Obama Presidential Eligibility - An Introductory PrimerThis Primer, by Stephen Tonchen, is different from, should not be confused with, the WorldNetDaily Obama Eligibility Primer. The Tonchen Primer appeared on the Internet in June 2009, more than a year prior to the WND Primer. UPDATE (4/27/2011): Now that President Obama has released his long-form birth certificate, questions 31 through 34 in this Primer have become moot [91]. They are retained here for posterity purposes only. The other 33 questions and corresponding answers remain entirely unaffected. Those questions have acquired even greater importance and relevance, now that Obama's newly-released long-form birth certificate has further substantiated his dual nationality at birth. IntroductionThe Philadelphia Convention adopted the U.S. Constitution 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]. What is a natural born citizen? Even if President Barack Obama is a U.S. citizen by birth, is he a U.S. natural born citizen? According to an article which appeared in the Michigan Law Review in 2008, we know two things for sure about the meaning of "natural born citizen":
But what about a child born overseas to U.S.-citizen parents? And what about a U.S.-born child of an alien parent? These children are U.S. citizens by modern-day 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. Barack Obama -- regardless of where he was born -- acquired British nationality (in addition to U.S. citizenship) at birth. His citizenship status, at birth, was "governed" by the British Nationality Act of 1948 (see Barack Obama's "fight the smears" website). In light of these facts, an increasing number of Americans are concerned that President Obama 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. Although this belief is widely held, the Supreme Court has never accepted it. On the contrary, our nation's highest court has consistently used the term "natural born citizen" only in reference to persons born on U.S. soil, to U.S.-citizen parents. In Scott v. Sandford (1856), the Supreme Court characterized, as unexceptionable (incapable of being criticized), the viewpoint that: "natural-born citizens are those born in the country of parents who are citizens" (Scott v. Sandford, 1856) In Minor v. Happersett (1874), the Supreme Court defined two classes of persons. One class consisted of U.S.-born children of U.S.-citizen parents. The second class consisted of all other U.S.-born children. The Court used the term "natural born citizen" only in reference to members of the first class. Regarding members of the second class, the Court doubted whether they were even citizens, let alone natural born citizens. The Court distinguished "natural born citizens" from "aliens or foreigners", suggesting that a "natural born citizen" is one who is not a "foreigner" (foreign citizen) at birth [05]. The United States has had 44 presidents (including Barack Obama). Of these 44 presidents, 34 were born after 1787 (the year the Constitution was adopted) and were therefore subject to the "natural born citizen" requirement. With only two exceptions, every one of these 34 presidents was born in the United States, of parents who were both U.S. citizens (Natural Born Presidency). The two exceptions were Chester Arthur and Barack Obama. While running for office in 1880, Chester Arthur lied to newspaper reporters about his family history (and later burned most of his family records), thereby concealing the fact that, when he was born, his father (William Arthur) was British subject, not a U.S. citizen (Historical Breakthrough - Chester Arthur). President Obama's "fight the smears" website, his published long-form birth certificate, and his autobiography identify his father as Barack Hussein Obama Sr., a Kenyan native who never became a U.S. citizen. When President Obama was born, he acquired British citizenship by descent from his father (FactCheck.org: Does Barack Obama have Kenyan citizenship?). The year 2008 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 (as well as a U.S. citizen) at the time of his birth [06]. Since President Obama acquired foreign nationality (in addition to U.S. citizenship) at birth, his "natural born citizen" status is in doubt [07]. 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 said, as well as a variety of other historical and legal sources which are presented and discussed here. In the following pages, we introduce 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. Contents1. 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?
6. Does the birthers' viewpoint have historical or legal merit? 7. What was the original purpose of the presidential "natural born citizen" requirement? 8. What was the 18th-century meaning of the word "foreigner"? 9. What is the difference between "Constitutional" and "statutory" natural born citizens? 10. Wouldn't the most recent modern-day statutory meaning of "natural born citizen" take precedence over the original Constitutional meaning? 11. If Obama is not a "Constitutional natural born citizen", so what? Why should anyone care? 12. Why has every birther lawsuit been denied or dismissed? 13. What is a 14th Amendment natural born citizen? 14. What was the originally intended meaning of "jurisdiction" in the 14th Amendment? 15. Doesn't the Wong Kim Ark decision make Obama a "natural born citizen"? 16. Doesn't the Julia Lynch case show that Obama is a "natural born citizen"? 17. What was an 18th-century English "subject"? 18. What was Calvin's Case? 19. What was a "natural-born subject"? 20. Didn't Calvin's Case affirm the jus soli principle? 21. How did Calvin's Case define ligeance? 22. Who were "alien enemies"? 23. Were English-born children of alien parents "natural-born subjects"? 24. What did "actual obedience" mean? 25. What was an English "citizen" before the American Revolution? 26. Wasn't jus soli the "rule of Europe" when the Constitution was being written? 28. Did "natural born" imply exclusive allegiance at birth? 29. What was Vattel's "Law of Nations"? 30. What is the root of the "natural born citizen" debate? 31. What's the "beef" with President Obama's birth certificate? 32. Didn't the State of Hawaii recently verify that President Obama was born in Hawaii? 33. Doesn't the mere existence of Barack Obama's original Hawaiian birth certificate prove that he was born in Hawaii? 34. Do birthers actually believe that President Obama was born in a foreign country? 35. If President Obama's birth certificate shows conclusively that he was born in Hawaii, would it end the eligibility controversy? 36. Aren't Obama eligibility challenges merely partisan attacks by Republicans against a Democratic president? 37. What is "Quo Warranto"? 38. What can we do? Appendix 1: Excerpts from Jus Gentium (1749) Appendix 2: Methods of English Subjecthood Acquisition Appendix 3: Comparison between English and European Political Theories Appendix 4: Federal Quo Warranto Statute Footnotes References Acknowledgments Disclaimer Revisions Copyright 1. What is a "birther"?On August 21, 2008, attorney Philip J. Berg, a lifelong Democrat, filed a complaint in federal district court, "alleging that Obama was born actually in Mombasa, Kenya and that the Certification of Live Birth on Obama's website is a forgery" (Wikipedia: Phil Berg lawsuit concerning Barack Obama). Berg's complaint further alleged that, since Obama's mother was too young to confer U.S. citizenship to a foreign-born son and his father was not a U.S. citizen, Barack Obama was not a U.S. citizen at birth. The term "birther" was probably coined in response to Berg's lawsuit. Originally, "birther" 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, the word "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 citizenship, at birth, by descent from his father (Why Obama is ineligible -- regardless of his birthplace). From that point on, the "birther" controversy was no longer limited to the President's birth certificate and place of birth. Today, most plaintiffs and lawyers who are challenging Obama's eligibility in court, acknowledge that the Obama eligibility question stems from two separate and distinct issues: the President's place of birth, and his foreign nationality 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 dual 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 -- suggesting that Barack Obama's legal status at birth might disqualify him from serving as president. The President Obama's circumstances and activities after his birth -- his purported adoption and citizenship in Indonesia, his alleged use of a foreign passport, his suspected acceptance of financial aid intended for foreign students only, his ongoing use of a Connecticut social security number, 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:
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:
There is some question as to whether President Obama meets the birthplace requirement [11]. There is suspicion that he might have been born in Kenya [12]. There is also speculation that he might have been born in Canada [13]. Far more importantly, Obama publicly acknowledges that, regardless of where he was born, 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 law and history, that an individual must be U.S.-born of U.S.-citizen parents in order to be a natural born citizen [14]. 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 four sources which do not adequately define "natural born citizen" as used in the U.S. Constitution.
Even though these sources do not have what we are looking for, we must 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 understood to mean either (a) anyone who acquires U.S. citizenship at birth, or (b) anyone who is born in the United States (except the child of a foreign diplomat). Prior to 1991, Black's Law Dictionary did not define "natural born citizen". In 1991, the following definition was added: Natural born citizen. Persons who are born within the jurisdiction of a national government, i.e. in its territorial limits, or those born of citizens temporarily residing abroad. (Black's Law Dictionary, 6th Ed., 1991, p.1026) 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) According to an article published by the Yale Law School, there is near-universal acceptance of the consensus viewpoint: There is near-universal agreement that all persons born within the United States are natural born (Bonner, p.3) According to a Congressional Research Service memorandum (April 3, 2009), the weight of legal opinion is that anyone born in the United States, except the child of a foreign diplomat, is a natural born citizen: The weight of scholarly legal and historical opinion appears to support the notion that "natural born Citizen" means one who is entitled under the Constitution or laws of the United States to U.S. citizenship "at birth" or "by birth," including any child born "in" the United States (other than to foreign diplomats serving their country) ... (Maskell, p.5) The consensus opinion is that anyone born on U.S. soil (except the child of a foreign diplomat) is a "natural born citizen", regardless of parental citizenship and regardless of any other citizenship acquired at birth. However, the Supreme Court has never accepted this consensus opinion. On the contrary, in Minor v. Happersett (1874) -- six years after the 14th Amendment became part of the U.S. Constitution -- the Supreme Court cast doubt on the "natural born citizen" status of children not born of U.S.-citizen parents [05]. At the time of this writing, the consensus opinion, through widely held, remains only an opinion. There is no court ruling or Federal statute which establishes the consensus opinion as settled law. 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 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 2008, the Senate passed a resolution, expressing a non-legally-binding opinion that John McCain is a natural born citizen [15]. The resolution acknowledged that "natural born citizen" is not defined in the U.S. Constitution [16]: 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 law (specifically, Title 8 Section 1401) defines "citizens" of the United States, but the term "natural born citizen" does not appear in any existing Federal statute [17]. 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 conferring 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".
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. If such a statute were to be enacted, it would most likely be unconstitutional. Congress may not change the meaning of the Constitution by passing a law that redefines a term that the Constitution uses. The Constitution is changed only through a Supreme Court rulings or a Constitutional Amendment, not though laws that Congress enacts unilaterally. 4.4 English-language Literature: We are not aware of any English-language literature which, prior to the writing of the Constitution, explicitly defined the term "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 provides clues regarding the Constitutional meaning of "natural born citizen".
The three literary examples listed above suggest an eighteenth-century connection between the word "native" and the term "natural born". Today, one's nativeness is often defined by one's place of birth. The "native" of a country is, generally speaking, a person who was born in that country. The Free Dictionary, for example, defines "native" (noun) as "One born in or connected with a place by birth" (Free Dictionary: native). According to Webster's Dictionary, "One born in any place is said to be a native of that place, whether country, city or town" (Noah Webster's Dictionary: native, 1828). But, in at least some eighteenth-century contexts, the English word "native" was synonymous with "natural" or "natural born", and implied something more than birth in a particular place.
During the eighteenth century, "natural born" was sometimes an adjective form of the noun "native", and in at least some English-language writings, both terms implied something more than birth in a particular place. Summary: Modern-day word usage, the U.S. Constitution itself, existing Federal statutes enacted by Congress, and eighteenth-century English-language literature provide useful hints, but do not conclusively establish the meaning of "natural born citizen" as used in the U.S. Constitution. We must look elsewhere to determine the term's originally intended meaning.
5. In a nutshell, what is the Obama eligibility controversy?Obama eligibility supporters make three points:
Given the above information, politicians and members of the mainstream news media understandably ask, "What's the problem here? How could there be any credible question or doubt regarding President Obama's 'natural born citizen' status?" Four core facts: The Obama eligibility controversy arises from four facts:
To summarize, Barack Obama admits that he acquired foreign citizenship at birth, by descent from his father: When Barack Obama Jr. was born on Aug. 4, 1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom's dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.'s children. (FactCheck.org, as quoted in Obama's "Fight the Smears" webpage regarding his birth certificate). This public admission raises the question, "Is Obama a natural born citizen of the United States, given that his legal status at birth was 'governed' by the laws of a foreign country?" Obama eligibility supporters answer "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 therefore acquired U.S. citizenship at the time of his birth, he is a natural born citizen, regardless of his parents' citizenship and regardless of any other citizenship he might have also acquired at birth [24]. Birthers answer "No". In their opinion, the popular notion -- that anyone born on U.S. soil is a natural born citizen -- is not consistent with historical fact and Supreme Court precedent. During the Constitutional era, when a child acquired dual (both American and foreign) citizenship at birth, such child might be deemed a "citizen" but was not a "natural born citizen". The term "natural born citizen" referred only to persons who were, at birth, citizens of the United States exclusively and were not citizens at birth of any other country [25]. Thus we have two opposing viewpoints regarding the meaning of "natural born citizen". Which viewpoint is correct? Only the Supreme Court (not Congress, not the voters, not the consensus of American legal opinion) has the Constitutional authority to answer this question. President Obama has a duty to ask the Supreme Court for a declaratory judgment resolving all doubts with respect to his "natural born citizen" status.
6. Does the birthers' viewpoint have historical or legal merit?Birthers argue that the modern-day "consensus" of legal opinion -- that anyone born in the U.S. is a U.S. natural born citizen -- is subject to doubt and cannot be regarded as established or settled law. In their view, there is historical and legal evidence indicating that, when the U.S. Constitution was being written, parental citizenship was an essential requirement for natural born citizenship. One was not a natural born citizen unless one's parents, or at least one's father, was a U.S. citizen at the time of one's birth [26]. Birthers point out the following:
Based on the above (and other) information, birthers suspect that, even if President Obama is a U.S. citizen by birth, he might not be a natural born citizen and thus might not be eligible to serve as president. President Obama publicly admits that his father was a Kenyan native who never became a U.S. citizen. Consequently President Obama -- regardless of where he was born -- acquired foreign citizenship at birth by descent from his father. Birthers ask, "Can someone be a natural born citizen of the United States if she or he was born with foreign nationality in addition to U.S. citizenship?"
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 only if he 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 August 1787, the Constitutional Convention changed the presidential eligibility requirement 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) The Framers of the Constitution were concerned that a foreign power might raise a "creature of their own" to 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) In a letter to George Washington, dated 25 July 1787, John Jay (1745-1829) had recommended that the presidency be restricted to "natural born citizens" only. The stated reason for this restriction 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) At the time, a "foreigner" was anyone owing allegiance to a foreign state or sovereign (see Question 8: Meaning of "foreigner"). A child could be, at birth, both a U.S. "citizen" and a "foreigner" (a foreign citizen) at the same time. But, according to Minor v. Happersett (1874), "natural born citizen" and "foreigner" are mutually exclusive categories. A child, at birth, is one or the other but not both: ...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, boldface emphasis added) St. George Tucker (1752-1827) explained that the purpose of the "natural born citizen" provision was to protect the presidency from foreign influence: 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. Precedent for foreign exclusion: It was not unusual for a nation to exclude foreigners from its highest levels of government. The Torah (Old Testament), 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 excluding, from public office, foreign-born persons of non-English parents: ...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) According to Cunningham's Law Dictionary (1764 and 1783 editions), foreigners -- even those who had become English subjects by denization or naturalization -- were ineligible to hold public office in England: Foreigners, Though made denizens or naturalized here, are disabled to bear offices in the government, to be of the Privy council, members of Parliament, &c. by acts of settlement of the crown. (Cunningham, Law Dictionary, vol.2, 1771, p.82, under "Foreigner") It did not matter how loyal you were to the English king. It did not matter that you had completely renounced all of your 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 citizen or subject of any foreign country. Dual citizenship: When the thirteen colonies became independent States, each State had the right to determine the citizenship status of children born within its borders. Any child who was "born a citizen" of any State, according to the laws of that State, was automatically a citizen of the United States [30]. States were not required to limit themselves to any "natural law" theory of birthright citizenship. Each State had the right to determine, in any manner it saw fit, who were and who were not its citizens at birth [31]. A child who was "born a citizen" of a State might also acquire foreign nationality at birth. For example, when the U.S. Constitution was being written, a child was a British subject by birth if such child was either (a) born in the U.S., of British parents, or (b) born in Great Britain, of U.S.-citizen parents. Depending on the applicable State laws, such a child could be both (a) "born a citizen" of a State, and (b) a British subject at 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) Status at birth: Natural born citizenship is conferred only at birth and cannot be acquired after one's birth [27]. Consequently, the presidential natural born citizen provision, in the Constitution, pertained only to one's legal status at the time of one's birth. The provision, by itself, did not prevent, and could never have prevented, the inauguration of a president who had become a foreigner after she or he was born. At most, the provision only excluded persons who were "foreigners" at birth. When the Constitution was written, there were only two ways that a child could be a citizen or subject of a foreign country at birth:
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, 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 either one of your parents was not a U.S. citizen exclusively when you were born, you could have acquired foreign nationality, in addition to U.S. citizenship, at birth. Summary: In August 1787, the Constitutional Convention changed the presidential eligibility requirement from "born a citizen" to "natural born citizen". The stated purpose of the "natural born citizen" requirement was to exclude "foreigners" from the presidency. A person who is "born a citizen" of the United States can also be "born a citizen" of a foreign country. For example, the U.S.-born child of a British couple acquires U.S. citizenship at birth (by virtue of birth on U.S. soil) and, at the same time, also acquires British nationalith at birth (by virtue of being born of British parents). The terms "born a citizen" and "natural born citizen" pertain only to one's status or condition at the time of one's birth. Thus the "natural born citizen" provision could have, at most, only excluded persons who were "foreigners" at birth, and could have achieved such exclusion only if "natural born citizen" is a person who is, at birth, a citizen of the United States exclusively and is not, at birth, a "foreigner" (citizen or subject of any foreign country).
8. What was the 18th-century meaning of the word "foreigner"?According to Black's Law Dictionary, the word "foreigner" has both a municipal meaning and an international meaning. In a municipal context, a "foreigner" in a city is a person who is a member of some other city (see Question 25: English citizenship). In an international context, a "foreigner" in a country is someone who is a member of some other nation or state. FOREIGNER. In old English law, this term, when used with reference to a particular city, designated any person who was not an inhabitant of that city. According to later usage, it denotes a person who is not a citizen or subject of the state or country of which mention is made, or any one owing allegiance to a foreign state or sovereign. (Henry Campbell Black, A Dictionary of Law, First Edition, 1891, p.506) In 2009, the Berkeley Journal of International Law published a comprehensive historical analysis of the words "foreigner" and "alien", as used in English and American legal writings during the late eighteenth century. Research by Anderson Berry found that the word "foreigner", when used in an international context, has a general meaning and a specific meaning. In the general sense, anyone who is of foreign origin (was born in a foreign country) or is of foreign nationality (is currently a citizen or subject of a foreign country) is a "foreigner". But in the specific sense, "foreigner" is used in contradistinction to "alien". ...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) "Aliens" are persons who relocate permanently to one country, while they are still citizens or subjects of some other country. Presumably aliens intend to renounce their allegiance to their country of origin and become naturalized citizens of the country of their new permanent residence. In contrast, "foreigners" are temporary visitors who retain citizenship and permanent residence in their home country and intend to someday return to their home country [32]. (The distinction between "alien" and "foreigner" is further discussed in Question 17: English subject). In the general sense, the eighteenth-century meaning of "foreigner" was not limited to persons born in a foreign country. If you are a citizen or subject of a foreign country, you are a "foreigner," regardless of your residence or place of birth. Nationality vs. National Origin: The word "foreigner" (in the international sense) can refer to either one's nationality or one's national origin:
In 1608, the term "alien born" could refer to either a person of foreign birth (origin) or a person of foreign allegiance (nationality): An alien born is of foreign birth or foreign allegiance, and is also called peregrinus (foreigner), alien, exotic, stranger, etc. A stranger is a subject who is born outside the land, that is, outside the king's power. (Coke(1608), p.204, footnote 151) In Vattel's Law of Nations (1758) (see Question 29: Law of Nations), one's "country" is either:
As Vattel explained, you can change your nationality but not your national origin. 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 [one's current nationality]: in this sense we have used it in the preceding sections; and it is to be thus understood in the law of nations. In Christian Wolff's Jus Gentium (1749), one's "native country" (the country of one's national origin) is established at birth and can never change. It is defined by one's citizenship at the time of birth, not the place of one's birth: 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... (Wolff, § 141) When a (foreign-born) immigrant becomes a naturalized U.S. citizen, he relinquishes his foreign nationality. But he does not relinquish his national origin; in that sense, he remains a "foreigner by birth": Foreigner: A person born in a foreign country, or without [outside of] the country or jurisdiction of which one speaks. A Spaniard is a foreigner in France and England. All men not born in the United States are to them foreigners, and they are aliens till naturalized. A naturalized person is a citizen; but we still call him a foreigner by birth. (Webster: foreigner, 1828) Summary: In the late eighteenth century, if you were a citizen or subject of a foreign country, you were technically a "foreigner"; it did not matter whether you were also a U.S. citizen. If you acquired, at birth, citizenship in both the United States and a foreign country, you were a "foreigner" (a foreign citizen or subject) at the time of your birth. The fact that you acquired foreign nationality at birth can never change, even if, in adulthood, you renounce your foreign allegiance and become a citizen of the United States exclusively [33]. Since natural born citizenship pertains only to one's legal status at the time of one's birth, the Constitutional "natural born citizen" provision, by itself, does not exclude presidential candidates on the basis of their current nationality. At most, the natural born citizen provision excludes persons only on the basis of their national origin (their citizenship at the time of birth). Changing the presidential eligibility requirement from "born a citizen" to "natural born citizen" does not provide any additional protection against foreign influence -- it does not reduce the number of persons who may serve as president -- unless "natural born citizen" means a person who is not a "foreigner" (citizen or subject of a foreign country) at the time of her or his birth.
9. What is the difference between "Constitutional" and "statutory" natural born citizens?Three years after the U.S. Constitution was adopted, Congress enacted the Naturalization Act of 1790. The Act granted U.S. citizenship, at birth, to foreign-born children of American 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, boldface emphasis added) The 1790 Act did not say that foreign-born children of American parents are natural-born citizens. It merely said that such children shall be considered as natural born citizens. In contrast, the 14th Amendment citizenship clause states, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens ...". The 14th Amendment does not say that such persons are considered as citizens or are declared to be citizens. Instead, the Amendment says that such persons are citizens. Is there a distinction between persons who actually "are" natural born citizens in fact and persons who are "considered as" or "deemed to be" natural born citizens by statute or law? Such a distinction existed in eighteenth-century English law. When aliens were naturalized by Parliament, they did not become natural-born subjects in any factual or literal sense. Instead, they were "taken and reputed" to be natural-born subjects [66]. Likewise, the Act of Anne did not say that foreign-born children of English fathers are natural-born subjects. The Act merely said that such children shall be "deemed and adjudged" to be natural-born: 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) In the statutory sense, all English subjects (except persons made denizens by the king) were called natural-born subjects (see Question 19: Natural-born subject). Naturalized subjects and foreign-born children of English fathers were deemed to be natural-born subjects by law. Likewise, in American law, all American citizens, regardless of whether they are naturalized or natural born, have the same rights. There might be a Constitutional difference between naturalized citizens and natural born citizens, but there is no statutory difference between the two. In the statutory sense, all American citizens are considered the same as natural born citizens: In any case, the Supreme Court long has rejected the notion that naturalized citizens may or should possess rights different from those of other citizens under the law: ... "[The naturalized citizen] is distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none." (Craig v US -- Ruling US Court of Appeals 10th Circuit, 2009). For purposes of this Primer, the difference between Constitutional and statutory natural born citizens is defined as follows:
Currently, there is no Federal law that explicitly defines "natural born citizen" or explicitly confers "natural born citizenship" to anyone. However, the mainstream news media sometimes understands and interprets Federal law as implicitly granting "natural born citizen" status to certain individuals at birth [17]. For purposes of this Primer, if a person is deemed a "natural born citizen" pursuant to a 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 (U.S. Department of State Foreign Affairs Manual -- 7 FAM 1130, page 9) 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. At least one lower-court judge has expressed his opinion that the US-born children of illegal-immigrant parents are "natural born citizens". We understand his use of the term "natural born citizen" as statutory, not Constitutional: Petitioner, Sebastian Diaz-Salazar, entered the United States illegally in 1974 and has been living and working in Chicago since that time. ... The petitioner has a wife and two children under the age of three in Chicago; the children are natural-born citizens of the United States. (Diaz-Salazar v. I.N.S., 1983) 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. 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.
10. 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 9: statutory natural born citizens), 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.
11. 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 provision 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:
The original purpose of the "natural born citizen" provision was to protect the presidency from foreign influence. A President might pose a national security risk if she or he was born with foreign ties or allegiance: If we decide to ignore the natural born citizen provision, we open the door to the possibility of a person with strong ties to foreign nations -- possibly stronger than to our own -- to be the sole commander of our military men and women who protect us. And they also deserve our protection -- AT ALL COSTS -- from such a treasonous scenario. (The Dangerous Precedent Set by Obama being President) Edwin Vieira, one of this nation's leading Constitutional scholars, warns that Obama's questionable eligibility, if left unresolved, could become precedent and justification for unraveling Constitutional authority in the future: 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) 12. Why has every birther lawsuit been denied or dismissed?Prior to 2012, every lawsuit challenging Obama's presidential eligibility has been either denied without comment or dismissed on technicalities. The courts have avoided consideration of the substance or merit 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 Barack Obama is a Constitutional natural born citizen. In two cases, Donofrio v. Wells and Wrotnowski v. Bysiewicz, the plaintiffs filed motions that the Supreme Court denied without comment. However, the Court did not dismiss either case. Both cases are still "alive" today and could be further pursued, if the plaintiffs so choose. In other cases, the courts have given three reasons for denying or dismissing birther lawsuits: lack of factual basis, lack of jurisdiction, and lack of standing:
At the time of his writing, no court has ruled on whether Barack Obama is eligible to hold office. Many eligibility lawsuits have failed because they did not meet factual, jurisdictional and/or standing requirements.
13. What is a 14th Amendment natural born citizen?The "14th Amendment natural born citizen" theory asserts that the 14th Amendment conferred "natural born citizen" status to Barack Obama at the time of his birth. This theory appeared in Obama's "Fight the Smears" website: Lie: Obama Is Not a Natural Born Citizen. Truth: Senator Obama was born in Hawaii in 1961, after it became a state on August 21st, 1951. Obama became a [natural born] citizen at birth under the first section of the 14th Amendment. (Fight the Smears -- June 2008) 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 the new or clarified meaning, Barack Obama is a "natural born citizen" eligible to serve as president. 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. Citizenship laws varied from State to State, but as a general rule, free white children born within a State (except the children of vagrants and foreign ambassadors) were, by State law, citizens of that State [34]. Anyone who was born a citizen of any State was automatically a citizen of the United States [30]. The 14th Amendment Citizenship Clause defines a particular group of people, which we call the "14th Amendment Citizen," or 14AC, class. This 14AC class consists of every person who was both:
The Citizenship Clause, in the 14th Amendment, says that all 14AC-class members are citizens. It does not say whether citizenship extends to anyone else [35]. The Citizenship Clause requires each State to recognize 14AC-class members as citizens. Each State retains the right to grant or deny citizenship to non-14AC-class members [36]. The 14th Amendment mentions citizens. It does not mention natural born citizens. Nevertheless, 14th Amendment natural born citizen theory argues that the Citizenship Clause implies that a "natural born citizen" is anyone who is born in the United States and is 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. His mother was a U.S. citizen; and his father, though not a U.S. citizen, was residing 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 (according to the theory) met the requirements of natural born citizenship according to the 14th Amendment. Three objections have been raised against this "14th Amendment natural born citizen" theory:
In summary, the 14th Amendment does not explicitly say anything about the meaning of "natural born citizen". The term "natural born citizen" does not appear anywhere in the 14th Amendment. The notion that the 14th Amendment implies that Barack Obama is a natural born citizen is not consistent with the originally-intended meaning of "jurisdiction" as used in the 14th Amendment, is not consistent with the Supreme Court opinion in Marbury v. Madison (1803), and is not consistent with Supreme Court opinions asserting that the meaning of "natural born citizen" is not found in the Constitution, hence is not found in the 14th Amendment.
14. 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 seems unlikely that the meaning of "subject to the jurisdiction thereof" (in the 14th Amendment) would substantively differ from the meaning of "not subject to any foreign power" (in the 1866 Civil Rights Act). 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. In 1873, the Supreme Court (in the Slaughter-House cases) affirmed 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 (in Elk v. Wilkins) likewise affirmed that a child, born in the United States, acquires 14th Amendment citizenship at birth only if such child, when born, owes "no allegiance to any alien power": The main object of the opening sentence of the fourteenth amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes, (Scott v. Sandford, 19 How. 393;) and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside. (Elk v. Wilkins, 1884) You are a 14th Amendment citizen only if (a) you were born or naturalized in the United States, and (b) the United States had complete jurisdiction over you at the time of your 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) Native American Indians, even when born on U.S. soil, are subject to tribal jurisdiction, hence are not subject to sole and complete U.S. jurisdiction. Consequently, Native American Indians, born on U.S. soil, are not 14th Amendment citizens at birth: Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indiana tribes, (an alien though dependent power,) although in a geographical sense born in the United States, are no more 'born in the United States and subject to the jurisdiction thereof,' within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations. (Elk v. Wilkins, 1884) In 1885, nearly two decades after the 14th Amendment was ratified, Thomas F. Bayard, while serving as the United States Secretary of State under President Grover Cleveland, ruled that the son of German immigrants, though born in the United States, was not a U.S. citizen as per the 14th Amendment. Since his parents were foreign citizens at the time of his birth, the boy was, at birth, "subject to a foreign power" and therefore "not subject to the jurisdiction of the United States" (The Nation, Vol.59, No.1521, August 23, 1894, p.134). In 1898, the Supreme Court, in U.S. v. Wong Kim Ark, ruled that Mr. Wong had acquired 14th Amendment citizenship at birth, even though his parents, at the time of his birth, were Chinese immigrants not citizens of the United States. Wong was born in the United States in 1873. The Birlingame-Seward Treaty of 1868, between China and the United States, was in effect at the time. Although it did not permit one country to naturalize the other country's citizens, the treaty contained an unusual provision -- not found in other U.S. treaties -- recognizing "the inherent and inalienable right of man to change his home and allegiance". By treaty, Wong's parents, though not U.S. "citizens", nevertheless qualified as U.S. "nationals", owing allegiance to the U.S. exclusively and not owing allegiance to any foreign power (Objectively Gray). According to the framers of the 14th Amendment, 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 subject to sole and complete U.S. jurisdiction. Native American Indians were subject to tribal jurisdiction, thus were not subject to sole and complete U.S. jurisdiction. Consequently, the 14th Amendment did not grant citizenship to Native American Indians, even though they were, in nearly all cases, 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?
15. 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 three reasons:
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 (or rule) that natural born citizenship is determined by birthplace alone, Justice Gray's reasoning leads to that conclusion.
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 matter of law, but over a matter of American history: 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) P.A. Madison (a writer for the Federalist Blog) agrees with Justice Fuller's understanding of American history. When the original thirteen colonies gained their independence and became States, they 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." (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" the meaning of "jurisdiction" in the 14th Amendment. He "presumed" that, in the 14th Amendment, the word "jurisdiction" refers to 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 14: Jurisdiction). 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 Chester Arthur, the 21st President of the United States. 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 invalidated. 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 a ruling that was based on two assertions: 1) that the jus soli principle of English common law "continued to prevail under the Constitution" and controlled the meaning of citizenship at the Federal level, and 2) that, in the 14th Amendment, "jurisdiction" meant territorial and legal jurisdiction only. The historical validity of both assertions has been questioned by multiple sources [40].
16. 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 British subjects visiting the United States. Shortly after Julia's birth, the Lynch family returned to their home in 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 born a citizen of any State was automatically a citizen of the United States [30]. 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 has 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). Fifteen years earlier, William Rawle (1829) had expressed the same personal 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) 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 1864, Edward McPherson wrote that birth in the United States is sufficient to confer natural-born citizenship: And our Constitution, in speaking of natural born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country constitute the nations, and, as individuals, are natural members of the body politic. If this be a true principle, and I do not doubt it, it follows that every person born in the country is, at the moment of birth, prima facie a [natural born] citizen ... (McPherson, p.380) In 1866, George Bancroft expressed the same viewpoint -- that all persons born on U.S. soil are natural born citizens: ...everyone who saw the first light on the American soil was a natural-born American citizen (Bancroft, p.201) In 1983, Judge Richard Cudahy (U.S. Court of Appeals for the Seventh Circuit) expressed his opinion that US-born children of illegal immigrant parents are "natural born citizens": Petitioner, Sebastian Diaz-Salazar, entered the United States illegally in 1974 and has been living and working in Chicago since that time. ... The petitioner has a wife and two children under the age of three in Chicago; the children are natural-born citizens of the United States. (Diaz-Salazar v. I.N.S., 1983) Opposing Viewpoints: The above-cited "authorities" have expressed the opinion that birth within the United States is, by itself, sufficient to confer "natural born citizen" status. But, throughout U.S. history, other authorities have expressed an opposing opinion -- that one is not a natural born citizen unless one's parents (or at least one's father) were U.S. citizens at the time of one's birth. In 1789, two years after the Constitution was adopted, David Ramsay argued that a child naturally receives, at birth, the citizenship of its parents: [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) Ramsay's comments were made in connection with a dispute over William Smith's eligibility to serve as a U.S. representative from South Carolina. Despite their disagreement on the eligibility issue, Smith agreed with Ramsay that a child naturally receives, at birth, the citizenship of its parents, particularly its father: 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.178) In 1811, the U.S. State Department refused to recognize James McClure as a U.S. citizen (Publius Enigma). McClure was born in the United States, but his parents were not U.S. citizens at the time of his birth. He would have acquired U.S. citizenship at birth if he had been born in a state (such as Virginia) which confers state citizenship to anyone born within its borders. At the time, anyone who acquired state citizenship under state law was automatically a citizen of the United States. But McClure was born in a state (South Carolina) which had not enacted any citizenship laws. In the absence of state citizenship laws, United States citizenship is conferred only to persons born in the United States, of parents who are U.S. citizens: Mr. Rodman hints, that it would have been sufficient for James McClure to have been born in the United States -- he is mistaken. The law of the United States recognizes no such claim. The law of Virginia, of 1792, does -- for, "all free persons born within the territory of this commonwealth," is deemed a citizen. The law of Virginia considers him as a son of the soil. An alien, as well as a citizen, may beget a citizen -- but the U. States' act does not go so far. A man must be naturalized to make his children such. ("Case of James McClure", The Alexandria Herald, Vol. I, No. 37, October 7, 1811, page 2, left-most column) In 1820, Virginia Representative A. Smyth indicated that one's citizenship at birth is determined by the citizenship of one's father at the time of one's birth: 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. According to the article, all citizens are presumed to owe allegiance to the United States exclusively, but a natural born citizen owes exclusive allegiance from the time of her or his birth: 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 1859, Attorney General Jeremiah Sullivan Black clarified the distinction between a native and a naturalized citizen. All U.S. citizens are presumed to owe allegiance to the United States exclusively. The native is a citizen who never owed allegiance to any sovereignty other than the United States. There can be no doubt that naturalization does, pro facto, place the native and adopted citizen in precisely the same relations with the Government under which they live, except so far as the express and positive law of the country has made a distinction in favor of one or the other. ... Here none but a native can be President. ... A Native and a Naturalized American can go forth with equal security over every sea and through every land under heaven, including the country in which the latter was born. ... They are both of them American citizens, and their exclusive allegiance is due to the Government of the United States. One of them never did owe fealty elsewhere, and the other, at the time of his naturalization, solemnly and rightfully, in pursuance of public law and municipal regulations, threw off, renounced and abjured forever all allegiance to every foreign prince, potentate, State and sovereignty whatever, and especially to that sovereign whose subject he had previously been. (New York Times: Attorney General Black's Opinion upon Expatriation and Naturalization, July 20, 1859) In 1866, during a speech before the U.S. House of Represenatives, John Bingham (1815-1900), the father of the 14th Amendment, said that a natural born citizen is one who is born in the United States, of parents not owing allegiance to any foreign sovereignty: [I] find no fault with the introductory clause [of the 1866 Civil Rights Act], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen. (Congressional Globe, 39th, 1st Sess.(1866), p.1291, center column) 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. ... Birth [in the United States] ... does not ispo facto confer citizenship, and it is essential in order that a person be a native or natural born citizen of the United States, that his father be at the time of the birth of such person a citizen thereof, on in case he be illegitimate, that his mother be a citizen thereof at the time of such birth. (Collins) 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 1896, an article by Percy A. Bridgham, appearing in the Boston Daily Globe, defined native born as "born within the United States," and natural born as "born of parents who are U.S. citizens". In Bridgham's opinion, one did not need to be native-born in order to be natural-born. His understanding, at the time, was that all post-1787-born Presidents were both native-born and natural-born; the United States has never had a President who was strictly natural-born (natural-born only, without also being native-born). The fact that the Constitution says "natural" instead of native shows to my mind that the distinction was thought of and probably discussed. A natural born citizen would be one who by nature, that is by inheritance, so to speak, was a citizen, as distinguished from one who was by nativity or locality of birth a citizen. ... Also in 1896, the New York Tribune published an article, questioning the eligibility of Mr. Shurmann, the Labor Party presidential candidate. Mr. Schurmann was born in the United States, of non-U.S.-citizen parents: Is he [Mr. Shurmann], under these circumstances, "a natural-born citizen" in the sense implied by the fifth clause of Art. II. of the Constitution? Various Attorney-Generals of the United States have expressed the opinion that a child born in this country of alien parents, who have not been naturalized, is, by the fact of birth, a native-born citizen entitled to all rights and privileges as such, and the State Department has always acted on this presumption in deciding upon questions of this nature brought before it. There is, however, no United States statute containing any provision on the subject [of natural born citizenship], nor have any judicial decisions ever been made in regard to it. It is at best an open question, and one which should have made Mr. Schurmann's nomination under any circumstances an impossibility. (New York Tribune 1896: Those born of non-citizen parents may not be eligible for POTUS) 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) Roots of the Dispute: There is general agreement concerning state citizenship. When the original thirteen colonies became independent states, some of them (for exmaple, Virginia) retained the jus soli principle of English common law. In these jus soli states, any white person born within the borders of the state (other than the child of a vagrant, slave or foreign diplomat) was a citizen of that state. Anyone who became a citizen of any state was automatically a citizen of the United States. However, there is disagreement as to whether, in 1787, a person could acquire federal citizenship independently of state citizenship. If you did not receive state citizenship at birth from any state, under what circumstances would the federal government still recognize you as a citizen of the United States? Regarding this question, there has been (and still is) a dispute between:
The dispute arises, in part, from differing understandings of our nation's founding principles. Those who believe that the Founding Fathers were guided by English common law tend to believe that the jus soli principle governs the meaning of "natural born citizen" in the Federal Constitution. Those who believe that the Founding Fathers were guided by European political theorists, such as Vattel, tend to believe that the meaning of "natural born citizen" is constrained by the jus sanguinis principle. (See Question 30: Root of "Natural Born Citizen" debate). The dispute is also fueled, in part, by the ambiguous meaning of "natural born" in English law.
The dispute is, in part, between those who believe that "natural born" should be understood according to its general meaning (which includes nearly everyone born within the realm) and those who believe that "natural born" should be construed according to its specific meaning (which excludes children of alien parents). (See Question 19: Natural Born Subject). The Supreme Court has yet to settle this dispute. At this time, there remains unresolved "doubts" regarding the natural born citizenship of U.S.-born children of a non-citizen parent [41]. Case Law: Although some authorities, throughout history, have expressed the opinion that birth on U.S. soil is, by itself, sufficient to confer United States citizenship (as opposed to State 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 (therefore, did not 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: Throughout U.S. history, various authorities have expressed the viewpoint that birthplace alone determines federal natural born citizenship. Except for Lynch v. Clarke (1844), case law does not support this viewpoint. In Lynch v. Clarke, Vice-Chancellor Sandford ruled that Julia Lynch was a New York State citizen at birth, even though her parents were not citizens at the time of her birth. 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 9: Statutory natural born citizen).
17. What was an 18th-century English "subject"?During the 18th century, the population of England and its colonies was divided into three categories: foreigners, aliens, and subjects [42]. The difference among them was their allegiance. Subjects owed permanent allegiance to the English king [43]; aliens owed temporary (local) allegiance; and foreigners did not owe any allegiance. Allegiance -- sometimes called ligeance and, at other times, also called obedience -- was faith, loyalty and service that someone owed to the king, in return for the king's governance and protection [44]. Subjects had the right to acquire and hold non-movable property, such as land, and bequeath it to their heirs; aliens and foreigners did not have this right. Aliens and foreigners were not permitted to possess English real estate, other than a house or apartment for personal habitation [45]. Subjects and aliens were collectively referred to as the people of England. The people did not include foreigners [46]. Every English subject was either a denizen or a natural-born subject (Blackstone).
"Subjects" and "citizens" are different concepts. The two were not synonymous. Roman citizens were men bound to one another by the personal bond of fellow-membership of one body; but British subjects are men bound, not to one another, but to a common superior. The term citizen connotes the privilege of common membership of one state; but the term subject connotes the burden of a common subjection to one lord and king. (Salmond, p.49) In 18th-century England and its colonies, some (but not all) subjects of the English king were also citizens of an English town or city (see Question 25: English citizenship). The differences among foreigners, aliens, denizens and natural-born subjects are summarized below:
Foreigners and aliens: Aliens [47] and foreigners were citizens or subjects of a foreign country. Both owed permanent allegiance to a foreign government. However, there were important legal differences between the two (Berry):
Ways of becoming an English subject: During the 18th century, an individual became an English "subject" in one of three ways: by birth, by act of Parliament, or by act of the king. Person who became subjects by acts of the king were called "denizens". Person who became subjects either by birth or by acts of parliament were called "natural-born subjects". Every English subject was either subject born or subject made. Persons who became English subjects by birth were called subjects born. They were subjects "by nature and birthright" (Coke(1608), p.177). All other English subjects received their subjectood artificially from Parliament or the king. They were called subjects made. They were subjects by human action or man-made law. Every subject is either natus, born, or datus, given or made (Coke (1608), p.206) Except in special cases, a child was subject born if it met two requirements at the time of its birth: a birthplace requirement (the child had to be born within the king's realm), and a parental obedience requirement (the child's parents had to be under the "actual obedience" [54] of the king). 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 (1608), p.208) Giles Jacob's New Law Dictionary (1782) was "the most widely used English law dictionary" during the time period in which the Constitution was written (Berry, pp.350-1). Jacob defined "subject born" as someone who was born within the king's realm, of parents who were under the king's actual obedience (allegiance): There are two incidents regularly that are necessary to make a subject born: first, that his parents, at the time of his birth, be under the actual obedience of the king; Secondly, that the place of his birth be within the king's dominions. (Jacob, p.40) If you were not subject born, you could become an English subject (subject made) artificially by statute (a public act of Parliament), naturalization (a private act of Parliament) or denization (an act of the king):
Fiction of Law: In 1608, Judge Yelverton (one of the judges who decided Calvin's Case) explained that no act of Parliament -- no law passed by Parliament, and no naturalization performed by Parliament -- could transform anyone into an actual subject. Parliament may naturalize people and deem them to be subjects in law, but could never make them subjects in fact. A parliament may make a man to be accompted as naturalised, and conclude every man to say but that he is so, but it can never make a man to be so indeede (Yelverton, as quoted by Galloway, p.157). In his Law Dictionary (1771), Cunningham explains that "naturalization" (an act of Parliament which transforms an alien into an English subject) is a "fiction of law" which has no effect except in countries consenting to that fiction. Naturalizing in Ireland is of no effect as to England; for naturalization is but a fiction of law, and can have effect but upon those only consenting to that fiction; therefore it has the like effect as a man's birth hath, where the law-makers have power, but not where they have not. Naturalizing in Ireland gives the same effect in Ireland as being born there; so in Scotland as being born there; but not in England, which consents not to the fiction of Ireland or Scotland, nor to any but her own. (Cunningham, p.97, in section entitled "Aliens") Subjects made were subjects in law and had the legal rights, privileges and obligations of subjecthood, but only subjects born were subjects in fact. Summary: The population of England and its colonies was divided into three categories: foreigners, aliens and subjects. Subjects owed permanent allegiance to the king; aliens owed temporary (local) allegiance to the king; and foreigners did not owe any allegiance to the king. There were two kinds of English subjects: subjects born and subjects made. Subjects born were subjects "by nature and birthright" (Coke(1608), p.177). They were natural-born subjects by birth. They were born on English soil, to parents who were under the "actual obedience" [54] of the king. Subjects made acquired subjecthood artificially, either from Parliament or from the king. Those who acquired subjecthood from the king were called denizens. Those who acquired subjecthood from public or private acts of Parliament were deemed natural-born subjects by law. A public act of Parliament was a statute which granted subjecthood automatically to anyone who met certain criteria. Public acts included laws which conferred subjecthood, at birth, to foreign-born children of English fathers and to English-born children of alien parents. Such children were automatically naturalized at birth (see Question 23: English-born children of alien parents). A private act of Parliament, also called "naturalization," was a legal process which conferred subjecthood to a specific individual or group. According to Judge Yelverton, only subjects born were subjects "indeede". All other subjects were either naturalized (by Parliament) or endenized (by the king); they were deemed subjects by law but were not so in fact. English subjects had the right to acquire and possess English real estate and bequeath it to their heirs. Aliens and foreigners could own movable property, but could not hold unmovable property except a house or apartment for personal habitation.
18. What was Calvin's Case?Calvin's Case (1608), also known as the Case of the Post-Nati of Scotland, was an historic lawsuit in which England's highest court ruled that "natural law" -- in addition to man-made laws enacted by Parliament -- affected an individual's property rights and legal status at birth. This was the focal issue of Calvin's Case (i.e., whether allegiance was a bond of subjection institutionalised by the law of the kingdom or archetypal submission grounded upon the law of nature). ... At any rate, the overwhelming majority of the judges (twelve out of fourteen) and Lord Chancellor Ellesmere concurred in the opinion that allegiance was grounded upon the law of nature; and therefore it ought not be confined within the kingdom of England. Accordingly it was decided that plaintiff Robert Calvin -- even though he was born out of the kingdom of England -- must not be regarded as an alien in England. (Kim (2000), pp.180-181) Long before there were any written laws, the law of subjection was already infused in men's hearts. Whenever there was a group of people, it was natural for one among them to become the group's leader (king) and the others to become his faithful followers (subjects): This Law of Nature, which indeed is the eternal Law of the Creator, infused into the heart of the creature at the time of his creation, was two thousand years before any Laws written, and before any Judicial or Municipal Laws. (Coke(1608), p.196) It hath been proved before, that ligeance or obedience of the inferior to the superior, of the subject to the Sovereign, was due by the Law of Nature many thousand years before any Law of man was made: Which ligeance or obedience (being the onely mark to distinguish a subject from an alien) could not be altered; therefore it remaineth still due by the Law of Nature. (Coke(1608), pp.197-8) The Court ruled that man-made laws may not deny property rights to persons who are the king's subjects by natural law. Facts of Calvin's Case: James Charles Stuart was born in Scotland in 1566. His father, Henry Stuart, also known as Lord Darnley, was born in England in 1545, and was an English subject by birth. James became king of Scotland in 1567, when he was 13 months old, and 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. Nevertheless, from 1603 to 1625, James Stuart was king of both countries simultaneously. He was both King James I of England and King James VI of Scotland [57]. Robert Calvin [58] was born in Scotland in 1606, of Scottish parents [59], and was heir to some property in England. When Calvin -- an infant at the time -- was denied access to his English inheritance, his guardians filed a lawsuit on his behalf [60]. This lawsuit became known as "Calvin's Case". The defendants argued that Calvin did not have property rights in England. Under English law, only English subjects were permitted to possess English real estate. Even though Scotland and England were ruled by the same king, they remained separate countries. As far as England was concerned, Scotland was a foreign country, and English law did not extend English property rights to subjects of a foreign country. In 1608, the Court of the King's Bench, in a 12-to-2 decision, ruled that, when two countries are governed by the same king, a subject in one country is automatically a subject in the other, but only if subjecthood was conferred by natural law. If a person was naturalized in a particular country, according to the (man-made) laws of that country, he was a subject in that country only and not anywhere else [61]. Since Calvin was born in Scotland, of parents who were Scottish subjects, he was, at birth, a Scottish subject by natural law. Therefore the Court ruled that, by natural law, Calvin had property rights in all of the king's territorial possessions, including England. This ruling remained part of English law well into the mid-19th century [62]. In 1608, Sir Edward Coke wrote a comprehensive Report explaining the court's decision. The Framers of the U.S. Constitution were undoubtedly aware of Coke's Report regarding Calvin's Case [63]. Historical Background: In medieval England (well prior to Calvin's Case), birthplace alone determined whether someone was English or alien. The status of one's parents, at the time of one's birth, was irrelevant. If you were born in England, you were an Englishman. If you were born in a foreign country, you were an alien. The king could, at his discretion, issue letters patent to some aliens, thereby transforming them into denizens ("adopted" Englishman). In medieval times, aliens, like Englishmen, were permitted to acquire and possess English real estate. Regardless of whether you were alien or English, you could inherit English property from a deceased relative, as long as you could prove (a) your age, (b) your parents' marital status at the time of your bith, and (c) your relation to the deceased. Your proof must be in the form of eye-witness testimony and official church records. If you did not provide such proof, you would forfeit your inheritance either to the king or to a local landlord. If there was a dispute regarding your inheritance, a trial (assize) would take place where the disputed property was located. During such trial, the matter would be decided by a "jury" comprised of eye-witnesses with first-hand knowledge of the issues under dispute. If you were born in a foreign country, you had a problem. The curator of your birth and baptismal records, and the eye-witnesses to your age, parent's marital status and blood relation, were most likely located in the foreign country in which you were born. Foreigners could not serve as jurors nor could they provide sworn testimony on your behalf. ...a foreign-born person was left with no adequate means to defend himself from allegations regarding under-age or proximity of blood. The inquest, which had to be taken in the birthplace, was impossible because the king's writ could not run beyond the sea. ... The obvious result is that a foreign-born heir would be defenseless against a lord who would refuse to allow the inheritance. If there was no one else to claim the inheritance, the fief would fall back on the lord as his escheat. (Kim (2000), p.111) By the late thirteenth century, we have clear evidence that foreign-birth was treated as fatal to any claim based on inheritance. The expression alienigena was often used in this connection. First and foremmost, it was a factual description referring to a person's foreign birth or provenance. (Kim (2000), p.113) In medieval times, aliens had a right to inherit and possess English real estate. But they often had difficulty proving their legitimacy as heirs. Evidence of their legitimacy was often located in a foreign country, beyond the reach of an English inquest. In 1351, Parliament enacted a series of procedural reforms which made it slightly easier for foreign-born persons to defend their inheritance in England. Under the new rules, if you could prove that your parents were within the king's faith and ligeance at the time of your birth, you would receive the same procedural rights as an English-born person: All children heirs who will henceforth be born out of the ligeance [territory] of the king, provided that, at the time of 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 benefit and advantage of having and carrying the inheritance within the said ligeance ... in the future. (Statute De Natis ultra Mare, 1351, as quoted by Kim (2000), p.121) The statute De Natis ultra Mare did not say that foreign-born children of English parents were Englishmen. The statute merely said that foreign-born children of English parents would be treated as English-born for inheritance purposes. Persons born abroad were still aliens, even if their parents were English. The [year book] case of 1474, for example, allows the possibility to interpret that a foreign-born child who has successfully claimed the inheritance relying on the statute De Natis ultra Mare would still need the king's letters patent in order to be engaged in other common law transactions such as purchase or gift of land. In spite of the statute which allowed inheritance, foreign-born children seem to have remained aliens unless and until they specifically obtained the king's letters patent enabling them to operate like subjects. (Kim (2000), p.157) According to Thomas de Littleton (1407-1481), birthplace alone determined whether someone was born an alien or an Englishman. The allegiance of one's parents, at the time of one's birth, was irrelevant to one's legal status at birth: 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 (2000), p.149). Littleton never mentioned the parents' allegiance in defining alien status. (Kim (2000), p.156). In 1541, Parliament passed a naturalization act which, for the first time, granted "subject" status to foreign-born children of English parents. Children which were born abroad, of English fathers, shall be: ...from henceforth reputed and taken king's natural subject as lawful persons born within the Realm of England. (Statute 33 Henry VIII c.25, as quoted by Kim (2000), p.158) The Naturalization Act of 1541 did not change the definition of "natural subject". In the actual or literal sense, you were a natural subject only if you were a lawful person born on English soil. Parliament merely decreed that the foreign-born children of English fathers shall be "reputed and taken" to be natural subjects. In other words, such children shall be deemed natural subjects by law, even though they were not natural subjects in fact. In 1604, Parliament resolved the status of English-born children of alien parents. Such children were granted automatic "denizen" status at birth: 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) Later in English history, the word "denizen" would apply only to persons who became English subjects by letters patent issued by the king. But in 1604, a "denizen" was any person who acquired English subjecthood by artificial means, whether by Parliament or the king. English-born children of alien parents were denizens. Such denizens were deemed natural-born subjects by law, but were not natural-born subjects in fact. Denizens had to pay aliens' duties; English-born children of English parents did not. (See Question 23: English-born children of alien parents). By the time Calvin's Case was decided in 1608, aliens' rights had already been curtailed. Aliens could no longer possess English real estate, other than a house or apartment for personal habitation. The English-born children of alien parents were no longer deemed Englishmen by birth; such children were denizens. As a general rule, one's personal status at birth -- whether subject, alien or denizen -- was no longer determined by birthplace alone; it also depended on the allegiance of one's parents at the time of one's birth. Allegiance: In Calvin's Case, the justices defined four kinds of "allegiance" -- natural, acquired, local, and legal. Lord Coke described these four "allegiances" as follows: There is found in the law four kinds of ligeances [allegiances]: Only the first three kinds of allegiance -- natural, acquired, and local -- were associated with subjecthood.
If you were either a subject or an alien friend, you owed allegiance to the king. Consequently, your children, if born on English soil, acquired some form of English subjecthood at birth. Foreigners and alien enemies did not owe any allegiance to the king; their children, even if born on English soil, were not English subjects. Subjects born (subjects by natural law) were defined as persons born on English soil, to parents who were under the king's "actual obedience" [54]. 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 (1608), p.208) All other English subjects were subjects made (subjects by statute, naturalization or royal denization). Summary: In Calvin's Case (1608), England's highest court made a distinction between subjects born (subjects by natural law) and subjects made (subject by human action or man-made law). Subjects born had property rights in all countries governed by the same king. The property rights of subjects made were limited to the country in which subjecthood was conferred [61]. Robert Calvin was born in Scotland, of Scottish parents, at a time when James Stuart was king of both Scotland and England simultaneously. England's highest court ruled that Calvin was a subject of King James by natural law. Therefore, by natural law, Calvin's property rights were not limited to Scotland, but extended throughout all of James' territorial possessions, including England.
19. What was a "natural-born subject"?Throughout English history, the term "natural-born subject" was used in an ambiguous and imprecise manner [65]. It had different meanings depending on the context in which the term was used. When the U.S. Constitution was being written, every English subject was either a denizen [50] or a natural-born subject. According to Francis Bacon (1561-1626), a person became a natural-born subject either "by birth, or by act of parliament" (Bacon, Francis, p.649). In other words, someone obtained "natural-born subject" status either naturally (by birth) or artificially (by statute or naturalization). Persons who acquired "natural-born subject" status by birth were called subjects born. They were natural-born subjects in fact. Persons who acquired "natural-born subject" status by act of Parliament were subjects made. They were natural-born subjects by law. Consequently, "natural-born subject" had a general meaning and a specific meaning, depending on the context in which the term was used. In the specific sense, "natural-born subject" referred only to subjects born -- persons who were born within the king's realm, of parents who were under the king's actual obedience. In the general sense, all English subjects (except denizens by royal charter) were natural-born subjects, regardless of how or when they acquired their subjecthood. The general sense: In the general sense, the term "natural-born subject" did not necessarily imply anything about the circumstances of one's birth. During Queen Elizabeth's reign (from 1558 to 1603), Parliament naturalized some alien adults, thereby transforming them into English subjects. These naturalized subjects were "taken" and "reputed" to be natural-born subjects, even though they were aliens by birth [66]. When aliens immigrated to England and lived there continuously for more than 20 years, they were "reputed" to be natural subjects, even though they were not English subjects by birth [67]. ...in 1576, a royal decree ordered that people who have lived in England for more than twenty years could be "reputed natural subjects of the realm," as long as their linquistic capacities, religion, and customs did not contradict this assumption. (Herzog, p.183) The term "natural-born subject" did not imply anything about the place of one's birth. Children born in foreign countries, of English fathers, were "deemed" natural-born subjects. Likewise, "natural-born subject" did not imply anything about one's parents' nationality. As long as parents were within the king's allegiance, it did not matter whether they were subjects or aliens; their English-born children were, at birth, natural-born subjects in the general sense. All English subjects -- except persons made denizens by the king -- were called natural-born subjects (see Appendix 2). Generally speaking, "natural-born subjects" included:
The specific sense: In the specific sense, the term "natural-born subject" referred to actual natural-born subjects only and did not include naturalized natural-born subjects. Naturalized subjects were not real subjects. In 1608, Judge Yelverton (one of the judges who decided Calvin's Case) explained that no act of Parliament -- no law passed by Parliament, and no naturalization performed by Parliament -- could transform anyone into an actual subject. Parliament may naturalize people and thereby deem them to be subjects, but could never make them subjects in fact. A parliament may make a man to be accompted as naturalised, and conclude every man to say but that he is so, but it can never make a man to be so indeede (Yelverton, as quoted by Galloway, p.157). In his Law Dictionary (1771), Cunningham explains that "naturalization" (an act of Parliament which transforms an alien into a natural-born subject) is a "fiction of law" which has no effect except in countries consenting to that fiction. Naturalizing in Ireland is of no effect as to England; for naturalization is but a fiction of law, and can have effect but upon those only consenting to that fiction; therefore it has the like effect as a man's birth hath, where the law-makers have power, but not where they have not. Naturalizing in Ireland gives the same effect in Ireland as being born there; so in Scotland as being born there; but not in England, which consents not to the fiction of Ireland or Scotland, nor to any but her own. (Cunningham, p.97, in section entitled "Aliens") Parliament may enact laws which "naturalize" certain children as soon as they are born. Foreign-born children of English fathers, and English-born children of alien parents, are naturalized at birth. They acquire subjecthood, at birth, by (man-made) English law, not by natural law. Furthermore as the law of England must favor naturalization as a branch of the law of nature, so it appears manifestly, that it doth favour it accordingly. For it is not much to make a subject naturalized by the law of England: it should suffice, either place or parents. If he be born in England it is no matter though his parents be Spaniards, or what you will: on the other side, if he be born of English parents it skilleth not though he be born in Spain, or in any other place of the world. In such sort doth the law of England open her lap to receive in people to be naturalized; which indeed sheweth the wisdom and excellent composition of our law ... (Bacon, Francis, pp.664-665) The Act of Anne (1708) conferred "natural born subject" status to foreign-born children of English parents: By the 7 Ann. it is enacted that "the children of all natural-born subjects, born out of the ligeance [territory] of her majesty, her heirs and successors, shall be deemed, adjudged and taken to be natural-born subjects of this kingdom, to all intents, constructions and purposes whatsoever." (Cunningham, p.96, in section entitled "Aliens") The Act did not say that foreign-born children of English parents were natural-born subjects. Such children were deemed to be natural-born subjects [68]. 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) In his report to Congress (1967), Dowdy recognized a difference between natural-born subjects in fact and natural-born subjects by law. Only those persons who were born within the king's realm were "true" natural-born subjects; all other natural-born subjects were "naturalized" by Parliament, either by statute or by private acts of naturalization: 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) In Dowdy's reasoning, Parliament would deem certain children to be natural-born subjects only if such children were not already natural-born subjects in fact. When children acquired English subjecthood by natural law, there was no need for any man-made law to confer subjecthood to them. During the seventeenth and eighteenth centuries, Parliament enacted laws granting subjecthood to (a) foreign-born children of English fathers, and (b) English-born children of alien parents. The fact that Parliament had enacted such laws indicates that the children who were naturalized by those laws were not natural-born subjects, at birth, in any factual or natural-law sense. Cunningham's definition of "natural-born subject": Timothy Cunningham's Law Dictionary (1771) was the only law dictionary that James Madison ordered for the Continental Congress. It was one of the most popular comprehensive English dictionaries of the late eighteenth century, and was found in many personal libraries, including those of Thomas Jefferson and John Adams. It was contemporaneously used by various American Supreme Courts for clarification of legal terms. (Berry, pp.347-8). Under the "Aliens" section of his Law Dictionary, Cunningham defined "natural-born subject" as one who is born within the king's realm, of parents who are under the king's "actual obedience": 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. (Cunningham, p.95, in section entitled "Aliens") The exact same definition of "natural-born subject" is found in Matthew Bacon's A New Abridgment of the Law, Volume 1, published in 1736. (Bacon, Matthew, p.77). In other contexts, Cunningham used the term "natural-born subject" (as well as "natural subject" and "subject born") in reference to persons who were deemed or taken to be natural-born subjects by law but were not natural-born subjects in fact. By the 7 Ann. it is enacted that "the children of all natural-born subjects, born out of the ligeance [territory] of her majesty, her heirs and successors, shall be deemed, adjudged and taken to be natural-born subjects of this kingdom, to all intents, constructions and purposes whatsoever. (Cunningham, p.96, in section entitled "Aliens") He that is born within the King's ligeance, is called sometimes a denizen, quasi deins nee, viz. born within, and thereupon in latin is called indigena, the king's liegeman, for ligeus is ever taken for a natural-born subject; ... (Cunningham, p.97, in section entitled "Aliens") Jacob's definition of "subject born": When the U.S. Constitution was being written, Giles Jacob's New Law Dictionary (1782) was "the most widely used English Law dictionary" (Berry, pp.350-1). Jacob defined "subject born" (an actual natural-born subject) as anyone born within the king's realm, of parents who are under the king's "actual obedience": There are two incidents regularly that are necessary to make a subject born: first, that his parents, at the time of his birth, be under the actual obedience of the king; Secondly, that the place of his birth be within the king's dominions. (Jacob, p.40) Both Cunningham and Jacob understood that the English-born children of alien parents were statutory denizens [50]. They were deemed to be natural-born by law, but were not natural-born in any factual or natural-law sense: ...if one born out of the king's allegiance, come and dwell in England, his children begotten here, are not aliens, but denizens. (Cunningham, p.95, in section entitled "Aliens") ... And if one born out of the king's obedience come and reside in England, his children, begotten and born here, are not aliens but denizens. (Jacob (1782)) Summary: During the eighteenth century, you were called a "natural-born subject" if either:
Since denization by the king did not have a retroactive effect, denizens (by royal charter) were English subjects but were not regarded as natural-born subjects. Persons who were called "natural-born subjects" fell into two categories: actual and naturalized.
Generally speaking, all English subjects -- except persons made denizens by the king -- were called natural-born subjects. Nearly all children born on English soil, regardless of whether their parents were subjects or aliens, were natural-born subjects in the general sense. However, in the factual or natural-law sense, the term "natural born" referred only to subjects born -- persons who were born within the king's realm, of parents who were under the king's "actual obedience" [54].
20. Did Calvin's Case affirm the jus soli principle?A widely-held belief is that Calvin's Case affirmed, or at least laid the foundation for, the jus soli principle of English common law: 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 of a foreigner during the hostile occupation fo any part of the territories of England. (Cockburn, p.7) Calvin's Case led to what is today known in international law as the jus soli, the rule under which nationality is acquired by the mere fact of birth within the territory of a state. (Price, p.77) However, a more careful reading of Coke's Report leads us to a somewhat different understanding of the English court's ruling in Calvin's Case. The jus soli principle was prevalent in England prior to Calvin's Case (1608). The place of one's birth determined whether one was subject born or alien born. In a commentary by John Rastell (c.1475-1536), anyone born on English soil, regardless of whether his parents were English or alien, was an Englishman: Alien is he of whom the father is born, and he himself also born, out of the ligeance [territory] of our lord the king; but if an alien come and dwell in England which is not of the king's ememies and here has issue [child], this issue [child] is not alien but English; also if an Englishman go over the sea with the king's license and there has issue [child], this issue [child] is not alien. (Expositiones terminorum (1527), as quoted by Kim (1996), spelling modernized for readability) According to Thomas de Littleton (1407-1481), birthplace alone determined whether someone was a subject or alien by birth: 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 (2000), p.149). In 1628, Sir Edward Coke (1552-1634) wrote a commentary on Littleton's work. Coke's commentary, often referred to as Coke upon Littleton, reiterated Littleton's viewpoint that all children born on English soil were "subjects born", regardless of whether their parents were subjects or aliens: If an Alien commeth into England and hath issue two sonnes, these two sonnes are Indigenae subjects borne, because they are borne within the Realme. (Coke (1628), p.630) For much of English history, the English Channel kept England isolated from the rest of the world. English subjects rarely gave birth overseas, and aliens rarely gave birth in England. In general, birth on English soil was synonymous with birth to English parents. However, as travel, commerce and immigration increased, the simplistic "rule" -- that birthplace alone determined nationality -- became impractical and unrealistic. The rule [that every person born within the dominions of the Crown was an English subject], when originally established, was not unsuited to the isolated position of this island, and the absence of intercourse with foreign nations in Saxon times. No children of English parents being born abroad, or children of foreign parents being born within the realm, the simple rule that to be born within the dominions of the Crown constituted an Englishman answered every purpose. But when the foreign possessions of our kings and the increase of commerce had led to greater intercourse with the Continent, and children of English parents were sometimes born abroad, the inconvenience of the rule which made place of birth the sole criterion of nationality soon became felt. (Cockburn, p.7) In Calvin's Case (1608), allegiance (also called ligeance and obedience), rather than birthplace, became the new criterion of English nationality at birth. The justices ruled that parental allegiance, not the place of one's birth, determined one's legal status at birth. Regardless of where you were born, you were not an English subject by birth unless your parents were within the king's allegiance (obedience) at the time of your birth. ...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(1608), p.208) ...it is nec coelum, nec solum [neither sky nor soil], but ligeantia [allegiance] and obedientia [obedience] that make the subject born (Coke(1608), p.179) Nearly all children born on English soil were English subjects, only because nearly all children born on English soil were born of parents who were within the king's allegiance. If parents did not owe allegiance (obedience) to the king, there was no way -- either by natural law or by man-made law -- that their children could acquire English subjecthood at birth, regardless of the children's birthplace. Et si desit obedientia non adjuvet locus [And, if obedience is lacking, the place does not help]. (Coke(1608), p.224) Allegiance: Allegiance (also called ligeance and obedience) was a relationship between an individual and the king. In this relationship, the individual was obligated to serve and obey the king, and the king, in turn, was expected to govern and protect the individual. ...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(1608), p.176) When children were born on English soil, their legal status, at birth, was based on their parents' allegiance (ligeance). Parental allegiance was determined as follows:
The jus soli principle: At first glance, the English common law "rule" appears to have been jus soli -- subjecthood determined by birthplace alone. Almost all children born on English soil were, at birth, natural-born subjects, regardless of whether their parents were subjects or aliens. But the underlying principle of Calvin's Case was that parental allegiance, not the place of one's birth, was the primary criterion of one's legal status at 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 [they were] not born within the allegiance ... 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 birthright 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 imply 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 (see Question 21: Ligeance). Blackstone may have over-simplified the English Court's ruling in Calvin's Case. 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 understood as: 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... Summary: In Calvin's Case, one's legal status at birth was determined primarily by parental allegiance. If parents were not within the king's allegiance, their children were not English subjects at birth, regardless of the children's place of birth. Nearly every child born on English soil was a natural-born subject because nearly every child born on English soil was born of parents who were within the king's allegiance. Subjects and alien friends were within the king's allegiance; their English-born children were natural-born subjects. Foreigners and alien enemies were not within the king's allegiance; their children were not subjects (natural-born or otherwise), regardless of where they were born. 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. ... 21. How did Calvin's Case define the word ligeance?The modern-day English word "allegiance" is a variation of the Old English word ligeance. According to Lord Coke, ligeance is the defining characteristic that distinguishes subjects from aliens. Ligeance is "the onely mark to distinguish a subject from an alien" (Coke(1608), pp.197-8). A subject owes ligeance to the king, but an alien does not (at least not in any actual or literal sense). The word "ligeance" derives from the word "liege" which implies exclusive loyalty to one, and only one, sovereign (see Question 28: Exclusive Allegiance). In feudal society, a man (vassal) could owe fealty (loyalty) to multiple lords. But the term liege refers to unqualified fealty to one sovereign exclusively: There is nothing in feudal theory or practice to prevent a man from having more lords than one. In such a case he owes fealty to both; he is ad fidem utriusque domini. But he can owe liege fealty (ligeantia) to one only. He can have two lords, but not two liege lords. This was a fundamental maxim of feudalism. Unus et idem duorum dominorum homo ligius esse non potest. ... History of Ligeance: Prior to 1608, the meaning of ligeance was ambiguous. In some contexts, ligeance meant the king's territory. In other contexts, it referred to an individual's (or an individual's parents') absolute faith, loyalty and obedience to the king: 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. Two examples illustrate the confusing dual meaning of ligeance.
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 at birth: 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 (2000), p.149). But the meaning of ligeance underwent a transformation 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 were, and who were not, eligible to 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.
Calvin's Case: By the time Calvin's Case was decided in 1608, the English legal community had already reached a consensus of opinion that the ligeance of your parents, not the place of your birth, determined whether you were a subject or alien when you were born. 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. ... The bond of faith thus became the pivotal element of legal reasoning. (Kim (2000), p.178) The ruling in Calvin's Case reflected the prevailing viewpoint that one's birthplace, by itself, did not confer subjecthood; that without some measure of parental obedience or allegiance, it was impossible (by natural law or man-made law) for a child to be an English 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(1608), p.208) ...it is nec coelum, nec solum [neither sky nor soil], but ligeantia [allegiance] and obedientia [obedience] that make the subject born (Coke(1608), p.179) In 1608, the English court (in Calvin's Case) defined ligeance as a personal relationship between a king and his subjects, whereby the king governs and protects his subjects, and his subjects give the king their faith, loyalty and obedience. ...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(1608), p.176) According to Lord Coke's Report on Calvin's Case, there were four kinds of ligeance: natural, acquired, local, and legal [70]. Anyone who was born with "natural" ligeance [64] was subject born. Persons who owed "acquired" ligeance were subjects made. Alien friends owed "local" ligeance to the king. Alien enemies, and foreigners, did not owe any ligeance to the king. An alien's local ligeance was a legal construct. It was "wrought by the law" (Coke(1608)). True ligeance was an exclusive relationship with one and only one sovereign. Since aliens already owed ligeance to the sovereign of their home country, they could not also owe ligeance to the English king, at least not in any actual or literal sense. Aliens were deemed to owe local ligeance to the English king as a matter of law, but they could not owe ligeance to him in fact. One's ligeance affected the status of one's children at birth. Children born on English soil were subjects at birth only if their parents were within the king's natural, acquired or local ligeance. A century and a half after Calvin's Case, the territorial meaning of "ligeance" re-emerged. In the British Nationality Act of 1772, British-controlled territory was called "ligeance". Nevertheless, when Calvin's Case was decided in 1608, ligeance meant the bond of faith between a subject and his sovereign, not the subject's place of birth. Those who had either natural or acquired ligeance were the king's subjects; those who had any other kind of ligeance, or no ligeance at all, were aliens or foreigners.
22. Who were "alien enemies"?In Calvin's Case, the English Court did not rule that all children born on English soil were English subjects. The children of foreigners and alien enemies, even if such children were born on English soil, were not subjects of the English king. Presumably, these children were, at birth, subjects of the (foreign) prince to whom their (alien) parents owed permanent allegiance. "Alien enemies" included the following:
In contrast, alien friends were persons who (a) originated from a "friendly" country, (b) had entered England legally, (c) were accepting of England's core values and beliefs, and (d) owed "local" allegiance to the king. The English-born children of alien friends were statutory denizens ("natural-born subjects" by law). The English-born children of alien enemies were not.
23. Were English-born children of alien parents "natural-born subjects"?According to a law that Parliament enacted in 1604 and which was still in effect when the U.S. Constitution was written, the English-born children of alien parents were "denizens" [55]: 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) This 1604 statute remained in effect until it was temporarily superseded by the General Naturalization Act in 1709. In the Privy Council, whose members were well aware of the debates within the Corporation of London, further arguments against granting English-born children of foreign parents full recognition as English subjects were put forward. The General Naturalization Act in 1709 was repealed in 1712, thereby reviving the 1604 Act and extending its life well into the eighteenth century. According to the law passed in 1709, the naturalized had to take the oath of allegiance, and partake of the sacrament before witnesses, who signed a certificate to that effect. In addition, all the children of naturalized parents were to be considered natural-born subjects. When the Tories finally gained control of Parliament in 1712, they succeeded in having the law repealed, but the results were not overthrown, for the repeal was not intended to invalidate naturalizations already granted. (Carpenter, p.293) Several eighteenth-century American and English legal sources indicate that the 1604 law was still in effect when the U.S. Constitution was being written. John Cowell's The Interpreter of Words and Terms was first published in 1607 and, over the next two centuries, underwent several revisions and reprints. It was a popular legal dictionary in the late eighteenth century, though rarely cited in American legal writings (Berry, p.352). Cowell's Interpreter states that the English-born children of alien parents are "denizens". ...if one born out of the King's allegiance, come and dwell in England, his Children begotten here, are not Alien, but Denizens. (Cowell, Interpreter, 1701 edition, as quoted by Berry, p.353. This statement also appears in Cowell, Interpreter, 1727 edition, under the section titled "Alien"). The 1604 law -- that English-born children of alien parents are denizens -- is repeated in four other eighteenth-century sources: Viner, Cunningham, Jacob and Johnson (Berry, p.353). These four sources are described here:
All of the above-listed eighteenth-century sources -- Cowell, Viner, Cunningham, Jacob and Johnson -- reiterated the 1604 law declaring that English-born children of alien parents were denizens. In Calvin's Case of 1608, Sir Edward Coke wrote that English-born children of alien parents were natural-born subjects: .. local obedience [the allegiance of an alien friend residing within English territory], being but momentary and incertain, is strong enough to make a natural subject; for if he [an alien friend] hath issue [child] here [in England], that issue [child] is a natural born subject... (Coke(1608), p.179) William Blackstone's Commentaries, first published in 1765, also stated that English-born children of alien parents were natural-born subjects. The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. (Blackstone) Coke and Blackstone did not necessarily contradict the intent and meaning of the 1604 law. The term "natural-born subject" had a vague and widely-inclusive meaning (see Question 19: Natural-born subject), and was often used in an imprecise and ambiguous manner [65]. In 1604, denization -- with no explicitly-specified restrictions -- was substantively the same as naturalization; and, at the time, naturalized subjects were taken and reputed to be "natural-born subjects". 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) According to Black's Law Dictionary, the word "denizen" was, at one time, synonymous with "natural-born subject": A denizen, in the primary, but obsolete, sense of the word, is a natural-born subject of a country (Black's Law Dictionary, 1st Edition, 1891, under section titled "Denizen"). Denizens: Francis Bacon (1561-1626) differentiated between "naturalized subjects" and "denizens" [50]. Naturalized subjects were called "natural-born subjects"; denizens were not. But, when the 1604 statute was enacted, there was little substantive difference between denization and naturalization. In 1608, Lord Coke argued that "denizens" and "natural-born subjects" should be regarded as "one" under the law: Now what a Subject born is, appeareth at large by that which hath been said de ligeantia: and so likewise de subdito dato [a subject by reason of gift] of a donaison [gift]; for that is the right name, so called, because his legitimation is given unto him; for if you derive denizen from deins nee [born within], one born within the obedience or ligeance of the King, then such a one should be all one with a natural born subject. And it appeareth before out of the laws of King William the First of what antiquity the making of denizens by the King of England hath been. (Coke(1608), p.208) Historian Clive Parry points out that the word "denizen", by itself, implied full rights (or at least full property rights): Simply because "denizen" originally connoted native-born, endenization conveyed full rights. And by using the term "denizen", an Act of Parliament necessarily could imply no more than endenization by letters patent implied. (Parry) According to the Huguenot Society, naturalization and denization were synonymous during the 1500s and early 1600s [74]. Unless the king's letters patent explicitly curtailed the rights of a denizen, there was (in 1604) little difference between a denizen and a naturalized subject. Both denization and naturalization conferred "natural-born subject" status, including property and inheritance rights. It is not, however, to be collected from what Cockburn says: only natural-born subjects have inheritable blood and only Parliament can cause a person to be deemed to be a natural-born subject. The defect of the argument is that the first step in it is a false one: letters patent can also cause a person to be deemed to be a natural-born subject as from their date. So far as concerns his subsequently born children, the denizen is in exactly the same position as the naturalised person. (Parry) In the absence of restrictions imposed by the king, denizens -- especially persons who were made denizens either by statute or naturalization -- were deemed natural-born subjects. Naturalized at birth: In 1608, Francis Bacon wrote that English law "naturalized," at birth, English-born children of alien parents, as well as foreign-born children of English parents. In both cases, the children were, at birth, natural-born subjects. But their natural-born subjecthood was conferred by English law, not natural law. Furthermore as the law of England must favor naturalization as a branch of the law of nature, so it appears manifestly, that it doth favour it accordingly. For it is not much to make a subject naturalized by the law of England: it should suffice, either place or parents. If he be born in England it is no matter though his parents be Spaniards, or what you will: on the other side, if he be born of English parents it skilleth not though he be born in Spain, or in any other place of the world. In such sort doth the law of England open her lap to receive in people to be naturalized; which indeed sheweth the wisdom and excellent composition of our law ... (Bacon, Francis, pp.664-665) In Vattel's understanding, English-born children of foreign parents were "naturalized" at birth. These children became English natural-born subjects, not by natural law, but by a naturalization statute enacted by Parliament in 1604. 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) English-born children of alien parents were natural-born subjects in the sense that they had property rights. But such children did not have the same economic and municipal rights as did English-born children of English parents. Prior to 1737, English-born children of alien parents could not become "citizens" (freemen) of an English city or town (see Question 25: English citizenship).
When someone was born in England and both of his parents were aliens at the time of his birth, he was deemed a natural-born subject, but nevertheless had to pay aliens' duties: There is a curious passage in Hale's Treatise Concerning the Customs concerning aliens' customs in the 17th century. He says "If an alien come into England and have issue [child] here, he [the child] is a natural-born subject. Yet ... such a natural-born subject hath been decreed heretofore to pay aliens' duties..." Hargrave, Tracts, vol. I (1787) 210. Cf. the similar tendency to treat the native members of the foreign Protestant congregations as aliens.... The statute 12 & 14 Car. 2, c. 11 furthered the policy by disabling infant children of aliens from trade. (Parry, footnote 327). Summary: When the U.S. Constitution was written, the law "on the books" was that English-born children of alien parents were denizens. These children were called "natural-born subjects" (in the general sense) because they were naturalized, at birth, by statute. They were deemed natural-born subjects by law, but were not natural-born subjects in fact.
24. What did "actual obedience" mean?According to Sir Edward Coke's Report regarding Calvin's Case (1608), there are two categories of English subjects: subjects born and subjects made. A child is subject born if it meets two requirements at birth: a parental obedience requirement (the child's parents must be under the "actual obedience" of the king) and a birthplace requirement (the child must be born within the king's dominions). 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(1608), p.208) When the U.S. Constitution was being written, Giles Jacob's New Law Dictionary (1782) was "the most widely used English Law dictionary" (Berry, pp.350-1). Jacob defined "subject born" as anyone born within the king's dominions, of parents who are under the king's "actual obedience": There are two incidents regularly that are necessary to make a subject born: first, that his parents, at the time of his birth, be under the actual obedience of the king; Secondly, that the place of his birth be within the king's dominions. (Jacob, p.40) In the 1771 edition of his Law Dictionary, Timothy Cunningham defined "natural-born subject" as one who is born within the king's dominions, of parents who are under the king's "actual obedience": 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. (Cunningham, p.95, in section entitled "Aliens") The exact same definition of "natural-born subject" is found in Matthew Bacon's A New Abridgment of the Law, Volume 1, published in 1736. (Bacon, Matthew, p.77). All English subjects (except denizens by royal charter) were natural-born subjects by law, but only those born within the king's territory, of parents under the king's "actual obedience", were natural-born subjects in fact. (See Question 23: Natural-Born Subjects). Lord Coke did not define "actual obedience", nor did he explain how "actual obedience" differed from "obedience" in general. However, we can infer the meaning of "actual obedience" by examining the manner in which the words "actual" and "obedience" were used in Lord Coke's writings. Trope of Speech: Lord Coke occasionally described a country as being under the "actual obedience" of the king. However, the capacity to "obey" the king is found only in living human beings, not in inanimate objects or tracts of land. When speaking of a country as being under the king's "actual obedience", Lord Coke was likely referring to the country's inhabitants, not merely its real estate. In his discussion regarding Samaria, for example, Lord Coke used the term "actual obedience" in reference to the country's people [76]. The name of a place is sometimes used as a metaphor, referring to a person or people associated with that place. In 1608, Francis Bacon wrote: ...for there is no trope of speech more familiar than to use the place of addition [77] for the person. So we say commonly, the line of York, or the line of Lancaster, for the lines of the duke of York, or the duke of Lancaster. So we say the possessions of Somerset or Warwick, intending the possessions of the dukes of Somerset or earls of Warwick. So we see earls sign, Salisbury, Northampton, for the earls of Salisbury and Northampton. And in the very same manner the statute speaks, allegiance of England, for allegiance of the king of England. (Bacon, Francis, pp.652-653) It appears that Lord Coke sometimes used the name of a country as a figure of speech referring to that country's population [78]. When the king took actual possession of territory, many of the individuals living and working in that territory became the king's subjects. Military conquest of an alien's homeland was one of the means by which an alien could become an English subject [79]. For example, when England conquered Ireland, the Irish people became subjects of the English king [80]. Thus, when Lord Coke spoke of a country as being under the "actual obedience" of the king, he was undoubtedly referring to the country's inhabitants, not merely the country's territory. Obedience means allegiance: In Lord Coke's writings, "obedience" is a synonym of ligeance, a variation of allegiance: This word ligeance is well expressed by divers several names or synonymia which we find in our books. Sometimes it is called the obedience or obeisance of the subject to the King. (Coke(1608), p.176) This bond of allegiance was often understood as the bond of obedience to the king. Tudor statutes, for example, use 'obedience' where later statutes would use the word 'allegiance'. Aliens are those 'borne out of ... the kinges obeisaunce'. Subjects are those 'borne within the kinges Graces Dominions and obeisaunce'. (Kim(1996), p.156) Lord Coke used obedience and ligeance interchangeably. For example: Ligeantia est quasi legis essentia [Ligeance is, as it were, the essence of law] (Coke(1608), p.175) obedientia est legis essentia, [obedience is the essence of the law] (Coke(1608), p.417) A clue as to the meaning of "actual obedience" is the fact that, when Calvin's Case was decided in 1608, obedience was synonymous with ligeance, from which the word allegiance is derived. Actual vs. Legal: Lord Coke used the word "actual" in contradistinction to "legal". If the king had a legal right to possess certain territory but was not in actual possession of that territory, children born within that territory were not subjects of the king. A child was subject born only if, at the time of the child's birth, (a) the king was in actual possession of the child's birthplace and (b) the child's parents were under the king's actual obedience: For the first, it is termed actual obedience, because though the King of England hath absolute right to other kingdoms or dominions, as France, Aquitain, Normandy, &c. yet seeing the King is not in actual possession thereof, none born there since the Crown of England was out of actual possession thereof, are Subjects to the king of England. (Coke(1608), p.208) The distinction between actual and legal still exists today.
According to Lord Coke, possession "in law" is not enough to confer subject born status to a child at birth. The king must be in actual possession of a child's birthplace, at the time of the child's birth, in order for the child to qualify as subject born. Meaning of Ligeance In Feudalism, there was a difference between fealty and liege fealty. A person may owe fealty (faith and loyalty) to more than one lord simultaneously, but liege fealty, also called ligeance, is exclusive obedience to one, and only one, sovereign. Originally, "allegiance" was a variation of, and meant the same thing as, ligeance. Under the original meaning of allegiance, an alien may owe fealty, but cannot owe allegiance, to the English king. An alien already owes allegiance to the king of his home country, and cannot owe allegiance to anyone else, at least not in any actual sense. It is clear that so long as the original feudal significance of the term allegiance persisted, an alien subject could not be said to owe allegiance to the English king. For he already owed it to his own king, and double allegiance was impossible. His true relation to the king of England, in whose dominions he resided, was one of fealty indeed, but not of liege fealty. He was in his faith, but not in his allegiance. The distinction comes out clearly in one of the few passages in which Bracton refers to the matter. He considers the case of a man who owes fealty both to the king of England and the king of France -- who is ad fidem utriusque regis. What shall happen, he asks, if war breaks out between these two countries? Which of his two lords shall this man serve? Brackton's answer is that he must serve in person with that king to whom he owes allegiance (cum eo cui fecit ligeantiam). (Salmond, p.52) Over time, it became necessary to distinguish between the true allegiance that subjects owed the king in fact and allegiance that aliens were expected to owe the king by law. Hence it became necessary to distinquish between two sorts of allegiance -- that which is personal, permanent, and absolute, as being due from natural subjects, and that which is merely local, temporary and qualified, as being due from aliens by reason of their residency, and which in the strict theory of feudalism is not truly allegiance at all. (Salmond, p.52) In strict Feudal theory, subjects owed actual allegiance (obedience) to the king, and aliens owed allegiance to the king only in a legal sense. Obedience means subjecthood: Lord Coke often used "obedience" as a synonym of ligeance. By itself, the word ligeance (therefore the word "obedience") implied subjecthood. Lord Coke defined ligeance as a relationship between a subject and his 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(1608), p.176)Ligeance was "the onely mark to distinguish a subject from an alien" (Coke(1608), pp.197-8). Those who were within the king's ligeance were subjects. Those who were outside of the king's ligeance were aliens. The exception to this rule was "local" ligeance. Persons who owed "local" ligeance to the king were aliens. "Local" ligeance conferred subjecthood to the children of aliens, but did not confer subjecthood to the aliens themselves. According to Lord Coke's Report on Calvin's Case, there are four kinds of ligeance (therefore, four kinds of "obedience"): natural, acquired, local and legal [70]. When ligeance (obedience) is either "natural" and "acquired", it conforms to the actual definition of ligeance -- a relationship between a subject and his king. Such ligeance is permanent and confers the right to acquire, hold and bequeath English real estate. In contrast, "local" ligeance (obedience) was "wrought by the law" (Coke(1608), p.177). It was a legal construct, not an actual one. Persons who owed local ligeance (obedience) to the king were aliens, not subjects. An alien's local ligeance did not confer the right to acquire and hold real estate, except a house or apartment for personal habitation. Local ligeance was temporary; it automatically expired as soon as the alien departed from the king's territory. Lord Coke characterized local ligeance as "extremely uncertain": localis ligeantia est ligeantia infima et minima, et maxime incerta [local allegiance is something mean and small, and extremely uncertain]. (Coke(1608), p.179) As a general rule, persons who were within the king's ligeance (obedience) were subjects, and subjects, unlike aliens, had the right to acquire and possess land. Land-based sovereignty: In pre-industrial agricultural societies, people needed land in order to survive. By controlling all of a country's land, the king controlled the country's people and established himself as sovereign over them. Property...conferred sovereignty. The holder of land often controlled not only the use of that land, but also the activity of its inhabitants. No one "owned" land in the modern [literal] sense. Land was held in a pyramid of proprietorship beginning with the king and reaching down to the lowliest tenant. Each level in the hierarchy was marked by quasi-governmental privileges under which the landholder could determine the destiny of those on the land. ... Before it ceded its position to contract in the nineteenth century, property was the real and symbolic foundation of all liberties... And property law was the foundation of the common law (Hulsebosch, pp.9-10) Serfs were peasants who worked his lord's land and paid him certain dues in return for the use of land, the possession (not the ownership) of which was heritable. The dues were usually in the form of labor on the lord's land. ... A serf was one bound to work on a certain estate, and thus attached to the soil, and sold with it into the service of whoever purchases the land. (Definition of Serfs) The king's sovereignty over people was based on his control of the land on which the people lived and worked. Latin obedientia: Lord Coke used the English word "obedience" and its Latin root, obedientia, interchangeably. obedientia est legis essentia [obedience is the essence of the Law] (Coke(1608), p.417) ...it is nec coelum, nec solum [neither sky nor soil], but ligeantia and obedientia that make the subject born (Coke(1608), p.179) In The Interpreter of Words and Terms (1607), John Cowell did not define the English word "obedience", but did define its Latin counterpart, obedientia. According to Cowell, obedientia had a general meaning and a specific meaning. In general, obedientia was anything that a superior required of his subordinate. But in a more specific (or "restrained") sense, obedientia was a figure of speech meaning "rent" -- a service or payment that an individual rendered to a landlord, in return for use of the landlord's land: Obedientia was a Rent, as appears out of Roger Hoveden, parte poster. annal. fuor. ... In the Common Law, it is used for an Office or Administration of an Office; and thereupon the word Obedientiales is used in the Provencial Constitutions, for those which have the Execution of any Office under Superiours... It may be that some these offices called Obedientia, consisted in the Collection of Rents or Pensions, and that therefore those Rents were by a metonymy, called Obedientia, quia colligebantur ab obedentialibus. In the restrained sense, obedientia (obedience) implied a land-based relationship between a subordinate and his superior. Obedientia (obedience) was that which a subordinate owed to his superior, in return for use of the superior's land. Only subjects were permitted to hold land, therefore only subjects could owe obedientia (in the restrained sense) to the king. "Under Obedience" in the Bible: The Geneva Bible was first published in 1560 and again in 1599. Among Protestants, prior to 1611, it was the de facto standard English-language translation of the Bible. The King James Version (KJV) was published in 1611, and eventually supplanted the Geneva Bible among English-speaking Protestants (Geneva Bible History). Both Bibles -- the Geneva Bible and the KJV -- are linguistic "time capsules" containing samples of early seventeenth-century English-language usage. They may offer clues as to the meaning of "under actual obedience" during the time period in which Calvin's Case was decided. In the 1599 edition of the Geneva Bible, the term "under obedience" (without the word "actual") appears in 1 Timothy 3:4. This verse specifies that a man should not be permitted to serve as a church bishop unless he: ...can rule his own house honestly, having children under obedience with all honesty. (1 Timothy 3:4, in Geneva Bible: 1 Timothy, boldface emphasis added) In the Geneva Bible, the term "under obedience" is an English translation of the Greek word hypotage, which means "the act of subjecting" or "obedience, subjection". The KJV always translates hypotage as "subjection" (Strong's Concordance: G5292). The term "under obedience" also appears in the KJV translation of 1 Corinthians 14:34. Let your women keep silence in the churches: for it is not permitted unto them to speak; but [they are commanded] to be under obedience, as also saith the law. (1 Corinthians 14:34, KJV, 1 Corinthians 14, boldface emphasis added) In the KJV, "under obedience" is the English translation of hypotasso. The word hypotasso appears forty times in the Greek New Testament. In eight instances, the KJV translates hypotasso using words or phrases which imply or connote submission, but in all other cases, the KJV translates hypotasso using words or phrases which imply or connote subjection (see Strong's Concordance: G5293). In the Geneva Bible, hypotasso, as used in 1 Corinthians 14:34, is translated as "to be subject": Let your women keep silence in the Churches; for it is not permitted unto them to speak, but they ought to be subject, as also the Law saith. (1 Corinthians 14:34, Geneva Bible: 1 Corinthians, boldface emphasis added) In both Geneva and KJV bibles, the English term "under obedience" implied or connoted subjection. When one Bible translated a Greek word as "under obedience", the other translated the same Greek word in the same verse as "subjection" or "to be subject". If "under obedience" implied subjection, we may surmise that "under actual obedience" also implied subjection, perhaps even more so. If persons who were "under obedience" to the king were subject to the king, it is not inconceivable that persons who were under the actual obedience of the king were subjects of the king. Aftermath: During the decades following Calvin's case, some native-born Scotsmen, presumably born after 1603, applied for English naturalization or denization. If Calvin's Case had granted automatic English subjecthood to all postnati Scottish subjects (Scottish subjects born in Scotland after 1603), why did some postnati Scottish subjects seek English subjecthood through lengthy and costly legal procedures? Weren't these postnati Scottish subjects already English subjects as per Calvin's Case (assuming, of course, that their parents were not foreign diplomats or alien enemies)? [81] One possible answer is that Calvin's Case did not confer English subjecthood to all postnati Scots. It conferred English subjecthood only to postnati Scotsmen whose parents were under the "actual obedience" of the king. If you were born in Scotland but, at the time of your birth, your parents were not under the king's "actual obedience", you might have been a Scottish subject by Scottish law, but you were not a Scottish subject by natural law, hence you were not eligible for automatic English subjecthood at birth. Presumably, aliens were not under "actual obedience". Consequently their Scottish-born children were not subjects born, thus did not receive automatic English subjecthood at birth. If these children wished to become English subjects in later life, they had to go through a conventional naturalization or denization process in England. Summary: In order to be subject born, a child had to meet two requirements at birth: a birthplace requirement (the child had to be born within the king's dominion), and a parental obedience requirement (the child's parents had to be under the "actual obedience" of the king). In order for a child to meet the parental obedience requirement, the king must be in actual possession of the child's birthplace at the time of the child's birth. Apparently, there was a connection between the king's "actual possession" of territory and the "actual obedience" of parents who were residing and giving birth within that territory. The king was in "actual possession" of a country if he physically occupied and controlled the country's territory. However, the king, by himself, as an individual, could not possibly occupy and control an entire country. When we speak of the king as being in actual possession of a country, we mean that the king's subjects were physically occupying and controlling the country's real-estate, on the king's behalf. The king was in actual possession of territory through his subjects. These subjects included two classes of people:
The terms "actual possession" and "actual obedience" appear to have been inseparably intertwined. The king could not have been in actual possession of territory unless his subjects, who were under his actual obedience, were occupying and controlling the territory for him. On the other hand, the king's subjects could not be under the "actual obedience" of the king (and their children could not be subjects born), unless the king was in "actual possession" of the land on which they were living and working. Thus "actual possession" and "actual obedience" were different sides of the same coin. They were facets of a land-based relationship between the king and his subjects. Alien friends were within the allegiance or obedience of the king only in a legal sense. They were not under the king's actual obedience. The term "actual obedience" is tied to the king's, or rather the king's subjects', actual possession of a country's territory. Aliens did not have the right to acquire or possess land within the king's dominion. Aliens could not hold real property, therefore they could not have been part of a land-based relationship with the king. Aliens could earn a living by selling movable products and services, but aliens were barred from acquiring and holding any non-movable property such as land.
25. What was an English "citizen" before the American Revolution?Prior to the American Revolution, an English "citizen" was a person who (a) was a legal resident of an English or colonial American city, (b) had the right to practice a trade or conduct business in that city, and (c) could vote and hold public office [82]. 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 (local) allegiance to the king. Aliens were sometimes called "strangers". Every English "subject" was either free or unfree. 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.812-3) Villeins were subjects. As subjects, they had the right to "hold real or personal property" (Banks, p.815). 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. ... 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.
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) 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). 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 within 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.
26. 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:
In summary, when the U.S. Constitution was being written, there was no uniform citizenship "rule" that prevailed throughout continental (mainland) western Europe. 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 nationality or parental allegiance -- was also met at the time of the child's birth.
28. Did "natural born" imply exclusive allegiance at birth?During the early 1600s, Sir Francis Bacon served as Attorney General and Lord Chancellor of England. He explained, in his writings, that a person became an English natural-born subject either "by birth, or by act of Parliament" (Bacon, Francis, p.649). An act of Parliament was either public or private. A public act was a law, enacted by Parliament, which conferred "natural born subject" status upon anyone who met certain criteria. A private act conferred "natural born subject" status to a specific individual or group which had filed a petition of naturalization with Parliament. Consequently, when the U.S. Constitution was being written, the term "natural-born subject" referred to three distinct classes of people:
All three of the above groups were referred to as "natural-born subjects". Members of the second and third groups were "natural born subjects" by act of Parliament. They were not born with exclusive allegiance to the English king.
Thus, the term "natural-born subject" sometimes referred to people who (a) were not born on English soil, or (b) did not, at birth, owe sole allegiance to the English king. However, subjects born -- natural-born subjects by natural law -- were usually born on English soil but always owed natural (i.e., exclusive) allegiance to the English king at birth. Act of Anne: The wording of the Act of Anne (1708) suggests that 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 [68]: 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 children at birth. According to Francis Bacon, when a child of English parents was born in a foreign country, English law naturalized the child at birth. ...the law of England doth work and confer the benefit of naturalization upon a birth neither within the dominions of the kingdom, nor king of England. By the statute of 35 E. III which, if you believe Hussy, is but a declaration of the common law, all children born in any parts of the world, if they be of English parents continuing at that time as liege subjects to the king, and having done no act to forfeit the benefit of their allegiance, are ispo facto naturalized. (Bacon, Francis, p.652) Vattel used the word "naturalize" in a similar manner, implying that naturalization can, in some cases, occur at birth. According to Vattel, English law "naturalizes", at birth, the English-born children of alien parents: 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 any acquisition of English subjecthood by human act or law, regardless of whether subjecthood was conferred at birth or at some point after birth. Fiction of Law: Yelverton, one of the judges who heard Calvin's Case in 1608, made a distinction between subjects in fact and subjects by law. Parliament may deem someone to be a natural-born subject by law, and may confer (by law) "natural-born subject" status to such person, but can never make someone a natural-born subject "indeede" (i.e., in actual fact): A parliament may make a man to be accompted as naturalised, and conclude every man to say but that he is so, but it can never make a man to be so indeede (Yelverton, as quoted by Galloway, p.157). A series of English legal cases -- Foster v. Ramsey (1656), Collingwood v. Pace (1661-1664), and Craw v. Ramsey (1669-1670) -- came to the same conclusion. Naturalization, whether by England or by a foreign country, is merely 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." 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". Meaning of Liege: In Calvin's Case, Lord Coke used the word liege to describe a natural-born subject's allegiance (ligeance) to 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(1608), p.176, emphasis added) The word liege carried a connotation of exclusive loyalty to only one lord: 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 1913 Dictionary: liege, boldface emphasis added) In feudal society, a man (vassal) could owe fealty (loyalty) to multiple lords. But the term liege referred to absolute and exclusive loyalty to one, and only one, sovereign: There is nothing in feudal theory or practice to prevent a man from having more lords than one. He can have two lords, but not two liege lords. ... The fealty which he owes to one of them is not unqualified; it is subject always to the claim of him who is not only his lord, but his liege lord -- of him to whom he owes not merely fealty but allegiance. A subject's 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." ... In his report regarding Calvin's Case (1608), Lord Coke described two kinds of homage: feudal and liege. Feudal homage was homage that a serf owed to his lord, but liege homage was owed to the king alone: Homage in our book is twofold, that is to say, Homagium Ligeum [Liege Homage], and that is as much as ligeance, of which Bracton speaketh, lib. 2. c. 35. fol. 79, Soli Regi debet' sine dominio, seu servitio [it is owed to the King alone, without lordship or service], and there is Homagium feodale [feudal homage] which hath his original by tenure. In Fit. Nat. Brev. 269, there is a writ for respiting of this later homage (which is due ratione feodi sive tenurae:) Sciatis quod respectuamus homagium nobis de terr' et tenementis quae tenentur de nobis in capite debit' [by reason of fee or tenure: Know ye that we have respited the homage due to us from the lands and tenements which are held of us in chief]. But Homagium ligeum, i.e. Ligeantia [ligeance], is inherent and inseparable, and cannot be respited. (Coke(1608), p.182) 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 thatone tenaunt maie be of divers Lordes fees and homage. 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(1608), p.177) In his Commentaries, William Blackstone described "natural allegiance" as an obligation of allegiance that a child (if subject born) acquires, at birth, to the sovereign of the child's place of birth. This "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 action, 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) 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-born subjects of the English king. And therefore if any of the King's ambassadors in foreign nations, have children there of their wives, being English women, by the common laws of England they are natural-born subjects, and yet they are born out-of the King's dominions. (Coke(1608), pp.208-9) 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, at birth, owed allegiance to the English king only and did not owe any allegiance, at birth, to any other sovereign? Summary: The term "natural-born subject" had different meanings in different contexts. In general, a natural-born subject was anyone who possessed the rights and obligations of a native Englishman, regardless of when or how those rights and obligations were acquired. In a "natural law" context, a natural-born subject was someone who acquired natural allegiance at birth. Natural allegiance was exclusive. A person could not, at birth, owe natural allegiance to more than one sovereign. It therefore appears that, in the "natural law" sense, "natural born" carried a connotation of birth in a particular place and exclusive allegiance, at birth, to the sovereign of that place.
29. What was Vattel's "Law of Nations"?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 of Jus Gentium 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 concepts pertaining to nationality:
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, Vattel's Droit des Gens was immensely popular, especially in America [19]. 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:
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 [19]. 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 weaponry (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 (roughly analogous to foreigners, aliens and subjects). 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:
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:
30. What is the root of the "natural born citizen" debate?When the thirteen colonies gained their independence and became the original thirteen States, they did not create a new system of laws and government "from scratch". Instead, each State retained its existing English government and laws, and modified them as necessary. In general, English common law, including the jus soli principle and the doctrine of perpetual allegiance, persisted among the States. But to what extent did English common law "continue to prevail" at the Federal or national level? According to one school of thought, since State and Federal governments and laws were patterned after English government and law, English notions of subjecthood and nationality must have persisted under the U.S. Constitution. According to an opposing school of thought, European political and natural law theory, including but not limited to Vattel's Law of Nations, guided the Founding Fathers as they wrote the Declaration of Independence and the U.S. Constitution. A book titled 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' political philosophy: 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. ... 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. national 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 Appendix 3. After gaining independence, the original thirteen 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 birth within the State as a means of conferring State citizenship to all persons, it is important to realize these States also required of aliens who desired to become domiciled within their limits to first renounce any allegiances to other governments and pledge their allegiance solely to the State. Therefore, a child born to domiciled parents was "born within the allegiance" of the State even if the parents had not yet been naturalized. (Madison(2007)) However, the early framers of the Federal government seemed disinclined to follow the English understanding of sovereignty and allegiance. 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. ... According to an article appearing 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) If we carry Webster's reasoning a step further, the philosophical system that controlled the original meaning of "natural born citizen" was probably 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, it's likely that the original meaning of "natural born citizen" was also based on English common law which included the jus soli principle. This would mean 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. 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 included 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, the U.S. Supreme Court decided the case of U.S. v. Wong Kim Ark.
In the Wong Kim Ark case, the difference of opinion among the justices was rooted in their differing understandings of America's history and founding principles. The split decision in Wong Kim Ark illustrated Webster's main point: that one's understanding of Constitutional citizenship reflects one's belief as to which philosophical system -- English common law, or European political and natural law theory -- guided the framers of the U.S. Constitution.
31. What's the "beef" with President Obama's birth certificate?UPDATE (4/27/2011): Now that President Obama has released his long-form birth certificate, the answer to this question has become moot. It is retained here for posterity only. 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". Obama's COLB is not an original birth certificate. It is merely a computer-generated summation, or abstract, of Obama's birth information which was on file in Hawaii at the time the COLB was generated (presumably in 2007 or 2008). In the published COLB photograph, the certificate number has been electronically "blacked out". There is suspicion that the photograph might have been altered in other ways as well (Polarik). At the time of this writing, President Obama has not published a copy of his original 1961 typewritten long-form birth certificate containing the names and signatures of people who witnessed his birth and independently confirmed his birth information. (See Sample Hawaiian long-form birth certificate, 1961). 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 enrolling in school, 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:
But a Certification of Live Birth does not answer these questions:
Until these questions are answered, we cannot say whether Obama's birth information, including his place of birth, has been independently verified or confirmed by a non-family-member. If Obama's birth information was based solely on a parent's or relative's uncorroborated statement, it would not conclusively prove Obama's birth in the Aloha State. If a family member had registered Obama's birth in Hawaii without any corroborating evidence, we cannot entirely rule out the possibility that Obama's family had misrepresented his birthplace in order to obtain U.S. citizenship for him.
32. Didn't the State of Hawaii recently verify that President Obama was born in Hawaii?UPDATE (4/27/2011): Now that President Obama has released his long-form birth certificate, the answer to this question has become moot. It is retained here for posterity only. 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. 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, boldface emphasis added) In her first statement, Dr Fukino "verified" that the State of Hawaii has, in its possession, Obama's original birth records. According to her second statement, Obama's original birth records "verify" (i.e., "say") that Obama was born in Hawaii. On May 2, 2010, Hawaii Governor Linda Lingle, during a radio interview, gave her assurance that Obama's birth records establish, as fact, that the President was born in Hawaii. This [birth certificate] issue kept coming up so much in the [2008 presidential] campaign, and again I think it's one of those issues that is simply a distraction from the more critical issues that are facing the country. So I had my health director, who is a physician by background, go personally view the birth certificate in the birth records of the Department of Health, and we issued a news release at that time saying that the president was, in fact, born at Kapi'olani Hospital in Honolulu, Hawaii. And that's just a fact and yet people continue to call up and e-mail and want to make it an issue and I think it's again a horrible distraction for the country by those people who continue this. ... The question has been asked and answered, and I think we should all move on now. (Interview: Governor Linda Lingle (May 2, 2010)) Gov. Lingle has expressed her personal conviction that Obama was born in Hawaii. But she did not explain the basis of her conviction. She did not say, for example, that she had personally viewed Obama's original birth documents and had conducted her own assessment of the documents' probative value. Applicable state law: Under the laws that were in effect in Hawaii when Barack Obama was born, the State of Hawaii would not have issued an "original" (non-adoption-related) Hawaiian birth certificate, declaring that a child was born in Hawaii, unless the Aloha State believed that the child was born in Hawaii. The Hawaii Department of Health would not have knowingly issued an original birth certificate containing false or incorrect information regarding the child's place of birth. 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) 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 or birth registration procedure that (a) was in effect in Hawaii in 1961, and (b) 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. Newspaper birth announcement: 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:
This birth announcement indicates that Obama's birth was registered in Hawaii in August of 1961. In the Honolulu Advertiser, Obama's birth announcement appeared under a column labeled "Health Bureau Statistics", indicating that the birth announcement came from the Department of Vital Statistics, not from a family member or other private citizen. Such vital statistics, however, were not sent to the newspapers by the general public but by the Health Department, which received the information directly from hospitals, Okubo said. Birth announcements from the public ran elsewhere in both papers and usually included information such as the newborn's name, weight and time of birth. (Honolulu Advertiser: Hawaii officials confirm Obama's original birth certificate still exists) U.S. Nationality Laws in 1961: When Barack Obama was born (August 4, 1961), his father (Obama Senior) was not a U.S. citizen, and his mother (Stanley Ann Dunham), though a U.S. citizen, was too young to confer U.S. citizenship to a foreign-born child. Consequently, if Obama were born overseas and his parents were married, he did not acquire U.S. citizenship at birth. Obama's American citizen parent, Ann Dunham, had to have been a resident of the United States for 10 years, at least five of which were over the age of 14. Dunham did not meet that requirement (of the Nationality Act of 1940, revised June, 1952) until her 19th birthday in late November of 1961, almost four months after Obama was born. The law confers U.S. nationality on the infant of a foreign father only under certain circumstances; it would apply to "(7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States, who prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years." (Fredrick) Stanley Ann Dunham was born on November 29, 1942. When her son, Barack Obama, was born (August 4, 1961), Stanley Ann was 18 years old. According to the U.S. Nationality Act which was in effect in 1961, Stanley Ann had to be at least 19 years old in order to confer U.S. citizenship to a foreign-born son. What are the rules for people born between December 23, 1952 and November 13, 1986? If Obama were born outside of the United States and if his parents were married when he was born, he did not acquire U.S. citizenship at birth. Summary: Based on these four pieces of information -- Obama's published Certification of Live Birth, Dr. Fukino's and Gov. Lingle's public statements, the laws and administrative procedures which were in effect in Hawaii in 1961, and Obama's birth announcement published in the local Honolulu newspapers in 1961 -- we conclude that (a) Obama's birth was registered in Hawaii in 1961, and (b) Obama's birth registration says he was born in Hawaii. However, unanswered questions remain. When Barack Obama's birth was registered in Hawaii in 1961, who or what was the source of his birth information? Was it a hospital? A doctor? A midwife? Or was it based solely on a parent's or relative's statement? Dr. Fukino and Gov. Lingle have stated publicly that they believe President Obama was born in Hawaii. Dr. Fukino has characterized Obama's original birth records as "verifying" the President's birth in Hawaii. Unfortunately, due to Hawaii's privacy laws, Dr. Fukino and Gov. Lingle did not disclose the source of Obama's birth information [87] and consequently did not eliminate the possibility that Obama's birth registration was based solely on a family member's uncorroborated statement. If a child's family has no reason to falsify a child's birth information, we might accept a family member's statement "as is", without independent corroboration. Unfortunately, Obama's parents may have had a compelling reason to commit birth certificate fraud. Their son, if foreign-born, did not acquire U.S. citizenship at birth. Nevertheless, his parents could have improperly obtained U.S. citizenship recognition for him through birth certificate fraud. They could have (a) registered his birth in Hawaii as "unattended," and (b) claimed (falsely), on his birth registration form, that he was born "at home" in Hawaii. Since Obama's parents may have had a compelling reason to misrepresent their son's place of birth, their uncorroborated statement, by itself, is insufficient to "verify" the President's birth in Hawaii.
33. Doesn't the mere existence of Barack Obama's Hawaiian birth registration prove that he was born in Hawaii?UPDATE (4/27/2011): Now that President Obama has released his long-form birth certificate, the answer to this question has become moot. It is retained here for posterity only. 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:
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, Madeline Dunham [88] -- Stanley Ann's mother, also President Obama's maternal grandmother -- 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 Madeline told a health department worker that her daughter, Stanley Ann, had given birth, at home, on Friday evening, August 4, 1961. Suppose Madeline was able to provide the Department of Health with the following documentation:
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). It is possible that President Obama was born outside of Hawaii, and Madeline Dunham fraudulently registered his birth in Hawaii, as an "unattended" birth [89]. In the absence of an original long-form birth certificate, this possibility cannot be entirely ruled out. Since birth certificate fraud can and does occur, the U.S. State Department no longer automatically accepts non-hospital-generated birth certificates as proof of U.S. birth and citizenship. If an individual was born at home, his/her birth certificate, even if signed by a doctor, is not sufficient for passport application purposes. If Barack Obama were to apply for a passport today, his published Certification of Live Birth would not be adequate. He would need to provide additional documentation showing that he was born in a hospital or other "appropriate medical facility" (Citizens "Born In A House" Are Denied Passports Despite Having Birth Certificates). 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.
34. Do birthers actually believe that President Obama was born in a foreign country?UPDATE (4/27/2011): Now that President Obama has released his long-form birth certificate, the answer to this question has become moot. It is retained here for posterity only. Birthers are divided over the birthplace issue. Some believe President Obama was born outside the United States. Others believe that, when the President's long-form 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) WorldNetDaily, which routinely reports on the Obama eligibility issue, has never reported that Obama was foreign-born: WND, meanwhile, has never reported Obama was born outside the U.S. Instead, WND has reported that Obama has not released documentary evidence conclusively proving his place of birth. (WorldNetDaily article, Obama pal slams WND for eligibility reporting, July 21, 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.
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.
In at least one 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 concede they do not have a "smoking gun" regarding the birthplace issue. They have reasons for suspicion and doubt about the President's place of birth, but they do not have enough solid factual evidence to prove, in court, the theory that Obama was born outside of the United States. At the same time, birthers also point out that there is insufficient information in the public domain to establish conclusively Obama's birth in Hawaii.
35. 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 9: Statutory natural born citizen). 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.
36. 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. A few 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 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, at birth, was also governed by Panamanian law, due to the fact that he was born in Panama. Although he did not acquire Panamanian citizenship, he did acquire, at birth, right to become a Panamanian citizen if he or his parents so chose [90]. Roger Calero was born in Nicaragua. At the time of his presidential candidacy, he was not a U.S. citizen. From its inception in 1854 and throughout its history, the Republican Party has welcomed presidential candidates whose Constitutional eligibility is uncertain.
Given its history of accommodating eligibility-questionable presidential candidates, the GOP cannot challenge President Obama's "natural born citizen" status without appearing hypocritical.
37. 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 are reprinted in Appendix 4. 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:
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 (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 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.
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. Past and present presidential and vice presidential candidates 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 phrase "cases under the civil service law" might mean that someone like Inspector general Gerald Walpin, who was fired from his civil service job by Obama, could qualify as an "interested person". Indirect Challenge: The DC Court of Appeals, 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. 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. For example, persons or companies which are being harmed by Obama's moratorium on off-shore drilling could ask the Court to overturn the moratorium, on the basis that Obama, as an ineligible President, had no legal authority to issue such a moratorium. In Bond v. United States (2011), the Supreme Court unanimously ruled that a private citizen has standing to challenge the constitutionality of a Federal law if the private citizen is subject to fine and/or incarceration as a result of such law. For example, if you are found guilty of violating a Federal statute that President Obama had signed into law, you might have standing to ask a Federal court to overturn the statute and invalidate your conviction, on the basis that the statute was signed by a Constitutionally ineligible President: Applying the Bond decision to a case challenging Obama's eligibility, one would have to be criminally charged or be compelled to pay money under a statute passed by Congress when Obama was President. ... Then one would argue that the law is not valid because it never was presented to a legitimate President for consideration under Article I, Section 7, Clause 2, arguing that Obama is not a legitimate President because he does not meet the requirements of the "natural born Citizen" clause. Hence, one would argue that separation of powers and checks and balances have been violated. Obama's eligibility to be President under the "natural born Citizen" clause would be the basis for the attack against the charging statute. Since the office of the President is a constitutional office, the de facto officer doctrine (that we should treat Obama as the President by fact even though he is not by law) should not be an obstacle to this argument. (Bond v. United States and Standing to Challenge Putative President Obama on His Eligibility to be President) In an "indirect" challenge, a plaintiff would not seek to have President Obama removed from office. The plaintiff would merely ask a court to invalidate a law or executive action which (a) was signed by President Obama and (b) is causing some kind of harm or injury to the plaintiff. An "indirect" challenge, by itself, would not end Obama's Presidency, but nevertheless could bring about a judicial hearing into Obama's "natural born citizen" status.
38. What can we do?(1) Learn the "core" facts regarding President Obama's eligibility. A 4-page summary of these facts is available in HTML format and in PDF format. (2) Avoid -- and encourage others to avoid -- mischaracterizing the birther controversy as being solely about Obama's birthplace and birth certificate. In general, birthers do not claim that Obama was foreign-born. They merely point out that there is uncertainty regarding the President's place of birth. Of greater importance is the fact that, regardless of his place of birth, Obama acquired foreign citizenship, at birth, by descent from his father. This fact, which has been verified by Obama's own public admission, directly challenges the President's natural born citizenship and Constitutional eligibility. (3) Inform your elected representatives, both Federal and State, of the facts which give rise to doubts concerning the President's eligibility to hold office. Advise your elected representatives that, whenever there are facts indicating a violation of the Constitution, their oath to uphold the Constitution requires a timely investigation and resolution of those 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. Examples of such State legislation include Nebraska Legislative Bill 654 and Arizona HB 2544. (6) If you know persons, businesses or states which have suffered "concrete and particularized injury" (loss of job, franchise, income or investment) as a direct result of an official action by President Obama, or if you know any persons who face fine or incarceration for violating a law that President Obama had signed, let them know they may have standing to challenge the official action or law, on the basis of the President's ineligibility. See Benefiting from Obama's Ineligibility. (7) If you have access to presidential and vice presidential candidates, let them know they may 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. (8) 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:
(9) If you are a person of religious faith, pray for resolution of the Obama presidential eligibility controversy.
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:
Appendix 2: Methods of English Subjecthood AcquisitionThe following table shows four ways by which a person could become an English subject during the late 1700s -- the time period in which the U.S. Constitution was being written. Two centuries earlier, during the reign of Queen Elizabeth I of England, the word "denizen" referred to anyone who became an English subject through any artificial means, i.e., by statute, act of parliament or king's charter [50]. But by 1787, "denizen" had taken on a more precise and limited meaning. It referred only to aliens who became English subjects by royal prerogative -- either letters patent issued by the king, or the king's military conquest and subjugation of the alien's home country. In the table below, we use the narrower meaning of "denizen", since it was the meaning that was in effect when the U.S. constitution was being written.
Appendix 3: Comparison between English and European Political TheoriesThroughout American history, there has been a difference of opinion regarding our nation's founding principles. On one hand are those who believe that English common law guided the writing of the Declaration of Independence and the U.S. Constitution. On the other hand are those who believe that the Founding Fathers were guided by European political theorists such as Vattel. As a general rule, those who think that are nation's founding was based on English common law tend to believe that anyone born in the United States is a "natural born citizen". Those who think that European political theory guided the Framers of the Constitution tend to believe that one cannot be a natural born citizen of the United States unless one's parents were U.S. citizens at the time of one's birth. The differences between English and European political theories are summarized in the table below.
Appendix 4: Federal Quo Warranto StatuteThe following is from the District of Columbia Code; Division II: Judiciary and Judicial Procedure; Title 16: Particular Actions, Proceedings and Matters; Chapter 35: Quo Warranto; Subchapter 1: Actions Against Officers of the United States:
Source: Michie's Legal Resources.
Footnotes
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||