citizen" in the Constitution.

10. If Obama is not a "Constitutional natural born citizen", so what? Why should anyone care?

Understandably, some Americans question the wisdom of "enforcing the law" and "upholding the Constitution" when the specific requirement being upheld or enforced seems to be an antiquated technicality. As long as Barack Obama is doing his job as president, why should his parents' citizenship matter? Obama was elected president, not his parents. His parents passed away many years ago, so how is their citizenship relevant? Is enforcing a parental citizenship requirement really worth the horrific political chaos and unimaginable governmental disruption that might result if Obama were found to be ineligible?

Obama eligibility questioners make three points:

If the Constitution contains something that is no longer appropriate for modern-day society, the proper remedy is a Constitutional Amendment. If we want to be a nation that is ruled by law and the Constitution, we cannot simply dismiss Constitutional requirements, merely because they are inconvenient or we think they don't matter anymore. If any one part of the Constitution doesn't matter, why would any other part of the Constitution matter?
In order to have confidence in their government, the American people need to know, with reasonable certainty, that their elected officials are holding office legally. This confidence is especially important among our men and women in uniform, who have sworn an oath to "support and defend the Constitution of the United States against all enemies, foreign and domestic". We have at least a moral obligation to give our military, as much as we reasonably can, confidence that their Commander in Chief is upholding the Constitution they risk injury or death to defend. If there is any "reasonable" doubt -- i.e., doubt based on fact, not conjecture or speculation -- regarding the President's Constitutional eligibility, we have a duty to do whatever we can to resolve this doubt, because it is the right and proper thing to do.
The Constitution affirms, defends and protects many of our rights -- free speech, freedom of religion, privacy, trial by jury, and so on. If we say it's okay to ignore the Constitution regarding Obama's eligibility, we open the door for someone else to say it's okay to ignore the Constitution regarding our rights as citizens.

Edwin Vieira, one of this nation's leading Constitutional scholars, warns that Obama's questionable eligibility, if left resolved, could become precedent and justification for unraveling Constitutional authority in the future:

The "burden of establishing a delegation of power to the United States ... is upon those making the claim." Bute v. Illinois, 333 U.S. 640, 653 (1948). And if each of the General Government's powers must be proven (not simply presumed) to exist, then every requirement that the Constitution sets for any individual's exercise of those powers must also be proven (not simply presumed) to be fully satisfied before that individual may exercise any of those powers.
The Constitution's command that "[n]o Person except a natural born Citizen ... shall be eligible to the Office of President" is an absolute prohibition against the exercise of each and every Presidential power by certain unqualified individuals. Actually (not simply presumptively or speculatively) being "a natural born Citizen" is the condition precedent sine qua non for avoiding this prohibition. Therefore, anyone who claims eligibility for "the Office of President" must, when credibly challenged, establish his qualifications in this regard with sufficient evidence. ...
If Obama turns out to be nothing more than an usurper who has fraudulently seized control of the Presidency, not only will the Constitution have been egregiously flouted, but also this whole country could be, likely will be, destroyed as a consequence. And if this country is even credibly threatened with destruction, every American will be harmed -- irretrievably, should the threat become actuality -- including those who voted or intend to vote for Obama, who are also part of We the People. Therefore, in this situation, any and every American must have "standing" to demand -- and must demand, both in judicial fora and in the fora of public opinion -- that Obama immediately and conclusively prove himself eligible for "the Office of President." (Vieira, italics and boldface are as they appear in the original)

11. Why has every birther lawsuit been denied or dismissed?

So far, every lawsuit challenging Obama's presidential eligibility has been either denied without comment or dismissed on a technicality -- lack of standing, lack of jurisdiction, mootness, etc. So far, neither the Supreme Court nor any other court has considered, in an open hearing, the actual substance or merit of any of these cases. Although some judges have expressed personal opinions, or dicta, regarding Obama's eligibility, no court -- as of the time of this writing -- has ruled on whether or not Barack Obama is a Constitutional natural born citizen.

12. What is a 14th Amendment natural born citizen?

According to the "14th Amendment natural born citizen" theory, the 14th Amendment, ratified in 1868, implicitly redefined, or at least clarified, the meaning of "natural born citizen"; and under this new or clarified meaning, Barack Obama is a "natural born citizen".

The 14th Amendment citizenship clause states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. (Constitution - Amendment 14)

Before the 14th Amendment was enacted, each State had the right to determine the citizenship of children born within its borders. Anyone who became a citizen of a State automatically became a citizen of the United States [27].

The 14th Amendment citizenship clause describes a category of people, which we call the "14th Amendment Citizen" (14AC) class. This 14AC class consists of every person who (a) was born or naturalized in the United States, and (b) was subject to U.S. jurisdiction at the time of his or her birth or naturalization.

The 14th Amendment requires every State to recognize, as U.S. citizens, all persons belonging to the 14AC class. Each State may grant or deny citizenship to non-14AC people. But the 14th Amendment prohibits any State from denying citizenship-related rights, privileges and benefits to 14AC-class members.

The citizenship clause of the 14th Amendment only mentions citizens. It does not mention natural born citizens. Nevertheless, it is argued that the 14th Amendment implies that a "natural born citizen" is anyone who meets two requirements:

born in the United States, and
subject to U.S. jurisdiction at the time of his or her birth.

Barack Obama was born in Hawaii, which was, in 1961, a part of the United States. Therefore he met the first requirement. His mother was a U.S. citizen; and his father, though not a U.S. citizen, was nevertheless in the United States legally. Therefore, Barack Obama, at the time of his birth, was under the territorial and legal jurisdiction of the United States, and thus met both requirements of natural born citizenship according to the 14th Amendment.

Three objections have been raised against the "14th Amendment natural born citizen" theory:

It is not consistent with the meaning of "jurisdiction" as defined by the framers of the 14th Amendment.
It is not consistent with the Supreme Court opinion in Marbury v. Madison (1803) regarding Constitutional interpretation.
The Supreme Court has implicitly rejected the notion that the meaning of "natural born citizen" can be ascertained or derived from the 14th Amendment.

(1) Originally intended meaning of "jurisdiction": According to transcripts of the Congressional debates regarding the 14th Amendment, the word "jurisdiction", as used in the 14th Amendment, means sole and complete U.S. jurisdiction, i.e., not subject to any foreign power. President Obama admits that his citizenship status at birth was "governed" by the laws of a foreign country. Since the President's birth was not subject to sole and complete U.S. jurisdiction, he does not qualify for citizenship under the 14th Amendment. President Obama might be a U.S. citizen at birth by modern-day statute, but he is not a U.S. citizen at birth according to the originally intended meaning of the 14th Amendment. (See Question 13).

(2) Marbury v. Madison (1803): The "14th Amendment natural born citizen" argument is not consistent with the Supreme Court's opinion in Marbury v. Madison (1803). In that opinion, Chief Justice Marshall stated:

It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it. (Marbury v. Madison, 1803)

All persons are subject to U.S. legal and territorial jurisdiction while they are in the United States. If the word "jurisdiction", in the 14th Amendment, is interpreted to mean territorial and legal jurisdiction only, then all persons born or naturalized in the United States are automatically under U.S. jurisdiction at the time of their birth or naturalization. This would mean that the phrase, "subject to the jurisdiction thereof," is redundant and without any unique effect.

In the Fourteenth Amendment, there are two requirements: birth or naturalization in the United States and within the jurisdiction of the United States. If all persons who are born in the United States were ipso facto born within its jurisdiction, then the jurisdiction clause would be rendered superfluous. But a singular requirement of a written constitution is that no interpretation can render any part of the constitution to be without force or meaning. (Erler, pp.191-192)

According to Chief Justice Marshall, we cannot interpret the Constitution in a manner that renders a portion of the Constitution to be without effect. In order to have any effect, the word "jurisdiction", in the 14th Amendment, must mean something more than territorial and legal jurisdiction only [31].

(3) Implicit Supreme Court rejection: In Minor v Happersett (1874), the Supreme Court said that the meaning of "natural born citizen" is not found in the U.S. Constitution:

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. (Minor v Happersett, 1874)

In 1898, the Supreme Court repeated the same point -- that the meaning of "natural born citizen" cannot be determined from the U.S. Constitution alone:

The Constitution of the United States, as originally adopted, uses the words "citizen of the United States," and "natural-born citizen of the United States." ... The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. (U.S. v. Wong Kim Ark, 1898)

In Minor v. Happersett (1874) and in U.S. v. Wong Kim Ark (1898), the Supreme Court rejected the notion that the meaning of "natural born citizen" can be ascertained from the Constitution, without reference to legal and historical sources outside the Constitution. When both cases were decided, the 14th Amendment (ratified in 1868) was part of the Constitution. If the meaning of "natural born citizen" cannot be determined from the Constitution, it cannot be determined from the 14th Amendment.

13. What was the originally intended meaning of "jurisdiction" in the 14th Amendment?

On April 9, 1866, Congress passed the Civil Rights Act of 1866, which stated:

All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States (1866 Civil Rights Act)

Two months later, Congress finalized the wording of the 14th Amendment and presented it to the States for ratification:

The United States Congress proposed the Fourteenth Amendment on June 13, 1866 and on July 9, 1868, three-fourths of the states (28 of 37) had ratified the amendment. (Wikipedia: Fourteenth Amendment)

The 14th Amendment stated:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. (Constitution - Amendment 14)

Since Congress proposed the 14th Amendment only two months after it passed the Civil Rights Act of 1866, it is unlikely that the meaning of "subject to the jurisdiction thereof" (in the 14th Amendment) contradicts the meaning of "not subject to any foreign power" (in the 1866 Civil Rights Act).

If someone was subject to a foreign power at birth, it is unlikely that the 14th Amendment and the 1866 Civil Rights Act would have treated him or her differently. It is unlikely that the 14th Amendment would have granted citizenship to an individual whom the 1866 Civil Rights Act would have denied citizenship to.

The 1866 Congressional debates confirm that the two citizenship clauses -- the one in the 14th Amendment, and the one in the 1866 Civil Rights Act -- were intended to have the same meaning and effect. During those debates, the primary framers of the 14th Amendment citizenship clause, Sen. Jacob Howard and Sen. Lyman Trumbull, made it clear that "jurisdiction", as used in the 14th Amendment, means sole and complete U.S. jurisdiction, i.e., not subject to any foreign power:

Sen. Lyman 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 "complete jurisdiction thereof?" Not owing allegiance to anybody else. That is what it means.
Sen. Jacob 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. (Madison(2007))

In 1873, the Supreme Court said that the U.S.-born children of foreign citizens are not subject to U.S. jurisdiction, therefore are not U.S. citizens under the 14th Amendment:

'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.' ... 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)

In 1884, the Supreme Court reiterated that an individual is a 14th Amendment citizen only if the United States has complete jurisdiction over such individual at the time of her or his birth or naturalization:

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. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized... (Elk v. Wilkins, 1884)

Sole and complete U.S. jurisdiction was a core requirement for 14th Amendment citizenship. The 14th Amendment granted citizenship to emancipated slaves and their descendants, because they were, and have always been, under sole and complete U.S. jurisdiction. Native American Indians were subject to tribal jurisdiction, thus were not under sole and complete U.S. jurisdiction. Consequently, the 14th Amendment did not grant citizenship to American Indians, even though virtually all American Indians were born in the United States.

On his web site, President Obama claims that his father was a British subject and that, in 1961, the citizenship status of children of British subjects was "governed" by the British Nationality Act of 1948.

If Obama's citizenship status at birth was "governed" by the laws of a foreign country, how could he, at birth, be subject to sole and complete U.S. jurisdiction, which is an essential requirement for 14th Amendment citizenship?

14. Doesn't the Wong Kim Ark decision make Obama a "natural born citizen"?

Wong Kim Ark was born in the United States in 1873. His parents were Chinese immigrants and permanent legal residents of the United States, but were not U.S. citizens. In U.S. v. Wong Kim Ark (1898), the Supreme Court ruled, in a 6 to 2 decision, that Wong was a U.S. citizen at birth:

The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative. (Horace Gray, Majority Opinion, U.S. v. Wong Kim Ark, 1898)

The Wong Kim Ark case does not directly apply to Barack Obama's presidential eligibility, for two reasons:

The Supreme Court did not rule that Wong was a natural born citizen. It merely ruled that he was a citizen. Even if Barack Obama's circumstances at birth were identical to those of Wong Kim Ark, the Court's ruling would, at most, only convey citizenship to the President. It would not convey natural born citizenship, which is what the President needs in order to be eligible to hold office.
Wong was granted citizenship because, at the time of his birth, his parents had "permanent domicile and residence" in the United States and was "carrying on business" in the United States. President Obama's father did not meet these conditions. He was not a permanent resident and he was not doing business in the U.S. He was visiting the U.S. temporarily, for the purpose of getting an American education.

In the majority opinion, Justice Horace Gray cited sources which seem to suggest natural born citizenship requires something more than birth on U.S. soil. For example, he quoted the following from Minor v. Happersett (1874):

At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children, born in a country of parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class, there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. (Minor v. Happersett (1874), as quoted in U.S. v. Wong Kim Ark (1898))

Justice Gray also quoted from an article, by Horace Binney, which used the term "natural born" in connection with a child of a U.S. citizen, but not in connection with a U.S.-born child of an alien. In Binney's opinion, both children were U.S. citizens, but only the U.S.-born child of a citizen was labeled "natural born":

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. (Horace Binney, as quoted in U.S. v. Wong Kim Ark (1898))

Nevertheless, Obama eligibility supporters argue that, even though the Court did not hold that natural born citizenship is determined by birthplace alone, Justice Gray's reasoning leads to that conclusion.

Under English common law, all children born on English soil (except the children of foreign diplomats and alien enemies) were natural-born subjects. According to Justice Gray, English common law "continued to prevail" under the Constitution, suggesting that the jus soli principle of English common law controlled the Constitutional meaning of natural born citizen.
Justice Gray cited Lynch v. Clarke (1844), in which Vice Chancellor Sandford had ruled that Julia Lynch was a U.S. citizen at birth. Miss Lynch was born in New York, but at the time of her birth, her parents were not U.S. citizens. In his dicta (side commentary), the Vice Chancellor expressed his opinion that Julia Lynch was not only a U.S. citizen at birth, but also a natural born citizen.
In the dissenting opinion in U.S. v. Wong Kim Ark, Justice Fuller mentioned natural born citizenship:
Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that "natural-born citizen" applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not. (C.J. Fuller, Dissenting Opinion, U.S. v. Wong Kim Ark, 1898)

Why would Justice Fuller have mentioned "natural born citizen" in his dissenting opinion, unless he believed that the majority's reasoning, when carried to its logical conclusion, affected the term's meaning?
In United States v. Low Hong (1919), the defendant was born in the United States, but was subject to deportation, presumably because his parents were, at the time of his birth, aliens not permanently or legally residing in the U.S. The Fifth Circuit Court of Appeals issued dicta that the defendant was a "natural born citizen" according to the reasoning of U.S. v. Wong Kim Ark (The Federal Reporter Vol 261, 1920, p.74) [32]
According to Judge Dreyer (Ankeny v. Indiana, 2009), the Supreme Court did not rule that Wong Kim Ark was a natural born citizen but the Court's reasoning seems to imply that he was:
Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, 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. (David J. Dreyer, Ankeny v. Indiana, 2009, boldface emphasis added) [33]

Based on these and other considerations, some Obama eligibility supporters have argued that Justice Gray's reasoning, when carried to its logical conclusion, supports their viewpoint that natural born citizenship is determined by birthplace alone, without regard to parental citizenship.

English Common Law: In U.S. v. Wong Kim Ark, the Court's reasoning was based largely on the English common law "rule" that, generally speaking, children born on English soil were, at birth, English natural-born subjects, regardless of whether their parents were subjects or aliens. According to the majority's opinion, this "rule" of English common law was "in force" when the U.S. Constitution was being written and thereafter "continued to prevail" in the United States:

It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore 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. (Page 169 U. S. 658, U.S. v. Wong Kim Ark, 1898)

In his dissenting opinion, Justice Fuller argued that the majority was factually incorrect on this point. Regarding the "rule" of English common law, the minority and majority disagreed, not over a legal issue, but over a matter of historical fact:

And it is this rule, pure and simple, which it is asserted determined citizenship of the United States during the entire period prior to the passage of the act of April 9, 1866, and the ratification of the Fourteenth Amendment, and governed the meaning of the words "citizen of the United States" and "natural-born citizen" used in the Constitution as originally framed and adopted. I submit that no such rule obtained during the period referred to, and that those words bore no such construction... (Justice Fuller, Dissenting Opinion, Wong Kim Ark, 1898)

Federalist Blog author, P.A. Madison, argues that Justice Fuller was correct. When the original thirteen colonies gained their independence and became States, many of them retained aspects of English common law for their own convenience. But English common law did not "continue to prevail" at the Federal or national level (Madison(2006)).

George Mason (1725-1792), called the "Father of the Bill of Rights" and considered one of the "Founding Fathers" of the United States, is widely quoted as saying:

The common law of England is not the common law of these states. (Debate in Virginia Ratifying Convention, 19 June 1788)

In 1884, the following commentary appeared in the prestigious American Law Review:

In Wheaton v. Peters, the Supreme Court say: "It is clear there can be no common law of the United States. The Federal government is composed of twenty-four sovereign and independent states, each of which may have its local usages, customs and common law. There is no principle which pervades the Union and has the authority of law, that is not embodied in the constitution or laws of the Union. The common law could be made a part of our Federal system only by legislative adoption." ...
There is nothing in the constitution to indicate that the term "citizen" was used in reference to the common-law definition of "subject," nor is there any act of Congress declaratory of the common-law doctrine, and the subject of citizenship being national, questions relating to it are to be determined by the general principles of the law of nations. (Collins)

In a recent speech to the Federalist Society, Supreme Court Justice Antonin Scalia confirmed that English common law did not "control" at the national or Federal level after the United States gained its independence from Great Britain:

The common law is gone. The federal courts never applied the common law and even in the state courts it's codified now. (Audio/Video: Justice Scalia speech, Nov 22, 2008)

Original Intent: In delivering the majority opinion in U.S. v. Wong Kim Ark, Justice Gray admitted that he had "presumed" that the phrase "subject to the jurisdiction thereof", in the 14th Amendment, meant territorial and legal jurisdiction only. Evidence regarding the Framers' original intent, as expressed during the Congressional debates over the 14th Amendment, was deemed "not admissible".

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. (Wong Kim Ark, 1898).

The Supreme Court did not consider evidence showing that the originally intended meaning of "jurisdiction" was sole and complete jurisdiction. (For a discussion of the originally intended meaning of "jurisdiction" in the 14th Amendment, see Question 13). According to the Federalist Blog, the Court's refusal to consider such evidence was "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 John Paul Stevens, as quoted by Madison(2006))

Chester Arthur: Wong Kim Ark's circumstances, though different from Barack Obama's, were similar to those of President Chester Arthur. Mr. Wong and President Arthur were born in the United States. When each was born, his father was a permanent legal U.S. resident but not a U.S. citizen.

Chester Arthur became vice president in 1880, and became president after James Garfield was assassinated in 1881. At the time, the general public seemed unaware that, when Chester Arthur was born in 1829, his father, William Arthur, was a British subject and not a U.S. citizen (Historical Breakthrough - Chester Arthur).

In 1884, President Arthur admitted that there were doubts concerning the citizenship status of U.S.-born persons (such as himself) whose parents intended to become naturalized U.S. citizens but had not yet done so:

Our existing naturalization laws also need revision. ... Section 2172, recognizing the citizenship of the children of naturalized parents, is ambiguous in its terms... An uniform rule of naturalization, such as the Constitution contemplates, should, among other things, clearly define the status of persons born within the United States subject to a foreign power and of minor children of fathers who have declared their intention to become citizens... (Chester Arthur, 1884, as quoted by Long)

Prior to 1898, there were two cases in which an elected Federal official was found to be constitutionally ineligible to the office he was holding: Senator Albert Gallatin (1793), and Senator James Shields (1849). In both cases, the ineligible official was removed from office, and every official action that he took while in office was nullified and erased. Thus, in 1898, if the general public had learned of Chester Arthur's dual citizenship at birth, and if the ensuing public hearings had determined that he was ineligible, all of his judicial appointments might have been reversed.

During his three-year presidency, Chester Arthur made 19 judicial appointments: two to the Supreme Court, four to United States circuit courts, and thirteen to the United States district courts. In 1882, he appointed Samuel Blatchford and Horace Gray to the U.S. Supreme Court. President Arthur also appointed David Josiah Brewer to the U.S. 8th Circuit Court in 1884. In 1889, President Harrison appointed Brewer to the U.S. Supreme Court.

Blatchford died in 1893. When the Wong Kim Ark case was decided in 1898, two members of the Supreme Court -- Horace Gray and David Brewer -- had been Arthur appointees at some point during their careers. Both voted with the majority in the Wong Kim Ark case.

The Supreme Court did not rule that Wong was a natural born citizen. But according to some Obama eligibility supporters, the Court's reasoning seems to imply that all children born in the United States (except the children of foreign diplomats and alien enemies) are natural born citizens, which would mean that Chester Arthur was a natural born citizen and thus eligible to serve as president.

Was the Supreme Court's reasoning in U.S. v. Wong Kim Ark influenced by a desire to implicitly grant natural born citizenship posthumously to Chester Arthur, so as to retroactively legitimize his presidency and thereby protect the legacies and careers of his judicial appointees? (Wrotnowski supplemental brief regarding Chester Arthur).

Summary: In Wong Kim Ark, the Supreme Court made two assertions: that the jus soli principle of English common law "continued to prevail under the Constitution", and that, in the 14th Amendment, "jurisdiction" meant something less than sole and complete jurisdiction. The historical veracity of these two assertions has been questioned by multiple sources [34].

15. Doesn't the Julia Lynch case show that Barack Obama is a "natural born citizen"?

Julia Lynch was born in New York in 1819. At the time of her birth, her parents were not U.S. citizens -- they were Irish subjects of Great Britain, visiting the United States. Shortly after Julia's birth, the Lynch family returned to Ireland, where Julia remained until adulthood.

In Lynch v Clarke (1844), a New York State court ruled that Julia was a New York citizen at birth. At the time, each State decided, for itself, who were and who were not its citizens. Anyone who was a citizen of any State was automatically a citizen of the United States [27].

The New York State court did not rule that Julia Lynch was a natural born citizen. The meaning of "natural born citizen" in the Federal Constitution is strictly a Federal matter, which had nothing to do with Julia's State citizenship under New York State law. Nevertheless, Vice-Chancellor Lewis Halsey Sandford, who presided over this case, expressed his personal opinion, or dicta, that Julia Lynch was a U.S. natural born citizen:

After an exhaustive examination of the law, the Vice-Chancellor said that he entertained no doubt that every person born in within the dominions and allegiances of the United States, whatever the situation of his parents, was a natural-born citizen; and added, that this was the general understanding of the legal profession, and the universal impression of the public mind. (Cases on Constitutional Law - Part 2, pp.581-582)

An article in the New York Legal Observer elaborated:

The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not. The position would be decisive in his favor that by the rule of the common law, in force when the constitution was adopted, he is a citizen." (Dicta from Lynch v. Clarke (1844), cited by Article in New York Legal Observer, pp.246-247).

Later in American history, the Opinion of Lincoln's Attorney General Edward Bates (1862), the Opinion of U.S. Secretary of State William Marcy (1854), and the dissenting opinion in Dred Scott v. Sandford (1856), echoed the same viewpoint -- that you are a U.S. citizen (and presumably a U.S. natural born citizen as well) if you were born in the United States, regardless of your parents' citizenship at the time of your birth.

In 1866, George Bancroft wrote:

...everyone who saw the first light on the American soil was a natural-born American citizen (Bancroft, p.201)

In 1829, William Rawle expressed the same opinion -- that natural born citizenship is determined by birthplace alone:

Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity. (Rawle)

Opposing Viewpoints: Throughout American history, some "authorities" have expressed the opinion that birth within the United States is, by itself, sufficient to confer natural born citizenship. Other authorities have expressed an opposing opinion -- that citizenship at birth properly belongs only to children whose parents are U.S. citizens.

In 1789, two years after the Constitution was adopted, David Ramsay argued that a child naturally receives, at birth, the citizenship of its father:

[Birthright citizenship] ... is confined exclusively to the children of those who were themselves citizens. ... The citizenship of no man could be previous to the declaration of independence, and, as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776. ... From the premises already established, it may be farther inferred, that citizenship, by inheritance, belongs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring. (Ramsay)

In 1820, Virginia Representative A. Smyth said:

When we apply the term "citizens" to the inhabitants of States, it means those who are members of the political community. The civil law determined the condition of the son by that of the father. A man whose father was not a citizen was allowed to be a perpetual inhabitant, but not a citizen, unless citizenship was conferred on him. (Rep. A. Smyth (VA), House of Representatives, December 1820, in Abridgment of the Debates of Congress, from 1789 to 1856, Vol VII, 1858, p.30)

In 1845, an article, entitled ""Massachusetts and South Carolina", appearing in The New Englander, explained that, in the U.S. Constitution, the term "natural born citizen" means a U.S. citizen not owing allegiance, at birth, to any foreign state:

The expression 'citizen of the United States' occurs in the clauses prescribing qualifications for Representatives, for Senators, and for President. In the latter the term 'natural born citizen' is used, and excludes all persons owing allegiance by birth to foreign states; in the other cases the word 'citizen' is used without the adjective, and excludes persons owing allegiance to foreign states, unless naturalized under our laws. ("Massachusetts and South Carolina", The New Englander, Volume 3, 1845, p.414)

In 1894, The Nation magazine reported an opinion by Thomas Bayard, who was U.S. Secretary of State under Grover Cleveland. In Bayard's opinion, the U.S.-born child of alien parents was not subject to U.S. jurisdiction at the time of its birth, therefore was not a U.S. citizen at birth:

In 1885, Secretary Bayard decided that the son of a German subject, born in Ohio, was not a citizen under the statute or the Constitution, because "he was on his birth 'subject to a foreign power,' and 'not subject to the jurisdiction of the United States'" (The Nation, Vol.59, No.1521, August 23, 1894, p.134, near bottom of right-most column)

In 1884, an article by George Collins, appearing in the American Law Review (1884), criticized the Lynch v. Clark ruling:

In Lynch v. Clark, the vice-chancellor held that the common-law doctrine -- that the place of birth and not the nationality of the father determined the political status of the child -- was applicable to the United States, constituted a part of the jurisprudence thereof, and that accordingly a person born within the United States, whose father at the time of such birth was an alien, was a citizen of the United States. This case, aside from its fallacious and unsound reasoning, can not be upheld upon principle. It is well settled that the common law is not part of the jurisprudence of the United States. (Collins)

In 1904, Alexander Porter Morse argued that parental citizenship is essential to natural born citizenship; one cannot be a natural born citizen unless one's parents were citizens at the time of one's birth:

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)

In 1916, attorney Breckinridge Long argued that Republican presidential candidate Charles Evans Hughes was not eligible to serve as president. Hughes was born in the United States, but at the time of his birth, his father was not a U.S. citizen. In Long's Legal Analysis, a U.S.-born child of a non-citizen father is not a natural born citizen of the United States:

It must be admitted that a man born on this soil, of alien parents, enjoys a dual nationality and owes a double allegiance. A child born under these conditions has a right to elect what nationality he will enjoy and to which of the two conflicting claims of governmental allegiance he will pay obedience. Now if, by any possible construction, a person at the instant of birth, and for any period of time thereafter, owes, or may owe, allegiance to any sovereign but the United States, he is not a "natural born" citizen of the United States. If his sole duty is not to the United States Government, to the exclusion of all other governments, then, he is not a "natural born" citizen of the United States. (Long)

Thus throughout American history, there has been an ongoing dispute between:

authorities who believe that natural born citizenship is determined by birthplace alone; and
authorities who believe that parental U.S. citizenship is a requirement for U.S. natural born citizenship.

So far, the Supreme Court has not settled this dispute. In 1874, the Supreme Court said there were "doubts" regarding the natural born citizenship of U.S.-born children of non-citizen parents, but so far, the Court has not resolved those doubts [35].

Case Law: Although some authorities, throughout history, have expressed the opinion that birth on U.S. soil is, by itself, sufficient to confer U.S. citizenship, there is no pre-Civil War case law, other than Lynch v. Clarke, supporting that viewpoint:

Lynch v. Clarke [1844] 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 Ludlum v. Ludlum, 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)

A later New York State case, Munro v. Merchant (1858), contains this summation:

A child born in this state of alien parents, during its mother's temporary sojourn here, is a native born citizen.

The summation, however, does not reflect the actual ruling in the Munro v. Merchant case. The Court said that if (emphasis on the word "if") Lynch v. Clarke were law, it would be relevant to the plaintiff's citizenship at birth. But, in Munro v. Merchant, the Court was not required to decide the plaintiff's citizenship at birth.

In Lynch v. Clarke, (1 Sand. Ch. R. 583,) the question was precisely as here, whether a child born in the city of New York of alien parents, during their temporary sojourn there, was a native born citizen or an alien; and the conclusion was, that being born within the dominion and allegiance of the United States, he was a native born citizen, whatever was the situation of the parents at the time of the birth. That case, if law, would seem to be decisive of the present question, But, admitting the plaintiff to be an alien, the cases already cited show that the terms "heirs or assigns," in the 9th article of the treaty, is not to be confined to the immediate descendants, but is to be extended indefinitely till the title comes to a citizen. (Munro v. Merchant, Reports of cases in law and equity in the Supreme Court of the State of New York, 1858, p.400)

Summary: In Lynch v. Clarke (1844), Vice-Chancellor Sandford ruled that Julia Lynch was a citizen at birth, even though her parents were not citizens at the time of her birth. The ruling was exceptional. It was the only one in U.S. history that found that jus soli alone determined citizenship. In his dicta, the Vice-Chancellor expressed his (non-legally-binding) opinion that Miss Lynch, in addition to being a citizen, was also a natural born citizen. The fact that Miss Lynch was deemed to be a natural born citizen according to a State judge's dicta does not necessarily mean that she was a natural born citizen under the Federal Constitution (see Question 8).

16. What was an English "natural-born subject"?

During the eighteenth century, persons living in England and its American colonies fell into two categories: "foreigners" and "the people".

The people of England -- a group that William Blackstone referred to as "the denomination of the people" (Blackstone) -- were those who had settled in English-controlled territory, owed allegiance to the English king, and were under the king's protection [36].
Foreigners lived in English-controlled territory but did not settle there. Foreigners did not owe allegiance to the English king and were not under the king's protection, although the king did provide safe-conduct for them [37].

The English "people" were comprised of "subjects" and "aliens", but did not include "foreigners".

Subjects could possess English property, and in many cases, could pass it to their heirs.
Aliens could purchase or rent a place in which to live, but could not possess, inherit or bequeath English real estate to the same extent that subjects could.

The "people" (subjects and aliens alike) were individuals whose domicile was within English territory. "Foreigners" maintained long-term habitation, but not domicile, within the king's realm. (See Appendix 1 regarding the eighteenth-century meaning of "domicile").

Foreigners included:

members of a religious order run by an authority located outside of England;
ambassadors from foreign countries;
member of foreign royalty; and
some (not all) foreign merchants visiting England for business or trade.

The "people of England" included "aliens" but did not include "foreigners":

Blackstone separated the law into four "books": "Book The First" focuses on the "Rights of Persons," what a modern lawyer might call constitutional law. Here he addresses the relationships between masters and servants, parents and children, and husbands and wives. In chapter 10, he specifically addresses the rights "of the People, whether Aliens, Denizens, or Natives," specifying that aliens, not foreigners, "fall under the denomination of the people" who deserve rights within the realm. (Berry, p.339)

The "people" -- subjects and aliens alike -- were under the king's protection (at least while they were on English soil) and owed allegiance to the king. If subjects or aliens committed a crime against the king, they were charged with treason. On the other hand, "foreigners" did not owe allegiance to the king and therefore were not under the king's protection, although the king did provide safe-conduct for them. If foreigners committed a crime against the king, they were prosecuted under martial law, not as traitors.

By mentioning "alien or foreigner," Cunningham makes the same differentiation Hamilton and Representatives Vining and Stone did. There is a difference: "alien or foreigner." Cunningham differentiates here because although "foreigners" will "be dealt with by martial law," on the other hand, "aliens," "living under the protection of the King . . . may be punished only as traitors." An "alien," because of the status as part of "the People," will be punished differently than a "foreigner," but in the same manner as a denizen or citizen/subject. (Berry, p.350)

"Aliens" and "foreigners" were citizens or subjects of a foreign country. The difference was their residency status. Aliens were domiciled legal residents of England or its colonies; foreigners were not. Although foreigners lived on English soil, they did not "settle" or establish a domicile there.

...[Blackstone] refers to monks who populated "alien priories" in England's past as "foreigners." An alien priory was a monastic establishment owing obedience to a mother abby in a foreign country, and was therefore not under the king's protection, and consequently its foreign-born inhabitants would not be "aliens"; as Blackstone clarifies, the priories "were filled by foreigners only"; not "aliens."
Ambassadors fall into a similar category, since they continue to owe allegiance only to their sovereign, and embassies -- like priories -- were considered extensions of the ambassador's country. (Berry, pp.342-3)

Allegiance: The people of England -- subjects and aliens alike -- owed "allegiance" to the English king, at least while they were on English soil. "Allegiance" was a two-way committed relationship between the king and an individual. The king was responsible for governing and protecting the individual; and the individual was obligated to give her/his faith, loyalty and obedience to the king.

"Subjects" owed permanent allegiance to the English king. Their "allegiance" was a lifelong obligation to serve and obey the king, in return for the king's lifelong protection and governance. From time to time, subjects might owe temporary allegiance to a foreign monarch; but their permanent allegiance was to the English king exclusively.
"Aliens" owed temporary allegiance to the English king. Their allegiance remained in effect only while they were within English territory. As soon as they left the king's realm, their allegiance to the king terminated, at which time, they ceased to be aliens and became, instead, foreigners.
"Foreigners" did not owe any allegiance to the English king, even while they were within English territory.

There were four ways by which an individual could enter into the king's allegiance: by natural law, by man-made law, by residence, and by oath. Each produced a slightly different kind or flavor of allegiance:

Natural allegiance: According to the "laws of God and Nature," a child was automatically within the natural allegiance of the king, if such child was born within the king's territory, of parents who were within the kings "obedience".
Acquired allegiance: A person could receive the king's allegiance, as a gift, through man-made laws, acts of naturalization by Parliament, or letters patent issued by the king.
Local allegiance: Aliens residing within English territory owed local allegiance to the English king.
Legal allegiance: A person might enter into the king's allegiance by swearing an oath of allegiance to the king.

Subjects: A "subject" was defined as a person who had entered into the natural allegiance or acquired allegiance of the king. Persons with local allegiance or legal allegiance were not English subjects. Thus, when the U.S. Constitution was being written, there were only two kinds of English subjects: subditus natus (subjects born) and subditus datus (subjects made, or subjects by gift).

Subditus natus (subjects born) were defined as persons who were born with natural allegiance.
Subditus datus (subjects made) were defined as persons who received acquired allegiance, either at birth or at some point after birth. Such persons became English subjects by man-made laws, acts of naturalization by Parliament, or letters patent issued by the king.

Natural Allegiance: An important difference between subditus natus (subjects born) and subditus datus (subjects made) was that "subjects born" acquired natural allegiance at birth, but "subjects made" did not:

...the first is, ligeantia naturalis, absoluta, pura, et indefinita [natural, absolute, pure and unlimited allegiance], and this originally is due by nature and birthright, and is called alta ligeantia [high allegiance] and he that oweth this is called subditus natus [subject born].
The second is called ligeantia acquisita [acquired allegiance], not by nature but by acquisition or denization, being called a denizen, or rather donaizon, because he is subditus datus [subject made by gift]. (Coke)

Natural allegiance was established only at birth. If you did not have natural allegiance when you were born, you could never receive it in later life; you could receive acquired allegiance in later life, but not natural allegiance.

Natural allegiance had three main characteristics:

(1) Natural allegiance was personal. It was to the king himself, not his Crown or kingdom. One's natural allegiance was an obligation to serve and obey the person (or the legitimate successor of the person) who happened to be king at the time of one's birth:

And it was resolved, that [ligeance] was due to the natural person of the King ... and it is not due to the politic capacity only, that is, to his Crown or kingdom distinct from his natural capacity... (Coke)

The concept of personal allegiance originated in Feudalism:

Feudal government was always an arrangement between individuals, not between nation-states and citizens. ... There was no sense of loyalty to a geographic area or a particular race, only a loyalty to a person, which would terminate upon that person's death. (Feudalism)

(2) Natural allegiance was perpetual. A subject born did not have the right to expatriate himself from England. Whey you became an English natural-born subject, you were bound to remain an English natural-born subject for the rest of your life.

Seeing then that faith, obedience, and ligeance are due by the law of nature, it followeth that the same cannot be changed or taken away; ... (Coke)

Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislature. An Englishman who removes to France, or to China, owes the same allegiance to the king of England there as at home, and twenty years hence as well as now. For it is a principle of universal law, that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other; and cannot be divested without the concurrent act of that prince to whom it was first due. (Blackstone)

(3) Natural allegiance was exclusive. You could owe simple allegiance to more than one lord at the same time. But natural allegiance was to one, and only one, sovereign (see Question 21).

And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. (Blackstone)

Natural-born subject: The term "natural-born subject" referred to two distinct classes of English subjects: "true" natural-born subjects, and "statutory" natural-born subjects.

All subditus natus (subjects born) were "true" natural-born subjects. They acquired their subjecthood, at birth, by natural law. They acquired natural allegiance at birth.
Some, but not all, subditus datus (subjects made) received, from Parliament, "natural-born subject" status. They were given essentially the same rights, privileges and obligations as subjects born, despite the fact that subjects made did not acquire natural allegiance at birth. In other words, some, but not all, subjects made were deemed to be natural-born subjects, even though they were not natural-born subjects in fact.

As a general rule, there was no substantive legal difference between "true" natural-born subjects (those who were natural-born subjects by natural law) and "statutory" natural-born subjects (those who were deemed to be natural-born subjects by man-made law). There were some exceptions to the rule. For example, "true" natural born subjects were eligible to hold public office, but in some cases, "statutory" natural-born subjects were not. By in large, however, all natural-born subjects were treated the same, regardless of when or how they obtained their "natural-born subject" status.

Calvin's Case: In Calvin's Case of 1608, the English Court of the King's Bench defined who were, and who were not, "subjects born" (i.e., "true" natural-born subjects). The Court's ruling was still in effect, and was part of English common law, when the U.S. Constitution was written [38].

The Chief Justice of the Court of Common Pleas, Sir Edward Coke (pronounced "cook"), wrote a comprehensive Report explaining the Court's decision in detail. Coke's Reports, as well as his four-volume Institutes of the Lawes of England, were well known and widely read in the English colonies in America [39]. When the U.S. Constitution was written, the Founding Fathers were undoubtedly aware of Calvin's Case and the definition of natural subjecthood that had emerged from it.

The English Court ruled that, except in special cases, a child was "subject born" if two requirements were met at the time of the child's birth:

birthplace requirement: the child must be born within the king's realm, and
parental allegiance requirement: the child's parents must be within the obedience (allegiance) of the king at the time of the child's birth.

As Lord Coke explained:

There be regularly (unless it be in special cases) three incidents to a subject born. 1. That the parents be under the actual obedience 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)

In his New Abridgement of the Law (1736), Matthew Bacon gave this summation:

All those are natural-born subjects whose parents, at the time of their birth, were under the actual obedience of our King, and whose place of birth was within his dominions. (Bacon, Matthew, p.77).

Even if born on English soil, a child was not "subject born" unless, at the time of its birth, its parents were within the "allegiance", or "obedience", of the king.

... something more than mere birth within the realm was required. The parents had to be in actual obedience. (Parry)

The parental allegiance requirement was relatively easy to meet. Most people -- subjects and aliens alike -- who were living within English territory, were within the king's allegiance. Their children, if born on English soil, were natural-born subjects. Nevertheless, parental allegiance was an essential requirement. If your parents, at the time of your birth, were not within the allegiance of the king, you were not a "natural law" natural-born subject, regardless of your place of birth [40].

As J.M. Ross (1972) explains:

Lord Coke ... laid down the principle that any person born within the king's dominion became the king's subject at birth, provided that his parents were at the time under the actual obedience of the king; this proviso excluded any child born in England whose father was at the time the ambassador to England of a foreign power, and any child of an enemy alien... but apart from these two exceptions all persons born in England are subjects of the king whatever their parentage, because (apart from these exceptions) aliens living in this country are protected by the king and therefore owe him local allegiance. ...
... 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)

Summary: There were two kinds of English subjects:

Subjects born received natural allegiance -- at birth -- in accordance with the English theory of natural law;
Subjects made received acquired allegiance -- either at birth or at some point after birth -- by man-made statutes, naturalization by Parliament, or denization by letters patent issued by the king.

The term "natural born subject" had two distinct meanings:

"True" natural-born subjects were subjects born. They were born with natural allegiance to the English king.
"Statutory" natural-born subjects were subjects made who received, by law, essentially the same rights and obligations as subjects born. Statutory natural-born subjects included "statutory" subjects (foreign-born children of English fathers) and "naturalized" subjects (persons who received subjecthood through naturalization). These persons were deemed to be natural-born subjects; they were not natural-born subjects in fact.

In Calvin's Case, the England's highest court ruled that, except in special cases, a subject born was a person who was born within the king's realm, of parents who were within the king's allegiance. Almost all children born in England were subjects born ("true" natural-born subjects), because almost all children born in England were born of parents who were within the king's allegiance. Nevertheless, the ruling in Calvin's Case made it clear that birthplace alone did not confer natural-born subjecthood to anyone. If you were born on English soil but, at the time of your birth, your parents were not within the allegiance of the king, you were not an English natural-born subject. (For a more detailed discussion of Calvin's Case, see Question 19).

17. What was an English "citizen" before the American Revolution?

In England and its colonies before the American Revolution, an English "citizen" was a legal resident of an English or colonial American city, practiced a trade or conducted business in that city, and could vote and hold public office [41].

An English citizen was not the same thing as an English subject. Subjecthood was a vertical relationship between an individual (subject) and a sovereign (king) who protected the individual and ruled over him. Citizenship was a horizontal relationship between the individual (citizen) and his fellow citizens. Within a city, the citizens of that city shared civic responsibility and collectively govern themselves through their elected representatives.

Prior to the American Revolution, the inhabitants of England and its American colonies were divided into two groups: "foreigners" (in the international sense) and "the people". The people owed allegiance to the king; foreigners did not.

The "people" were further divided into "subjects" and "aliens". Subjects owed permanent allegiance to the king; aliens owed temporary allegiance to the king. Aliens were sometimes called "strangers".

English "subjects" were divided into two subgroups: free subjects and unfree subjects. Unfree subjects were sometimes called serfs, bondmen/bondwomen, indentured servants, or villeins.

Unfree subjects were not slaves. Unfree subjects had legal rights which slaves did not have:

One may be a villein in England, but not a slave. (Sir John Holt, Chief Justice of King's Bench, 1701, as quoted in Banks, pp.14-15)

In England, your servile status (free or unfree) at birth depended on the status of your father at the time of your birth. If your father was "free" when you were born, you were "free" at birth. If your father was not "free" at the time of your birth, your status at birth was "unfree".

...Sir Edward Coke, in one of the great treatises on the English common law, the four volume Institutes of the Laws of England, wrote that if a bondman or serf (villein) marries a free woman, their children would be villeine [unfree], but if a bondwoman (niefe) married a free man, their children would be free. According to Lord Coke, the English common law rule, that the status of the child follows the father, is grounded in the notion of marital unity. Under common law the legal identity and status of a wife merged with that of her husband; they became one in the eyes of the law, and that one was the husband. Therefore, the legal status of the father naturally governs the legal status of the child. ...
But Lord Coke's statement only governs the status of a legitimate child of a freeman and bondwoman. ...
Coke acknowledges that some judges have mistakenly held that an "illegitimate" child of a bondwoman is a villeine, and thus unfree. The correct rule, he writes, is that a child born to unwed parents is a child of no one (quasi nullius filius), because the child cannot be heir to anyone. Thus this child is not a villeine unless the child places her/himself in bond before a court. (Banks, pp.17-18)

There were various ways by which a subject's status could change from free to unfree, or from unfree to free. But a subject's status at birth was the status of his father -- except that an illegitimate child was, at birth, "free" by default.

Within a city or town, free subjects were further divided into "freemen" (citizens) and "foreigners" (non-citizens). In an international context, the word "foreigner" means a citizen or subject of a foreign country. But in an urban context, a "foreigner" in a city or town was anyone who was not a citizen of that city or town.

English freemen (citizens) had certain rights and privileges, called Freedom of the City, which foreigners (non-citizens) did not have. These rights and privileges included "economic" freedom (the right to conduct business or practice a trade in the city) and "political" freedom (the right to vote and hold public office).

Indeed, the importance of the freedom, i.e., the status of citizen, must not be underestimated... The citizen -- or freeman, as he was designated throughout the colonial period -- considered his citizenship a more highly prized right than does the average citizen of the present day. ...the title of freeman was not an empty one. Not only did it possess for him profound political significance, but it was the condition of his economic independence. Unless one were a freeman, he did not posses the right of suffrage, nor was he eligible to election to public office. Furthermore, non-freemen were not permitted to practice trades or carry on any business whatsoever. (Seybolt, p.3)

The all-important dividing line among townsmen was between freemen and non-freemen. Freedom of the city involved both privileges and obligations set down in local ordinances and enforced in the Lord Mayor's Court. The effect of these ordinances was to provide the freemen, or citizenry, with a virtual monopoly over both political and economic affairs. Only freemen could hold civic office and only freemen could vote in municipal and parliamentary elections. (John Evans, as quoted by Luu, p.60)

Noah Webster's American Dictionary (1828) defined "citizen" as:

The native of a city, or an inhabitant who enjoys the freedom and privileges of the city in which he resides; the freeman of a city, as distinguished from a foreigner, or one not entitled to its franchises. (Webster's Dictionary: citizen, 1828)

In 18th-century England, most English subjects did not have suffrage (the right to vote). In rural areas, a subject could vote only if he possessed property that produced at least 40 shillings per year of revenue. In a city or town (borough), a subject could vote only if he was a freeman ("citizen") of that city or town:

There were two types of seats in the Commons: county and borough, the latter meaning that the constituency was a particular town. Typically, the right to vote was earned, for county constituencies, by owning land valued at forty shillings per year. In "freeman boroughs," one could vote by being a "freeman," in other words by being granted the town's "freedom" -- the right to carry on one's trade within its walls. (Olsen, p.6)

There were several ways to become a citizen of an English city or town. The three most important were: birth, apprenticeship, and redemption.

birth: Someone could claim citizenship by birth if, at the time of his birth, his father was a citizen [42].
apprenticeship: If a boy, at age 14, entered a seven-year apprenticeship, and if he completed it successfully, he earned the right to become a citizen of his town or city.
redemption: A non-citizen could become a citizen by demonstrating a marketable skill and paying a redemption fee [43].

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)

In Colonial American cities and towns, every young person who was not of "independent living" was either (a) an apprentice engaged in learning and mastering a trade, or (b) a bondsman, i.e., serf or slave (Seybolt, p.4). Those who successfully completed their apprenticeships became, in adulthood, citizens of their town or city.

In England, you were eligible for apprenticeship only if, at the time of your birth, your parents were free English subjects. Prior to 1737, aliens and their children were barred from apprenticeship; the only way they could become freemen was through redemption:

A primary qualification for apprenticeship was that a boy or girl should be of free condition and not a villein. ...no "foreigner" should be enrolled as an apprentice unless he first swore that he was a free man and not a serf, and later serf is defined as the son of a man who was a serf at the time the boy was born. We may take this to mean that if a villein became of free condition by residence, his sons born subsequently were eligible for apprenticeship, but that sons born previously, even if they became of free condition themselves, were excluded as having the taint of servile origin. ... From 1483 onwards the apprenticeship of alien-born children was frequently forbidden alike by company and City ordinance. (British History Online: Apprenticeship).
Until 1737, London's statutes forbade the sons of foreigners, even those born in the kingdoms to naturalized parents, to become freemen by apprenticeship; they could obtain recognition as freemen only through redemption. (Herzog, p.182)

In 1707, every freeman in New York City was required to take an oath, swearing that he will not take, as an apprentice, any child whose parents were either aliens (not English subjects) or bondmen (non-free):

Ye shall Swear, That ... Ye shall take no Apprentice, but if he be free-born (that is to say) no Bond-man's Son, nor the Son of an Alien ... (Oath of a Freeman of the City of New York, 1707, as quoted by Seybolt, p.11).

In summary, there was a difference between a "subject" of the English king and a "citizen" of an English (or colonial American) city or town.

Subjects were politically passive members of English society. They had inheritance and property rights, but as a general rule, they did not activity participate in the government's decision making process. Most subjects could not vote or hold public office. Subjecthood, by itself, did not confer a "free" status; some subjects were serfs or villeins. The parental requirements for English subjecthood were minimal. It did not matter whether your parents were subjects or aliens, or free or unfree. As long as your parents were under the allegiance of the king at the time of your birth, you were, if born on English soil, an English natural-born subject.

Citizens, on the other hand, were politically active members of English society. They were free. They could vote and hold public office. The parental requirements of English citizenship were more stringent than those of English subjecthood. Throughout much of English history, you were eligible for apprenticeship (the primary means of acquiring citizenship) only if your father was a free subject (not a bondman and, prior to 1737, not an alien). You could claim citizenship by birth only if your father was a citizen at the time of your birth.

18. Wasn't jus soli the "rule of Europe" when the Constitution was being written?

When the U.S. Constitution was written, continental (mainland) western Europe was comprised of states, each ruled by a strong individual leader or king. Embedded within each state were local communities (towns and villages). As a general rule, anyone who established his permanent residence (domicile) within a community, and possessed property in the community, was a "member" or "citizen" of that community:

Comparing practices in England, France, Germany, and northern Italy, Susan Reynolds concludes that a common heritage indeed existed in medieval Western Europe. ... In both towns and villages, community members were typically adult male heads of households who resided permanently in the jurisdiction. (Herzog, pp.170)

As a general rule, an individual living under an eighteenth-century western European monarchy was both (a) a "subject" of a king, and (b) a "citizen" of a local community.

...an important group of historians argues that the citizenship regime that evolved in Western Europe from the eleventh to the thirteenth century persisted with slight modification to the eighteenth century. According to this view, municipal communities continued to be associations of free individuals during the early modern period [1500-1800]. ... Community members -- usually identified as resident heads of households possessing property -- were allowed to use communal land and could actively participate in [local] decision making. Rather than changing, in the early modern period local citizenship was simply overshadowed by the appearance and consolidation of kingdoms. ... Although still members and citizens, individuals were now instituted first and foremost as subjects. (Herzog, pp.170-171)

The relationship between subjecthood and citizenship varied throughout Europe:

France:

In medieval times, an individual was "French" only if he or she belonged to a local French community. But by the sixteenth century, the king acquired the power to decide who were "French" and who were not. Local communities no longer had any say in the matter:

According to most historians of France, by the sixteenth century the subjection of local communities to the king was complete. Instead of a territory composed of different local communities, France became a kingdom. One consequence of this development was that the status and rights of people were no longer determined by reference to their local membership. Instead, they were determined by their relationship to the monarch. ... Because of this process the king obtained a monopoly over the classification of people as natives or foreigners, which had earlier been exercised by local communities, and he had gained control over alien property (droit d'aubain), which had earlier belonged to local lords. (Herzog, p.191).

An individual was a native Frenchman, with inheritance rights, if (a) he was born in France, (b) at least one of his parents was French at the time of his birth, and (c) after his birth, he continued to live in France:

Historians agree that for the purpose of inheritance a person was French if he or she resided in the territory and had been born there to at least one French parent. This definition required the combination of two conditions: descent and birth in the territory. (Herzog, p.192)

If a child was foreign-born of French parents, or was French-born of alien parents, the child's legal status depended on the child's and its parents' residence:

In the time of the ancien regime [1650-1789], the criterion of residence was very important: when recognition of French nationality could only be based upon French parents giving birth abroad or foreign parents giving birth in France, the parlements required that current and future residence be established in the kingdom. This was a sign of personal allegiance, both present and future, to the king. (Weil, p.79)

Birthplace alone was not enough to confer French nativeness or nationality. A child, born in France, was not a French native unless some other requirement -- a residence requirement or a parental nationality requirement -- was also met. The notion that jus soli prevailed in eighteenth-century France appears to be an oversimplification [44].

Netherlands:

In the Dutch Republic [1581-1795], there was no such thing as national citizenship. The word "citizen", or burgher, referred to members of local communities, not members of a nation or state:

Under the Old Regime, no such thing as Dutch citizenship existed. The state, i.e., the Dutch Republic, was a federation composed of seven sovereign provinces. These provinces did not have citizens either, at least in the formal sense. Citizenship in the Dutch Republic was a local, more specifically an urban phenomenon. There was nothing unusual about this: urban citizenship was the norm throughout early modern Europe. (Prak)

In some local Dutch communities, citizenship was based on the jus soli principle, while in other communities, the jus sanguinis principle prevailed:

In the 18th century, in the Dutch Republic, there was no national civil law which united the whole population. Each town had its own civil law stipulating citizen rights and obligations, based on the citizenship model of the Roman Republic. Citizenship law of the burghers was still restricted to only the town's population, and completely excluded the people of the countryside.
The rights of citizenship were based on the principle of jus soli, signifying that rights would be granted to all those born on the territory. However, this was not applied uniformly and in some cities as for example in Nijmegen, citizenship could be acquired only by jus sanguinis. (Wikipedia: Dutch Nationality)

Germany:

When the U.S. Constitution was being written, German citizenship was based on residence:

In Germany, ... the criterion for many centuries was ... the fact of residence in the territory, or of residence with official permission (Ross, p.2)

Later in German history, jus sanguinis became the rule of German citizenship at birth.

...the German definitions of citizenship are more closely and fundamentally related to heritage and nationalism and jus sanguinis. (Dellolio)

Italy:

Italian cities were free to establish their own citizenship criteria:

...different communities belonging to the same state each maintained its separate communal institutions, statutes, councils, and officers and its own citizenship criteria. The inhabitants of each community were considered a separate group and were treated as foreigners in other jurisdictions. (Herzog, p.177)

As a general rule, local citizenship was acquired either by birth or by integration into the community. A child was a citizen by birth if it was born within the community and at least one of its parents was a citizen.

Persons became citizens either by birth or by statutory process. Under the formulation articulated by Bartolus, and apparently followed in the Italian cities of the thirteenth and fourteenth centuries, a citizen by birth -- civis ab origine -- was one who had been born within the territory of the state and to at least one parent who was already a citizen of the state. (Price, p.124).

Those who were not citizens by birth could become citizens by integrating into the community.

...Venice, Florence, Pescia, Rome, Brescia, Torino, and Mantova stressed the importance of residence, integration, and reputation for the purpose of obtaining citizenship. (Herzog, p.175)

The Italian "fiscal" court (regia camera della sommaria) was responsible for collecting taxes. Since tax rates varied according to citizenship, the fiscal authorities were required to decide who were citizens and who were not. Local communities could establish their own citizenship rules, but the court decided how those rules should be applied for taxation purposes.

...the fiscal court...was the body responsible for tax collection. Tax collection depended on citizenship, and so the court was often charged with distinguishing citizens from non-citizens. ... Local citizenship criteria would continue to exist, yet there would be a single body responsible for determining how these criteria would be applied so that, in spite of local differences, people could attain recognition as citizens of the kingdom. ... It meant that the power to recognize people as citizens was no longer only in municipal hands but now, because of the involvement of the court, was shared between the municipality and the king. (Herzog, p.177)

The fiscal court did not have the power to grant citizenship to anyone or to revoke anyone's citizenship. However, if a taxpayer wanted to pay lower taxes, he had to prove that he was a citizen of his local community. In general, if you were a permanent legal resident of an Italian community, you were classified as an Italian citizen for taxation purposes.

Beginning in the mid-sixteenth century and especially through the seventeenth, the court generally held that permanent residence was the principle method for citizenship acquisition. Residence had to be accompanied by an animus permanendi, that is, by a wish to remain in the jurisdiction "for good" and by the promise to establish a stable home in the territory. This wish could be orally attested to, or it could be deduced by observing the behavior of petitioners. (Herzog, p.172-173)

Spain:

In the Castile region of Spain, there was no such thing as citizenship by birth. Your place of birth, and the status of your parents at the time of your birth, were irrelevant. You became a citizen of a community when you made a choice to join that community and integrate yourself into it. In Spain and in Spanish America, one's "citizenship" or "nativeness" was determined by one's behavior, not the circumstances of one's birth.

...over time and especially in the seventeenth and eighteenth centuries, Castilian and then Spanish nativeness became associated with local citizenship. People were natives, or became natives, once they established, with the intent to remain permanently, residence in a community located on Spanish territory, or once they gave other proofs of their wish to tie themselves to such community. ... Indeed, like citizenship, nativeness operated on the margins of formal declarations... People obtained it, or lost it, because of the way they behaved rather than because of birth or royal recognition. (Herzog, p.66)

...in Castile, the native born were required to integrate into the community if they wished to obtain recognition as citizens, whereas in Italy birth appears to have granted this status automatically. (Herzog, p.175)

In summary, when the U.S. Constitution was being written, there was no uniform citizenship "rule" that prevailed throughout continental (mainland) western Europe. Jus soli was the rule in some places but not others. Often, a child born in a particular city or state was not regarded as a native, subject or citizen of that city or state unless some other requirement -- parental residence, parental citizenship or parental allegiance -- was also met at the time of the child's birth.

19. What was "Calvin's Case"?

Calvin's Case (1608) was an historic legal case in which England's highest court gave a natural law definition of "natural-born subject". This "natural law" definition remained in effect in England well into the 19th century [38]. It was part of English common law when the U.S. Constitution was being written.

During the 18th century, the people of England and its colonies consisted of subjects and aliens. Subjects had certain property and inheritance rights which aliens did not have.

An individual became an English subject in one of four ways:

By natural law: According to the natural law espoused by Calvin's Case of 1608, children were, at birth, true natural-born subjects of the English king if they were born within the king's territory, to parents who were under the "allegiance" or actual "obedience" of the king (See Question 16):
All those are natural-born subjects whose parents, at the time of their birth, were under the actual obedience of our King, and whose place of birth was within his dominions. (Bacon, Matthew, p.77).
By statute: When William Blackstone wrote his Commentaries (1765), Parliament had enacted laws which granted automatic natural-born subject status, at birth, to foreign-born children of English fathers. These children were born in a foreign country and were, by natural law, natural-born subjects of a foreign king. But by English law, these children were "deemed and adjudged" to be English natural-born subjects "for all intents and purposes":
...all children, born out of the king's ligeance [territory], whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain. (Blackstone)
By naturalization: Naturalized subjects were persons who were aliens at birth, but at some point after birth, became natural-born subjects by a legal process called "naturalization". Naturalized subjects had the same rights as other natural-born subjects, except that naturalized subjects could not hold public office. Subjecthood by naturalization was available only to Christians who took the Oath of Supremacy and Oath of Allegiance (see English Oaths, 1642). Naturalization had a retroactive effect. When someone became a naturalized subject, all of his children acquired property and inheritance rights, regardless of when they were born.

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. No bill for naturalization can be received in either house of parliament, without such disabling clause in it. Neither can any person be naturalized or restored in blood, unless he hath received the sacrament of the Lord's supper within one month before the bringing in of the bill; and unless he also takes the oaths of allegiance and supremacy in the presence of the parliament. (Blackstone)
By denization: Denizens, or "adopted subjects", were aliens at birth. At some point after birth, they received letters patent from the king. The rights of denizens were limited by the terms and conditions of the letters patent, which varied from person to person. Denization was not retroactive. It did not confer any rights to children which were born prior to their fathers' denization.
A denizen is an alien born, but who has obtained ex donatione regis letters patent to make him an English subject: a high and incommunicable branch of the royal prerogative. A denizen is in a kind of middle state between an alien, and natural-born subject, and partakes of both of them. He may take lands by purchase or devise, which an alien may not; but cannot take by inheritance: for his parent, through whom he must claim, being an alien had no inheritable blood, and therefore could convey none to the son. And, upon a like defect of hereditary blood, the issue [children] of a denizen, born before denization, cannot inherit to him; but his issue [children] born after, may. A denizen is not excused from paying the alien's duty, and some other mercantile burdens. And no denizen can be of the privy council, or either house of parliament, or have any office of trust, civil or military, or be capable of any grant from the crown. (Blackstone)

Persons who acquired subjecthood by any of the first three methods were called "natural-born subjects". All natural-born subjects had essentially the same property and inheritance rights. The table below summarizes the differences among the four methods of subjecthood acquisition.

Comparison of Subjecthood Acquisition Methods
	Methods of Subjecthood Acquisition
	Natural law	Statute	Naturalization	Denization
General description:	Subjecthood conferred, at birth, to children who were either (a) born on English soil, of parents who were English subjects or alien friends; or (b) in special cases, born in foreign countries, of English parents who were royalty or in the king's diplomatic or military service.	Subjecthood granted, at birth, to children born in foreign countries, of English fathers who were civilian (non-diplomatic, non-military, non-royalty) natural-born subjects.	Subjecthood granted by Parliament to adults who underwent a legal process called "naturalization".	Subjecthood granted by letters patent issued by the king.
Subjecthood acquired by...	Natural law	Man-made law	Man-made law	Royal prerogative
When was subjecthood acquired?	At birth	At birth	After birth	After birth
Were subjects "born within the allegiance of the king"?	Yes (by natural law)	Yes (by statute)	No	No
Were subjects referred to as "natural-born subjects":	Yes	Yes	Yes	No
Could subjects hold public office (if they met other requirements):	Yes	Yes	No	No
Were subjects born with natural allegiance to the English king?	Yes	No	No	No
Was subjects' allegiance, at birth, to the English king exclusively?	Yes	No	No	No

Facts of Calvin's Case: James Charles Stuart was born in Scotland in 1566. His father, Lord Darnley, was an English subject. James became king of Scotland in 1567, when he was 13 months old. He remained king of Scotland until his death in 1625.

Queen Elizabeth I of England died in 1603, at which time James inherited the English throne. Scotland and England were separate countries, each with its own Parliament and its own set of laws. But from 1603 to 1625, James was king of both countries at the same time. He was both King James I of England and King James VI of Scotland [45].

Robert Calvin [46] was born in Scotland in 1606, and was heir to some property in England. Under English law, only English subjects were permitted to inherit English property. The question before the Court was whether Calvin was a subject of King James and thus eligible to inherit within his realm.

In 1608, the Court of the King's Bench defined "natural-born subject" according to the Court's theory of natural law, and ruled that Robert Calvin was such a subject at birth. The Court's "natural law" definition of "natural-born subject" remained part of English law well into the mid-19th century [38].

Chief Justice of the Court of Common Pleas, Sir Edward Coke, wrote a Report explaining the Court's decision. When the U.S. Constitution was written, the Founding Fathers were undoubtedly aware of Calvin's Case and the definition of "natural-born subject" that had emerged from it [39].

Dual Meaning of Ligeance: Throughout much of English history, a "subject" was defined as a person who was within the king's ligeance. Anyone who was within the king's ligeance at birth was an English subject at birth, and anyone who was outside of the king's ligeance at birth was an alien at birth. But the word ligeance had a double meaning. Sometimes it meant territory; at other times, it meant faith, loyalty and obedience. The English Court had to clarify the meaning of ligeance before it could define natural-born subject [47].

In the fifteenth century, Thomas de Littleton (1407-1481) understood "ligeance" to mean territorial extent only. The wording of statutes enacted during the sixteenth century suggested that birthplace alone determined whether someone was a subject or alien:

In his Tenures (c. 1450-60), [Littleton] defined aliens as those 'born out of the liegance of our lord the king...'. He further elaborated that 'born out of the liegance' meant 'born in such country as is out the king's liegeaunce...' Statutes enacted in the Tudor years [1485-1603] were in complete agreement with Littleton's definition in that alien status was defined by birthplace only. (Kim, p.149).

But the meaning of the word ligeance took a turn during the late sixteenth-century Elizabethan succession debates.

Elizabethan Succession Controversy: When Queen Elizabeth I of England (1533-1603) reached age 30, it became apparent that she was not likely to marry or have children. Various legal commentators published pamphlets -- called Elizabethan Succession Tracts -- in which they debated who should, and who should not, inherit the English throne at the end of Elizabeth's reign.

The debate helped to forge a consensus of legal opinion that a child's personal status at birth -- whether subject or alien -- was properly based on the faith, obedience and loyalty of the parents at the time of the child's birth, not the territory in which the child was born. The English word allegiance (a variation of ligeance) first appeared in the Elizabethan Succession Tracts. Even today, "allegiance" implies loyalty, not a geographical location.

In 1563, John Hales (a Protestant) published a tract arguing that neither Margaret of Lennox nor Mary Stuart (both Catholics) should be Queen Elizabeth's successor. Margaret of Lennox was born in England; Mary Stuart was born in Scotland. According to Hales, both women were ineligible to the English throne, not because of their respective places of birth, but because neither woman's father was an Englishman. Hales argued that children naturally follow the condition and estate of their fathers; and the proposition -- that any child born in England is automatically an English subject at birth, regardless of the parents' condition or estate -- "cannot be justified by any reason". (Kim, p.160).
In 1567, Catholic lawyer, Sir Edmund Plowden, agreed that one's subjecthood was properly based on allegiance, not one's place of birth. He argued that, even though Mary Stuart was born in a foreign country, she did "homage" to the King of England, and therefore she was within the king's ligeance (Kim, p.170).
A Protestant rebuttal pamphlet, titled Certaine Errours Uppon the Statute, accused Plowden of confusing "homage" and "ligeance". Homage is a matter of human law. It is a relationship that someone chooses to enter into, at some point after her or his birth. Ligeance, on the other hand, is established only at birth and is strictly a matter of natural law (Kim, pp.172-173).

When Calvin's Case was decided in 1608, the consensus of legal opinion was that allegiance, rather than place of birth, determined whether a child was a subject or an alien at birth. The phrase "born within the ligeance of the king" no longer meant "born within the king's territory". It now meant "born within the king's allegiance", or in other words, "born of parents who were within the faith and obedience of the English king".

By the time of Calvin's Case, it was no longer sensible to doubt that allegiance was the decisive criterion of a person's legal status. In fact, all through the fifteenth and sixteenth centuries, allegiance had been discussed in legal proceedings whenever the geographical location of an event was mentioned. ... This ligeance, of course, also meant the bond of faith linking the king and his beloved subjects. Without saying it, lawyers had all along been talking about faith each time they mentioned ligeance. The bond of faith thus became the pivotal element of legal reasoning. (Kim, p.178)

In 1604, Parliament enacted a law declaring that children born in England, of foreign parents, were denizens, not "true" natural-born subjects [48].

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)

The ruling in Calvin's Case reflected the prevailing viewpoint that one's place of birth did not, by itself, confer natural-born subjecthood; that without some measure of parental obedience or allegiance, it was impossible for a child to be a natural-born subject at birth, even if such child was born on English soil. In his Report on Calvin's Case, Lord Coke quoted -- often word-for-word -- directly from the Elizabethan Succession Tracts.

...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)

...it is nec coelum, nec solum [neither sky nor soil], but ligeantia [allegiance] and obedientia [obedience] that make the subject born (Coke)

The Court's Ruling: The Court ruled that ligeance is a personal relationship between an individual and his sovereign. In this relationship, the sovereign governs and protects the individual, and in return, the individual owes faith, loyalty and obedience to the sovereign.

...ligeance is the mutual bond and obligation between the King and his subjects, whereby subjects are called his liege subjects, because they are bound to obey and serve him; and he is called their liege lord, because he should maintain and defend them.
... This word ligeance is well expressed by divers several names or synonyma which we find in our books. Sometimes it is called the obedience or obeisance of the subject to the King... Sometimes ligeance is called faith...
...ligeance, and faith and truth which are her members and parts, are qualities of the mind and soul of man...
...it followeth, that seeing the King's power, command, and protection extendeth out of England, that ligeance cannot be local, or confined within the bounds thereof.
...ligeance is a quality of the mind, and not confined within any place... (Coke)

Ligeance -- the bond between an individual and his sovereign -- is established in one of four ways: by natural law, by gift, by residence, or by oath.

There is found in the law four kinds of ligeances:
the first is, ligeantia naturalis, absoluta, pura, et indefinita [natural, absolute, pure and unlimited allegiance], and this originally is due by nature and birthright, and is called alta ligeantia [high allegiance] and he that oweth this is called subditus natus [subject born].
The second is called ligeantia acquisita [acquired allegiance], not by nature but by acquisition or denization, being called a denizen, or rather donaizon, because he is subditus datus [subject made by gift].
The third is ligeantia localis [local allegiance] wrought by the law, and that is when an alien that is in amity cometh into England, because as long as he is within England, he is within the King's protection; therefore so long as he is there, he oweth unto the King a local obedience or ligeance, for that the one (as it hath been said) draweth the other.
The fourth is a legal obedience, or ligeance which is called legal, because the municipal laws of this realm have prescribed the order and form of it; and this to be done upon oath at the Torn or Leet. (Coke)

Of the four kinds of ligeance, only the first two confer subjecthood. Consequently, there were only two kinds of English subjects: subjects born and subjects made:

Subditus natus, or "subjects born", were defined as persons who, at birth, owed natural ligeance, or "natural allegiance", to the English king. Such persons were subjects by natural law.
Subditus datus, or "subjects made", were defined as persons who owed acquired ligeance, either at birth or at some point after birth. Such persons became subjects by artificial (non-natural) means, i.e., by statute, naturalization or denization.

As Lord Coke explained:

Every subject is either natus, born, or datus, given or made (Coke)

The Court ruled that you were, by natural law, a subject born if you were born within the king's territory, of parents who were under the king's "obedience" at the time of your birth:

There be regularly (unless it be in special cases) three incidents to a subject born. 1. That the parents be under the actual obedience 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)

When Robert Calvin was born in 1606, his place of birth (Scotland) was within King James' territory. Calvin's parents, though not English subjects, were under the "obedience" of King James. Consequently, Calvin met the two "natural law" requirements of natural-born subjecthood -- the birthplace requirement (he was born within the king's dominion) and the parental allegiance requirement (his parents, at the time of his birth, were under the king's obedience). Thus, Calvin was, by natural law, a natural-born subject of King James, and as such, was eligible to inherit property anywhere within James' realm.

Parental Allegiance: In order to qualify as a subject born (a "natural law" natural-born subject), a child had to be born on English soil, of parents who were within the allegiance of the king. A parent's allegiance (obedience) was determined as follows:

Subjects were within "permanent" allegiance of the English king. Their children, if born on English soil, were natural-born subjects.
Foreigners included members of foreign-controlled religious orders, ambassadors from foreign countries, members of foreign royalty, and some foreign merchants. Foreigners were given safe-conduct, but were not within the king's allegiance or protection. Their children, even if born on English soil, were not natural-born subjects.
Alien friends were resident subjects of a foreign sovereign who was in league with the English king:
Leagues between our Sovereign and others are the onely means to make aliens friends... (Coke)

Alien friends were within "local" allegiance of the English king. Local allegiance was temporary; it existed only while the alien friend was on English soil, and expired as soon as he or she left the king's realm. Nevertheless, local allegiance was sufficient to meet the parental allegiance requirement. When an alien friend gave birth to a child on English soil, such child was an English natural-born subject [49].
Alien enemies included, but were not limited to, subjects of a foreign power that was hostile towards England. Alien enemies were not within the allegiance of the English king. Their children, even if born in England, were not natural-born subjects.

The English Court did not rule that all children born on English soil were natural-born subjects. The children of foreigners and alien enemies, even if such children were born within English territory, were not natural-born subjects of the English king. Presumably, these children were, at birth, subjects of the (foreign) prince to which their parents owed allegiance.

"Alien enemies" included the following:

Foreign invaders: Foreign military personnel undertaking a hostile invasion or occupation of English territory were alien enemies. Their children, even if born in England, were not natural-born subjects:
...for if enemies should come into the realm, and possess a town or fort, and have issue [child] there, that issue [child] is no subject to the King of England, though he be born upon his soyl, and under his meridian, for that he was not born under the ligeance of a subject, nor under the protection of the King. (Coke)
Non-combatant subjects of hostile regimes: In the case of Amin v. Brown (2005), the English High Court affirmed the ancient rule that, whenever "war" breaks out between England and a foreign country, all citizens and subjects of that foreign country -- including civilians not engaged in hostile activities against England -- immediately become "alien enemies" of the English king. This "rule" has been "on the books" for centuries and is still part of English law today. But the rule is not likely to be enforced in modern times, since war "in the technical sense" is now banned by international law:
Mrs. Amin lived in Iraq and owned a house in London, which she rented out. The rent was paid to Mr. Brown, an English solicitor, as agent for Mrs. Amin. Mrs. Amin's case was that Mr. Brown had used the rent money to refurbish the house without instruction from her. In his defense, Mr. Brown did not claim that he was entitled to carry out works on the house. Instead, he raised several arguments as to Mrs. Amin's right to bring the claim at all, including that she had no standing to sue because she was an Iraqi citizen and therefore an enemy alien.
Justice Collins concluded that this disability of enemy aliens continues to be "part of the rules of English law relating to the traditional laws of war ... [but] that there is no warrant for extending it to modern armed conflict not involving war in the technical sense." Accordingly, since he accepted the U.K. government's position that its use of force against Iraq was authorized by a combination of UN Security Council resolutions, Justice Collins held that the United Kingdom was not at war with Iraq and therefore that Mrs. Amin could not be an enemy alien.
Although Amin establishes that the procedural rule on enemy aliens still exists, it might also be taken as evidence that the rule will seldom apply. International law now prohibits what Justice Collins described as "war in the technical sense." (Knop)
Non-Christians: In his Report on Calvin's Case, Lord Coke asserted that non-Christians were "perpetual enemies" of the king, therefore their children, even if born in England, were not natural-born subjects:
Christianity being part and parcel of the law of England, those who did not profess it could not have the rights of Englishmen but, whether born within the king's allegiance or not, must be aliens, nor could they be alien friends, but must be regarded as alien enemies, even though they might be here under the special permission of the king. Lord Coke, in his report of the judgment of the Exchequer Chamber in Calvin's case, thus lays down the law: "All infidels are in law perpetui inimici, perpetual enemies (for the law presumes not that they will be converted, that being remota potentia, a remote possibility), for between them, as with the devils, whose subjects they be, and the Christian there is a perpetual hostility, and can be no peace ..." (Henriques, p.186)

Lord Coke's opinions regarding non-Christians were discarded during the 1800s. But during the 1600s and 1700s, lawyers were uncertain whether English Law conferred subjecthood and property rights to children born in England, of non-Christian parents.
The capacity of Jews to hold land or other real property in England was ... for a long time a question of serious doubt among lawyers. If all Jews, whether born within the realm or not, were aliens and perpetual enemies of the king, then they were incapable of holding land, for until the year 1870 no alien could hold land in England. ... Even as late as 1830 there were those who thought that this alleged incapacity [of Jews to hold real property in England] still existed, for Mr. Blunt, in his excellent History of the Jews in England, published in that year, is unable to resist this conclusion, and in the same year that unrivalled Master of Real Property law, Lord St. Leonards, then Solicitor-General, [asked] for a declaratory law to resolve all doubts as to the power of Jews to hold landed property in fee... ...he had himself been dissuaded some years before from buying some landed property of a Jew by Sir Samuel Romilly who had given it as his opinion that he could not obtain a good title from a Jew. (Henriques, pp.191-192)
Unlicensed Inhabitants: According to an article appearing in the Harvard Journal of Law and Public Policy, "alien enemies" included aliens who had entered England illegally:
Coke seems to have understood the phrase "aliens in amity" to exclude more than hostile enemy soldiers, more even than the subjects of foreign sovereigns with whom the English monarch was at war. Although it could not have been his intention to exclude from the meaning of "aliens in amity" any alien who was in England in violation of English immigration law -- there were no such laws -- Coke did make certain other relevant statements with an apparently similar meaning.
He explained that an alien was either a friend (amicus) or an enemy (inimicus) at birth, and could become a friend only if there was a "league" between the alien's sovereign and that of England. If an alien's sovereign was "in league" with the English sovereign, the alien was a friend (amicus) and could enter England without "license" of the English sovereign. The implication is that if an alien requiring a "license" came into England without one, he would be regarded as not "in amity". Thus, his children born in England would not be born "within the allegiance." (Wood)

In order for a child to acquire English subjecthood at birth, something more than birth on English territory was needed: the parents had to be in the obedience of the king. Since alien enemies and foreigners were not in the obedience of the king, their children, even if born in England, were not natural-born subjects. "Alien enemies" were more than subjects or citizens of a foreign country with which England was at war. "Alien enemies" also included aliens who had entered England illegally and/or were non-accepting of England's core values and beliefs.

Summary: The "people" living on English soil were either subjects by birth or aliens by birth. Those who were aliens by birth could, in later life, become naturalized subjects (by naturalization by Parliament) or denizens (by letters patent issued by the king). Such persons became subjects made after they were born.

You were a subject at the time of your birth, only if you were "born within the allegiance of the king". There were two ways by which someone could be "born within the allegiance of the king": by nature and by gift.

By natural law, you were subject born (a true natural-born subject) if you were born within the king's territory and, at the time of your birth, your parents were under the king's obedience. If English parents were royalty or in the king's service, their foreign-born children were also natural-born subjects. But as a general rule, subject born implied birth within the king's realm. Every subject born acquired natural allegiance at birth.
By man-made laws enacted by Parliament, you were, at birth, a subject made if you were born in a foreign country, of a civilian (non-royalty, non-diplomatic, non-military) English father. You were, at birth, "deemed and adjudged" to be a natural-born subject; you received most of the legal rights associated with natural-born subjecthood. But you were not a natural-born subject in fact. A subject made acquired allegiance to the English king, but did not acquire natural allegiance.

Regardless of whether you acquired your subjecthood by natural law or by man-made law, you were a subject at the time of your birth only if you were "born within the allegiance of the king":

The first clear indication that the jus sanguinis was already part of English law is to be found in the debate held in Parliament in 1343 (Rot. Parl. II.139). At the conclusion of that debate it was resolved that, under the existing common law, the king's children born abroad were not aliens, so that the fact of their birth abroad could not affect their succession to the crown; and that an identical rule applied to children born abroad to parents in the king's service. This, however, was not really an assertion of the jus sanguinis any more than the common law rule about persons born within the realm was an assertion of the jus soli. The truth rather is that both were assertions of the principle that a person is a subject from birth if born within the king's allegiance. Just as the child of an alien father born within the realm is a subject if, but only if, his father at the time of his birth owed allegiance to the king, so also the child of an English father born in foreign parts is a subject if his father's position was such as to constitute the birth a birth within the allegiance. (Ross, p. 9).

According to the English Court's ruling in Calvin's Case (1608), you were subject born (a natural-born subject according to natural law) if you met two requirements at the time of your birth: a birthplace requirement (you had to be born within the king's realm) and a parental allegiance requirement (your parents, at the time of your birth, had to be under the king's "obedience"). In special cases [50], the birthplace requirement was waived. If parents were English royalty or in the service of the king, their children, even if foreign-born, were natural-born subjects. But there were no exceptions to the parental allegiance requirement. If parents were not under the "obedience" or "allegiance" of the king, there was no way their child could be, by natural law or by man-made law, a natural-born subject at birth, regardless of the child's place of birth.

20. What does "born within the allegiance" mean?

In 1866, Justice Swayne tied the word "allegiance" to the phrase "natural born":

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. Birth and allegiance go together. (Justice Swayne, United States v. Rhodes, 1866, as quoted in U.S. v. Wong Kim Ark, 1898).

In 18th-century England, you were, at the time of your birth, an English natural-born subject if you were "born within the allegiance of the king". According to Francis Bacon (1561-1626), the phrase "born within the allegiance of the king" was 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)

Under English law, there were two ways by which you could be "born in the allegiance of the king": by natural law, and by man-made statute.

By natural law, you were "born in the allegiance of the king" if you were born on English soil, of parents who were within the obedience or allegiance of the king at the time of your birth.
By man-made statute, you were "born in the allegiance of the king" if you were born in a foreign country, of a father who was a natural-born subject at the time of your birth.

In all cases, the phrase "born within the allegiance of the king" implied some measure of parental allegiance at the time of one's birth.

In general, those who were "true" natural-born subjects -- i.e., those who were "born in the allegiance of the king" in accordance with natural law -- had three characteristics:

They were born within the king's realm;
They owed, at birth, exclusive (natural) allegiance to the king; and
They were born of parents whose allegiance was sufficient to ensure the exclusivity of their children's allegiance at birth.

It is therefore plausible that U.S. natural born citizens -- i.e., those who were "born in the allegiance of the United States" -- also had three characteristics:

They were born in the United States;
They owed, at birth, exclusive allegiance to the United States; and
They were born of parents whose allegiance was sufficient to ensure the exclusivity of their children's allegiance at birth.

21. Did "natural born" imply exclusive allegiance at birth?

When the U.S. Constitution was being written, the term "natural-born subject" referred to three classes of people:

Natural-law subjects (subjects born) were, at birth, natural-born subjects according to the natural law theory espoused by Calvin's Case of 1608. Except in special cases [50], they were born within the king's realm, of parents who were subjects or alien friends.
Statutory subjects were foreign-born children of civilian (non-royalty, non-diplomatic, non-military) English fathers. They acquired subjecthood, at birth, by man-made laws enacted by Parliament.
Naturalized subjects were aliens at birth, but at some point after birth, became subjects by naturalization.

All three of the above groups were referred to as "natural-born subjects". Members of the second and third groups (statutory subjects and naturalized subjects) were not born with exclusive allegiance to the English king.

Statutory subjects were foreign-born children of English civilian fathers. These children were born with dual nationality. According to the natural law theory of Calvin's Case, they owed natural allegiance to the foreign king in whose territory they were born. By English law, they were also, at birth, English subjects who owed allegiance to the English king.
...children and grandchildren, born of British parents in foreign countries, are British-born subjects; yet these, no doubt, by the laws of the respective foreign countries, are also deemed natural-born subjects there. I am aware of the difficulties which such persons may labor under with these double claims of allegiance upon them. ...the king cannot reckon upon the full and absolute obedience of such persons, because they owe another fealty besides that due to him... (Reeve)
Naturalized subjects were aliens at birth. When they were born, they did not owe any allegiance to the English king. At some point after birth, they became English subjects through a legal process called naturalization.

Thus, the term "natural-born subject" sometimes referred to people who (a) were not born on English soil, and (b) did not, at birth, owe sole allegiance to the English king. However, as we intend to show, "true" natural-born subjects (subjects born) -- those who acquired their subjecthood by natural law -- were usually born on English soil but always owed natural allegiance to the English king exclusively.

Natural vs. man-made subjects: All English subjects, except denizens, were referred to as "natural-born subjects". There were two categories of "natural-born subjects":

Natural subjects (subjects born) were natural-born subjects in fact. Except in special cases [50], they were born on English soil, of parents who were subjects or alien friends of the English king.
Man-made subjects (subjects made) were granted English subjecthood by man-made law. There were two categories of man-made subjects. Statutory subjects received subjecthood at birth. Naturalized subjects received subjecthood at some point after birth. Both statutory and naturalized subjects received English subjecthood by man-made law, not natural law.

The wording of the Act of Anne suggests that statutory subjects (foreign-born children of civilian English fathers) were not natural-born subjects in fact, but were "deemed and adjudged" to be such by man-made laws:

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)

According to Dowdy's report to Congress (1967), only those born within the king's realm -- that is, only those who acquired their subjecthood by natural law -- were "true" natural-born subjects; all other subjects were "naturalized":

No child born outside of the dominion of the King was ever a true "natural-born subject." They were naturalized subjects. It is true that by the naturalization acts under which they had become naturalized subjects had "deemed" them to be natural-born subjects (despite the fact that they were not so in fact), and the very fact that these were "deemed" to be natural-born by the naturalization act reveals that the true "natural-born" subjects were those born within the dominion of the King without the necessity of a naturalization law to "deem" them to be in law what they were not in fact. (Dowdy)

Naturalization at birth: "Naturalization", as generally understood, was a legal process by which an alien adult became an English subject. But in some contexts, the word "naturalization" also referred to man-made laws which conferred subjecthood to a foreign-born child at the time of its birth.

According to Lord Coke, there are only two kinds of English subjects: subjects born, who acquire their subjecthood by natural law; and subjects made, who acquire subjecthood by artificial means (naturalization, man-made laws enacted by Parliament, and letters patent issued by the king). All subjects born acquire their subjecthood at birth. Among subjects made, Lord Coke made no distinction between those who acquired their subjecthood at birth and those who acquired it at some point after birth:

Every subject is either natus, born, or datus, given or made (Coke)

Likewise, in Dowdy's view, there were only two kinds of English subjects:

True natural-born subjects ("subjects born") were born within the king's realm and acquired subjecthood by natural law;
Naturalized subjects ("subjects made") were foreign-born and became subjects by artificial means.

Dowdy mades no distinction between subjects who were naturalize at birth and subjects who were naturalized at some point after birth. Statutory subjects -- the foreign-born children of civilian English fathers -- acquired English subjecthood at birth by man-made laws. Under Dowdy's paradigm, statutory subjects were foreign-born aliens who were naturalized at birth.

In 1677, an English statute used the word "naturalization" in connection with the granting of English subjecthood to children at birth:

By the statute of 29 Car. II, (1677) c. 6, § 1, entitled "An act for the naturalization of children of His Majesty's subjects born in foreign countries during the late troubles," all persons who, at any time between June 14, 1641, and March 24, 1660, "were born out of His Majesty�s dominions, and whose fathers or mothers were natural-born subjects of this realm" were declared to be natural-born subjects. (U.S. v. Wong Kim Ark, 1898)

Vattel used the word "naturalize" in a similar manner, implying that naturalization can, in some cases, occur at birth. According to Vattel, children received nationality by descent from their parents; therefore, when children of alien parents were born in England, such children were not "natural" English subjects according to Vattel's natural law; rather, in Vattel's opinion, England merely "naturalized" them at birth:

Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner. (Vattel, § 214)

Ordinarily, naturalization was a legal process by which an alien adult acquired English subjecthood. But in a more general sense, naturalization was also understood as any acquisition of English subjecthood by man-made law, regardless of whether subjecthood was conferred at birth or at some point after birth.

Fiction of Law: A series of English legal cases -- Foster v. Ramsey (1656), Collingwood v. Pace (1661-1664), and Craw v. Ramsey (1669-1670) -- clarified the difference between subjecthood by natural law and subjecthood by naturalization. The Court explained that naturalization, whether by England or by a foreign country, is a fiction of law which has no effect except in countries which choose to "go along" with 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)

According to Chief Justice Vaugham, an English natural-born subject in fact was someone who, at birth, owed natural allegiance to the English king and did not, at birth, owe allegiance to any other sovereign. The notion of a "true" natural-born subject having more than one allegiance at birth was "absurd". If a child was born in a foreign country and was thus, by natural law, a natural-born subject of a foreign king, the child was not an English natural-born subject in fact and could never become an English natural-born subject except by the fiction of man-made law.

Meaning of Liege: In Calvin's Case, Lord Coke used the word liege to describe a natural-born subject's ligeance (relationship with the king):

...ligeance is the mutual bond and obligation between the King and his subjects, whereby subjects are called his liege subjects, because they are bound to obey and serve him; and he is called their liege lord, because he should maintain and defend them. (Coke, emphasis added)

According to Webster's dictionary (1913), the word liege comes from a German word meaning "unlimited, complete". In old English law, liege meant "full; perfect; complete; pure". Thus the word liege carried a connotation of exclusive loyalty to only one lord, and freedom from all obligations to other lords:

A liege lord seems to have been a lord of a free band; and his lieges, though serving under him, were privileged men, free from all other obligations, their name being due to their freedom, not to their service. (Webster's Dictionary: liege, 1913)

If a subject was obligated to multiple lords, his obligation to his liege lord took precedence over all others. Due to the complexities of feudal relationships, sole allegiance to one lord exclusively was not always possible, unless the "lord" was the king himself.

One of the characteristic marks of the feudal age was the use of personal ties to bind society together. Loyalty was directed to a person's immediate lord; the abstract concept of the "state" did not exist. This bond between men was expressed in acts of "homage" and "fealty." ...
The act of homage had its roots in the German tribes that overran the Roman Empire. It was the custom for the men of these tribes to pledge their service and loyalty and to become the "man" of some chief. Therefore, the term "homage" comes from the Latin word for man, "homo." ...
At this point, something should be said about liege homage. While the basic concept of homage implied that a man had only one lord, by the ninth century there were already instances of a man having two or more lords. This created the obvious problem of reconciling loyalties to lords in conflict. Liege homage arose to solve this problem. The liege lord had the first call on a man's services before all ordinary lords. This however, did not remove the causes of multiple lords. So, in time, liege homage went the route of simple homage, except in England where the king successfully monopolized liege homage. (The Feudal Oath)

A natural-born subject's ligeance was a liege relationship between the subject and his king. Since liege carried a connotation of exclusivity, it would appear that a natural-born subject's ligeance implied exclusivity as well.

Natural Ligeance: During the sixteenth century Elizabethan succession debates, natural ligeance was depicted as an exclusive bond "swallowing up all others":

All promises bind the parties. But the author of 'Certaine errours...' sees that there is an important difference in their binding power. The author explains that
one tenaunt maie be of divers Lordes fees and homage.

In other words, the bond of fidelity created by homage does not prevent the parties from engaging themselves in other similar bonds of fidelity with third parties. But,
legiaunce...is the bonde of faith swallowinge up all others, and the greatest among creatures, religion to the Creator reserved, due by the lawe of god and nacions from the subject to the prince... [A] tenure or oath of homage ableth not an aliann to be a subject of the legiaunce of England nor to be a person capable of inheritance like an English mann.

According to the Protestant author, nationality is a question of this 'bonde of faith swallowinge up all others.' Even if Mary Stuart was the chief homager of the king of England and, therefore, could rely on the bond of trust created by the homage, that would not make her any less alien. The contractual bond of trust (fidelitatis connexio) is 'instituted' by the parties in accordance with the (positive) law of the kingdom. It arises and disappears as a result of the parties' own doing. The bond of legiaunce, on the other hand, transcends the parties' own will or action. It is 'ordained' by the 'lawe of god and nacions'. ... Our author concludes his argument with the following remark: 'One God, one king, one legiaunce'. This is the most revealing explanation of the meaning of allegiance understood by sixteenth century lawyers. (Kim, pp.172-3)

Although homage was non-exclusive, natural ligeance was exclusive to one and only one sovereign. In his Report on Calvin's Case, Lord Coke wrote that natural ligeance was "absolute" and "pure":

There is found in the law four kinds of ligeances: the first is, ligeantia naturalis, absoluta, pura, et indefinita [natural, absolute, pure and unlimited allegiance], and this originally is due by nature and birthright, and is called alta ligeantia [high allegiance] and he that oweth this is called subditus natus [subject born].(Coke)

According to William Blackstone, if you were born in a particular country, you acquired at birth an obligation of "natural allegiance" to that country's ruler (provided that your parents, at the time of your birth, were under the actual "obedience" of said ruler). Natural allegiance is intrinsically exclusive: it is owed to one, and only one, sovereign. If you have obligations of allegiance to more than one monarch, it is the result of human intervention, not natural law:

Indeed the natural-born subject of one prince, to whom he owes allegiance, may be entangled by subjecting himself absolutely to another; but it is his own act that brings him into these straits and difficulties, of owing service to two masters ... And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. (Blackstone)

Subjecthood by descent: Every child was either a natural-born subject by birth, or an alien by birth. You were a "true" natural-born subject if you acquired your subjecthood, at birth, by natural law. According to the natural law of Calvin's Case, you were a "true" natural-born subject (a "subject born") if you were born within the king's realm, of parents who were the king's subjects or friends at the time of your birth. Your parents' obedience affected your subjecthood at birth, but their nationality did not. It did not matter whether your parents were subjects or aliens. Nationality was not passed, by descent, from parents to their children.

By the Common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled, or merely temporarily sojourning, in the country, was an English subject; save only the children of foreign ambassadors ... or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality. (Cockburn, p.7, boldface emphasis added)

From England's perspective, "nationality by descent" (the jus sanguinis principle) was a man-made law by which a country "naturalized", at birth, children born outside of its territorial jurisdiction. Such naturalization was a fiction of law which had no effect except in countries consenting to that fiction.

Foreign-born children of English parents: By natural law, foreign-born children of English civilian fathers were foreign subjects at birth. They owed natural allegiance to the foreign king in whose territory they were born. England enacted laws which, in effect, "naturalized" these (alien) children as soon as they were born. Since England consented to the fiction of its own naturalization laws, England "deemed and adjudged" these foreign-born children to be English natural-born subjects.
English-born children of foreign parents: By natural law, children born in England, of "alien friend" parents, were English natural-born subjects. In some cases, "alien friend" parents were subjects of a foreign government which had adopted the jus sanguinis principle; the government had enacted laws which "naturalized" the children of its subjects, when such children were born outside of its jurisdiction. England regarded these foreign naturalization laws as fictional, and did not "go along" with them.

As far as England was concerned, "true" natural-born subjects owed, at birth, natural allegiance to the English king alone. Any foreign allegiance that an English-born child might have acquired, at birth, from its (alien) parents was without substance or reality. When children were born within English territory and protection, they incurred, by natural law, a lifelong obligation of subjecthood to the English king exclusively; and this natural law superceded any foreign country's fictional man-made laws.

Ambassadors: By international convention, ambassadors enjoyed diplomatic immunity. When an Englishman was sent as an ambassador to a foreign country, he did not owe any allegiance -- not even "local" allegiance -- to the foreign king. Thus, the Englishman's children, even if born in that foreign country, were not foreign subjects. Such children were regarded as "natural" subjects of the English king.

Yet the children of the king's ambassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent (Blackstone)

Could it be that the children of the English king's ambassadors were deemed to be "natural" subjects of the English king, not because of the children's place of birth, but because such children owed allegiance to the English king only and did not owe any allegiance to any other sovereign?

Summary: During the eighteenth century, in England and the English colonies in America, the term "natural-born subject" was used in two ways.

Sometimes, "natural-born subject" referred to anyone who possessed the rights and obligations of natural-born subjecthood, regardless of how those rights and obligations were acquired. "Natural-born," in this sense, did not imply any particular place of birth and did not imply exclusive allegiance at birth. A statutory subject, for example, was typically born in a foreign country and, at birth, owed allegiance to two different sovereigns -- natural allegiance to a foreign sovereign, and statutory allegiance to the English king. Yet statutory subjects were "deemed and adjudged" to be "natural-born subjects". Likewise, adults who acquired English subjecthood by naturalization were almost always foreign-born and, at birth, owed allegiance to a foreign king. Yet naturalized subjects were often referred to as "natural-born subjects".

At other times, the term "natural-born subject" referred specifically to persons who received their subjecthood, at birth, by natural law. These persons were "true" natural-born subjects. Except in special cases [50], they were born on English soil. In all cases, they owed, at birth, natural allegiance to the English king.

Natural allegiance was intrinsically exclusive. A person could not, at birth, owe natural allegiance to more than one sovereign.

The term "natural born" did not necessarily imply the absence of foreign "statutory" claims upon a child at birth. Any foreign govenment could enact laws that bestow rights and obligations upon its subjects' children which were born outside its territory. However, as far as England was concerned, all such foreign claims and laws were fictional and entirely outside the boundaries of natural law. On the basis of natural law alone, English-born children of alien-friend parents were English natural-born subject, owing natural allegiance to the English king exclusively.

Thus, in England and its colonies, the term "natural born" (at least in the "natural law" sense) carried a connotation of birth within a particular place and exclusive (natural) allegiance, at birth, to the sovereign of that place.

22. What was Vattel's "Law of Nations"?

When the U.S. Constitution was being written, there were two "natural law" theories concerning a child's legal status at birth:

English "natural law" conferred subjecthood, at birth, to children who were born within the king's realm, of parents who were within the king's allegiance (see Question 16 and Question 19).
European "natural law" conferred citizenship, at birth, to children whose fathers were citizens, regardless of the children's place of birth.

During the eighteenth century, two influential European writers -- German philosopher Christian Wolff (1679-1754) and Swiss philosopher Emmerich de Vattel (1714-1767) -- published works in which they discussed, among other things, the "natural law" pertaining to a child's citizenship at birth.

Christian Wolff: In 1749, Christian Wolff published a book, written in Latin, titled Jus Gentium ("Law of Nations"). There was no English-language translation of Jus Gentium when the U.S. Constitution was being written. The first English translation appeared in 1934.

There was a French translation of the Jus Gentium in 1757-8 and the Institutiones was translated into both German and French, but American libraries have generally had nothing but the Latin text which repelled modern students. (Wright, p.554).

Wolff's writings were not widely-read in the English colonies in America. But in Europe,

Christian Wolff was perhaps the most influential writer on international law of the eighteenth century. His influence flowed not only from his reputation in other fields -- mathematics, philosophy and theology --, from the voluminousness of his writings, from the notoriety of his philosophical controversies, but also from the logic, completeness and definiteness of his treatise on international law, first published in 1749, as the ninth volume of his Jus Naturae et Gentium. ... [Wolff] carried on the tradition of the Grotian school which rested international law upon the two legs of natural law and voluntary law. (Wright, pp.552-3)

In Jus Gentium, Wolff explained several widely-accepted concepts pertaining to nationality:

Domicile: Everyone, except a vagabond, has a fixed dwelling place, or home, where he or she intends to live permanently. Such a dwelling place, or residence, is called a domicile.
Expatriation: Everyone has a right to change her or his domicile. You may abandon your current domicile with the intent of never returning, and establish a new domicile for yourself in a different country. If your intentions change -- that is, if the place where you intend to live permanently changes, your domicile changes accordingly.
Permanent citizen: Domicile and citizenship are intertwined. As a general rule, you are a permanent citizen of the country in which your current domicile (primary permanent legal residence) is located. Not all persons domiciled in a country are necessarily citizens of that country. However, you cannot be a permanent citizen of a country unless your permanent legal residence (domicile) is located in that country.
Temporary citizen: If you leave your current domicile for the purpose of visiting a foreign country temporarily, and you intend to eventually return to your current domicile, your current domicile (thus your permanent citizenship) does not change. While you are residing in a foreign country temporarily, you are a temporary citizen of that country, but you remain a permanent citizen of the country of your domicile. Your temporary citizenship in a foreign country terminates as soon as you leave that foreign country.
Acquired domicile: If you permanently leave your domicile and established a new domicile elsewhere, your new domicile is called an acquired domicile. An acquired domicile is a domicile that you establish for yourself by your own choice.
Natural domicile: Your natural domicile is your first, or original, domicile. It is defined as your father's domicile at the time of your birth, regardless of your actual place of birth.
Native country: Your native country is the country in which your natural domicile is located. Your legal rights at birth stem from your native country, not the country in which you were actually born.

For excerpts from a modern-day English translation of Wolff's Jus Gentium, see Appendix 1.

Vattel's Influence: In 1758, four years after Wolff's death, Swiss philosopher Emmerich de Vattel (1714-1767), published Droit des Gens (which also means "Law of Nations"). Droit des Gens was written in French and was based largely on Wolff's work. An English-language translation was published in 1759.

Despite its critics, Droit des Gens was immensely popular, especially in America [18].

The extraordinary thing about the enthusiastic acceptance of Vattel's work was that neither Vattel the man, nor the work itself, seemed worthy of it. That is, Vattel was very much an epigone and in no way the intellectual equal of men like Wolff and Liebnitz whose influence, in this field at least, he surpassed. In addition, it is the consensus of scholars that the intrinsic value of Vattel's work was not at all proportionate to the success achieved by it. (Ruddy, p.177)

According to C. Van Vollenhoven, an outspoken critic of Vattel:

...the most disheartening fact of all is that Vattel was enormously successful. The man, who as a thinker and a worker, could not hold a candle to Grotius, was so favored by fortune that the second stage of the Law of Nations (1770-1914 speaking roughly again) may be safely called after him. (Vollenhoven, as quoted in Ruddy, p.178)

Likewise, in 1913, Professor Fenwick remarked:

A century ago not even the name Grotius was more potent in its influence upon questions relating to international law than that of Vattel. Vattel's treatise on the law of nations was quoted by judicial tribunals, in speeches before legislative assemblies, and in the decrees and correspondence of executive officials. It was the manual of the student, the preference work of the statesman and the text from which political philosophers drew inspiration. Publicists considered it sufficient to cite the authority of Vattel to justify and give conclusiveness and force to statements as to the proper conduct of a state in international relations. (Charles G. Fenwick, "The Authority of Vattel", VII American Political Science Review (Baltimore, 1914), p.395, as quoted in Ruddy, p.178)

According to John Basset Moore, Vattel was

...more widely read and quoted than any other writer on the law of nations. (Moore, as quoted in Ruddy, p.178)

Vattel's widespread acceptance and influence is reflected in the number of translations and editions of his work:

There were between 1758 and 1834 twenty French editions of Droit des Gens. There were between 1759 and 1834 ten translations of his work in England, and from 1796 until 1872 eighteen translations, or reprints of translations, published in the United States. Between 1820 and 1836 there were six translations of Vattel into Spanish, one into German in 1760, and one into Italian in 1805. These facts are put into greater perspective if one considers that Grotius, who had been reprinted or translated fifty times between 1625-1758, went through only one more edition (1773) and one more translation (1853) during the hundred years after Vattel's publication. (Ruddy, pp.178-179)

In U.S. courts, Vattel was cited more frequently than all of his predecessors combined. The following chart represents the results of Professor Dickinson's survey of American legal cases from 1789 through 1820:

American cases 1789-1820
(Source: Ruddy, p.179)
	Citations in Pleadings	Court Citations	Court Quotations
Grotius	16	11	2
Pufendorf	9	4	8
Bynkershoek	25	16	2
Vattel	92	38	22

Vattel's work appeared prominently in American colleges and universities:

James Wilsons' lectures on jurisprudence in 1790, which gave "the first American presentation of the principles of the law of nature and of nations" followed Vattel very closely. In addition, when Jefferson inaugurated the study of the Law of Nature and of Nations at William and Mary College in 1779, the text from then until 1841 was Vattel's. Vattel was also the text at Dartmouth College from 1796-1828. (Ruddy, p.179-180)

The Declaration of Independence and U.S. Constitution contain concepts and ideas which came from Vattel [18].

Vattel is still cited in modern times. In 2008, the U.S. Supreme Court quoted Vattel's Law of Nations regarding civilian access to military equipment (Footnote 10, page 14, in District of Columbia et al. v. Heller, 2008).

Vattel's Thesis: According to Vattel, the people living in a state consist of inhabitants, perpetual inhabitants, and citizens. Inhabitants are those who are living in the state temporarily. Perpetual inhabitants are those who have established a permanent "fixed residence" or "settlement" within that state. A citizen is a perpetual inhabitant who is also a full-fledged member of the state. One cannot be a citizen of a state unless one is also a perpetual inhabitant of that state. The status -- whether "citizen" or "perpetual inhabitant" -- of a child, at birth, is the status of its father at the time of its birth.

Here are some excerpts, organized by subject, from an English translation of Vattel's Law of Nations:

Inhabitants:

The inhabitants, as distinguished from citizens, are foreigners, who are permitted to settle and stay in the country. Bound to the society by their residence, they are subject to the laws of the state while they reside in it; 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 law or custom gives them. (Vattel, § 213)

Perpetual Inhabitants:

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 to the society without participating in all its advantages. Their children follow the condition of their fathers; and, as the state has given to these the right of perpetual residence, their right passes to their posterity. (Vattel, § 213)

Settlement:

Settlement is a fixed residence in any place, with an intention of always staying there. A man does not, then, establish his settlement 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 transfer his settlement elsewhere. In this sense, a person who stops at a place upon business, even though he stay a long time, has only a simple habitation there, but has no settlement. Thus, the envoy of a foreign prince has not his settlement at the court where he resides. (Vattel, § 218)

Original Settlement:

The natural, or original settlement, is that which we acquire by birth, in the place where our father has his; and we are considered as retaining it, till we have abandoned it, in order to choose another. The acquired settlement (adscititium) is that where we settle by our own choice. (Vattel, § 218)

Vagrants:

Vagrants are people who have no settlement. Consequently, those born of vagrant parents have no country, since a man's country is the place where, at the time of his birth, his parents had their settlement ... or it is the state of which his father was then a member, which comes to the same point; for, to settle for ever in a nation, is to become a member of it, at least as a perpetual inhabitant, if not with all the privileges of a citizen. (Vattel, § 219)

Country:

The term, country, seems to be pretty generally known: but as it is taken in different senses, it may not be unuseful to give it here an exact definition. It commonly signifies the State of which one is a member: in this sense we have used it in the preceding sections; and it is to be thus understood in the law of nations.

In a more confined sense, and more agreeably to its etymology, this term signifies the state, or even more particularly the town or place where our parents had their fixed residence at the moment of our birth. In this sense, it is justly said, that our country cannot be changed, and always remains the same, to whatsoever place we may afterwards remove. A man ought to preserve gratitude and affection for the state to which he is indebted for his education, and of which his parents were members when they gave him birth. But as various lawful reasons may oblige him to choose another country, -- that is, to become a member of another society; so, when we speak in general of the duty to our country, the term is to be understood as meaning the state of which a man is an actual member; since it is the latter, in preference to every other state, that he is bound to serve with his utmost efforts. (Vattel, § 122)

Citizens:

The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. ...it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. ... I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country. (Vattel, § 212)

Foreign birth:

By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (§ 212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him;... (Vattel, § 215)

...for, naturally, it is our extraction, not the place of our birth, that gives us rights... (Vattel, § 216)

Expatriation:

The children are bound by natural ties to the society in which they were born; ... ...they have a right to enter into the society of which their fathers were members. But every man is born free; and the son of a citizen, when come to the years of discretion, may examine whether it be convenient for him to join the society for which he was destined by his birth. If he does not find it advantageous to remain in it, he is at liberty to quit it, on making it a compensation for what it has done in his favour, and preserving, as far as his new engagements will allow him, the sentiments of love and gratitude he owes it. A man's obligations to his natural country may, however, change, lessen, or entirely vanish, according as he shall have quitted it lawfully, and with good reason, in order to choose another, or has been banished from it deservedly or unjustly, in due form of law or by violence.

As soon as the son of a citizen attains the age of manhood, and acts as a citizen, he tacitly assumes that character; his obligations, like those of others who expressly and formally enter into engagements with society, become stronger and more extensive: but the case is very different with respect to him of whom we have been speaking. ... A citizen may therefore quit the state of which he is a member, provided it be not in such a conjuncture when he cannot abandon it without doing it a visible injury. ... Every man has a right to quit his country, in order to settle in any other, when by that step he does not endanger the welfare of his country. But a good citizen will never determine on such a step without necessity, or without very strong reasons. It is taking a dishonourable advantage of our liberty, to quit our associates upon slight pretences, after having derived considerable advantages from them; and this is the case of every citizen, with respect to his country. (Vattel, § 220)

Summary: During the eighteenth century, several European authors had published their theories regarding natural law and the law of nations. The work of one such author, Emmerich de Vattel, was popular and influential in the English colonies in America, especially after they gained their independence from Great Britain.

Three points regarding citizenship emerge from Vattel's writings:

Exclusivity: Vattel presumes that an individual abandons his current "settlement" (primary permanent legal residence or domicile) when establishing a new settlement elsewhere; hence each person has, at most, only one "settlement" at any one time. Since the country of one's citizenship is the country of one's settlement, and since an individual has, at most, only one settlement, "permanent citizenship" implies exclusive membership in one, and only one, society. The notion of dual citizenship -- being a permanent citizen of more than one country at the same time -- makes about as much sense as having two primary permanent legal residences simultaneously.
Jus sanguinis: Each State has the right to establish its own citizenship criteria and confer citizenship on anyone it chooses. States are under no obligation to conform to any particular "natural law" theory. Nevertheless, in Vattel's understanding of natural law, a child naturally acquires, at birth, the rights (including citizenship) of its father, regardless of the child's place of birth. "By the law of nature alone, children follow the condition of their fathers, and enter into all their rights" (Vattel, § 212).
Expatriation: Everyone has the right to terminate his existing citizenship and become a naturalized citizen of another country, as long as such expatriation causes no harm.

23. What is the root of the "natural born citizen" debate?

When the thirteen colonies gained their independence and became the original thirteen States, some of them retained aspects of English common law, including the jus soli principle and the doctrine of perpetual allegiance. But Vattel's immense popularity among the Founding Fathers gives rise to this question:

To what extent were Vattel's ideas regarding "citizenship" -- specifically, the jus sanguinis principle and the right of expatriation -- influential at the Federal or national level?
In other words, did Vattel's concept of "citizen", rather than the English concept of "subject", guide the original meaning of "natural born citizen" in the Federal Constitution?

A Treatise On the Law Of Citizenship In The United States was published in 1891, well after the 14th Amendment was ratified (1868) but well before the Supreme Court ruled in U.S. v. Wong Kim Ark (1898). According to the book's author, Prentiss Webster (1851-1898), differences of opinion regarding citizenship are largely due to differences of opinion regarding our nation's founding principles.

Webster cites expatriation as an example of a citizenship-related controversy.

In Ainslie vs. Martin (1812), the Massachusetts Supreme Court ruled that U.S. citizens do not have a right to terminate their U.S. citizenship and become naturalized citizens of another country:

This claim of the commonwealth to the allegiance of all persons born within its territory may subject some persons, who, adhering to their former sovereign, and residing within his dominions, are recognized by him as his subjects, to great inconvenience, especially in time of war, when the opposing sovereigns claim their allegiance. But the inconvenience cannot alter the law of the land. Their situation is not different in law, whatever may be their equitable claims, from the situation of these citizens of the commonwealth who may be naturalized in the dominion of a foreign prince. The duties of these persons arising from their allegiance to the country of their birth remain unchanged and unimpaired by their foreign naturalization. For by the common law no subject can expatriate himself. (Ainslie vs. Martin (1812), as quoted in Webster, p, 78)

But, in Murray vs. McCarthy (1811), a Virginia court affirmed the right of U.S. citizens to expatriate themselves from the United States, provided that they do so according to law:

It is believed that the right of emigration or expatriation is one of those inherent rights, of which, when men enter into a state of society, they cannot by any compact deprive or divest their posterity. But although municipal laws cannot take away or destroy this right, they may regulate the manner and prescribe the evidence of its exercise, and in the absence of the regulations juris positivi, the right must be exercised according to the principles of law. (Murray vs. McCarthy (1811), as quoted in Webster, p, 79)

The Massachusetts court denied the right of expatriation, but the Virginia court did not. According to Webster, these differing opinions regarding citizenship were due to differing understandings of the Founding Fathers' guiding principles:

By what processes of reasoning these two opinions so diametrically opposed were reached is to be explained by this: that in the first, the common law was believed to be the guide to the declaration of independence and the constitution of the United States, while in the second the reason is from the principles as laid down by the founders of the government and based on the natural law of man.
In the first, it is denied that the government of the United States is conventional as between man and man. In the second, it is admitted that the government has no other existence than in compact entered into, by and between those who organized it. ... The first recognized the English common law as the guide to the American form of government, while the second recognized the government to be founded on the natural law of man. (Webster, p. 79)

As a general rule, those who believe that English common law guided the forming of the U.S. government, tend to also believe that English common law guided the Founding Father's understanding of citizenship. Likewise, those who believe that western European political and natural law theorists, such as Vattel, influenced the Declaration of Independence and U.S. Constitution, tend to also believe that those same theorists influenced the early American meaning of "citizen".

Under English common law, any child born on English soil (except the child of a foreign ambassador or alien enemy) was a natural-born subject, and English natural-born subjects owed perpetual allegiance to the king. Therefore, if you believe that English common law guided the formation of the U.S. government, you are likely to also believe that U.S. citizenship was based on the jus soli principle, and that U.S. citizens did not have the right of expatriation.

On the other hand, European political and natural law theorists, such as Vattel, taught that children, at birth, acquire citizenship by descent from their fathers, and that expatriation is a basic human right. Thus, if you believe that European theorists influenced the Founding Fathers as they wrote the Declaration of Independence and the U.S. Constitution, you are likely to also believe that the Founding Fathers' understanding of citizenship included the jus sanguinis principle and the right of expatriation.

The differences between English common law and European political theory are summarized in the table below:

Comparison between English Common Law and European Political Theory
	English Common Law	European Political Theory
Form of government:	Monarchy	Republic
Members of the nation or state were called:	Subjects	Citizens
Most important right of membership was:	The right to inherit, hold and bequeath property.	The right to vote.
Who is sovereign?	The king is sovereign. He governs the people, who are his subjects.	The people (citizens) are sovereign. They govern themselves, through their elected representatives.
Government's authority comes from:	The law of subjection.	The consent of the people.
Natural law theory regarding birthright nationality:	Calvin's Case (1608)	Vattel's Law of Nations (1758)
What is allegiance?	Allegiance is an unequal relationship between a king and his people. The king is superior; his people are inferior. The king rules and protects his people, and his people are obligated to serve and obey the king.	Allegiance is an equal relationship among citizens, who share sovereignty equally among themselves. Citizens owe their service, loyalty and obedience to each other. Citizens participate in and contribute to the government's decision making process, and submit to the will of the majority.
The nature of allegiance is:	Perpetual. Allegiance between a subject and his king is a permanent bond which cannot be terminated, except with the king's permission. At birth, natural-born subjects are obligated, for the rest of their lives, to serve and obey the king.	Volitional. Allegiance is a compact that people choose to enter into. They remain in this compact only as long as they so choose.
What is the natural law regarding legal status at birth?	Subjecthood at birth depends on a combination of birthplace (jus soli) and parental allegiance. Children are natural subjects at birth if born in the king's territory, of parents who are within the king's allegiance, regardless of parents' nationality.	Citizenship at birth depends on paternal citizenship only (the jus sanguinis principle). A child acquires, at birth, the citizenship of its father, regardless of where the child was born.
Do members have the right of expatriation?	No. The English common law doctrine of "perpetual allegiance" denies the right of expatriation. A natural-born subject acquires, at birth, a permanent lifelong obligation to serve and obey the king. This obligation cannot be discharged without the king's permission.	Yes. In time of peace, citizens have a right to "quit" their country and become citizens of some other country, provided that such action does not cause harm or injury.
Do parents have a basic right to confer their citizenship to their children at birth?	No. By jus sanguinis, a country naturalizes, at birth, its subjects' children born outside of its jurisdiction. Such naturalization at birth is a fiction of law, which has no effect except in countries consenting to that fiction. England recognizes its own naturalization laws, but not those of any other country.	Yes. Parents have a basic human right to transmit their citizenship to their children at birth. A child has a natural right to inherit its parent's citizenship, regardless of place of birth.

After gaining independence, the original thirteen States did not abolish their English-based governments and laws. Instead of creating a new government and legal system "from scratch", each State retained its colonial system of laws and government, and modified it as necessary. The States retained aspects of English common law, including the "rule" which granted citizenship to children of alien parents who, though not yet citizens, had sworn an oath of allegiance to the State and had established permanent legal residence, or domicile, within the State:

While all States could be said to have recognized place of birth as conferring State citizenship, it is important to realize many of these States also required of anyone who desired to become domiciled within their limits to first swear off all 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 -- and this was truly the prevailing rule [in the United States] ... (Madison(2007))

The early framers of the Federal government seemed disinclined to follow the English understanding of sovereignty, allegiance and government.

John Jay's notion of "popular sovereignty" reflects European political theory more than English common law:

[T]he sovereignty of the nation is in the people of the nation, and the residuary sovereignty of each State in the people of each State. ...
[A]t the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects (unless the African slaves among us may be so called) and have none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty. ...
Sovereignty is the right to govern; a nation or State-sovereign is the person or persons in whom that resides. In Europe the sovereignty is generally ascribed to the Prince; here it rests with the people; there, the sovereign actually administers the Government; here, never in a single instance; our Governors are the agents of the people, and at most stand in the same relation to their sovereign, in which regents in Europe stand to their sovereigns. (Chief Justice John Jay, Chisholm v.Georgia, 1793)

According to a recent article in the Michigan Law Review, the English concept of "subject" was not the same as the Republican concept of "citizen":

Both Jay and Wilson's opinions suggest that usage in the founding era reflected a significant conceptual distinction between the words "subject" and "citizen" -- a distinction that was strongly associated with the ideas about the nature of sovereignty. The term "citizen" reflects the notion that individual citizens are sovereign in a republic, whereas the term "subject" reflects feudal and monarchical conceptual of the monarch as sovereign and the individual as the subject, owing a duty of allegiance and duty to the monarch. This conceptual distinction may be relevant to the original understanding of the phrase "natural born citizen" which was used instead of "natural born subject," the phrase that served as a term of art in English legal usage. The notion of a natural born subject may reflect a feudal understanding of political obligation: those born in the kingdom owed a natural duty of allegiance to their king and were his natural subjects. Given a republic theory of popular sovereignty, citizens are sovereign and the notion of a "natural born subject" would be anathema. (Solum, p.10)

Thomas Jefferson rejected the English common law notion of perpetual allegiance, and affirmed each individual's right of expatriation:

That our citizens are certainly free to divest themselves of that character, by emigration and other acts manifesting their intention and may then become the subjects of another power and be free to do whatever the subjects of that power do. (Thomas Jefferson, as quoted by Webster, p.76)

According to Webster, the philosophical system that controlled the original meaning of "natural born citizen" was, most likely, the same system that guided the Founding Fathers as they wrote the Declaration of Independence and the U.S. Constitution.

If the Framers of the Constitution were guided by English common law, the original meaning of "natural born citizen" was likely based on English common law as well; in which case, the original meaning of "natural born citizen" probably incorporated the jus soli principle. This means that anyone born in the United States (except the child of an ambassador or alien enemy) is at least a U.S. citizen at birth, if not a natural born citizen as well.

On the other hand, if the Founding Fathers were guided by European political and natural law theorists, such as Vattel, the original meaning of "natural born citizen" probably incorporated the jus sanguinis principle; in which case, you cannot be a U.S. natural born citizen unless your father was a U.S citizen at the time of your birth.

Seven years after A Treatise On the Law Of Citizenship In The United States was published, Prentiss Webster's work was confirmed by the Supreme Court deliberations in U.S. v. Wong Kim Ark.

According to the majority Opinion of the Court, English common law was "in force" when the United States was founded, "continued to prevail" under the Constitution, and controlled the Constitutional meaning of citizenship. Thus, by the jus soli principle, U.S.-born children of alien parents are citizens by birth.
According to the minority's Dissenting Opinion, the Law of Nations controlled the Constitutional meaning of citizenship. Consequently, by the jus sanguinis principle, a child is naturally a citizen at birth only if its parents were citizens at the time of its birth, regardless of the child's place of birth.

Thus, as Webster had argued in his book, one's understanding of citizenship (including natural born citizenship) in the Constitution reflects one's belief as to which philosophical system -- English common law or European political and natural law theory -- guided our nation's founding.

24. When we put the pieces together, what do we get?

Presented here is one theory which attempts to explain how the phrase "natural born citizen" might have originated.

In many cases, the term "natural-born subject" referred to people who became English subjects by naturalization or by statutes enacted by Parliament. As a general rule, these subjects were not born on English soil and did not, at birth, owe exclusive allegiance to the English king. Often, these subjects were born in foreign countries. At birth, they had dual allegiance, or no allegiance at all to England. They became natural-born subjects, not by natural law, but by the operation of man-made law.

"True" natural-born subjects were persons who acquired English subjecthood by natural law rather than by man-made law. Except in special cases, they were born on English soil. In all cases, they acquired natural allegiance at birth. Natural allegiance was always exclusive. One could not owe, at birth, natural allegiance to more than one sovereign.

In some cases, foreign governments enacted laws which, by jus sanguinis, "naturalized" English-born children as soon as they were born, thereby imposing foreign nationality and allegiance upon them at birth. These foreign naturalization laws were fictions of law and had no effect in England. (See Question 21). At birth, all "true" natural-born subject owed natural allegiance to the English king only and did not owe allegiance to any foreign sovereign.

The two most prominent characteristics of "natural law" natural-born subjects were:

They were born within the king's realm; and
They acquired, at birth, natural allegiance to the English king exclusively.

In the context of English natural law, the term "natural born" carried a connotation of birth within a territory and exclusive allegiance, at birth, to the sovereign of that territory.

English natural-law subjecthood was tied to the place of one's birth. Citizenship, on the other hand, was not. In English urban citizenship (see Question 17) and in the writings of political theorists such as Vattel (see Question 22), children acquired citizenship, at birth, by descent from their fathers.

If we combine "natural born" (in the English "natural law" sense) with the eighteenth century English and European notions of "citizen", it would appear that the "natural born citizen" of a society is someone who was born in the society and was, at birth, a citizen of that society exclusively, by descent from his father.

25. What's the "beef" with President Obama's birth certificate?

President Obama has published, on the internet, a digital photograph of a computer-generated Certification of Live Birth (or COLB), also known as a "short-form birth certificate". In the photograph, the certificate number has been electronically "blacked out". There are indications that the photograph might have been altered in other ways as well (Polarik).

At the time of this writing, the President has not published a copy of his original 1961 typewritten Certificate of Live Birth (or "long-form birth certificate") containing the names and signatures of people who witnessed his birth or independently confirmed his birth information. (See Sample Hawaiian long-form birth certificate, 1963, with personal information redacted).

The Department of Hawaiian Home Lands website explains the difference between a birth Certificate and a birth Certification:

The Department of Hawaiian Home Lands accepts both Certificates of Live Birth (original birth certificate) and Certifications of Live Birth because they are official government records documenting an individual's birth. The Certificate of Live Birth generally has more information which is useful for genealogical purposes as compared to the Certification of Live Birth which is a computer-generated printout that provides specific details of a person's birth.(Applying for Hawaiian Home Lands)

In Hawaii, the contents of an original long-form birth certificate are private and confidential information, protected by State law. The Aloha State will not release a copy of an original birth certificate without proper authorization. So far, President Obama has not given his permission for the release of his original long-form birth certificate.

If you were born in Hawaii and you ask for a copy of your Hawaiian birth certificate for a routine everyday purpose such as applying for a drivers license or passport, the Hawaii Department of Health will send you a computer generated short-form Certification of Live Birth, which shows only minimal information -- your name, date of birth, place of birth, name and race of each of your parents, and so forth. A short-form Certification of Live Birth can be used, instead of an original long-form birth certificate, for most everyday purposes. The Department of Health will not send you a copy of your original long-form birth certificate, unless you specifically ask for it.

A short-form Certification of Live Birth shows an individual's birth information but does not show the source of that information. The source of one's birth information might be a hospital, a birthing clinic, a doctor, a midwife or a parent's or relative's affidavit. In Hawaii, the name of such source is private and confidential. It is identified only on an original long-form birth certificate, and is not indicated on a short-form Certification of Live Birth.

Barack Obama's published short-form Certification of Live Birth (assuming it is authentic) tells us two things:

The State of Hawaii has, in its files, the President's birth records; and
The President's birth records say he was born in Hawaii.

But a Certification of Live Birth does not answer these questions:

Where did the information, contained in Obama's birth records, originally come from? Did it come from a hospital? Doctor? Midwife? Or did it come from a family member?
If the information came from a family member, to what extent, if any, was this information confirmed by someone other than a family member?

Until these questions are answered, we cannot say whether Obama's birth information, including his place of birth, was independently verified.

26. Didn't the State of Hawaii recently verify that President Obama was born in Hawaii?

On October 31, 2008, Dr. Chiyome Fukino, Director of Health for the State of Hawaii, released this public statement regarding (then Senator) Barack Obama's birth certificate:

There have been numerous requests for Sen. Barack Hussein Obama's official birth certificate. State law (Hawai'i Revised Statutes 338-18) prohibits the release of a certified birth certificate to persons who do not have a tangible interest in the vital record.
Therefore, I as Director of Health for the State of Hawai'i, along with the Registrar of Vital Statistics who has statutory authority to oversee and maintain these type of vital records, have personally seen and verified that the Hawai'i State Department of Health has Sen. Obama's original birth certificate on record in accordance with state policies and procedures.
No state official, including Governor Linda Lingle, has ever instructed that this vital record be handled in a manner different from any other vital record in the possession of the State of Hawai'i. (Statement by Dr. Chiyome Fukino, October 31, 2008).

On July 27, 2009, Dr. Chiyome Fukino issued a second statement:

I, Dr. Chiyome Fukino, Director of the Hawai'i State Department of Health, have seen the original vital records maintained on file by the Hawai'i State Department of Health verifying Barack Hussein Obama was born in Hawai'i and is a natural-born American citizen. I have nothing further to add to this statement or my original statement issued in October 2008 over eight months ago. (Statement by Dr. Chiyome Fukino, July 27, 2009)

Based on these two statements, we can safely assume that President Obama's original birth records, on file in Hawaii, say that he was born in Hawaii.

Under the laws that were in effect in Hawaii when Barack Obama was born, the State of Hawaii would not have knowingly issued an "original" (non-adoption-related) Hawaiian birth certificate to anyone born outside of Hawaii. Act 96 of Laws of the Territory of Hawaii was adopted in 1911. Under this Act, original Hawaiian birth certificates were issued only to individuals who were believed to be born in Hawaii:

The Secretary of Hawaii may, whenever satisfied that any person was born within the Hawaiian Islands, cause to be issued to such person a certificate showing such fact. (pp 127-128, Laws of the Territory of Hawaii)

A subsequent law, enacted in 1955, reaffirmed the fact that original Hawaiian birth certificates were given only to persons believed to be born in Hawaii. But the 1955 law allowed Hawaii to issue a birth certificate to a child whose actual place of birth was not independently confirmed by a non-family member.

In 1961, if a person was born in Hawaii but not attended by a physician or midwife, then all that was required was that one of the parents send in a birth certificate to be filed. The birth certificate could be filed by mail. There appears to have been no requirement for the parent to actually physically appear before "the local registrar of the district." It would have been very easy for a relative to forge an absent parent's signature to a form and mail it in. In addition, if a claim was made that "neither parent of the newborn child whose birth is unattended as above provided is able to prepare a birth certificate, the local registrar shall secure the necessary information from any person having knowledge of the birth and prepare and file the certificate." (Section 57-8&9)
I asked the Dept of Health what they currently ask for (in 2008) to back up a parent's claim that a child was born in Hawaii. I was told that all they required was a proof of residence in Hawaii (e.g. a driver's license [We know from interviews with her friends on Mercer Island in Washington State that Ann Dunham had acquired a driver's license by the summer of 1961 at the age of 17] or telephone bill) and pre-natal (statement or report that a woman was pregnant) and post-natal (statement or report that a new-born baby has been examined) certification by a physician. On further enquiry, the employee that I spoke to informed me that the pre-natal and post-natal certifications had probably not been in force in the '60s. Even if they had been, there is and was no requirement for a physician or midwife to witness, state or report that the baby was born in Hawaii. (Western Journalism, Investigator's June 10 Report)

If a birth certificate is based solely on a parent's or relative's uncorroborated statement, and such a birth certificate is presented as evidence to a court or agency, the court or agency must determine, for itself, the birth certificate's probative value:

In 1961, if a person was born in Hawaii but not attended by a physician or mid wife, then, up to the first birthday of the child, an adult could, upon testimony, file a "Delayed Certificate", which required endorsement on the Delayed Certificate of a summary statement of the evidence submitted in support of the acceptance for delayed filing, which evidence must be kept in a special permanent file. The statute provided that the probative value of the Delayed Certificate must be determined by the judicial or administrative body or official before whom the certificate is offered as evidence. (See Section 57-18, 19 & 20 of the Territorial Public Health Statistics Act in the 1955 Revised Laws of Hawaii which was in effect in 1961). (Hawaii Birth Records Law)

At the time of this writing, we are not aware of any law that was in effect in Hawaii in 1961, which allowed the Hawaii Department of Health to issue an original (non-adoption-related) birth certificate declaring that a person was born in Hawaii, when such person was known to have been born outside of Hawaii. Hawaiian Statute 338-17.8, Certificates for children born out of State, allowed Hawaiian birth certificates to be issued to foreign-born children of Hawaii-resident parents. But Statute 338-17.8 was not enacted until 1982, well after Barack Obama was born.

During the early '60s, whenever a birth was registered in Hawaii, the Department of Vital Statistics automatically generated a birth announcement and sent it to the local newspapers for publication. Obama's birth announcement appeared in both:

The Honolulu Advertiser, August 13, 1961, page B-6, and
The Honolulu Star Bulletin, August 14, 1961.

This birth announcement indicates that Obama's birth was registered in Hawaii in August of 1961.

Nevertheless, a question remains. When Barack Obama's birth was registered in Hawaii, who or what was the source of Obama's birth information? Was it a hospital? A doctor? A midwife? Or was it based solely on a parent's or relative's statement?

If Obama's birth registration was based solely on a parent's or relative's statement, and such statement was not independently corroborated by someone other than an immediate family member, we must do some further research before we can say anything for sure, one way or the other, about the circumstances of the President's birth.

27. Doesn't the mere existence of Barack Obama's Hawaiian birth registration prove that he was born in Hawaii?

Barack Obama's birth registration, by its mere existence, indicates that the State of Hawaii believed (or at least did not disbelieve) that he was born in Hawaii. His birth registration would prove that he was born in Hawaii only if his birth in Hawaii was witnessed or confirmed by someone other than an immediate family member. For example:

If Barack Obama was born in a hospital in Hawaii, his birth certificate would indicate that a hospital had confirmed his birth in that hospital. Such confirmation would show, beyond reasonable doubt, that President Obama was born in Hawaii.
If Barack Obama was born at home, his birth certificate would show the name of the professional (presumably, a doctor, midwife or paramedic) who assisted with the delivery. The professional's name and signature would confirm, and thus remove any reasonable doubt, that Obama's birth took place in Hawaii.
If Barack Obama was born at home and his birth was not attended by a doctor or midwife, his birth certificate would show the name of the doctor who examined the baby shortly after its birth. The name and signature of the doctor who did the postnatal examination would confirm that Obama was born in Hawaii.

But consider this hypothetical scenario: Suppose Stanley Ann Obama (President Obama's mother) had been a resident of Hawaii since June 1960. Suppose that, in November or December 1960, upon learning of her pregnancy, she received prenatal care from a local doctor in Hawaii. Suppose that, on Tuesday August 8, 1961, Madelyn Dunham (Stanley Ann's mother, also President Obama's maternal grandmother) walked into the Hawaii Department of Health office, and registered the "unattended" birth of her teenage daughter's son. (A birth is "unattended" if it did not take place in a hospital, and was not attended by a doctor or midwife). Suppose Madelyn told a health department worker that her daughter, Stanley Ann, had given birth, at home, on Friday evening, August 4, 1961. Suppose Madelyn also said that only she and Stanley Ann were present during the delivery.

Suppose Madelyn was able to provide the Department of Health with the following documentation:

Madelyn's written statement saying that Barack Obama II was born in Hawaii
Proof that she (Madelyn) had been a resident of Hawaii for more than a year
Proof that her daughter (Stanley Ann) had been a Hawaii resident for more than a year
Proof that Stanley Ann had received prenatal care while in Hawaii
Proof that the baby's mother (Stanley Ann) and father (Barack Obama Sr.) were married at the time of the baby's birth
A document or form, bearing what appears to be Stanley Ann's signature, attesting to Barack Obama II's birth in Hawaii
An acknowledgment by Barack Obama Sr. that he was the biological father of the child

Given the above information, the Hawaii Department of Health -- under the laws in effect in 1961 -- might have issued a Hawaiian birth certificate to Barack Obama II, even though no one outside of his immediate family had actually witnessed or confirmed his birth in Hawaii. (Western Journalism, June 10 Report).

If the above scenario had actually occurred, it is possible that Barack Obama might have been born outside of Hawaii, and Madelyn Dunham merely registered Barack Obama's birth in Hawaii, as an "unattended" birth [51].

In the absence of an original long-form birth certificate, such a possibility, however implausible or remote, cannot be entirely ruled out. Until President Obama releases an original birth certificate showing independent corroboration of his birth in Hawaii, no one can say for sure whether the President meets the first requirement of natural born citizenship -- birth within the United States.

28. Do birthers actually believe that President Obama was born in a foreign country?

Birthers are divided over the birthplace issue. Some believe President Obama was born outside the United States. Others believe that, when the President's birth certificate is released, it will show conclusively that he was born in Hawaii.

Most birthers, when asked, "Is Barack Obama a U.S. citizen? Was he born in Hawaii? Is he eligible to serve as President?", will generally answer:

"We don't know. That's what we are trying to find out!"

Joseph Farah, a well-known "birther" spokesperson, emphasizes that he is not claiming that President Obama is foreign-born:

I remain absolutely agnostic on the question of whether Obama is constitutionally eligible to serve. I just plain don't know -- and I'm honest enough to say it, over and over again. (Joseph Farah, Who are the real conspiracy theorists?, March 1, 2010)

The birthers.org website does not claim that Barack Obama was born in a foreign country. It says there is uncertainty regarding the President's place of birth and calls for a resolution of this uncertainty:

The question of Barrack Hussein Obama, II's actual location of birth is of great concern. Until he releases his vault copy, of the long form birth certificate and supporting evidence such as the hospital records, this issue will haunt him for his entire term in office. (Birther website article: Where in the World Was Obama Born?)

Among the various attorneys and plaintiffs who have filed lawsuits challenging the President's eligibility and/or seeking the release of his original long-form birth certificate, there is no consensus of opinion regarding the President's actual place of birth.

Attorney Phil Berg believes the President was born in Kenya.
Dr. Orly Taitz, in recent public interviews, has said that the Obama eligibility issue is about both his place of birth and his foreign citizenship at birth. However, until recently, her eligibility lawsuits which have focused almost exclusively on Obama's birth certificate and purported birth in Kenya.
Charles F. Kerchner, Jr., plaintiff in the Kerchner v. Obama lawsuit, has stated publicly that he believes Obama was born in Kenya. His attorney, Attorney Mario Apuzzo, is cautious regarding the birthplace issue, saying only that there is information which leads one to suspect that the President might have been born overseas. (Podcast audio: Apuzzo/Kerchner interview on Jeff Kuhner Show, 30 Apr 2010). The Kerchner case clearly alleges that, regardless of his place of birth, Obama is ineligible to serve as President, due to his dual citizenship at birth.
Attorney Leo Donofrio believes Barack Obama was probably born in Hawaii.
One-time adjunct law professor Andy Martin, whom some Obama supporters have dubbed "king of the birthers", believes the President was born in Hawaii (Andy Martin interview, May 3, 2010). Martin argues that the President's birth certificate is an historical document and, for that reason, seeks its release.

As this Primer has pointed out, there are facts which give rise to suspicion and doubt regarding the President's place of birth. However, at the time of this writing, we are not aware of any verified fact that directly challenges Obama's birth in Hawaii.

Hearsay testimony suggests that Obama might have been born overseas, but hearsay has little evidentiary value.
Obama's refusal to release his original birth records is reason for suspicion, but suspicion is not factual evidence of anything.
There is speculation as to what Obama's birth records might or might not reveal, but such speculation is not fact.
There are indications that the Published Digital Photograph of Obama's Certification of Live Birth might have been altered, if not fabricated (Polarik). But a fictitious photograph, though suspicious, does not directly impugn the President's birth in Hawaii.
The Hawaii Department of Health appears to have mishandled UIPA requests made by citizens seeking information regarding Obama's birth records. (See Red Flags in Hawaii and Hawaii Department of Health denied UIPA responses). Although it raises suspicions, Hawaii's mishandling of UIPA requests is not, in itself, evidence that Obama was born outside of Hawaii.

In at least one legal case in which a plaintiff's lawsuit was based solely on the birthplace/birth certificate issue, a court found insufficient factual evidence to proceed:

Plaintiff presents nothing but conjecture and subjective belief to substantiate the basis for her claims (Judge Xavier Rodriguez, as quoted in Order Denying Orly Taitz's Recusal)

Birthers generally agree that the information released so far is insufficient to conclusively establish the President's place of birth. There is insufficient evidence to say, for sure, that the President was born in Hawaii. Likewise, there is insufficient evidence to support, in court, the theory that Obama was born outside of the United States.

29. If President Obama's birth certificate shows conclusively that he was born in Hawaii, would it end the eligibility controversy?

Most certainly not! President Obama has stated publicly that his father was not a U.S. citizen. According to the birthers' understanding of American history, if his father was not a U.S. citizen, President Obama cannot be a Constitutional natural born citizen, regardless of where he was born. If President Obama was born in Hawaii, he could be regarded as a statutory natural born citizen, but he would not necessarily be a Constitutional natural born citizen (See Question 8).

Regardless of what his birth certificate says, Obama's presidential eligibility will never be settled or resolved, until the Supreme Court decides whether the U.S.-born children of non-U.S.-citizen parents are Constitutional natural born citizens.

30. Aren't Obama eligibility challenges merely partisan attacks by Republicans against a Democratic president?

The first eligibility lawsuit against Barack Obama was filed by Phil Berg, a lifelong Democrat.

Five days before the Republican National Convention, John McCain's eligibility was challenged in court (California lawsuit questions McCain's Eligibility for Presidency).

In Donofrio v. Wells (October 2008), the plaintiff sought to remove three presidential candidates from the New Jersey ballot during the 2008 presidential election: Democratic candidate Barack Obama, Republican candidate John McCain, and Socialist Workers Party candidate Roger Calero. All three were subject to foreign legal jurisdiction at birth.

John McCain was born in the Colon Hospital, in Colon, Panama. He was not born in the Panama Canal Zone as widely believed. (See John McCain's short-form Certificate of Live Birth, and long-form birth certificate). McCain was a U.S. citizen at birth, due to the fact that his parents were U.S. citizens. His citizenship status was, from birth, also "governed" by Panamanian law, due to the fact that he was born in Panama. By Panamanian law, he acquired, at birth, the option of becoming a Panamanian citizen. (Why For McCain But Not For Obama?).

Roger Calero was born in Nicaragua. At the time of his presidential candidacy, he was not a U.S. citizen.

The Republican Party has a history of accommodating presidential candidates whose Constitutional eligibility is uncertain.

Chester Arthur -- America's first post-1787-born president whose parents were not both U.S. citizens -- was a Republican.
Charles Evans Hughes was the Republican presidential candidate in 1916. He lost to incumbent president Woodrow Wilson, a Democrat. At the time of Hughes' birth, his father was a British subject who never became a U.S. citizen (Obama not the first to have Presidential Eligibility questioned).
George Romney ran for the Republican party nomination in 1968. He was born in Mexico.
Barry Goldwater was born (in 1909) in Phoenix, when Arizona was still territory, not yet a state.
Lowell Weicker entered the race for the Republican party nomination of 1980 but dropped out before voting in the primaries began. He was born in Paris, France.
John McCain was born in Panama, not the Panama Canal Zone as is widely believed. But regardless of whether he was born in the Panama Canal Zone or in Panama itself, he was, in either case, subject to Panamanian legal jurisdiction at birth and, as a result, acquired Panamanian citizenship-related rights.
Bobby Jindal is a possible Republican presidential candidate in 2012. He was born in the United States, but at the time of his birth, his parents were not U.S. citizens. (In a Southern U.S. state, immigrants' son takes over)

Given its long history of eligibility-questionable presidential candidates, the Republican Party would be guilty of hypocrisy if it were to challenge President Obama's eligibility.

Moreover, if the Courts find that Barack Obama is ineligible, it is likely that John McCain is ineligible as well, since neither candidate was subject to sole and complete U.S. jurisdiction at the time of his birth. Should that happen, both major political parties might be required to reimburse presidential campaign financing they received from the Federal government in 2008.

If McCain were found to be an ineligible presidential candidate, the RNC might be required to return government monies it had received in 2008 for McCain's presidential campaign. Given this risk, the Republican Party is likely to avoid and discourage public discussion of the presidential eligibility matter.

31. What is "Quo Warranto"?

Quo Warranto (Latin for "by what warrant?") is a judicial hearing for the purpose of determining whether an elected or appointed public official has legal authority to hold the office he or she is currently holding (Charlton). Information regarding the Federal Quo Warranto Statute can be found at these sites:

In a quo warranto action, the burden of proof lies with the public official whose eligibility is being challenged. The office holder is asked to substantiate her or his authority to hold public office. If the office holder cannot or will not do so, he or she is removed from office.

Various states and the District of Columbia have enacted their own quo warranto laws. These non-Federal laws should not be confused with the Federal quo warranto statute.

Congress enacted the Federal quo warranto statute in 1902 and revised it in 1963 to is present form. This statute consists of three sections, labeled 16-3501, 16-3502 and 16-3503 respectively. All three sections can be found here:

Chapter 35, Subchapter I, Actions against Officers of the United States

Section 16-3501 states:

A quo warranto may be issued from the United States District Court for the District of Columbia in the name of the United States against a person who within the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States, civil or military. The proceedings shall be deemed a civil action.

This section, as written, suggests:

Ineligibility is a public wrong but is not a crime. A Federal quo warranto is a civil action, not a criminal prosecution.
A Federal quo warranto may be issued against any elected or appointed official who holds a Federal office located within the District of Columbia.
The DC District Court is the only court in which a Federal quo warranto proceeding may take place.

In theory, a quo warranto can remove a sitting president who is found to be ineligible. Attorney Mario Apuzzo has questioned this theory (Quo Warranto and the Kerchner v. Obama). Attorney Leo Donofrio insists the theory is sound and explains why (Misconceptions about Quo Warranto).

Direct Challenge: A "direct" quo warranto challenge, if successful, would remove an ineligible elected or appointed Federal official from office.

A "direct" challenge cannot be instituted unless there is an evidentiary fact which directly impugns a person's eligibility to hold the Federal office he or she is currently holding. At the time of this writing, there is only one verified fact that directly challenges Obama's eligibility: his British/Kenyan citizenship at birth. A variety of other facts -- such as his refusal to release his original long-form birth certificate and his grandmother's testimony regarding his birth in Kenya -- give rise to suspicion and doubt, but are not sufficient to support a legal challenge to Obama's eligibility.

When given a substantive evidentiary fact that directly challenges a Federal office holder's eligibility, any of the following may institute a "direct" Federal quo warranto proceeding in the DC District Court.

The Department of Justice (either the U.S. Attorney General or the U.S. Attorney for the District of Columbia)
A "third person" (anyone who receives permission from both the Department of Justice and the DC District Court)
An "interested person" (someone who has an "interest" in the office allegedly being usurped and has permission from the DC District Court).

Since the U.S. Attorney General and the U.S. Attorney for the District of Columbia are Obama appointees, the Justice Department is not likely to institute a "direct" quo warranto action against the President, and is not likely to grant permission to a "third person" wishing to pursue such an action. However, an "interested person" may petition the DC District Court directly, without the Justice Department's permission.

2008 presidential and vice presidential candidates -- including, but not necessarily limited to, Mike Huckabee, Sarah Palin, Mitt Romney and Alan Keyes -- might qualify as "interested persons". Plausibly, any one of them could bypass the Justice Department, go directly to the DC District Court, and ask for permission to initiate a quo warranto regarding Obama's presidential eligibility.

In Newman v. United States (1915), the Supreme Court expanded the meaning of "interested person". The Court said:

The rule is the same regardless whether the office is elective or appointive. For in neither case is there any intent to permit the public office to be the subject matter of private litigation at the instance of one who has no interest therein which differs from that of every other member of the public. The claim that this construction makes the statute nugatory cannot be sustained, for the statute, as already pointed out, gives a person who has been unlawfully ousted before his term expired a right, on proof of interest, to the issuance of the writ, and there might be cases under the civil service law in which the relator would have an interest and therefore a right to be heard. (Newman v. United States, 1915, boldface emphasis added)

The meaning of "cases under the civil service law" is not clear. It might mean that someone like Inspector general Gerald Walpin, who was fired from his civil service job by Obama, might qualify as an "interested person".

Indirect Challenge: The Supreme Court, in Andrade v. Lauer (1984), said that, if you were harmed by an official action taken by an ineligible Federal office holder, you may file an "indirect" (or "collateral") challenge against the official action, on the basis of the office holder's ineligibility.

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 that plaintiffs, who had suffered real injuries, could bring such an action on a case by case basis if they could prove their injuries in fact (being fired) was caused by a Government official who was not eligible to serve. (Leo Donofrio, Misconceptions about Quo Warranto, 2009)

An "indirect" challenge, if successful, would not remove an usurper from office, but it would undo the usurper's action which had caused harm or injury. An indirect challenge to an official action by the Obama administration would not remove the President from office, but would bring about a public hearing into the President's eligibility to hold office.

32. What can we do?

(1) Learn the "core" facts which give rise to doubts regarding the President's eligibility. These facts include, but are not limited to, the following:

By his own admission, Obama was a "foreigner" (a citizen of a foreign country) at birth. He acquired British/Kenyan citizenship, at birth, by descent from this father. If Obama was born in the United States, he was also a U.S. citizen at birth; but his U.S. citizenship does not negate the fact of his foreign citizenship at birth.
With only two exceptions, every U.S. president who was born after 1787 was born in the United States, of U.S.-citizen parents. Consequently, every post-1787-born president (other than the two exceptions) was, at birth, a citizen of the United States exclusively and was not a citizen, at birth, of any foreign country [07]. The two exceptions were Chester Arthur and Barack Obama. At the time of Chester Arthur's birth, his father was a British subject and not a U.S. citizen. Thus, in addition to being a U.S. citizen at birth, Chester Arthur was also a British subject at birth, by descent from his father. There is no evidence indicating that, during the 1880 presidential election, the voters were aware of Arthur's dual nationality. Thus it is safe to say that, prior to 2008, the U.S. never knowingly elected a post-1787-born President who was a foreign national at birth.
In August 1787, the presidential eligibility requirement in the Constitution was changed from "born a citizen" to "natural born citizen". The stated purpose of the change was to exclude "foreigners" from the presidency. During the 18th century, the meaning of "foreigner" included subjects and citizens of foreign countries. Since natural born citizenship pertains only to one's legal status at birth, the wording change does not affect persons who became foreigners after they were born. The natural born citizen provision could only have excluded, from the presidency, persons who were foreigners at birth, and could have accomplished this purpose only if "natural born citizen" meant a person who was not a foreigner at birth.
In 1874, the Supreme Court affirmed the 1797 English translation of Vattel's Law of Nations, which defined "natural born citizen" as "children born in a country of parents who were its citizens".
...it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. (Minor v Happersett, 1874)

The Court also expressed doubts concerning the citizenship status of U.S.-born children of non-citizen parents. To this day, the Supreme Court has not resolved these doubts.
There is no verified fact that conclusively establishes the President's birth in Hawaii. Published items regarding the President's birth -- the photographic image of his Certification of Live Birth, his birth announcement in the Honolulu newspapers, and public statements by Hawaii state officials -- do not identify the source of Obama's birth information. We may presume that President Obama was probably born in the Aloha State. However, until the source of Obama's birth information is identified and confirmed, we cannot say, for sure, that he was definitely born there. Until the President's original long-form birth certificate is released, we do not know whether the information, contained in Obama's birth records, came from an independent source (a hospital or doctor) or from a non-independent source (a family member's uncorroborated statement). If Obama's birth information came from a non-independent source, we cannot entirely rule out the possibility that he was born somewhere else and his birth was (fraudulently) registered in Hawaii as an "unattended" birth.
There is no verified fact that directly impugns the President's birth in Hawaii. The theory that Obama was born overseas is not supported by any publicly-disclosed evidence that can stand up in court. At the time of Barack Obama's birth, the State of Hawaii did not issue birth certificates to foreign-born children. The Hawaii law allowing the registration of foreign births was not enacted until well after Obama was born. Thus, the President's birth records, on file in Hawaii, undoubtedly say that he was born in Hawaii.
Although there are reasons for suspicion and doubt regarding the President's place of birth, the only verified fact that directly challenges Barack Obama's natural born citizenship and eligibility to hold office is the fact of his foreign citizenship at birth.

(2) Avoid -- and encourage others to avoid -- mischaracterizing the birther controversy as being solely about Obama's birthplace and birth certificate. In general, birthers are uncertain regarding the President's place of birth, and are seeking a resolution to this uncertainty. Far more important, however, is the fact that, regardless of his place of birth, Obama acquired foreign citizenship, at birth, by descent from his father; and this fact directly challenges Obama's natural born citizenship. Birthers are well advised to vigorously demand that, whenever the birth certificate issue is mentioned, the foreign citizenship issue be mentioned as well.

(3) Inform your elected representatives of the facts which give rise to doubts concerning the President's eligibility to hold office. Advise your elected representatives that, whenever there is a fact indicating that the Constitution is being violated, their oath to uphold the Constitution requires a timely investigation and resolution of such fact.

(4) Ask your U.S. senators and U.S. representatives to enact Federal legislation requiring future presidential and vice presidential candidates to establish their eligibility prior to running for office. An example of such legislation is H.R.1503, the purpose of which is:

To amend the Federal Election Campaign Act of 1971 to require the principal campaign committee of a candidate for election to the office of President to include with the committee's statement of organization a copy of the candidate's birth certificate, together with such other documentation as may be necessary to establish that the candidate meets the qualifications for eligibility to the Office of President under the Constitution. (H.R.1503)

(5) Ask your State representatives to support State legislation barring from the State ballot any presidential or vice presidential candidate who fails to conclusively establish his or her eligibility to hold office.

(6) If you know persons or businesses which have suffered "concrete and particularized injury" (loss of job, loss of franchise, loss of income or investment, etc.) as a direct result of an official action by President Obama, let them know they might be able to challenge the official action and obtain relief, on the basis of the President's ineligibility. Encourage them to discuss the matter with an attorney.

(7) If you live in a State that intends to file a lawsuit against Health Care Reform or any other Federal law signed by President Obama, ask the Attorney General of your state to include, in your State's lawsuit, an "eligibility complaint", alleging that the law is invalid because the President who signed it is not holding office eligibly. An "eligibility complaint":

would be based solely on the known facts pertaining to Obama's foreign citizenship at birth (there are no verified facts directly challenging the President's birth certificate and/or place of birth);
would not seek the President's removal from office, but would merely seek to negate a law that he had signed, on the basis that he had no legal authority to sign it; and
would be in addition to other complaints already part of the lawsuit (i.e., it would strengthen the lawsuit by providing another way for the lawsuit to ultimately succeed).

(8) If you have access to any of the 2008 presidential and vice presidential candidates, let them know they might have standing, as "interested persons", to petition the DC District Court for permission to begin a quo warranto challenge to President Obama's eligibility. The petitioner does not need to believe that the President is ineligible; he or she only needs to believe that "clearing the air" of uncertainty surrounding the President's eligibility is in the nation's best interest. After filing a petition, the petitioner's direct personal involvement in the matter would end; the lawyers would take over from there.

(9) Stay informed. From time to time, these sites (listed in alphabetical order) provide news, commentary and information regarding the Obama eligibility controversy, and the various eligibility lawsuits currently in progress:

Appendix 1: Excerpts from Jus Gentium (1749)

These excepts, from an English translation of Jus Gentium, illustrate Christian Wolff's mid-eighteenth-century understanding of international law regarding citizenship:

Source: Wolff
§ 137. What domicile is.
Domicile is defined to be a fixed dwelling in some place with intention of remaining there permanently. In the native vernacular it is called die Behausung [the housing]. Since for establishing a domicile the intention is required of remaining permanently, a domicile is not understood to be fixed, unless the intention of remaining permanently is adequately declared, either expressly or impliedly, therefore one does not have domicile in a place where he lives for the purpose of some business. Nevertheless, since any one is allowed to change his intentions as long as he does nothing contrary to the right of another, a domicile can be changed, that is, it is not of itself unchangeable.
So an ambassador, though he lives for many, nay, very many, years with his family at some court, and possess his own home in the city, does not nevertheless on this account have domicile there. Likewise, he who for the purpose of trade dwells anywhere for a long time does not nevertheless have domicile there, but remains a foreigner.
§ 138. Of natural and acquired domicile.
Natural domicile is defined as that which any one acquires by birth, in the place where his father had domicile. That is called acquired domicile which any one has established for himself on his own will. Therefore any one is supposed to retain his natural domicile as long as he has established none for himself by his own will, or has not abandoned it.
§ 139. Of vagabonds.
A vagabond is defined as one who has no domicile anywhere. And so vagabonds live now in one place, now in another, nevertheless have no intention of remaining anywhere permanently. However, since one is supposed to retain his natural domicile as long as he has established none for himself by his own will, vagabonds also are usually supposed to retain their domicile. But since nothing prevents any one from leaving his natural domicile and from being able to have the intention of remaining permanently in no particular place, vagabonds do not retain their natural domicile, if they leave it with the intention of remaining permanently in no particular place.
So swindlers, thieves, gamblers, actors, wandering doctors, and beggars are usually classed as vagabonds. Thence it happens that the word vagebonds, in German specifically Landstreicher [land-rovers] or Landlauffer [land-runners], some disgraceful significance usually attaches. Nevertheless there is no reason why even those who live an honourable kind of life, may not now and then be vagabonds. Indeed the Apostles, who established nowhere a domicile for themselves, were vagabonds. Likewise for sake of trade a merchant can live now in one place, now in another, and have a domicile nowhere; then he is therefore enumerated among the vagabonds.
§ 140. What a native country is.
A native country is defined as a place, namely, a land or city, in which one's parents have a domicile, when he is born, the reference being to the nation or some particular corporation of a nation, to which the land or city belongs. In the native vernacular, we say with the broader meaning das Vaterland [Fatherland], the narrower die Vaterstadt [Father-city], as the land or city in which our fathers dwelt from whom we have derived our stock. Moreover, the place of birth, which is the place in we have been born, differs from native country. When any one is born in his native country, a thing which usually happens, the place of birth is synonymous with native country especially in the stricter significance, but if any one is born on a journey or in a foreign land, where his parents are living on account of some business, his native country differs from his place of birth. It is to be noted besides that the place of birth is to be considered without reference to the nation to which be belongs, and therefore it gives no right to one born in that place.
It is not without reason that the native land is discussed in the law of nations, since on it depend certain rights, which men do not enjoy unless they have this native land. Therefore, since these rights belong to anyone because he is born of parents who have domicile either in this territory or this city or in this district, this is the reason why native country admits the broader and narrower significance. Moreover, since those rights are established by the will of men, although they are in harmony with natural law, they are not natural rights but simply positive rights, and therefore are not necessary rights nor are they the same in all nations. Moreover, since the place of birth confers no right, of itself it deserves no attention at all in the law of nations, except in so far as it is considered a native country through a caprice of speech. ...
§ 141. Of the children of vagabonds.
Since a native country is a place where the parents have domicile at the time of one's birth, moreover, since vagabonds have no domicile anywhere, he who is born of parents who are vagabonds has no native country, except so far as vagabonds are supposed to have retained their natural domicile, consequently the native country of the parents is considered their native country also.
So those who are born of Gipsies have no native country, just as their parents do not.
§ 144. Of the immutability of one's country.
Since your native country depends upon birth, moreover, since what has been done cannot be undone, your native country remains your native country, even if you establish your domicile outside of it, or abandon it, or even if you are driven out of it.
§ 324. Whether he remains a citizen who dwells in alien territory.
Foreigners dwelling in alien territory or staying there remain citizens or subjects of their own nation. For since foreigners dwelling in alien territory or staying there have not departed from their own nation with the intention of changing their domicile, since rather they have the intention of returning to their own nation, they remain members also of their own state, consequently citizens or subjects of their own nation.
It is undoubtedly one thing to depart from a society, even such as a state is, and to declare by that deed itself that one does not desire to be a member of that society, but it is another thing to go away for some time from a place in which the society has its abode. Absence from the place of domicile can deprive no one of the right which he has in it, nor free him from the obligation by which he is bound therein. Nor does it make any difference that a foreigner, so long as he dwells in alien territory or stays there, becomes a temporary citizen; for the obligation by which one is bound as a temporary citizen in alien territory is limited to certain actions alone for a certain time, and this detracts in no respect from the obligation by which any one is bound as a citizen to his nation and from the right which belongs to him in it. ...
§ 325. Of the obligation and right of citizens who are staying in alien territory as foreigners.
Since foreigners living in alien territory or staying there remain citizens or subjects of their own nation, the obligation by which they are bound by their own nation is not terminated, nor are citizens or subjects deprived of the right which they enjoy with the same, for the reason that they live for some time in alien territory or stay there on account of some business, and consequently if a citizen injures a fellow citizen in alien territory and the offender returns to his own people, he can be punished there according to the laws of the place and compelled to repair the loss.

Footnotes

[01]

The Philadelphia Convention adopted the U.S. Constitution on September 17, 1787. The thirteen States ratified the Constitution on June 21, 1788 (Wikipedia: U.S. Constitution).

[02]

Article II Section 1 of 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.

All persons who were U.S. citizens when the Constitution was adopted (in 1787) were exempt from the "natural born citizen" requirement. They could serve as president, even though they were not natural born citizens. However, no one alive today qualifies for this exemption. If you were born after 1787, you must be a natural born citizen in order to be Constitutionally eligible to serve as president.

[03]

In 2008, Professor Solum wrote:

There is general agreement on the core of settled meaning. Anyone born on American soil whose parents are citizens of the United States of American [sic] is a "natural born citizen." Anyone whose citizenship is acquired after birth as a result of "naturalization" is not a "natural born citizen." But agreement on these paradigm cases does not entail that the clause has a clear meaning. (Solum, p.1)

For a discussion of Dr. Solum's paper, see Why Did Lawrence B. Solum Miss A Critical Point in the Natural Born Citizen Issue?

[04]

A poll by Wenzel Strategies, conducted in June, 2009, showed widespread public uncertainty regarding Barack Obama's eligibility to serve as president:

...a WorldNetDaily/Wenzel Strategies poll in June showed that 49% -- essentially half of all American adults -- are not convinced that Obama meets the qualifications for the presidency! ... The polling data shows this is not just a Republican fetish. Even among Democrats, almost one in every four -- 23% -- said they were either troubled by these questions about Obama or that he should definitely release all records about the circumstances of his birth, including his long-form birth certificate -- if one exists -- to put this question to rest once and for all. Even among independent voters, 52% said the same thing. (Fritz Wenzel, Poll Stories of the Year 2009, December 21, 2009)

A Public Policy poll (August 25, 2009) found that, in Arkansas, 55 percent of respondents doubted or disbelieved that the President was born in Hawaii. 31 percent believed President Obama was not born in the United States, and another 24 percent said they weren't sure.

In a New York Times/CBS news poll of 1,580 adults, conducted from April 5 to 12, 2010:

58 percent said Mr. Obama was born in the United States. That leaves a significant minority who said they thought he was born in another country (20 percent) or said they did not know (23 percent). (Obama and the 'Birthers' in the Latest Poll, April 21, 2010)

[05]

In the "consensus" opinion, anyone born in eighteenth-century England was a natural-born subject, therefore anyone born in the United States must be a natural born citizen.

In actuality, birth on English soil did not, by itself, confer natural-born subjecthood. Not all persons born on English soil were natural-born subjects, and not all natural-born subjects were born on English soil (see Question 16 and Question 19).

Regardless of how someone became a natural-born subject, the defining characteristic of natural-born subjecthood was natural allegiance. A natural-born subject was defined as someone who acquired natural allegiance at birth.

Natural allegiance was intrinsically exclusive (see Question 21). It was impossible to owe natural allegiance to more than one king.

In eighteenth-century England and its American colonies, the term "natural born" (in the English "natural law" sense) carried a connotation a birth in a particular place; but more importantly, it also carried a connotation of exclusive allegiance, at birth, to the sovereign of that place.

[06]

Here is the relevant portion of the Supreme Court's opinion in Minor v. Happersett (1874):

...it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. (Minor v. Happersett, 1874, emphasis added)

To be precise, the Supreme Court, Minor v. Happersett, expressed doubts concerning the citizenship, not the natural born citizenship, of U.S.-born children of non-citizen parents. However, one cannot be a natural born citizen unless one is a citizen (presumably a 14th Amendment citizen) at birth. Therefore, doubt about one's citizenship at birth implies doubt about one's natural born citizenship as well.

In U.S. v. Wong Kim Ark (1898), the Supreme Court ruled that, when non-citizen parents are permanent legal residents of the United States and are doing business in the United States, their U.S.-born children are U.S. citizens at birth. The Court did not rule that such children were natural born citizens. To this day, the natural born citizenship of U.S.-born children of non-citizen parents remains in doubt.

[07]

Every post-1787-born president, except Chester Arthur and Barack Obama, was born in the United States, of parents who were both U.S. citizens. However, being born in the United States, of U.S.-citizen parents, does not, by itself, guarantee against foreign nationality at birth.

For example, in Fitch v. Weber (1847), an Englishman emigrated to the United States, renounced his British allegiance, became a naturalized U.S. citizen, married an American woman, and settled permanently in the United States. But he was not fully expatriated from Great Britain. Consequently, his children and grandchildren -- though born in the United States, of U.S.-citizen parents -- were born with dual nationality. They were British subjects, as well as U.S. citizens, at birth.

The citizenship status, at birth, of presidents James Buchanan, Andrew Johnson, Woodrow Wilson and Herbert Hoover, has been questioned ('President?' Chester Arthur et. al. -- Why they aren't precedent for Obama's Eligibility). As best we can determine so far, these four presidents did not acquire foreign nationality from their parents.

In the cases of James Buchanan and Andrew Johnson, the best available historical information indicates that their parents were fully expatriated by the Treaty of Paris (1783), which ended the American Revolutionary War. Under this treaty, British subjects desiring to become U.S. citizens were released from their obligation of allegiance to the British Crown and, as a result, became "aliens" as far as Great Britain was concerned:
Can an American citizen, adult, now inherit lands in England? Natural subjects can inherit--Aliens cannot. There is no middle character--every man must be the one or the other of these. ... An alien is the subject or citizen of a foreign power. The treaty of peace acknowleges we are no longer to owe allegiance to the king of [Great Britain]. It acknowleges us no longer as Natural subjects then. It makes us citizens of independent states; it makes us aliens then. (Letters of Delegates to Congress: Volume 21 October 1, 1783 - October 31, 1784;Thomas Jefferson's Notes)
In the cases of Woodrow Wilson and Herbert Hoover, their mothers were British subjects who acquired U.S. citizenship through marriage. These women were not expatriated by the Treaty of Paris, and therefore remained bound to the British Crown for life. However, under the applicable British law, a child could not receive British subject status from his mother; he could only receive it from his father.

At the time of this writing, we are not aware of any post-1787-born U.S. president (other than Chester Arthur and Barack Obama) who acquired foreign nationality at birth.

[08]

The Barack Obama's circumstances after his birth are not deemed relevant to his Constitutional eligibility to serve as president. Children who acquire U.S. citizenship at birth do not lose their U.S. citizenship merely because they and/or their parents subsequently acquire citizenship in a foreign country, even if such foreign country does not recognize dual citizenship.

It has long been a recognized principle in this country that, if a child born here is taken during minority to the country of his parents' origin, where his parents resume their former allegiance, he does not thereby lose his citizenship in the United States provided that, on attaining majority he elects to retain that citizenship and to return to the United States to assume its duties. (Perkins v. Elg, 1939)

[09]

Ten of the first twelve presidents of the United States were eligible to serve as president because they were citizens when the U.S. Constitution was adopted in 1787. They were exempt from the natural born citizen requirement.

First twelve presidents of the United States
(Source: Wikipedia: List of Presidents)
	President	Birth date	Term in Office	Exempt
1	George Washington	February 22, 1732	April 30, 1789 - March 4, 1797	Yes
2	John Adams	October 30, 1735	March 4, 1797 - March 4, 1801	Yes
3	Thomas Jefferson	April 13, 1743	March 4, 1801 - March 4, 1809	Yes
4	James Madison	March 16, 1751	March 4, 1809 - March 4, 1817	Yes
5	James MonroeApril 28, 1758	March 4, 1817 - March 4, 1825	Yes
6	John Quincy Adams	July 11, 1767	March 4, 1825 - March 4, 1829	Yes
7	Andrew Jackson	March 15, 1767	March 4, 1829 - March 4, 1837	Yes
8	Martin Van Buren	December 5, 1782	March 4, 1837 - March 4, 1841	Yes
9	William Henry Harrison	February 9, 1773	March 4, 1841 - April 4, 1841	Yes
10	John Tyler	March 29, 1790	April 4, 1841 - March 4, 1845	No
11	James K. Polk	November 2, 1795	March 4, 1845 - March 4, 1849	No
12	Zachary Taylor	November 24, 1784	March 4, 1849 - July 9, 1850	Yes

All U.S. presidents after Zachary Taylor were born after 1787, thus were not exempt from the "natural born citizen" eligibility requirement. They had to be natural born citizens in order to be eligible to serve as president.

[10]

To clarify the birthers' viewpoint regarding the parental citizenship requirement: your parents do not need to be natural born citizens in order for you to be a natural born citizen; they only need to be citizens. It does not matter how your parents became U.S. citizens. They could have acquired their citizenship at birth. They could have, as immigrants, acquired U.S. citizenship through naturalization. At one time in American history, a woman's citizenship was that of her husband. For you to be a natural born citizen, both of your parents had to be citizens at the time of your birth, but they did not have to be natural born citizens.

[11]

These sources suggest that Barack Obama might have been born in Kenya:

According to James Orengo, the Kenyan Minister for Lands, President Obama is Kenyan-born:

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)

[12]

These sources suggest that Barack Obama might have been born in Canada:

Stanley Ann Obama births a Canadian

[13]

Birth within the United States, to U.S.-citizen parents, is a necessary condition, but not a sufficient condition, to guarantee exclusive U.S. citizenship at birth. In order to be born a citizen of the United States exclusively, one must be born of parents who were citizens of the United States exclusively.

[14]

The Senate expressed the opinion that John McCain is a natural born citizen, therefore eligible to serve as President. The Senate's opinion was based, in part, on the belief that John McCain was born on a U.S. military base in the Panama Canal Zone.

Whereas John Sidney McCain, III, was born to American citizens on an American military base in the Panama Canal Zone in 1936 (Senate Resolution 511)

However, according to his long-form birth certificate and short-form Certificate of Live Birth, John McCain was born in the City of Colon, which is part of Panama itself. Colon was never a part of the Panama Canal Zone, and was never under U.S. administration. It was always under exclusive Panamanian sovereignty and jurisdiction. (See Question 30).

[15]

The Constitution includes the 14th Amendment. Thus, if "natural born citizen" is not defined in the Constitution, it is not defined in the 14th Amendment.

[16]

An article appearing in the Wall Street Journal asserted that Federal law confers natural born citizenship in some cases:

Someone born overseas and after 1986, but otherwise in identical circumstances to Obama, would be a natural-born citizen thanks to a law signed by President Reagan. (James Taranto, It's Certifiable, Wall Street Journal, July 30, 2009)

The article presumes that anyone who acquires U.S. citizenship at birth is a natural born citizen. But this presumption remains unsubstantiated. The law that Reagan signed is 1401: Nationals and citizens of the United States at birth. Neither this law, nor any other existing Federal statute, contains the term "natural born citizen".

[17]

In Italy and elsewhere, citizenship implied subjection to authority:

Other historians nevertheless affirmed that citizenship continued to be an important social and political tie in early modern Italian cities, with meaning broader than the individual privileges attached to it. Above all, citizenship implied the subjection of the individual to a sovereign power or to a municipal authority. According to this view, most early modern Italian cities attributed a great deal of importance to citizenship, and citizenship continued to be an essential prerequisite for obtaining many rights. (Herzog, p.176)

[18]

"Vattel's The Law of Nations was the most influential book on the law of nations for 125 years following its publication." (Trout). Vattel's work was especially influential in America. See, for example:

[19]

A century prior to Vattel, "natives" or "indigenes" were defined as those born in a society, of parents who are its citizens. In 1673, German political philosopher Samuel von Pufendorf defined "citizens" as the society's original founders and their descendants. Thus, in Pufendorf's view, natives or indigenes were those born in a society, of parents who were, or were descended from, the society's original founders.

A State or Government being thus constituted, the Party on whom the Supreme Power is conferr'd, either as it is a single Person, or a Council consisting of select Persons, or of All in General, is called a Monarchy, Aristocracy, or a Free State; the rest are looked upon as Subjects or Citizens, the Word being taken in the most comprehensive Sense: Although, in Strictness of Speech, some call only those Citizens, who first met and agreed together in the forming of the said Society, or else such who succeeded in their Place, to wit, House-holders or Masters of Families.
Moreover, Citizens are either Originally so; that is, such as are born in the Place, and upon that Account claim their Privileges: Or else Adscititious; that is, such as come from Foreign Parts.
Of the first Sort, are either those who at first were present and concerned in the forming the said Society, or their Descendants, whom we call Indigenae, or Natives.
Of the other Sort are those who come from Foreign Parts in order to settle themselves there. As for those who come thither only to make a short Stay, although they are for that Time subject to the Laws of the Place; nevertheless, they are not looked upon as Citizens, but are called Strangers or Sojourners. (Pufendorf, Section XIII, boldface added)

French philosopher Denis Diderot (1713-1784) rejected Pufendorf's definition of "citizen". In Diderot's opinion, outsiders who join the society and become a part of it are as much citizens as the descendants of the society's original founders:

Diderot chose to make his point about the quality of the citizen in the state by replying to Puffendorf distinction between the descendants of those who founded the state, the only ones who could claim the status of citizen, and the others. Diderot qualified this distinction as "frivole" and asserted that all members of the community are equally noble in so far as they are citizens; the status of 'nobility,' in fact equality here, derives from sharing in the right to the position of magistrate in the community. (Veluca, p.15)

Jean Jacques Burlamaqui (1694-1748) argued that citizenship belongs, at birth, not only to the children of "the first founders of states" but also to the children of "all those who afterwards became members thereof":

If by an express covenant, the thing admits of no difficulty. But, with regard to a tacit covenant, we must observe, that the first founders of states, and all those, who afterwards became members thereof, are supposed to have stipulated, that their children and descendants should, at their coming into the world, have the right of enjoying those advantages, which are common to all the members of the state, provided nevertheless that these descendants, when they attain to the use of reason, be on their part willing to submit to the government, and to acknowledge the authority of the sovereign. (Burlamaqui, paragraph IX)

Although the meaning of "citizen" seems to have evolved over time, the meaning of "native" or "indigene" has not. For nearly a century prior to Vattel, the "native" or "indigene" of a society was someone who was born in the society, of parents who were citizens of that society.

[20]

In the first draft of the U.S. Constitution, a person had to be "born a citizen" of the United States in order to be eligible to serve as president. In July 1787, John Jay wrote a letter to George Washington, recommending that the presidential eligibility requirement be changed from "born a citizen" to "a natural born citizen". In August 1787, the Framers of the Constitution accepted Jay's recommendation.

"Born a citizen" is understood to mean anyone who is a U.S. citizen at birth. If "natural born citizen" had meant the same thing, that is, if there was no difference between "born a citizen" and "natural born citizen", Jay's wording change would have been superfluous and unnecessary. It is unlikely that Jay would have recommended the change, and it is unlikely that the Framers would have gone along with the change, unless "natural born citizen" meant something more than U.S. citizenship at birth.

[21]

According to Vattel's natural law theory, a person cannot be a citizen of more than one country at any one time. Thus, in theory, U.S.-born children of U.S.-citizen parents are citizens of the U.S. exclusively and are not citizens or subjects of any other country. However, any foreign country may enact laws which go beyond natural law and impose "statutory" rights and obligations upon U.S.-born children. A foreign country might, for example, enact a law claiming legal jurisdiction over U.S.-born children of parents who originiated from that foreign country, even if these parents had completely renounced their allegiance to that country and had become naturalized U.S. citizens. Thus, as a practical matter, U.S.-birth to U.S.-citizen parents does not guarantee exclusive U.S.-citizenship at birth, unless the parents have, in fact, fully expatriated themselves from all prior allegiances.

[22]

According to eighteenth century English common law, and according to American "derivative citizenship" law (from 1855 to 1922), the legal status of a woman was that of her husband. Thus, the "citizenship of a child's father" was, generally speaking, the same as the "citizenship of a child's parents".

[23]

In 1789, South Carolina had not enacted any law which defined who were and who were not its citizens. Consequently, the citizenship "law" that was in effect in South Carolina was presumed to be English common law by default. Those who were members (citizens) of South Carolinian society before the American Revolution were presumed to have remained members (citizens) of South Carolinian society afterwards, unless they had explicitly chosen a different allegiance.

[24]

The 12th Amendment, ratified in 1804, made natural born citizenship an eligibility requirement for the Office of Vice President.

But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. (U.S. Constitution - Amendment 12)

Chester Arthur was elected Vice President in 1880. When President James Garfield was assassinated in 1881, Chester Arthur became the first U.S. President, born after 1787, whose parents were not both U.S. citizens at the time of his birth.

[25]

In modern everyday parlance, the words "foreigner" and "alien" are often synonymous and used interchangeably. But in early American legal writings, "foreigners" were persons who were born in a foreign country or were citizens or subjects of a foreign country, regardless of their current residence; and "aliens" were foreign nationals who had established residence in the United States. Thus the term "illegal alien" (a non-U.S.-citizen who is living in the U.S. illegally) makes sense, but the term "illegal foreigner" does not. There is nothing illegal about being a native, citizen or subject of a foreign country, but it is illegal to enter a country without permission to do so.

[26]

In eighteenth-century England, "subject" and "alien" were mutually exclusive categories. One could not be both a subject and an alien at the same time. Likewise, in the United States, one cannot be regarded as both an alien and a U.S. citizen simultaneously. If you are living in the United States, you are either an alien or a U.S. citizen, but not both. However, there is nothing in the definition of "foreigner" that precludes simultaneous U.S. citizenship. A U.S. citizen can also be a "foreigner" (a citizen or subject of a foreign country).

Webster's dictionary (1828) defined "foreigner" as:

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)

Even though naturalized U.S. citizens were no longer aliens, they could still be called "foreigners" in some sense. This gives further indication that the word "foreigner", by itself, did not necessarily imply the absence of U.S. citizenship.

[27]

Under the Constitution, the Federal government established rules by which immigrants became naturalized citizens. But prior to 1866, each State had the right to decide, for itself, the manner in which it granted citizenship to (a) children born within that State, and (b) foreign-born children of citizens of that State. When a child was, at birth, a citizen of a State, under the laws of that State, such child was also a citizen of the United States.

Perhaps the first most important thing to understand about national 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.
One reason for the absence of an early written national birthright rule is that States had decided for themselves who were their citizens by virtue of being born within the limits of the State. Prior to the 14th amendment, citizens of the United States were strictly defined as the citizens of each State. (Madison(2007))

There was no national law or common law which dictated the manner in which each State should confer citizenship on people who were born within, or migrated into, its territory. Each State decided, for itself, who were its citizens.

Until 1808, each State ... could confer state citizenship upon whomever it permitted to migrate into the State. ...there was no uniformity requirement with respect to state citizenship either with respect to native-born persons, recognized as state citizens, or persons admitted to live within the geographic borders of the United States and naturalized as state citizens. (Olson, Titus and Woll, Children Born in the United States...)

[28]

In 1779, Thomas Jefferson wrote a generic citizenship bill which any State could use. The bill granted citizenship to (a) a child born in the State, and (b) a foreign-born child of parents who were citizens of the State.

Be it enacted by the General Assembly, that

all white persons born within the territory of this commonwealth and all who have resided therein two years next before the passing of this act, and all who shall hereafter migrate into the same; and shall before any court of record give satisfactory proof by their own oath or affirmation, that they intend to reside therein, and moreover shall give assurance of fidelity to the commonwealth; and

all infants wheresoever born, whose father, if living, or otherwise, whose mother was, a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise their mother becoming a citizen, or who migrate hither without father or mother,

shall be deemed citizens of this commonwealth, until they relinquish that character in manner as herein after expressed:
And all others not being citizens of any the United States of America, shall be deemed aliens. (Thomas Jefferson, A Bill Declaring Who Shall be Deemed Citizens of This Commonwealth, 1779)

Depending on birthplace and parental citizenship, this bill would, in some cases, grant U.S. citizenship to persons who were foreign citizens or subjects at birth. At least one State -- Virginia -- adopted Jefferson's bill (Madison(2007)).

[29]

There is general agreement that (a) anyone born in the U.S., of U.S.-citizen parents, is a "natural born citizen", and (b) natural born citizenship is acquired only at birth and not by naturalization. But the natural born citizenship of other classes of people -- such as the U.S.-born children of non-citizen parents -- remains in doubt.

There is general agreement on the core of settled meaning [of "natural born citizen"]. Anyone born on American soil whose parents are citizens of the United States of American [sic] is a "natural born citizen." Anyone whose citizenship is acquired after birth as a result of "naturalization" is not a "natural born citizen." But agreement on these paradigm cases does not entail that the clause has a clear meaning. (Solum, p.1)

[30]

According to one theory, the "natural born citizen" provision does not exclude, from the presidency, all persons who were foreigners at birth. Rather, it excludes only those persons who were born in a foreign country. It does not exclude U.S.-born persons who had acquired foreign citizenship by descent from their parents. Under this theory, "foreigner" refers to foreign-born persons only; and "natural born citizen" refers to U.S.-born citizens only.

A problem with this theory is that, during the eighteenth century, the meaning of "foreigner" was not limited to foreign-born persons. The word "foreigner" also referred to citizens and subjects of a foreign country, regardless of when or how they acquired their foreign citizenship or subjecthood.

If a State granted citizenship to a child born in the State, of alien parents, such child was "born a citizen" of the United states; but the child was also a "foreigner" at birth, because the child acquired, at birth, foreign citizenship or subjecthood by descent from its parents.

[31]

From commentary by Attorney Leo Donofrio:

Chief Justice Marshall ... delivered the opinion of the Court in Marbury v. Madison. His "form without substance" quote truly made me wonder what he would say about the natural born citizen clause.
As I thought about it, Chief Justice Marshall's voice came to me right from the pages of that opinion and I realized suddenly that he did address the issue when he said:
"It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it."

This must kill the argument that being "a 14th Amendment citizen" has the same effect on Presidential eligibility as being a "natural born citizen". If being a "citizen" had the same exact effect as being a "natural born citizen" then the clause would have no effect. As stated by Chief Justice Marshall, "such a construction is inadmissible." (POINT II in Leo Donofrio, SCOTUS has no Original Jurisdiction, 2009)

[32]

For commentary regarding United States v. Low Hong (1919), see Mario Apuzzo, United States v. Low Hong is no precedent on the Question of What is an Article II "Natural Born Citizen", 2009.

[33]

For commentary regarding Judge Dreyer's dicta in Ankeny v. Indiana (2009), see Leo Donofrio, Eligibility Update: Ankeny v. Daniels.

[34]

These sources have raised concerns about the soundness and veracity of the U.S. v. Wong Kim Ark opinion:

[35]

In Minor v. Happersett (1874), the Supreme Court expressed doubts regarding the citizenship (therefore, the natural born citizenship) of U.S.-born children of non-citizen parents:

...it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. (Minor v. Happersett, 1874)

To date, the Supreme Court has not resolved these doubts.

[36]

The English (Calvin's Case) natural law theory, and the 1797 translation of Vattel's Law of Nations, share a common principle -- that a natural born member of a society is someone who was born within the society's territory, of parents who were among the society's "people".

The English people's children, when born in England, were English natural-born subjects.
The American people's children, when born in the United States, were U.S. natural born citizens.

In all cases, a child was not a natural born member of a society unless its parents were among the society's "people".

However, England and the United States defined "people" differently. In England, the "people" consisted of subjects and aliens. In the United States, the "people" were comprised of citizens only.

The words "people of the United States" and "citizens" are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty and who hold the power and conduct the Government through their representatives. They are what we familiarly call the "sovereign people," and every citizen is one of this people, and a constituent member of this sovereignty. (Scott v. Sandford, 1856)

[37]

"Protection" was a matter of English law. The English king was expected to "protect" the people who were under his allegiance and jurisdiction. Safe conduct was a matter of international law. Foreign countries provided safe-conduct to Englishmen, only if England provided safe-conduct to foreigners.

[38]

The ruling in Calvin's Case (1608) was still in effect in 1787, the year the U.S. Constitution was written, and remained part of English law well into the 19th century.

Statutory regulation largely superceded Calvin's Case after 1844, but in certain contexts Coke's opinion was still considered authoritative (Kettner, p.7).

The common law, as thus enunciated in Calvin's Case, continued in force until 1914... (Ross, p.7).

[39]

Coke's reports, and his four-volume Institutes of the Lawes of England, were well known and widely read in the American colonies:

His legal texts formed the basis for the modern common law, with lawyers in both England and America learning their law from his Institutes and Reports until the end of the eighteenth century. ... Coke's reputation as one of the most influential jurists in Anglo-American history rests to a significant extent on the central role that his legal writings have had in the development of the modern common law. Of greatest importance have been his thirteen volume series of Reports, and his four volume Institutes of the Lawes of England. Coke's Reports have been described by the legal historian Sir John Baker as "perhaps the single most influential series of named reports." (Wikipedia: Edward Coke)

[40]

The English common law "rule" is often characterized as jus soli (subjecthood determined by birthplace alone). This characterization is understandable because, as a practical matter, almost all children born within the king's dominions (territory) were, at birth, true natural-born subjects.

But there is a difference between the outward visible effect of English common law and the underlying principle on which the common law was based. According to the underlying principle established by Calvin's Case (1608) and which was part of English common law when the Constitution was written, the decisive criterion of one's legal status (subject or alien) at birth was allegiance, not the place of one's birth.

Most children born in the king's dominions were natural born subjects, only because most children born in the king's dominions were also born within the king's allegiance. Nevertheless, if your parents were not within the king's allegiance when you were born, you were not a natural-born subject, regardless of your place of birth.

The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "ligealty," "obedience," "faith," or "power" of the King. The principle embraced all persons born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual -- as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem -- and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King. (U.S. v. Wong Kim Ark, 1898)

As a general rule, children born on English soil were English natural-born subjects. But there were exceptions to this rule. While characterizing these exceptions as "unimportant", Albert Venn Dicey (1835-1922) acknowledged that the underlying reason for these exceptions was that natural subjecthood stemmed from allegiance, not the place of one's birth:

The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, though at common law nationality or allegiance in substance depended on the place of a person's birth, it in theory at least depended, not upon the locality of a man's birth, but upon his being born within the jurisdiction and allegiance of the king of England; and it might occasionally happen that a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of the crown. (Albert Dicey, The Conflict of Laws, 1896, as quoted in U.S. v. Wong Kim Ark, 1898)

In his Commentaries (1765), Blackstone seemed to suggest that birth within the king's dominions (territory) was synonymous with birth within the king's allegiance (faith, loyalty, and obedience):

The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. (Blackstone)

But one of the main points of Calvin's Case was that birth within the king's territory was not the same thing as birth within the king's allegiance. Blackstone might have over-simplified Lord Coke's ruling. But perhaps we need to re-read Blackstone a bit more carefully. The phrase "that is" sometimes means "more accurately" or "by way of clarification". Thus Blackstone's writing could be construed to mean:

Natural-born subjects are such as are born within the dominions of the crown of England, or more accurately and by way of clarification, within the ligeance, or as it is generally called, the allegiance of the king...

[41]

The words "citizen" and "foreigner" had different meanings depending on context. In an urban context, a "citizen" of a city was someone who had certain rights and privileges, called "freedom of the city", and a "foreigner" was someone who was not a citizen of the city in which s/he was visiting or living. For an example of how the English words "citizen" and "foreigner" were used in an urban context prior to the American Revolution, consider this passage from Blackstone's Commentaries (1765-1769):

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, Book 3, Chapter 22, emphasis added)

However, in an international context, a "citizen" of a state was a full-fledged member of that state, and a "foreigner" was a native, subject or citizen of some other state.

[42]

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 municipal "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)

[43]

Redemption -- the process of becoming a freeman of a city by paying a fee -- was available only to those who were already "free".

The common law courts also stated that freedom could never be sold. Buying freedom by paying redemption fees was a fiction. Although presented as a purchase, in reality this transaction consisted of formally recognizing that people were already free. Indeed, people who were truly unfree could not purchase their freedom in this way. (Herzog, p.181)

[44]

The conventional theory of French birthright citizenship is that:

Prior to 1600, the jus sanguinis principle prevailed in France;
During the ancien regime [1650-1789], the jus soli principle became the primary means of acquiring French nationality; and
After the French Revolution in 1789, jus sanguinis re-emerged as the rule in France.

According to this theory, the jus soli principle prevailed in France when the U.S. Constitution was being written.

In 1869, Alexander Cockburn wrote:

By the law of France, anterior to the revolution, a child born on French soil, though of foreign parents, was a Frenchman, as it was termed, jure soli (Cockburn, p.14)

According to the majority opinion in U.S. v. Wong Kim Ark (1898), the jus soli principle was the "rule of Europe" prior to the French Revolution:

But at the time of the adoption of the constitution of the United States in 1789 [sic], and long before, it would seem to have been the rule in Europe generally, as it certainly was in France, that, as said by Pothier, "citizens, true and native-born citizens, are those who are born within the extent of the dominion of France," and "mere birth within the realm gives the rights of a native-born citizen, independently of the origin of the father or mother, and of their domicile"; and children born in a foreign country, of a French father who had not established his domicile there, nor given up the intention of returning, were also deemed Frenchmen ...
The general principle of citizenship by birth within French territory prevailed until after the French Revolution ... The Code Napoleon of 1807 changed the law of France, and adopted, instead of the rule of country of birth, jus soli, the rule of descent or blood, jus sanguinis, as the leading principle; but an eminent commentator has observed that the framers of that code "appear not to have wholly freed themselves from the ancient rule of France, or rather, indeed, ancient rule of Europe, -- 'De la vieille regle francaise, ou plutot meme de la vieille regle europ eenne,' -- according to which nationality had always been, in former times, determined by the place of birth."(Wong Kim Ark, 1898)

In 1972, Patrick Weil wrote that, in France prior to the French Revolution, jus soli "took precedence" over jus sanguinis:

...throughout the ancien regime [1650-1789], the jus soli was the primary requirement for the attribution of French nationality. And although, beginning in the seventeenth century the jus sanguinis could independently be used to access French nationality, it is important not to be mistaken on this point -- birth on French soil still took precedence over birth by French parents (regardless of birthplace) as the legitimate criterion for determining French nationality.
The proof of this can be seen though an example provided by Jean-Francois Dubost: during this period, children of French parents born outside of France and residing on French territory needed to request from the king a letter of naturalization in order to confirm their French status. Children born in France of foreign parents would not have needed to do this. (Weil, p.76)

However, Weil was careful to point out that no single principle, by itself, conferred French nationality. While the jus soli principle was of primary importance in eighteenth century France, it did not act alone; it acted in combination with other principles:

Like all other legislation involving nationality, ever since the seventeenth century, the French tradition has been based on a mixture, or a blend -- as in a painting, several colours are mixed to achieve the desired effect. In the case at hand, two of these 'colours' are always mentioned: first, the birthplace, or jus soli ... and second, family blood/ties, or jus sanguinis ...
However, two other 'colours' are often forgotten or neglected. The third is marital status... Lastly there is past, present or future residence...
The mixture of these four basic 'colours' on the different legal 'palettes' ... determines what one must do in order to be granted French nationality. (Weil, pp.75-76)

Other historians believe that the importance of jus soli in France, prior to the French Revolution, has been exaggerated.

According to William Blackstone (1765), children born in France, of alien parents, were aliens under French law:

The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien. (Blackstone)

Clive Parry (1954) regards the "conventional theory" as an oversimplification:

For, when the parallel history of French law is examined, it is seen that it is oversimplification to say that in France there was a period, before the extension of the kingdom to the whole country, when the Romanesque or barbaric jus sanguinius held sway, followed by a period when the jus soli alone ruled until its reign was ended by the Revolution. The supposition is a false deduction from the rule that originally no one born out of France was a subject. The antithesis of that was not, however, that anyone born in France was such. In the early sixteenth century it was further required that at least one of his parents should he French. Somewhat earlier it was probably required that both parents should be French. And even later there were such curious intermediate rules as that birth in France of parents married in France sufficed, or that, though birth in France of alien parents would exclude the droit d'aubaine if the heirs were descendants, it could not do so if they were ascendants. It was also required, at the time when both French birth and French parentage were demanded of a claimant of nationality, that he should further be a rengicole -- in effect a resident. (Parry)

Tamar Herzog (2003) likewise finds that, in eighteenth century France, birthplace was not as important as it has been made out to be:

The idea that Frenchness depended on birth in a certain territory was initially linked to the belief that individuals loved the land where they were born. But after the French kings ascertained their sovereignty, the importance of birth diminished. Progressively, emphasis was shifted from territoriality to subjecthood and from community to the king. (Herzog, p.193)

At various times in French history, three groups of people were required to pay "alien" taxes.

"true" foreigners
"naturalized" foreigners
persons born in France, of alien parents

Naturalized foreigners, and native-born children of foreigners, were Frenchmen by law but were not true native Frenchmen in fact. They had some of the rights of true native Frenchmen, but were nevertheless regarded as "aliens" for taxation purposes:

It was also the case in France that letters of naturalization and even birth in the territory could fail to transform foreigners into natives. On different occasions during the seventeenth century, for example, alien taxation was levied on "true" foreigners, "naturalized" foreigners, and native French who descended from foreign families. Stressing the foreignness of these individuals, many of whom were legally French, these decrees explained their taxation was justified because the presence of foreigners on French soil was profoundly illegal and because foreigners "usurped" the privileges of natives. Following this logic, in 1769, campaigns to distinguish true natives from actual (and legal) foreigners were launched. (Herzog, p.193)

Apparently, only "true" native Frenchmen -- those born in France, of at least one French parent -- were exempt from alien taxation.

[45]

The King James Version of the Bible, published in 1611, was so named in honor of James Charles Stuart.

[46]

Robert Calvin, the plaintiff in Calvin's Case of 1608, should not be confused with the Protestant Reformation leader John Calvin (1509-1564). There is no reason to believe the two were in any way related. Since the plaintiff in Calvin's Case was underage, the Court used the pseudonym, "Robert Calvin", to protect his identity. The boy's real name was Robert Colville (Price).

[47]

Prior to 1608, the meaning of ligeance was ambiguous. In some contexts, it meant the king's territory. In other contexts, it referred to an individual's (or an individual's parents') faith, loyalty and obedience:

Before ligeance was employed to refer to a tract of land, the term had already been used to refer to a certain quality of interpersonal relationship. Glanvill, for instance, used the term to explain the pre-eminent relationship between a tenant and his 'liege' lord. Also, the treaty between Henry II and William, king of Scots (the Treaty of Falaise, 1174) ... indicates that the term was used to refer to the relationship of fidelity rather than a piece of land. ... Bracton also uses the term to refer to something other than a geographical tract.
... But in the late thirteenth century, we begin to see that the territorial extent of the King's legitimate power is also called ligeance. According to fourteenth century legal terminology, out of the ligeance (hors de la ligeance) could mean 'out of England'. Likewise, within the ligeance (deinz la ligeance) often meant 'within England'. ... It appears that the term was used in an ambivalent manner by the early fourteenth century. In other words, the term carried a certain amount of ambiguity with it. (Kim, pp.137-139)

Two examples illustrate the confusing dual meaning of ligeance.

Rex v. Philip de Beauvais (1321): Philip inherited an estate from his father. The king's representative, Geoffrey Scrope, argued that Philip's father was born outside of the king's ligeance (territory). By English law, English real estate belonging to a foreign-born individual became, upon the individual's death, the property of the king.
Serjeant Shardlow, the attorney for the defense, argued that Philip's father's parents (Philip's grandparents) were married in England, did homage to the English king, and died in the king's homage. Therefore, Philip's father was born within the king's ligeance (loyalty and obedience).
Shardlow used the dual meaning of ligeance to circumvent English inheritance laws. His strategy worked, but only temporarily. Although the judge ruled in Philip's favor, Philip eventually forfeited his inheritance to the king. (Kim, p.139).
De Natis ultra Mare (1351): This statute, enacted by Parliament in 1351, granted inheritance rights to a child born outside of the king's ligeance (territory), as long as the child's parents, at the time of child's birth, were within the king's ligeance (loyalty and obedience):
All children heirs who will from henceforth be born out of the ligeance [territory] of the king, provided that, at the time of the birth, their fathers and mothers are, and will be, of the faith and ligeance [loyalty and obedience] of the King of England, [shall] have and enjoy the same benefits and advantages of having and carrying the inheritance within the said ligeance ... (Statue De natis ultra mare, 1351, as quoted by Kim, p.121)

In 1608, the English Court defined "ligeance" as a personal relationship between a king and his subjects, wherein the king governs and protects his subjects, and his subjects give the king their faith, loyalty and obedience. But a century and a half later, the old territorial meaning of "ligeance" re-emerged. In the British Nationality Act of 1772, for example, "ligeance" means English territory.

[48]

In the early 1600s, the words "naturalization" and "denization" were synonymous. Both referred to the acquisition of subjecthood through an artifical (non-natural) means. The distinction between naturalization (an act of Parliament) and denization (an act of the king) developed later in English history.

What, in short, is the difference between naturalisation and denization? Up to the end of Elizabeth's reign, it has been submitted, there was no difference. (Parry)

[49]

Foreigners lived in English territory, but did not establish a domicile there. They did not owe allegiance to the English king. They did not receive legal rights or protection from the king, other than safe-conduct. Children born within English territory, of foreigner parents, were not English natural-born subjects; instead, such children were, at birth, subjects of the foreign sovereign to which their parents owed permanent allegiance.

All alien friends took, or at least complied with, the English Oath of Allegiance (see England's Oaths), and in so doing, received certain legal rights (other than property and inheritance rights):

Alien friends had most of the rights of subjects, and were protected by law, owed temporary allegiance to the king, and were obligated to take the oaths required of subjects (Luu, p.59).

The Oath of Allegiance included a promise to "bear faith and true allegiance" to the king, his heirs and his successors. By explicitly swearing or tacitly complying with this Oath of Allegiance, alien friends, in effect, suspended all aspects of their foreign allegiance which conflicted with "true allegiance" to the English king. Alien friends could fully resume their foreign allegiance when they departed from the king's realm. But while residing on English soil, aliens were within the allegiance of the king, hence their English-born children were "born within the allegiance" of the king and were thus, at birth, English natural-born subjects.

The phrase "faithful and true allegiance" implies exclusive allegiance, requiring, at minimum, a suspension of all other competing or conflicting allegiances. Consequently, the U.S. Supreme Court declared, as unconstitutional, the South Carolina oath, swearing "faithful and true allegiance" to the State of South Carolina, because such oath conflicted with allegiance to the U.S. Federal government:

In the case of The State v. Hunt, in South Carolina, in 1835, 2 Hill (S. C), 1, the subject of allegiance, and to whom due under the Constitution of the United States, was profoundly discussed, and it was declared by a majority of the Court of Appeals that the citizens owed allegiance to the United States, and subordinately to the state under which they lived; ... and that we owed allegiance or obedience to both governments, to the extent of the constitutional powers existing in each.
The court held that an oath prescribed by an act of the [South Carolina] legislature of December, 1833, to be taken by every militia officer, that he should be faithful, and true allegiance bear to the State of South Carolina, was unconstitutional and void, as being inconsistent with the allegiance of the citizens to the federal government. The court consequently condemned the ordinance of the convention of South Carolina of November, 1832, as containing unsound and heretical doctrine, when it declared that the allegiance of the citizens was due to the state, and obedience only, and not allegiance, could be due to any other delegated power. (Kent, pp. 67-68)

While living on English soil, alien friends suspended any foreign allegiance which conflicted with their "faith and true allegiance" to the English Crown. In so doing, they also suspended their right to confer, to their children, any foreign allegiance which conflicted with "natural allegiance" owed to the English king alone.

European political and natural law theorists, Wolff and Vattel, rejected the notion that one's home allegiance is "suspended" when one establishes a residence in a foreign country. (For Wolff's opinion on the matter, see Appendix 1). While in a foreign country, you are a temporary citizen of that foreign country; you are obligated to obey the laws of that foreign country; and you are liable for any harm, injury or damage that you might cause while in that foreign country. But while living or traveling abroad, you do not suspend your allegiance to your home country, and you do not abdicate your right to confer your citizenship to your children at the time of their birth (see Question 22).

All subjects, regardless of how they might have acquired their subjecthood, were expected to take, or at least comply with, both the Oath of Supremacy and the Oath of Allegiance (see England's Oaths). The English Oath of Supremacy included a promise to "utterly renounce and forsake" all foreign "Jurisdictions, Powers, Superiorities, or Authorities". Thus a subject did not merely suspend his foreign allegiance; he terminated it permanently.

[50]

Foreign-born children of English non-civilian parents were "special cases". Such children were, at birth, natural subjects of the king, despite the fact that they were not born within the king's realm. At birth, these children owed allegiance to the English king only and did not owe allegiance to any foreign sovereign.

English non-civilian parents included:

English ambassadors to a foreign country;
Members of English royalty; and
English soldiers invading or occupying foreign territory.

According to Vattel's natural law, if a parent, while in the diplomatic or military service of his home country, gives birth to a child in a foreign country, the legal status of the child is as though the child had been born in its parent's home country.

For the same reasons also, children born out of the country, in the armies of the state, or in the house of its minister at a foreign court, are reputed born in the country; for a citizen who is absent with his family, on the service of the state, but still dependent on it, and subject to its jurisdiction, cannot be considered as having quitted its territory. (Vattel, § 217)

On this one point, Vattel's natural law regarding citizenship agreed with the English natural law regarding subjecthood. The legal status of a foreign-born child of English non-civilian parents (i.e., parents who were royalty or in the king's service) was as though the child had been born in England.

This is one of the arguments used in support of John McCain's natural born citizenship. McCain was born in a foreign country, of parents who were U.S. citizens in the service of the United States government at the time of his birth. According to Vattel and English natural law theory, McCain's legal status at birth was as though he had been born in the United States.

[51]

In 1961, forty-two births were registered in Hawaii as "unattended births". Of these forty-two births, 4 babies were white and 38 were non-white. (See page 205 in Vital Statistics of the United States, 1961, Volume 1).

Obama's birth announcement, which was published in the local Honolulu newspapers, lists his parents' address as 6085 Kalanianaole Highway, which is located in Honolulu County. Honolulu County is the Aloha State's only metropolitan county. It occupies the entire island of Oahu. All other counties in the State of Hawaii are classified as "nonmetropolitan".

In 1961, unattended births of white and non-white babies occurred in both urban and rural portions of Honolulu County.

In the table below, column headings are as follows:

Total
Total number of births

Hospital
Births that took place in a hospital

Physician
Births that did not take place in a hospital, but were attended by a physician

Midwife
Births that did not take place in a hospital, but were attended by a midwife

Unattended
Births that did not take place in a hospital and were not attended by a physician or midwife. The number of unattended births was calculated by subtracting the number of hospital births, physician-attended births and midwife-attended births from the total number of births.

Hawaii 1961 Births by Attendant
(Source: Page 205, Vital Statistics of the United States, 1961, Volume 1)
	Total	Hospital	Physician	Unattended
White	5,418	5,406	8	4
Non-white	12,198	12,110	50	38
All	17,616	17,516	58	42

References

Bacon, Francis	Francis Bacon, Case of the Post-Nati of Scotland, 1608. Also, James Spedding, Works of Francis Bacon, Volume XV.
Bacon, Matthew	Matthew Bacon, A New Abridgement of the Law, 1736. (This is a 48MB PDF document.)
Bancroft	George Bancroft, History of the United States, Volume V, 1866-1892.
Banks	Taunya Lovell Banks, Dangerous Woman: Elizabeth Key's Freedom Suit, 2005.
Berry	M. Anderson Berry, Whether Foreigner or Alien: A New Look at the Original Language of the Alien Tort Statute, Berkeley Journal of International Law, Vol. 27:2, 2009.
Blackstone	William Blackstone, Commentaries on the Laws of England, Book 1, Chapter 10, 1765-1769.
Bodin	Jean Bodin, Six Books of the Commonwealth, Book 1, 1576.
Burlamaqui	Jean Jacques Burlamaqui, The Principles of Politic law, Part 1, Chapter 5, 1748.
Carpenter	A.H. Carpenter, Naturalization in England and the American Colonies, 2002.
Charlton	John Charlton, History of Quo Warranto, 2009.
Cockburn	Alexander Cockburn, Nationality, 1869.
Coke	Edward Coke, Calvin's Case, 1608.
Collins	George Collins, Are Persons Born within the United States Ispo Facto Citizens Thereof?, American Law Review, Sept/Oct 1884.
Dellolio	Ryan Dellolio, Citizenship and Nationhood: A comparative Analysis of France and Germany, 2008.
Dowdy	Dowdy, Natural Born Citizen, 1967.
Erler	Edward J. Erler, "From Subjects to Citizens: The Social Compact Origins of American Citizenship", in Ronald Pestritto and Thomas West, eds., The American Founding and the Social Compact, 2003.
Greschak	John Greschak, What is a Natural Born Citizen of the United States?, 2008-2010.
Henriques	Henry Straus Quixano Henriques, The Jews and the English law, 2005.
Herzog	Tamar Herzog, Defining Nations, 2003.
Kent	James Kent, John Melville Gould, Oliver Wendell Holmes, Commentaries on American law, Volume 2.
Kettner	James H. Kettner, The Development of American Citizenship 1608-1870, 1978.
Kim	Keechang Kim, Aliens in Medieval Law, 2000.
Knop	Karen Knop, Citizenship, Public and Private, 2008.
Long	Breckinridge Long, Is Mr. Charles Evan Hughes a 'Natural Born Citizen' Within the Meaning of the Constitution?, Chicago Legal News, Vol. 146-148, pp. 220-222.
Luu	Lien Luu, Natural-Born versus Stranger-Born Subjects, 2005.
Madison (2006)	P.A. Madison, Was U.S. vs. Wong Kim Ark Wrongly Decided?, 2006.
Madison (2007)	P.A. Madison, What 'Subject to the Jurisdiction Thereof' Really Means, 2007.
Madison (2008)	P.A. Madison, Defining Natural Born Citizen, 2008.
Mayton	William Mayton, Birthright Citizenship and the Civic Minimum, 2007.
Morse	Alexander Porter Morse, Natural-born Citizen of the United States: Eligibility for the Office of President, Albany Law Journal, Vol.66 (1904-1905).
Nickles	Don Nickles, Natural Born Citizen Act Summary, 2004. (This is a 2-page Microsoft Word document.)
Olsen	Kirstin Olsen, Daily Life in 18th-century England, 1999.
Parry	Clive Parry, British Nationality Law, 1954.
Patsall	Ouintilian's Institutes of the Orator, Volume 2, 1774.
Polarik	Ron Polarik, Final Report, 2008.
Prak	Marrten Prak, Burghers into citizens: Urban and national citizenship in the Netherlands during the revolutionary era (c.1800), 1997.
Price	Polly Price, Natural Law and Birthright Citizenship in Calvin's Case, 1997.
Pufendorf	Samuel von Pufendorf, The Whole Duty of Man According to the Law of Nature, Book II, Chapter VI, 1673.
Ramsay	David Ramsay, Dissertation on the Manner of Acquiring the Character and Privileges of a Citizen of the United States, 1789, as found in Kerchner v. Obama (Appeal), April 2, 2010.
Rawle	William Rawle, A View of the Constitution, 1829.
Reeve	Reeve, 1808, as quoted in American Law Register, Volume 3, 1864, p.615.
Ross	J.M. Ross, "English Nationality Law: Soli or Sanguinis?", in Charles Henry Alexandrowicz, ed., Studies in the history of the law of nations, Volume 2, 1972.
Ruddy	F.S. Ruddy, "The Acceptance of Vattel", in Charles Henry Alexandrowicz, ed., Studies in the history of the law of nations, Volume 2, 1972.
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Seybolt	Robert Seybolt, The Colonial Citizen of New York City, 1918.
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Veluca	Adrian Veluca, The Idea of Citizenship: A Historical Survey, 1999.
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Webster	Prentiss Webster, A treatise on the law of citizenship in the United States, 1891.
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Weil	Patrick Weil, Nationalities and Citizenship: The Lessons of the French Experience, in David Cesarani and Mary Fulbrook, eds, Citizenship, Nationality and Migration in Europe, 1996.
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Wolff	Joseph H. Drake's English translation (1934) of Christian von Wolff's Jus Gentium Methodo Scientifica Pertractatum (1749). ISBN 0-89941-956-9.
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Wright	Quincy Wright, Book Review: Jus Gentium Methodo Scientifica Pertractatum, The American Journal of International Law, Vol. 29, No. 3 (Jul., 1935), pp. 552-554.

Acknowledgments

Special thanks to:

Attorney Mario Apuzzo, whose comments and corrections were immensely valuable during the initial development of this Primer.
Attorney Leo Donofrio, whose published research is referenced in this Primer.
All who have sent comments and corrections directly via e-mail and indirectly as posts on various forums, especially the Leo Donofrio blog and the Right Side of Life.

Nevertheless, the information and opinions in this Primer are solely those of its author and do not necessarily reflect the views of those who have offered comments and criticisms.

Disclaimer

The author of this Primer is neither a historian nor a lawyer. Nothing in this document should be construed to be, or used as, legal advice on any matter. To contact the author, please go to this contact page using a Java-applet-enabled browser.

This Primer is intended to be just that -- a primer. Its purpose is to provide a brief introduction to the Obama presidential eligibility controversy from the birthers' perspective. Readers are encouraged to use this Primer as a springboard for their own research.

Revision Log

02/21/2010: This Primer was published as a substantial rewrite of an earlier version, dated June 5, 2009.

02/23/2010: Answer to Question 17 was revised to improve clarity

02/24/2010: Footnote 4 added. Other footnote numbers shifted accordingly.

02/25/2010: Minor wording changes and spelling corrections.

02/26/2010: Fixed broken link in Footnote 3. In Question 22, sentence beginning with "At the time of this writing" was revised for clarity.

03/01/2010: New material added to Questions 10, 24 and 26.

03/03/2010: Questions 15 and 24 edited for clarity.

03/04/2010: Question 1 was updated to include new information regarding the meaning of the word "birther".

03/07/2010: All references to the Obama File website have been removed from this Primer, solely because that website is now accessible by paid subscription only. The site remains a useful source of information for readers who do not mind paying the subscription fee. Footnotes 17 and 18 were revised for clarity.

03/09/2010: Updated answer to question 23.

03/12/2010: "The Right Side of Life - News" added to list of information sources under Question 28.

03/14/2010: The content of footnote 17 was incorporated into a new and separate question (Question 17). Questions originally numbered 17 through 28 were renumbered as Questions 18 through 29.

03/20/2010: A citation from a Heritage Foundation research paper was added to Section 4.1. Some material in Section 4.4 was transferred to Question 16 and footnote 18, thereby making Section 4.4 a bit more concise. Item 7 was added to Question 29. The list of websites in Item 9 (previously item 8) in Question 29 was sorted into alphabetic order.

03/21/2010: Clarified the definition of "birther" in Question 1.

03/23/2010: A citation to Heritage Foundation research was added to the introduction.

03/25/2010: Footnote 4 was reworded.

03/30/2010: Added a "Lucas Smith Kenyan Birth Certificate" link to footnote 10. Item 9, under question 29, was changed as follows: "Plains Radio Network" was added. The "Obama File" was re-added, since its research library and historical archives are now available to the public, without subscription. The Obama File news section remains accessible by paid subscription only.

04/01/2010: Plains Radio has been removed from the list of sources in Question 29.

05/03/2010: Sections 4.4, 4.5 and 4.6 became questions 16, 17 and 18 respectively. Questions previously numbered 16 through 29 were renumbered as questions 19 through 32. Sections 4.7 and 4.8 were renumbered as 4.4 and 4.5 respectively. The Orly Taitz website (www.orlytaitzesq.com) has been removed from Question 29. Information regarding the difference between "foreigner" and "alien" was added.

05/09/2010: Various grammar and spelling corrections.

05/23/2010: Various grammar and spelling corrections. Added footnotes 18, 19, 21 and 43. Added Appendix 1.

05/28/2010: Footnote 43 revised.

06/08/2010: Question 23 revised. "Right Side of Life" website added back to Question 32. Several new footnotes added.