Why does the US Consitution Require That The US President Must Be A Natural Born Citizen?
Posted by pwl on August 20, 2013
The Constitutional Meaning Of “Natural Born Citizen”
by Alan Lovejoy
The Constitution requires that the President of the United States must be a natural born citizen:
Article II, section 1, clause 5: “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.”
If “natural born citizen” is a synonym for “citizen,” then there is no reason for adding the exception “or a Citizen of the United States, at the time of the Adoption of this Constitution.” None at all. Being a citizen is not sufficient, unless you happened to be alive when the Constitution was adopted.
So what, then, is a “natural born citizen”? To answer that question definitively will require a full examination of the concepts and history of citizenship.
Types Of Citizenship: Jus Soli, Jus Sanguinis, Natural Born, Native Born, Naturalized
Jus soli citizenship: “Jus soli” is a Latin phrase meaning “law of the soil.” Jus soli citizenship is any citizenship that inheres in a person based on the location of his or her birth.
Jus sanguinis citizenship: “Jus sanguinis” is a Latin phrase meaning “law of the blood.” Jus sanguinis citizenship is any citizenship that inheres in a person based on his or her ancestry.
Native born citizenship: A native born citizen is one whose citizenship derives from the facts of his birth, and who becomes a citizen at the moment of birth. In both US and British law, those born within the sovereign territory of the country or born to parents who are citizens (subjects) of the country when the person is born are native citizens (subjects.) Native born persons are said to have “birthright citizenship.” Note that one can be “native born” either by the “jus soli” principle or by the “jus sanguinis” principle.
Naturalized citizenship: A naturalized citizen is one whose citizenship is granted as a political act—by law or by the decision or act of a sovereign.
Natural born citizenship: A natural born citizen is one whose citizenship is not granted by law or by any act of a sovereign, but inheres naturally in the person from birth according to principles that don’t depend on laws or decisions of a sovereign. The rest of this essay will fully justify this definition.
The Constitution of the United States did not originally explicitly define who did or did not not qualify as citizens. It originally had clauses where the general term citizen occurs, and had one clause where the specific term natural born citizen occurs (quoted above.) But the Constitution does grant Congress the power to define by law who shall be citizens:
Congress shall have power….To establish an uniform Rule of Naturalization [Article I, Section 8]
Why did the Constitution limit the power it granted Congress over matters of citizenship to naturalization? Because Citizenship acquired solely by any law passed by Congress cannot logically be anything other than naturalized citizenship—by definition of naturalization (as will be comprehensively proven by this essay.) It’s logically impossible for any act of Congress to make anyone a citizen by natural law. At most, such a law would be declaratory of natural law—because a citizen by natural law is a citizen no matter what laws Congress may or may not enact.
In fact, given the Founders’ understanding of natural law versus man-made law, it would have been a logical contradiction to grant Congress the power to change or define natural law on any subject, not just regarding citizenship—because natural law, by late 18th-century definition, cannot be made by a legislature or head of state. That’s why Congress was granted no such powers in any domain at all. Such a power could be used, among other things. to change the meaning of words, including those in the Constitution itself. The dangers of that should be obvious.
If Congress had the power to make anyone a natural citizen, it would also necessarily have the power to strip citizenship from anyone it chose. The fact it cannot logically have any such power—and is granted no such power by the Constitution—is one of the fundamental protections against tyranny. The power to revoke even natural law citizenship by law is the power to commit any act against anyone that the sovereign power of war permits.
So why didn’t the Constitution define the term natural born citizen? For the same reason it could only grant Congress the power to define naturalized citizens. For the Constitution to actually define the term “natural born citizen” would necessarily mean that that status would be granted by man-made law, and not by natural law. That’s why the Constitution provides no definition, and why it must be a court that decides who is and who is not a natural born citizen by applying natural law principles—which is exactly how English common law handled questions of natural citizenship.
But the ratification of the 14th Amendment introduced into the Constitution a rule of citizenship that declared anyone who (a) was born in the United States, and (b) was subject to U.S. jurisdiction at the time of his or her birth, to be a citizen. Since the 14th Amendment is a man-made law, and is not natural law, the 14th Amendment logically cannot make anyone be a natural citizen. Nor does it create the logical contradiction of attempting to do so, since it makes no mention of natural citizenship of any kind, and does not use the term “natural born citizen.”
The 14th Amendment created an implicit distinction among 14th Amendment native-born citizens, and statutory native-born citizens. A statutory native-born citizen is a person who does not qualify for birthright citizenship under the 14th Amendment, but receives U.S. citizenship, at birth, by laws enacted by Congress. For example, foreign-born children of American parents do not receive citizenship from the 14th Amendment; such children acquire U.S. citizenship, at birth, by statute.
So those born outside the United States to parents who are US citizens at the time of the person’s birth are both native citizens and also naturalized citizens, since their citizenship is a) granted to them by an Act of Congress, and b) effective from the instant of their birth, based on the fact that the person’s parents were US citizens at that moment.
Even those born in the United States, if they qualify as a citizen per the 14th Amendment, but do not also qualify as natural born citizens without reliance of the 14th Amendment, are naturalized citizens. Why? Because the US Constitution is a law whose formulation and adoption are political acts of man. The Constitution is the supreme law of the land, but it is not natural law. So it does not matter that the law that grants citizenship happens to be a clause of the Constitution—the grant of citizenship is nevertheless an act of naturalization, because it’s a grant made by law—a political act, not one based on natural law.
Those who were not citizens up until the moment of the ratification of the 14th Amendment, but who instantly became citizens upon ratification, cannot possibly have ever been native-born citizens. They were not citizens from the moment of their birth. And their grant of citizenship was a political act effected by the passage of a law, and not based on principles of natural law. The 14th Amendment naturalizes anyone who does not also qualify as a natural born citizen. And that’s true by definition of the term naturalization, as will be fully and comprehensively shown later.
Therefore, to handle all the possible classes of citenship in the US, it is necessary to distinguish between natural law citizens, Constitutional citizens and statutory citizens, and also to distinguish between native citizens and non-native citizens:
Native (from birth) Non-native (post birth) Natural Law Native citizen per natural law
Natural born citizen
Non-native citizen per natural law
(Those who become citizens of a newly-created nation)
Constitutional Law Naturalized native citizen per Constitutional definition Naturalized non-native citizen per Constitutional definition
—Does not (currently) exist—
Statutory Law Naturalized native citizen per statutory definition Naturalized non-native citizen per statutory definition
Of course, in other countries, other classes of citizenship may exist, and classes of citizenship that exist in the US may not. For example, some countries don’t have Constitutions or even legislatures, and others have monarchs who may have the power to grant citizenship (a power the US President lacks.)
We can use the term “Constitutional natural born citizen” to refer to someone who is a “natural born citizen” according to the natural-law based definition intended by those who wrote and ratified the Constitution. The term must be understood in that sense when it appears in the Constitution or in a Constitution-related document such as a Supreme Court decision.
We can use the term “statutory natural born citizen” to refer to someone who is deemed a “natural born citizen” by Federal or State law.
These distinctions are not my invention. The U.S. Department of State Foreign Affairs Manual—7 FAM 1130 (page 9) says:
…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
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 outside the United State to parents who are citizens are “citizens at birth”. Therefore, using our hypothetical definition of “natural born citizen” as anyone who is a citizen at birth, all those born abroad to US-citizen parents would be statutorily defined as “natural born citizens” because their status as citizens at birth would be granted by statute. So that definition of “natural born citizen” would mean that Congress could change the meaning of “natural born citizen” by changing the rules of naturalization. It would also mean that Congress, simply by changing the naturalization rules, could also change who was or was not eligible to be President.
That cannot be what the Founders intended. Had it been, they would simply have granted Congress the power to dictate who shall or shall not be a citizen (or any sort,) and who could or could not be President. But they pointedly did not grant Congress any power to determine who would or would not naturally be citizens, nor who would be eligible to be President. The only power they granted Congress regarding citizenship was to make rules regarding naturalization of citizens (the making of citizens who would not be citizens naturally.) And they granted Congress no power to determine Presidential eligibility rules at all.
It may be—and this essay so argues—that all natural born citizens are also native born citizens. But the reverse cannot be true without not only creating logical contradictions, but without granting Congress powers that were clearly intended to be denied to them.
On 25 July 1787, John Jay wrote a letter to George Washington, recommending that the new Constitution should require that the President be a “natural born citizen”. The stated purpose of this requirement for eligibility was to exclude “foreigners” from exercising Presidential powers:
“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.”
Also on 25 July 1787 (the very same day,) James Madison made the following comment to the delegates of the Constitutional Convention then in progress in Philadelphia (the topic of the debate was whether or not it would be a good idea to have Congress , State legislatures, the Governors of the States or courts—Federal or State—choose the President):
Mr. MADISON. …Besides the general influence of that mode on the independence of the Executive, 1.  the election of the Chief Magistrate would agitate & divide the legislature so much that the public interest would materially suffer by it. Public bodies are always apt to be thrown into contentions, but into more violent ones by such occasions than by any others. 2.  the candidate would intrigue with the Legislature, would derive his appointment from the predominant faction, and be apt to render his administration subservient to its views. 3.  The Ministers of foreign powers would have and  make use of, the opportunity to mix their intrigues & influence with the Election. Limited as the powers of the Executive are, it will be an object of great moment with the great rival powers of Europe who have American possessions, to have at the head of our Governmt. a man attached to their respective politics & interests. No pains, nor perhaps expense, will be spared, to gain from the Legislature an appointmt. favorable to their wishes. Germany & Poland are witnesses of this danger. In the former, the election of the Head of the Empire, till it became in a manner hereditary, interested all Europe, and was much influenced by foreign interference. In the latter, altho’ the elective Magistrate has very little real power, his election has at all times produced the most eager interference of forign princes, and has in fact at length slid entirely into foreign hands. The existing authorities in the States are the Legislative, Executive & Judiciary. The appointment of the Natl. Executive by the first, was objectionable in many points of view, some of which had been already mentioned. He would mention one which of itself would decide his opinion. The Legislatures of the States had betrayed a strong propensity to a variety of pernicious measures. One object of the Natl. Legislre. was to controul this propensity. One object of the Natl. Executive, so far as it would have a negative on the laws, was to controul the Natl. Legislature, so far as it might be infected with a similar propensity. Refer the appointmt. of the Natl. Executive to the State Legislatures, and this controuling purpose may be defeated. The Legislatures can & will act with some kind of regular plan, and will promote the appointmt. of a man who will not oppose himself to a favorite object. Should a majority of the Legislatures at the time of election have the same object, or different objects of the same kind, The Natl. Executive would be rendered subservient to them.—An appointment by the State Executives, was liable among other objections to this insuperable one, that being standing bodies, they could & would be courted, and intrigued with by the Candidates, by their partizans, and by the Ministers of foreign powers. The State Judiciarys had not  & he presumed wd. not be proposed as a proper source of appointment. The option before us then lay between an appointment by Electors chosen by the people—and an immediate appointment by the people. He thought the former mode free from many of the objections which had been urged agst. it, and greatly preferable to an appointment by the Natl. Legislature. As the electors would be chosen for the occasion, would meet at once, & proceed immediately to an appointment, there would be very little opportunity for cabal, or corruption. As a farther precaution, it might be required that they should meet at some place, distinct from the seat of Govt. and even that no person within a certain distance of the place at the time shd. be eligible. …
With one possible exception to be noted shortly, it was only after Jay’s letter to General Washington, and Madison’s comment at the convention, that the Convention began to mention citizenship requirements for any Constitutional officers, even though they had begun to consider eligibility issues about a week previously. It should be noted, however, that during the early days of the Convention several very different initial drafts of proposed Constitutions were presented, all but one of which were rejected. The last one to be presented, by Alexander Hamilton, is known as the British Plan (because it was modeled closely after the British governmental architecture.)
We may not have the full text of the Hamilton’s proposed Constitution as it existed then, because Madison’s notes don’t claim to present it in its entirety at the time. However, Hamilton did present Madison with a draft document which he said “delineated the Constitution which he would have wished to be proposed by the Convention. He had stated the principles of it in the course of the deliberations.” Although Hamilton’s plan was totally rejected because it was viewed as far too similar to the architecture of British government, the final version he presented to Madison also happens to have been the only one whose text included any eligibility requirements for the Chief Executive (which the plan called a ‘Governour.’) That plan required that that person be “born a citizen.” If the principles of the plan for which Hamilton argued during the Convention included the notion that the President be “born a citizen,” then that language was rejected by the Convention.
The Convention’s “committee of the whole” went into recess from 27 July through 5 August. When it resumed on August 6, the “committee of detail” presented the first draft of the Constitution that included eligibility requirements for any Constitutional officers: the members of the House and Senate had to be citizens for specified periods prior to serving (thus implicitly allowing naturalized citizens to serve, a point that was actually discussed in detail in the “committee of the whole.”) But the only constraint on who could be President was that he “shall not be elected a second time.”
Finally, on 4 September, the Convention considered proposed changes from one of the sub-committees where the “natural born citizen” eligibility requirement for the President was introduced to the “committee of the whole.” The differences between the initial language and what later became the text of the ratified Constitution are minor and of no bearing on the meaning of “natural born citizen”:
(5) ‘Sect. 2. No person except a natural born citizen or a Citizen of the U. S. at the time of the adoption of this Constitution shall be eligible to the office of President; nor shall any person be elected to that office, who shall be under the age of thirty five years, and who has not been in the whole, at least fourteen years a resident within the U. S.’
Based on the above evidence, we can conclude that John Jay’s letter to Washington, and the comments of Madison and later others at the Convention, establish the fact that the Framers were worried about the undivided loyalty of the President, and thought that the requirement that he be a “natural born citizen” would be sufficient to prevent anyone with foreign allegiance (anyone who could be claimed as a subject or citizen of a foreign sovereign) from serving as President. But how could that be, if “natural born citizen” means what many claim it does, namely “a person born in the United States, with parents who aren’t employed in any official capacity by a foreign sovereign”?
Some nations claim you as their citizen or subject based on where your were born, some based on who your parents were (father and/or mother,) and some based on both together. By requiring that the President be born at a location where the US is sovereign, any foreign “natural law” or “law of nations” claim on the President to allegiance based on his place of birth is precluded. By requiring that the President be born to parents who are solely US citizens, any foreign “natural law” or “law of nations” claim on the President to allegiance based on his parentage is precluded.
There is no denying the fact that a person born in the United States could have multiple nationalities, and owe allegiance to multiple sovereigns, since either parent could have multiple citizenships, any of which could by the law of that nation transfer to the child by the principle of jus sanguinis. Many nations claim anyone with at least one parent (sometimes it must be the father, sometimes it must be the mother, sometimes both) who is a citizen or subject of that nation as a citizen/subject also. However, if both your parents are citizens (or subjects) of the same sovereign, if neither parent has any foreign citizenship, and if you were born in that same sovereign’s territory, then and only then is it impossible for any other sovereign to have a birthright claim to your allegiance under the law of nations as commonly understood.
Therefore, it should be evident that if the purpose of the requirement to be a “natural born citizen” is to prevent anyone with foreign citizenship from serving as President, it cannot achieve that end unless, by definition, the phrase “natural born citizen” excludes anyone who might have acquired foreign citizenship by means of any one of the three modalities recognized by the law of nations: 1) jus soli (born on foreign soil), 2) jus sanguinis (born to a parent with foreign citizenship), or 3) naturalization by a foreign country. John Jay’s request to Washington makes no sense otherwise, since in that case his suggested eligibility requirement would not preclude what he was seeking to prevent.
It should be noted that a person can become a citizen or subject of a foreign country by naturalization after one has has been born. To be logically consistent with the intent of the Founders, those US citizens—even if born in the US to parents who were both US citizens—who have any foreign citizenship, no matter when or how acquired, should not be eligible to be President. This issue has nothing to do with race or ethnicity. It’s a question of loyalty and avoidance of even the appearance of conflict of interest. Nothing more, and nothing less.
Consider again Article II, section 1, clause 5: “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.”
That clause limits who may be President to persons who meet the following requirements:
- Those who are 35 years old or older, AND
- Those who have been a resident of the US for 14 years or longer, AND
- Those who are natural born citizens, OR
- Those who were US citizens at the time the Constitution was adopted
Why did the Constitutional Convention include that last exception, allowing those who were citizens at the time the Constitution was adopted to be President?
Before answering that question, consider the case of Congressman Smith. He was born in South Carolina before the American Revolution. At the time of the Revolution, he was not yet an adult. His parents were British loyalists, and fought against the Revolution. But after the Revolution and the adoption of the Constitution in 1788, he was elected to Congress. But his right to be seated was challenged on the basis that he was not a citizen, due to the actions of his parents.
James Madison himself spoke in defense of the fact that Mr. Smith was a citizen. The reasoning he used is decisive with respect to understanding the reason for the exception in the Constitution to the “natural born citizen” requirement.
Madison argued that Mr. Smith was a citizen from birth, by reason of his place of birth alone, and explicitly not due to his parentage, because (as Madison argues) his parents never were US citizens at all. Madison rejected any notion that, simply because Mr. Smith had been sent to school in England (as a minor) prior to the Revolution, and was resident there in 1776 when the United States first came into existence, that he was not a citizen of the US. Madison argued that Congressman Smith’s birth in South Carolina is all that mattered, because his place of birth came under the sovereignty of of the United States when the US came into existence.
No event subsequent to his birth extinguished Congressman Smith’s citizenship in the sovereign state of South Carolina—which, since he was born there and his parents were citizens of the state, meant he was a subject born of South Carolina according to natural law and the common law that was then in effect in South Carolina.
Madison’s argument was that any citizen (natural or not) of South Carolina became a natural US citizen at the moment the US became sovereign over South Carolina, provided allegiance to the US was accepted by that citizen. Not a natural born citizen—both because he was not a US citizen from birth, and because his parents would not have been citizens of the US when he was born—but nevertheless a citizen by natural law, and not by any official act of naturalization.
Without a naturalization law that made Congressman Smith a citizen, and without his having duly undergone the naturalization process specified by such a law, his citizenship cannot be by means of naturalization, but can only be natural citizenship by the operation of natural law.
Right or wrong, that was Madison’s argument. And it applies with equal force and legitimacy to all other citizens of the several States, whether they were at home or abroad at the moment the US came into existence. To be logically consistent, either all who were citizens of any of the several States and didn’t reject allegiance to the US when it acquired soveignty over their State were citizens of the US by natural law, or none were. If none were, then all would have needed to be naturalized in order to be citizens.
Madison’s argument prevailed, and Mr. Smith was seated as a Congressman. The Congress accepted Madison’s argument that Mr. Smith was a US citizen by natural law solely due to the location of his birth in South Carolina—when South Carolina was a British Colony, and not yet a State of the United States. By that same logic, most residents of the US at the time the Constitution was adopted were natural citizens of the US by their place of birth alone.
According to Madison’s argument, those who were citizens of any State became citizens of the US instantly, automatically and by operation of natural law and the law of nations the moment two events occurred: 1) The society in which they were citizens came under the sovereignty of the United States, and 2) they were adults who accepted, and did not reject, allegiance to the United States. However, their status as US citizens began only at that moment, and not before. By Madison’s rule, anyone born on soil where the United States is currently sovereign, and who has not denounced or rejected US citizenship, is a citizen of the United States (although he didn’t say what kind.). However, most people who were alive when the Constitution was adopted would have had parents who were not US citizens when they were born, because the United States did not exist until 1776 at the earliest. Whether the United States that came into existence in 1776 is the same nation as the one whose government was constituted in 1788 by the current US Constitution is an interesting question, but there is no need to answer it here.
The only persons who were indisputably born on soil in which the United States was sovereign when the current US Constitution was adopted and whose parents were US citizens at the very moment when those persons were born would, under the most lenient possible interpretation, have been no older than 12 years of age in 1788 when the US Constitution was ratified. Under the strictest interpretation, they would have been mere infants. In contrast, most of those who were citizens when the Constitution was ratified would have satisfied the requirement to have been born on US soil— because the soil on which they were born would have become US soil no later than the moment the Constitution was ratified, if not before (per Madison’s rule.)
So, based on Madison’s argument (which Congress accepted,) if “natural born citizen” means simply “native born” or “born a citizen” or “born on soil where the United States is currently sovereign” then any citizen of the US at the time the Constitution was adopted would satisfy the “natural born citizen” requirement, so there would have been no need for the exception, and its inclusion in the Constitution makes no sense, especially in historical context, where no small number of residents of the US were at least potentially British subjects per British law, and the undivided loyalty of many of them to the United States was under serious suspicion (as demonstrated by the case of Congressman Smith.)
But if “natural born citizen” means “born on US soil, with parents who were US citizens when their child was born,” then it would in fact be true that no one older than 12 years of age (at most) could have satisfied the “natural born citizen” requirement in 1788 (when the Constitution was ratified,) in which case there is a good reason for the exception. Without that exception, and assuming a semantic for “natural born citizen” as stated, George Washington would not have been eligible, nor would most of the Presidents after him until well into the 19th century.
In addition to the debates at the Constitutional Convention, John Jay’s letter to General Washington, and the text of the Constitution itself, there is also the testimony of Founder and historian David Ramsay (April 2, 1749 to May 8, 1815,) who was an American physician, patriot, and historian from South Carolina and a delegate from that state to the Continental Congress in 1782-1783 and 1785-1786. He was the Acting President of the United States in Congress Assembled. He was one of the American Revolution’s first major historians. A contemporary of Washington, Ramsay writes with the knowledge and insights one acquires only by being personally involved in the events of the Founding period.
In 1789 (the year after the Constitution was ratified,) Dr. Ramsay published an essay entitled “A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen,” a very important and influential essay on defining a “natural born Citizen.” In his 1789 article, Ramsay first explained who the “original citizens” were and then defined the “natural born citizens” as the children born in the country to citizen parents. He said concerning the children born after the declaration of independence, “[c]itizenship is the inheritance of the children of those who have taken part in the late revolution; but this is confined exclusively to the children of those who were themselves citizens….” Id. at 6. He added 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….” Id. at 7. He continued that citizenship “as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776….” Id. at 6.
Based on Dr. Ramsay’s definition of “natural born citizen,” there can be no doubt why it was necessary to include the time-limited Constitutional exception that permitted those who were citizens when the Constitution was adopted to be President. Without that exception, those who would have qualified as natural born citizens, and so been Constitutionally eligible to be President, would have been no older than 12 years of age in 1788.
Given Dr. Ramsay’s position of influence and especially given that he was a highly respected historian, Ramsay would have had the contacts with other influential Founders and Framers and would have known how they too defined “natural born Citizen.” Ramsay, being of the Founding generation and being intimately involved in the events of the time would have known how the Founders and Framers defined a “natural born Citizen” and he told us that definition was one where the child was born in the country of citizen parents.
Note Dr. Ramsay’s phrase “as a natural right.” Modernly, it seems strange to us to associate questions of citizenship with “natural rights.” We consider questions of citizenship to be purely political matters, not questions of “laws of nature” such as those investigated by physicists. But that was not at all true in 18th century European culture, nor had it been the case in English common law for many hundreds of years prior. At the time, science was still in its infancy, and its stunning and then-very-recent success inspired those who lived through the initial scientific revolution to seek “natural laws” to explain and justify their hypotheses, theories, concepts and policies. And the tradition of English common law was grounded quite firmly in rendering decisions based on what was “true by nature,” as opposed to what was true by political decree. That attitude was especially strong among those who founded the United States and wrote its Constitution. They were determined to throw off the chains of tradition and arbitrary authority, and to establish their society and government based on invariant, self-evident principles arrived at by reason and conformance with objective reality. They used the term “natural” in a way similar to the way we modernly use the term “scientific,” in the sense of “justified by reason and the way the world works, not by tradition or arbitrary human policy” (which isn’t quite the formally correct definition, but is nevertheless what most people mean when they use the term.)
That’s why the political writings of the time constantly and incessantly refer to “natural law.” The point was to claim that the concepts, principles, rules or laws under discussion were derived by reason and logic from objective facts, and not merely the remnants of irrational cultural traditions or political edicts. It was the Age Of Reason, and naturalness was its standard of validity and truth.
When the US Constitution was written, the “natural law” that dealt with issues such as nationality and allegiance to a sovereign was called “the law of nations.” Modernly, we call this “international law.” In 1788, the preeminent codification, description and explanation of “the law of nations” was a work written by Emerich de Vattel, entitled THE LAW OF NATIONS, or principles of the law of nature applied to the conduct and affairs of nations and sovereigns:
In his highly influential Droits des Gens (1758) [“Law of Nations”], Emer de Vattel presented the law of nations as simply the law of nature of individuals in the state of nature applied to states. Vattel disagreed, however, with Hobbes (and Pufendorf) that “the maxims of the law of nature and those of the law of nations were precisely the same”. Nations and individuals were very different entities and there subsequently results, Vattel wrote, “in many cases, very different obligations and rights”. This was particularly true when it came to international commercial relations which, from Vattel’s standpoint, increasingly formed the subject matter of the law of nations. Discerning these differences involved “the art of thus applying [the law of nature] with a precision founded on right reason”. It was this, Vattel added, “that renders the law of nations a distinct science”. With this reference to “right reason”, we find a very faint echo of the classical, Thomistic, and early-modern natural law tradition of conceptualizing the ius gentium. ~ NATURAL LAW and the LAW of NATIONS, Samuel Gregg, Acton Institute
The Founders were not only familiar with de Vattel’s treatise, they relied on it extensively when they wrote laws and Constitutions (of their respective States, not just the Federal one.)
In Section 212 of de Vattel’s treatise, he states the following:
§ 212. Of the citizens and natives.
“The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”
Note that de Vattel defines “natural born citizen” as the purest form of citizenship, requiring both jus soli (“law of the soil”) citizenship and jus sanguinis (“law of the blood”) citizenship—with BOTH parents being citizens.
But de Vattel wrote in French, not in English. In French, the words he used instead of the English “natural born citizens” were “les naturels, ou indigenes.” Literally, “les naturels, ou indigenes” translates as “the natural ones, or original inhabitants.” Note that “les naturels” does not translate as “natives.” For “naturel” to mean native the word would need to be used as an adjective. In the quoted section, it is used as a noun. In fact, when de Vattel defines “natural born citizens” in the second sentence of section 212 after defining general or ordinary citizens in the first sentence, you see that he uses the word “indigenes” meaning “natives” (in the sense of “original inhabitants”) along with “Les naturels” in that sentence. He used the noun “naturels” to emphasize clearly who he was defining as those who were born in the country of two citizens of the country, because if your parents were indigenes (“original inhabitants,” “natives”) then your status of being a member of their society, of their nation, would devolve upon you by the jus sanguinis principle of natural law—making you a natural inhabitant, citizen and member of the society. Also, when we read Vattel, we must understand that Vattel’s use of the word “natives” in 1758 is not to be read with modern day various alternative usages of that word. You must read it in the full context of sentence 2 of section 212 to fully understand what Vattel was defining from natural law, i.e., natural born citizenship of a country. Please see the photograph of the original French for Chapter 19, Section 212, here in the original French if you have any doubts.
The text of de Vattel’s treatise was translated into English more than once, some of those translations being published well before the American Revolution. None of those pre-Revolutionary translations rendered “les naturels, ou indigenes” into English as “natural born citizens” The first that did so was published in 1797, 10 years following the Constitutional Convention, 8 years following the adoption of the Constitution, and 8 years following the publication of Dr. Ramsay’s essay on US citizenship—where “natural born citizen” is defined by the Founder/historian to have precisely the same meaning as the one de Vattel establishes for “les naturels, ou indigenes.”
We can reasonably assume that the other Founders and Framers would have defined a “natural born Citizen” the same way that Ramsay did, for being a meticulous historian he would have gotten his definition from the general consensus that existed at the time.
And we can also reasonably conclude that the professional translator who rendered “les naturels, ou indigenes” into American English in 1798 for an edition of the book to be published and distributed in the United Sates as “natural born citizens” would have been fully aware of the occurrence of that phrase in the brand-new US Constitution, and that he had the same reasons as Dr. Ramsay to use the same definition of “natural born citizens” as was generally accepted among speakers of American English at the time.
Based on the facts and reasoning presented above, there can be no other sound conclusion but that “natural born citizen” must have been intended to have the same meaning as de Vattel defined for his term-of-art phrases “les naturels, ou indigenes.” It cannot be coincidence that Dr. Ramsay’s 1789 definition of “natural born citizen” is the same as the one de Vattel gives for his French phrase “les naturels, ou indigenes,” and which a professional translator translated into English as “natural born citizen” just a few short years after the “natural born citizen” requirement was written and ratified in the new US Constitution. The fact that that semantics for the term is very consistent with the stated purpose of the “natural born citizen” requirement to prevent a person from having allegiance to a foreign sovereign provides the confirming motive and original intent.
The evidence from the historical record and from the text of the Constitution itself is clear and compelling, as regards to both semantics and intent:
- The reason the Constitutional Convention required that the President (and later, by Amendment, the Vice President) be a “natural born citizen” is that they wanted to minimize the possibility that the person who would be head of State, chief executive and Commander-In-Chief of the US armed forces might be subject to conflicts of interest, legal obligations or loyalties with respect to any foreign sovereigns or foreign powers;
- Whatever the Founders meant by “natural born citizen,” it was more restrictive than “citizen,” and so restrictive that it was necessary to add an exception to the Constitution allowing those who were citizens when the Constitution was adopted to be eligible to be President, provided they satisfied all the other constraints;
- The only explicit definition of “natural born citizen” in the historical record that was provided by one of the Founders defines it as meaning a person born in the country to citizen parents. No testimony from any other Founder or delegate of the Constitutional Convention exists that claims any other definition.
However, in spite of all the foregoing evidence, there remain those unconvinced. Why is that?
The Core Of The Controversy
In 1891, Prentiss Webster (1851-1898) published A Treatise On the Law Of Citizenship In The United States. The author makes the argument that there are two schools of thought regarding the philosophical and conceptual basis for the Declaration of Independence and the United States Constitution. The controversy over the meaning of “natural born citizen” is but one aspect of this larger disagreement.
It should be noted that the 1891 publication of A Treatise On the Law Of Citizenship In The United States happened 23 years after the ratification of the 14th Amendment, and seven years before the Supreme Court decided the Wong Kim Ark case (which used the English common law definition of “natural born subject” to justify its interpretation of the phrase “subject to the jurisdiction thereof” that occurs in the first sentence of the 14th Amendment.) The difference of opinion between the two factions is starkly evident in the majority and minority opinions in that case. We will examine the Wong Kim Ark case in greater detail later.
According to one school of thought identified by Webster, the principal philosophical and conceptual foundation of the United States founding documents was English common law. According to the other school, the US founding documents were based on pan-European “natural law” theory, as exemplified by what the US Constitution refers to as the “law of nations” (which refers to a theory of international law based on natural law concepts, not to any particular publication.)
Modernly at least, the proponents of neither school are absolutists. Those who favor English common law as the principal foundational seed don’t deny at least some influence of pan-European political theory based on natural law principles. And those who believe that pan-European “natural law” theory was the principal framework the Founders used to establish the governmental architecture of the United States generally agree that there were some principles, concepts and terms also borrowed from English common law. The crux of the disagreement is focused primarily on whether the terms and concepts involving citizenship are based on English common law or on the “law of nations” developed in Europe based on natural law principles.
Those who reject the idea that “natural born citizen” means “born in the country, to parents both of whom are citizens of that country” argue that the term “natural born citizen” is simply the Americanized form of the term “natural born subject” as defined in English common law. They argue that the term was Americanized by substituting the word “citizen” for “subject”—because the US has citizens, not subjects—and that no other semantic or legal change was intended.
Both those who believe that US citizenship concepts and terms derive from English common law and those who believe they are based on the pan-European “law of nations” have written many articles, books, legal briefs and court decisions based on their point of view. So it’s easy to find citations in support of either thesis. Nevertheless, it is possible to determine which faction has de jure won the argument.
Was English Common Law The Foundation Or Basis For The US Constitution?
English common law was the basis for the common law of the original British colonies, and then of the original States of the Union, but was not the basis for the common law of the United States Federal government. The framers rejected the notion that the United States was under English Common Law: “The common law of England is not the common law of these States.” —George Mason, one of Virginia’s delegates to the Constitutional Convention.
James Madison wrote a letter to George Washington, shortly after the end of the Constitutional Convention (Oct 18, 1787). The letter was in defense of the work of the Constitutional Convention against criticisms by George Mason. One such criticism was that the “the common law was not secured” by the proposed Constitution—meaning that the Congress could enact statutes that would override the common law. Madison’s response to that charge (text [enclosed within square brackets] has been added as clarification):
The common law is nothing more than the unwritten law, and is left by all the constitutions [of the several States] equally liable to legislative alterations. I am not sure that any notice is particularly taken of it in the Constitutions of the States. If there is, nothing more is provided than a general declaration that it shall continue along with other branches of law to be in force till legally changed. The Constitution of Virga. [Virginia] drawn up by Col Mason himself, is absolutely silent on the subject. An ordinance passed during the same Session, declared the Common law as heretofore & all Statutes of prior date to the 4 of James I. to be still the law of the land, merely to obviate pretexts that the separation from G. Britain threw us into a State of nature, and abolished all civil rights and Obligations. Since the Revolution every State has made great inroads & with great propriety in many instances on this monarchical code. The “revisal of the laws” by a Committee of wch. Col. Mason was a member, though not an acting one, abounds with such innovations. The abolition of the right of primogeniture, which I am sure Col. Mason does not disapprove, falls under this head. What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they wd. have done more, they would have brought over from G.B. a thousand heterogeneous & antirepublican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law. If they had undertaken a discrimination, they must have formed a digest of laws, instead of a Constitution.
Nevertheless, the claim began to be made not long after the Constitution was ratified that English common law was “in force” at the Federal level. The Founders strongly objected:
Of all the doctrines which have ever been broached by the federal government, the novel one, of the common law being in force & cognizable as an existing law in their courts, is to me the most formidable. All their other assumptions of un-given powers have been in the detail. The bank law, the treaty doctrine, the sedition act, alien act, the undertaking to change the state laws of evidence in the state courts by certain parts of the stamp act, &c., &c., have been solitary, unconsequential, timid things, in comparison with the audacious, barefaced and sweeping pretension to a system of law for theU S, without the adoption of their legislature, and so infinitively beyond their power to adopt. If this assumption be yielded to, the state courts may be shut up, as there will then be nothing to hinder citizens of the same state suing each other in the federal courts in every case, as on a bond for instance, because the common law obliges payment of it…
Before the revolution there existed no such nation as the U S; they then first associated as a nation, but for special purposes only. They had all their laws to make, as Virginia had on her first establishment as a nation. But they did not, as Virginia had done, proceed to adopt a whole system of laws ready made to their hand. As their association as a nation was only for special purposes, to wit, for the management of their concerns with one another & with foreign nations, and the states composing the association chose to give it powers for those purposes & no others, they could not adopt any general system, because it would have embraced objects on which this association had no right to form or declare a will. It was not the organ for declaring a national will in these cases. In the cases confided to them, they were free to declare the will of the nation, the law; but till it was declared there could be no law. So that the common law did not become, ipso facto, law on the new association; it could only become so by a positive adoption, & so far only as they were authorized to adopt. [“COMMON LAW AND THE WILL OF THE NATION” ~Thomas Jefferson, Letter To Edmund Randolph Monticello, Aug. 18, 1799; Jefferson, Thomas, 1743-1826. Letters; Electronic Text Center, University of Virginia Library]
James Madison argued forcefully against the idea that the English common law had been Constitutionally or otherwise incorporated into the Constitution or Federal law:
Did then the principle or operation of the great event which made the colonies independent states, imply or introduce the common law as a law of the Union?
The fundamental principle of the Revolution was, that the colonies were co-ordinate members with each other, and with Great Britain, of an empire, united by a common executive sovereign, but not united by any common legislative sovereign. The legislative power was maintained to be as complete in each American parliament, as in the British parliament. And the royal prerogative was in force in each colony, by virtue of its acknowledging the king for its executive magistrate, as it was in Great Britain, by virtue of a like acknowledgment there. A denial of these principles by Great Britain, and the assertion of them by America, produced the Revolution.
There was a time, indeed, when an exception to the legislative separation of the several component and coequal parts of the empire obtained a degree of acquiescence. The British parliament was allowed to regulate the trade with foreign nations, and between the different parts of the empire. This was, however, mere practice without right, and contrary to the true theory of the Constitution. The conveniency of some regulations, in both those cases, was apparent; and as there was no legislature with power over the whole, nor any constitutional pre-eminence among the legislatures of the several parts, it was natural for the legislature of that particular part which was the eldest and the largest, to assume this function, and for the others to acquiesce in it. This tacit arrangement was the less criticised, as the regulations established by the British parliament operated in favour of that part of the empire which seemed to bear the principal share of the public burdens, and were regarded as an indemnification of its advances for the other parts. As long as this regulating power was confined to the two objects of conveniency and equity, it was not complained of, nor much inquired into. But, no sooner was it perverted to the selfish views of the party assuming it, than the injured parties began to feel and to reflect; and the moment the claim to a direct and indefinite power was ingrafted on the precedent of the regulating power, the whole charm was dissolved, and every eye opened to the usurpation. The assertion by Great Britain of a power to make laws for the other members of the empire in all cases whatsoever, ended in the discovery that she had a right to make laws for them in no cases whatsoever.
Such being the ground of our Revolution, no support nor colour can be drawn from it, for the doctrine that the common law is binding on these states as one society. The doctrine, on the contrary, is evidently repugnant to the fundamental principle of the Revolution.
It is readily admitted, that particular parts of the common law may have a sanction from the Constitution, so far as they are necessarily comprehended in the technical phrases which express the powers delegated to the government; and so far also, as such other parts may be adopted by Congress as necessary and proper for carrying into execution the powers expressly delegated. But, the question does not relate to either of these portions of the common law. It relates to the common law beyond these limitations.
The only part of the Constitution which seems to have been relied on in this case is the 2d Sect. of Art. III. “The judicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority.”
There are two passages in the Constitution, in which a description of the law of the United States is found. The first is contained in Art. III. sect. 2, in the words following: “This Constitution, the laws of the United States, and treaties made, or which shall be made under their authority.” The second is contained in the second paragraph of Art. VI. as follows: “This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” The first of these descriptions was meant as a guide to the judges of the United States; the second, as a guide to the judges in the several states. Both of them consists of an enumeration, which was evidently meant to be precise and complete. If the common law had been understood to be a law of the United States, it is not possible to assign a satisfactory reason why it was not expressed in the enumeration. [James Madison, principal author, REPORT OF 1799. VIRGINIA. HOUSE OF DELEGATES.]
That should make it abundantly clear why in Wheaton v. Peters, 33 U.S. (Pet. 8) 591 (1834), the Supreme Court held:
“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.”
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)
Is “Natural Born Citizen” Equivalent To “Natural Born Subject” As Defined By English Common Law?
If so, it would have to be an exception to the clear words of the Founders and the controlling Supreme Court precedents that deny that Federal law is based on the English common law. Could that be? And what was the English common law definition of a “natural born subject,” in any case?
In Britain, there are only two types of law: “common law” and Acts of Parliament. In the absence of an Act of Parliament, the common law applies. But any Act of Parliament overrides the common law. Britain has no Constitution as a separate and distinct document. In the British system there is no higher written law superior to an Act of Parliament, although core legal principles such as the rule of law are considered to be superior even to Parliament. Some laws and court rulings have attained an informal, but nevertheless quite strong, status as forming part of the British Constitution.
Every decision of any British court could potentially establish a new precedent in the common law—even decisions based solely on statutes. Conversely, Parliament could and did enact statutes that were intended to canonically declare and codify the common law as it already existed. However, it was not always clear whether that was or was not the intent (or legal effect) of a statute (or of one of its clauses or provisions.) Similarly, an Act of Parliament or court decision could evolve over time to have the weight and authority of a Constitutional provision, and so become a part of the informal British Constitution.
The legal rules regarding English (and then British) citizenship (“subjecthood”) originally evolved exclusively as common law, as there were no Acts of Parliament on the topic.
The term “natural” in “natural born subject” refers to the fact that common law in theory was based on principles of what was naturally true, right or just. Of course, “in theory, there is no difference between theory and practice, but in practice, there is.” So in practice, common law and natural law were not always the same. Natural law was entirely theoretical, whereas the common law was actual, enforceable law. Natural law was the ideal, but common law is what was real.
The relationship between the British concept of natural law and the body of English common law would be analogous to the the relationship between the text of the US Constitution and the decisions of the Supreme Court which interpret that text. Caveat: few analogies are perfect, and this one is no exception.
“Natural born subject” originally meant a person whose status as a subject was due to a) the application of “natural” law, and b) acquired as a direct and immediate consequence of the facts of a person’s birth. So anyone whose status as a British “natural born subject” was due solely to either a) an Act of Parliament, or b) an order of the King or Queen, was therefore a “naturalized” subject. The term “naturalization” referred to the fact that the person was transferred artificially by political decision into a status which others had “by nature” without any need to rely on political edicts. So those made “natural born subjects” by statutory definition were said to be naturalized, but anyone whose status as a “natural born subject” was based on the “common law” (which was theoretically based on natural principles) was not a “naturalized” subject, but rather an actual “natural born subject.” So that’s the reason that the act of making someone a subject (or citizen) by either an act of the legislature or by order of the sovereign is called “naturalization” in English. “Naturalization” is simply shorthand for “defining someone as a natural born subject” by order of political authority—as opposed to using “natural law” principles theoretically based on what is true by nature (which, in practice, meant using natural law’s actual realization, the common law.) Referring to that act as “naturalization” makes no sense otherwise.
The most pivotal court (common law) decision on the topic of citizenship (subjecthood) in British History is Calvin’s Case (which we will examine in detail below.) 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 Bruce Galloway, The Union of England and Scotland 1603-1608, 2003.; p.157)
The same point is made by Timothy Cunningham, in A New and Complete Law-Dictionary, (1771), p.97, in a section entitled “Aliens”:
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.
Original Meaning Of “Natural Born Subject” In English Common Law
Common law evolves over time. So did the English common law definition of a subject born (an “actual” natural born subject.)
It is common and natural for the meanings of terms to change over time, as new circumstances make old meanings less useful, and motivate new meanings that have greater utility in new environments and situations. Originally, there were no statutes defining “natural born subject,” and so there was no statutory meaning, and the term only had a common law definition.
A commentary by John Rastell (c.1475-1536) states that the original common law defined anyone born on English soil, regardless of whether his parents were English or alien, as 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).
It was common for Parliament to eventually codify the common law by statute. That’s one reason it’s so easy to be quite wrong regarding what was true according to the common law and what was not. The fact that there was a statute asserting the law did not necessarily mean that common law had not reached the same conclusions earlier. And of course, different factions could disagree that a court’s ruling was a fair determination of natural law—just as different factions in the United States disagree whether a Supreme Court ruling is a fair interpretation of the text of the Constitution. Occasionally, a faction whose point of view does not prevail in an initial court decision later succeeds in getting an adverse decision reversed.
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)
Calvin’s Case: New Court Precedent Changes Common Law Definition Of “Natural Born Subject”
In Calvin’s Case (1608), allegiance, 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)
Most children born on English soil were English subjects, only because most children born on English soil were born of parents who were within the king’s allegiance. One consequence of the new common law precedent established by the decision in Calvin’s Case was that 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)
So what was meant by “allegiance”? Allegiance (also called ligeance) 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)
After the court decision in Calvin’s Case, 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:
- Subjects were within “permanent” allegiance of the English king. Their children, if born on English soil, were natural-born subjects by natural law.
- Alien friends were within “local” allegiance of the English king. Local allegiance was temporary; it existed only while the alien friend was on English soil, and expired as soon as he or she left the king’s realm. Nevertheless, local allegiance was sufficient to meet the parental allegiance requirement. According to a law enacted in 1604, the English-born children of alien-friend parents were “denizens” (natural-born subjects by man-made statute):
- Foreigners included members of foreign-controlled religious orders, ambassadors from foreign countries, members of foreign royalty, and foreign merchants. Foreigners were not within the king’s allegiance or protection, although they were given safe-conduct. Their children, even if born on English soil, were not English subjects.
- Alien enemies included, but were not limited to, subjects of a foreign power that was hostile towards England. Alien enemies were not within the allegiance of the English king. Their children, even if born in England, were not subjects.
L. 1. B. To place the Children, born within this Realm, of foreign Parents, in Degree for the first Birth or Descent only, as Aliens made Denizens, and not otherwise. House of Commons Journal Volume 1, 21 April 1604
The 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 [“protection involves allegiance, and allegiance protection”]—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 (whether by common law or by statute.) 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)
The meaning of ligeance is inseparably intertwined with the meaning of “natural-born subject”. According to the majority opinion in Calvin’s Case, ligeance (“allegiance”) is the defining characteristic that separates subjects from aliens. Ligeance is “the onely mark to distinguish a subject from an alien” (Coke(1608), pp.197-8). A subject has natural or acquired ligeance; an alien does not.
As a general rule, anyone born within the ligeance of the king is a “natural subject” of the king:
… they that are born under the obedience, power, faith, ligealty, or ligeance of the King, are natural subjects, and no aliens. (Coke(1608), p.177)
But what does the phrase “born within the ligeance” mean?
Prior to 1608, the meaning of ligeance was ambiguous. In some contexts, it meant the king’s territory. In other contexts, it referred to an individual’s (or an individual’s parents’) faith, loyalty and obedience:
Before ligeance was employed to refer to a tract of land, the term had already been used to refer to a certain quality of interpersonal relationship. Glanvill, for instance, used the term to explain the pre-eminent relationship between a tenant and his ‘liege’ lord. Also, the treaty between Henry II and William, king of Scots (the Treaty of Falaise, 1174) … indicates that the term was used to refer to the relationship of fidelity rather than a piece of land. … Bracton also uses the term to refer to something other than a geographical tract.
… But in the late thirteenth century, we begin to see that the territorial extent of the King’s legitimate power is also called ligeance. According to fourteenth century legal terminology, out of the ligeance (hors de la ligeance) could mean ‘out of England’. Likewise, within the ligeance (deinz la ligeance) often meant ‘within England’. … It appears that the term was used in an ambivalent manner by the early fourteenth century. In other words, the term carried a certain amount of ambiguity with it. (Kim (2000), pp.137-139)
Two examples illustrate the confusing dual meaning of ligeance:
Rex v. Philip de Beauvais (1321): Philip inherited an estate from his father. The king’s representative, Geoffrey Scrope, argued that Philip’s father was born outside of the king’s ligeance (territory). By English law, English real estate belonging to a foreign-born individual became, upon the individual’s death, the property of the king.
Serjeant Shardlow, the attorney for the defense, argued that Philip’s father’s parents (Philip’s grandparents) were married in England, did homage to the English king, and died in the king’s homage. Therefore, Philip’s father was born within the king’s ligeance (loyalty and obedience).
Shardlow used the dual meaning of ligeance to circumvent English inheritance laws. His strategy worked, but only temporarily. The judge ruled in Philip’s favor, but the ruling was overturned on appeal. Philip eventually forfeited his inheritance to the king. (Kim (2000), p.139).
De Natis ultra Mare (1351): This statute, enacted by Parliament in 1351, granted inheritance rights to a child born outside of the king’s ligeance (territory), as long as the child’s parents, at the time of child’s birth, were within the king’s ligeance (loyalty and obedience):
All children heirs who will from henceforth be born out of the ligeance [territory] of the king, provided that, at the time of the birth, their fathers and mothers are, and will be, of the faith and ligeance [loyalty and obedience] of the King of England, [shall] have and enjoy the same benefits and advantages of having and carrying the inheritance within the said ligeance … (Statue De natis ultra mare, 1351, as quoted by Kim (2000), p.121)
By the fifteenth century, it appears (as documented above) that ligeance had come to mean territorial extent only.
But the meaning of ligeance underwent a transformation during the late sixteenth-century Elizabethan succession debates (words tend to acquire whatever meaning that society, or those in power, need them to mean.) The controversy over who would succeed Queen Elizabeth to the throne (she had no children) helped to forge a consensus of legal opinion that a child’s personal status at birth—whether subject or alien—was properly based on the faith, obedience and loyalty of the parents at the time of the child’s birth, not the territory in which the child was born. The English word allegiance (a variation of ligeance) first appeared in the Elizabethan Succession Tracts. Even today, “allegiance” implies loyalty, not a geographical location:
- In 1563, John Hales (a Protestant) published a tract arguing that neither Margaret of Lennox nor Mary Stuart (each of whom was Catholic) should be Queen Elizabeth’s successor. Margaret of Lennox was born in England; Mary Stuart was born in Scotland. According to Hales, both women were ineligible to the English throne, not because of their respective places of birth, but because neither woman’s father was an Englishman. Hales argued that children naturally follow the condition and estate of their fathers; and the proposition—that any child born in England is automatically an English subject at birth, regardless of the parents’ condition or estate—”cannot be justified by any reason”. (Kim (2000), p.160)
- In 1567, Catholic lawyer, Sir Edmund Plowden, agreed that one’s subjecthood was properly based on allegiance, not one’s place of birth. He argued that, even though Mary Stuart was born in a foreign country, she did “homage” to the King of England, and therefore she was within the king’s ligeance (Kim (2000), p.170).
- A Protestant rebuttal pamphlet, titled Certaine Errours Uppon the Statute, accused Plowden of confusing “homage” and “ligeance”. Homage is a matter of human law. It is a relationship that someone chooses to enter into, at some point after her or his birth. Ligeance, on the other hand, is established only at birth and is strictly a matter of natural law (Kim (2000), pp.172-173).
By the time Calvin’s Case was decided in 1608, the English legal community had already reached a consensus of opinion that the allegiance 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)
… 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… Sometimes ligeance is called faith… (Coke(1608), p.176)
…ligeance, and faith and truth which are her members and parts, are qualities of the mind and soul of man… (Coke(1608), p.182)
…it followeth, that seeing the King’s power, command, and protection extendeth out of England, that ligeance cannot be local, or confined within the bounds thereof. (Coke(1608), p.188)
…ligeance is a quality of the mind, and not confined within any place… (Coke(1608), p.188)
According to Lord Coke’s Report on Calvin’s Case, there were four kinds of ligeance: natural, acquired, local, and legal. Anyone who was born with “natural” ligeance 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.
One’s ligeance affected the legal status of one’s children. Children born on English soil were subjects (subjects born or subjects made) at birth only if their parents were within the king’s natural, acquired or local ligeance. Children born in a foreign country were English subjects only if their fathers owed natural ligeance to the king (but were still subjects made, since the status of subjecthood in such cases was conferred by an Act of Parliament, known as De Natis ultra Mare (1351))
Lord Coke often used “obedience” as a synonym of ligeance. By itself, the word ligeance (therefore the word “obedience”) generally 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.
Every English subject owes either “natural” or “acquired” ligeance to the king. “Natural” and “acquired” ligeance (obedience) are “actual” in the sense that they confer actual property rights to the individual and impose actual life-long obligations of service to the king.
In contrast, aliens owe “local” ligeance (obedience) to the king. Local ligeance (obedience) is “wrought by the law” (Coke(1608), p.177). In general, the term “by law” is a contradistinction of “actual”. Something which is so “by law” is not necessarily so “in fact”.
Persons who owe local ligeance (obedience) to the king are aliens. They do not receive subjecthood, they do not acquire real property rights, and they do not owe permanent (perpetual) allegiance to the king. Their obligation of allegiance is only temporary; it expires as soon as they depart 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)
The English Common Law Definition Of Natural Born Subject In The 18th-Century
Following the decision in Calvin’s Case, other than in special cases, a child was a common law subject born (a subject by natural law) 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” 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. …any place within the King’s dominion without obedience can never produce a natural subject. (Coke (1608), p.208)
So, per Lord Coke, to be a subject born:
- The person must have been born “in the King’s dominion” (on British soil, to use modern terminology);
- The person’s parents must be under the actual obedience of the King (or Queen, as the case may be)—at the time of birth.
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”)
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. (Giles Jacob, A New Law Dictionary, 1782., p.40)
Actual natural-born subjects (subjects born) were subjects by natural law. They were born on English soil, to parents who were under the “actual obedience” of the king. They were born with natural allegiance to the king.
Similarly, those who were under (“subject to”) the King’s “actual obedience” owed allegiance to the King (or Queen) according to natural law (as the British viewed it.) Natural law, per the British, held that those who were subjects of the King owed him obedience, submission, loyalty, and faith. They were his subjects, because they subjected themselves to his authority and jurisdiction as their liege lord. So, according to 18th-century English common law, an actual natural-born subject, a subject born, was someone born on British soil to parents who were loyal British subjects (whether “subjects born” or “subjects made”) at the time of birth.
Those born on British soil to parents who were “alien friends” (permanent legal residents) were naturalized “natural born subjects,” made so by Act of Parliament. So they were subjects made, not subjects born. According to the House of Commons Journal Volume 1, 21 April 1604, said statute was enacted in 1604:
L. 1. B. 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.
Both Cunningham and Jacob understood that the English-born children of alien parents were statutory denizens. They were deemed to be natural-born by statute, 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. (Giles Jacob, A New Law Dictionary, 1782.)
The word denizens in both of the above citations removes all doubt that the subjecthood of those born in England to alien parents from the 17th-century onward is an act of naturalization granted by statute.
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 statutory 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 de 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:
Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner. (de 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.
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 [duties] 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).
By the time William Blackstone (1723-1780) wrote his Commentaries (1765-1769), Parliament had enacted laws which conferred subjecthood, at birth, to foreign-born children of English fathers:
…all children, born out of the king’s ligeance [territory], whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain. (Blackstone)
Blackwell was referring to The Act of Anne (1708,) which 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.” (Timothy Cunningham, A New and Complete Law-Dictionary, 1771., p.96, in section entitled “Aliens”)
Note the wording: The Act did not say that foreign-born children of English parents were natural-born subjects in actuality. Instead, it decreed that such children were deemed to be natural-born subjects. Their status as natural born subjects was by political decree, but was not what they were by nature. There is no need for a law to declare anything to be what it is in fact, by the nature of the thing itself.
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, Natural Born Citizen
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 suggests that the children who were naturalized by those laws were not natural-born subjects, at birth, in any factual or natural-law sense.
The British Nationality Act of 1730 states:
…That all Children born out of the Ligeance of the Crown of England, or of Great Britain, or which shall hereafter be born out of such Ligeance, whose Fathers were or shall be natural-born Subjects of the Crown of England, or of Great Britain, at the Time of the Birth of such Children respectively, shall and may, by virtue of the said recited Clause in the said Act of the seventh Year of the Reign of her said late Majesty, and of this present Act (7 Ann. c. 5. s. 3.), be adjudged and taken to be, and all such Children are hereby declared to be natural-born Subjects of the Crown of Great Britain, to all Intents, Constructions and Purposes whatsoever.
The British Nationality Act of 1772 states:
…That all Persons born, or who hereafter shall be born, out of the Ligeance of the Crown of England, or of Great Britain, whose Fathers were or shall be, by virtue of a Statute made in the Fourth Year of King George the Second, to explain a Clause in an Act made in the Seventh Year of the Reign of Her Majesty Queen Anne, for naturalizing Foreign Protestants, which relates to the natural-born Subjects of the Crown of England, or of Great Britain, intitled to all the Rights and Privileges of natural-born Subjects of the Crown of England or of Great Britain, shall and may be adjudged and taken to be, and are hereby declared and enacted to be, natural-born Subjects of the Crown of Great Britain, to all Intents, Constructions, and Purposes whatsoever, as if he and they had been and were born in this Kingdom: …
When the U.S. Constitution was written, the law “on the books” was that English-born children of alien parents were denizens, and those born in foreign lands to fathers who where “natural born subjects” (whether born or made) were deemed by statute (legal fiction) to be “natural born subjects.” Both classes of persons—those born in England to alien parents and those born to British subjects in a foreign land—were subjects made not subjects born, because they were not natural-born subjects in fact based on either natural law principles or English common law.
So if it were intended by the Founders that US citizenship law be modeled after British citizenship law, then the foregoing evidence allows for one and only one system of translation between the two legal ontologies of citizenship:
English common law term American Law term Explanation Natural born subject Citizen Because of the way terminology and practice evolved, English law used natural born subject as its general term for citizen. The term naturalization was coined because the Acts of Parliament that first overrode common law regarding citizenship declared persons to be “natural born subjects” by legislative edict instead of by common law. So naturalization was the act of legally declaring someone to be a natural born subject as a legal fiction. Subject born Natural born citizen These terms clearly and undeniably are excellent analogs of each other Subject made Naturalized citizen These terms clearly and undeniably are excellent analogs of each other
However, in spite of the strong correspondence that the analysis above has revealed between the semantics of the 18th-century English common law definition of an actual “natural born subject” (a subject born) and the definition of “natural born citizen” as given by Dr. Ramsay (where the parents must have been citizens,) and the strong analogy between the general term “natural born subject” in British law and the general term “citizen” in US law, that does not prove that the only difference between the two terminologies is the one between a citizen and a subject. It doesn’t even prove that it was the intent of the Founders to define “natural born citizen” based in any way on English common law.
The Founders’ Rejection Of British Citizenship Principles
There can be no question that the Framers of the US Constitution strongly believed in natural law principles. Nor can there be any question that the concept of natural law is at least one foundational concept that was shared by both English common law and by pan-European concepts of natural law and the law of nations. The disagreements between English common law and pan-European natural law theories involved what was held to be true by nature and reason. Also, most European societies had no common law tradition—their courts typically operated on what is called civil law, which is a body of codified laws generally created initially as a unified whole, and not one that evolves incrementally over time based on court decisions. In a civil law system, any changes to the law are made by some authority other than the civil courts.
The legal systems of each of the American States operated originally based not just according to the mechanics of common law, where court decisions make new law with every precedential holding of a court, but also by incorporating the precedential holdings of British courts. And it’s true that the US Federal courts operate as a common law system, in that precedential court holdings make new law. However, as proven above, the US Federal government and the US Constitution did not incorporate the past precedential holdings of British courts—because the Founders of the United States disagreed with the British on fundamental issues regarding what was true by nature and reason.
One reason that the Founders disagreed with British tradition regarding the principles of natural law is because the US was founded as a Constitutional Republic, not as a monarchy. The foundational principles were different, and in fact were an explicit rejection of key foundational principles of English law and English government. That was one very strong reason that the US Founders rejected the body of English common law, even though they did not reject common law as a system of evolving the law incrementally by means of court decisions. And as a practical matter, each colony was founded at different times, adopted English common law as its own at different times, and then evolved its own common law going forward, independently of Great Britain and the other colonies. So there was no common “common law” among the founding States—not even concerning matters of citizenship.
Words and terms of art have the meanings they do because of their utility in the culture and society that uses them. New words and phrases are created with particular meanings, and existing words and phrases are given new meanings, because those new meanings serve the purposes of those who use them, and old meanings no longer do. The Founders of the United States undeniably wanted and needed to start a brand new legal tradition, based on the principles of government in which they believed, and not based on those of the nation whose government and political traditions they had fought and died to repudiate and discard.
Breaking their allegiance to the King, severing the ties of community and nationality, establishing a new anti-monarchist Republic based on a new political philosophy cannot fail to require new principles, new words and new meanings for old words. So, even if English common law terminology served as the foundational seed for the US Constitution, there would still be every reason to assume that the Founders would have made any necessary and proper changes to the legal principles and to the semantics of any terms of art they they may have incorporated from English common law (which, of course, they may have done even if they used the pan-European theories of natural law, and the “law of nations.” as the foundational framework for the new nation they created.)
Questions of citizenship are inextricably linked to the relationship between a state and its people, which depends fundamentally on the political theory according to which the people of a nation constitute and operate their government. English common law evolved to fit a political theory according to which it was a natural law that a nation would be ruled by a sovereign who was a single human being (a king or queen,) and a natural law that, in exchange for the protection of the sovereign and his permission to reside in the territory the sovereign rules by divine right a person must from the moment of birth onward be “in allegiance to the king,” which means to demonstrate loyalty and obedience to him (or to her, if the sovereign is the Queen.)
English natural-born subjects owed perpetual allegiance to the king based on the circumstance of their birth, regardless of their own self-determination. Therefore, if you believe that English common law guided the formation of the U.S. national government, to be consistent you should also believe that U.S. citizenship was based on the principle of owing allegiance to the sovereign based on the circumstances of one’s birth regardless of one’s own will, and that U.S. citizens therefore do not have the right of expatriation.
On the other hand, European political and natural law theorists, such as de 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, to be consistent you should also believe that the Founding Fathers’ understanding of citizenship included the jus sanguinis principle and the right of expatriation.
After gaining independence, the original thirteen States retained aspects of English common law, including the statutory 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. (What ‘Subject to the Jurisdiction Thereof’ Really Means ~ Madison(2007))
However, the early framers of the Federal government seemed disinclined to follow the English understanding of sovereignty and allegiance. For example, 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 the Framers of the Constitution intended to closely follow English common law with regards to matters of citizenship, then of course the ontological model of US citizenship would be intentionally analogous to that of British law at the time the Constitution was drafted If so, then anyone born in the United States to parents who are US citizens would have a citizenship status analogous to a subject born, and their status as citizens would be beyond possibility of dispute.
However, the Constitutional status (per original intent, not per current court precedent) of those born in the United States to parents who are permanent legal residents would be far less clear, simply because of the uncertainties regarding the distinctions between common and statutory law, between declaratory and non-declaratory statutes, and regarding the meaning of “actual obedience.” Some would qualify as naturalized citizens (subjects made), but some would not.
What would be irrefutable, however, is that those born to parents who were mere “foreigners” (as opposed to “alien friends,”) or who were “alien enemies,” would not qualify even as citizens if the meaning of that term is in fact intended to be analogous to the semantics of “natural born subject” as defined in 18th-century British law. That would exclude persons whose fathers were not legal permanent residents of the United States (except in cases where the person’s father was unknown.)
On the other hand, if the Founding Fathers were guided by European political and natural law theorists, such as de 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.
In 1884, an article was published in The American Law Review written by George D. Collins, Esq. Attorney Collins was the Secretary of the California Bar Association. His name was recognized nationally for cases in the federal courts, and also due to his regular publishing of articles via The American Law review. The article was entitled “ARE PERSONS BORN IN THE UNITED STATES IPSO FACTO CITIZENS THEREOF?“, and was an in depth discussion and review of the legalities of US citizenship. Attorney Collins states:
There is nothing in the constitution to indicate that the term “citizen” was used in reference to the common-law definition of “subject,” nor is there any act of Congress declaratory of the common-law doctrine, and the subject of citizenship being national, questions relating to it are to be determined by the general principles of the law of nations.
The Founders not only rejected the idea that English common law in general was the basis of the US Constitution, they also specifically objected to the use of the British definition of “natural born subject.” They actually fought yet a second war against the British over precisely the issue of whether or not the British definition of “natural born subject” applied to US citizens: The War of 1812!
One of they key disagreements between the US and Britain that led to the War of 1812 was the practice of the British Navy of impressing into British naval service sailors (and even passengers) they found on ships at sea. “Drafting” people into military service (to use the modern term) was predicated on the British definition of “natural born subject.” Under British law then and now, anyone either born on British soil or born to parents who were British subjects was also a British “natural born subject,” and hence owed allegiance to the British Crown, and so could be “impressed” (drafted) into British military service.
In the late 18th and early 19th centuries, many US citizens had either been born on British soil according to British law (the American colonies were British soil according to British law until the Crown signed the peace treaty with its former colonies,) or else had parents who were British subjects at the time of their birth. The US government strenuously objected to having its citizens kidnapped from ships at sea in order to be impressed into the British Navy, rejected the argument that Britain had any right to do this based on the British definition of “natural born subject,” and insisted that on US ships at sea, only US law applied, and on non-British ships, only the “law of nations” applied. And this objection by the US would only have been logically consistent if the US had categorically rejected the British definition of “natural born subject,” and if that rejection involved issues in addition to the difference between a subject and a citizen.
In addition to going to war, the US took other measures to deal with the problem of having its sailors impressed into the British Navy: On February 9, 1813, the US House of Representatives passed a law that required that all the officers and three fourths of the seamen on a ship of the United States be natural born citizens. Whatever “natural born citizen” meant to the founding generation (many of whom were still alive and serving in Congress at the time,) the US Congress of 1813 thought that requiring a person to be such would prevent the British definition of “natural born subject” from applying to such a person—which means that a “natural born citizen” of the US could not have been born on British soil, nor could a “natural born citizen” of the US have even one British parent.
US Supreme Court Decisions Concerning Citizenship and “Natural Born Citizens”
The Constitution vests the judicial power of the United States with the US Supreme Court. By definition, “judicial power” is the power to judge questions of law, both with respect to what the law means in general and with respect to how the law should apply to a particular set of facts and circumstances. The US Constitution names itself as a law, and therefore the Supreme Court has the power to judge its meaning and application pursuant to the Constitutional grant of judicial power to the courts of the United States. The Supreme Court ruled in 1803 that the judicial power that the US Federal courts were granted in the Constitution necessarily included the power to use the Constitution as a “meta-law” governing the meaning and validity of the actions of the President, the Congress and lower courts. That ruling is referred to as “Marbury vs. Madison,” and the ruling in that case set the precedent of what has come to be called “judicial review,” which is the principle that Federal courts have the power to retroactively invalidate Congressional statutes by finding them in violation of the superior law known as the US Constitution.
One of the precedent-setting holdings of Marbury vs. Madison was the following:
It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it. ~ Marbury v. Madison, 5 U.S. 137
That each clause of the Constitution must be consequential, and not superfluous, is one of the foundational principles of exegesis that the Supreme Court uses in interpreting the Constitution. One consequence of this principle is that the Supreme Court will not interpret a later Amendment in such a way so as to render any clauses present before that Amendment was added impotent or irrelevant, unless it is abundantly clear that such was the intent of the later Amendment—perhaps because the later Amendment explicitly states that an earlier clause is repealed, or perhaps because the later Amendment contradicts an earlier clause, and the conflict can only be resolved by assuming the implied intent was to repeal or nullify the other clause.
Note that it is logically impossible for a clause to have substantive, material and consequential effect unless each clause also has unique effect: If the effect of a clause were not unique, then it could be removed without substantive effect or consequence.
With that interpretive principle in mind, consider what the first sentence of the Fourteenth Amendment has to say regarding US citizenship:
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.
Firstly, note that the sentence says nothing about “natural born citizens”—that term does not appear. Nor does it say anything about who is or is not eligible to serve as President of the United States. It does not take away from or add to the power of Congress with respect to making naturalization rules (it does prevent Congress from denying citizenship to anyone “born in the United States, and subject to the jurisdiction thereof,” but that leaves unchanged the power of Congress to naturalize whomever it pleases.). Nor does the Amendment state that it is repealing any clause in the original Constitution or in any of the subsequent Amendments. Instead, it specifies the following rules regarding Federal and State citizenship:
- Any person born in the United States who is also “subject to the jurisdiction thereof” is Constitutionally defined as a US citizen
- Any person naturalized in the United States who is also “subject to the jurisdiction thereof” is Constitutionally defined as a US citizen.
- A citizen of the United States is Constitutionally defined as also a citizen of the State in which he or she resides.
Secondly, the 14th Amendment’s citizenship clause defines who shall be citizens using a single sentence with a single conjunctive phrase that is the subject of the sentence and a single phrase that is its predicate. The subject phrase is of the form “A, and B”, and the predicate phrase is “are citizens of the United States.” The subject phrase uses the conjunction and, which requires that both of the subordinate clauses of the subject phrase must be true simultaneously.
The sub-phrase on the left-hand side of the subject phrase (the one labeled A in “A, and B”) is “All persons born or naturalized in the United States.” The sub-phrase on the right-hand side of the subject phrase (the one labeled B in “A, and B”) is “subject to the jurisdiction thereof.” So the condition specified in sub-phrase A and the condition specified in sub-phrase B must both be satisfied—the location requirement and the jurisdiction requirement—at the same time in order to satisfy the citizenship rule specified by the 14th Amendment.
The A sub-phrase is also a conjunctive phrase, but uses the conjunction or instead of and. Its structure is “All X or Y in the United States,” where X is “persons born” and Y is “naturalized.” Because the conjunction is or, the condition specified by the sub-phrase on either side of the or is sufficient to satisfy the rule. That also means that the rule specified by the complete sentence applies equally to both sides—to those “born in the United States” or to those “naturalized in the United States.”
Because the full and complete citizenship rule specified by the 14th Amendment is expressed as a single sentence with a single predicate phrase, and because it’s the predicate phrase that declares all those who are denoted in the subject phrase to be whatever the predicate phrase declares them to be, it necessarily means that all those denoted in the subject phrase all are declared by that sentence to have the exact same status. The predicate phrase is “are citizens of the United States.” That sentence necessarily applies the exact same meaning of the word citizens to all those denoted by the subject of the sentence. Therefore, the semantics of the word citizens in the 14th Amendment must encompass both those born in the US (and subject to its jurisdiction) and those naturalized in the US (and subject to its jurisdiction.) But that is flat-out impossible unless the intended semantics of the term citizen in the 14th Amendment is that of general citizenship, and is not intended to signify any other, more specialized meaning.
Thirdly, the interpretive rule established by Marbury vs. Madison (requiring each clause to have both unique and substantive, non-superfluous effect) prevents the word “citizen” from being a synonym for “natural born citizen.” Since the 14th Amendment explicitly and specifically defines “citizen” (the word occurs with no prefix,) the Constitutional meaning of “natural born citizen” must be different. Which, as will be shown, is what the Supreme Court has repeatedly held.
Finally, we know from history that the first sentence of the 14th Amendment was intended to accomplish the following purposes:
- To define as US citizens those who had recently been slaves, but whose citizenship was not recognized by the States in which they resided
- To prevent States from claiming that such persons were not citizens of the State in which they lived, even if they were US citizens
There is no evidence that the 14th Amendment was intended in any way to change the Constitutional qualifications for serving as US President. That said, it should also be noted that any children of those who were naturalized by the 14th Amendment, if born on US soil, would be natural born citizens, and so eligible to be President.
Many at the time argued that the freed slaves were already citizens by natural law. Nevertheless, the Amendment was proposed and ultimately ratified because the natural law argument was not accepted by some of the States with respect to former slaves. Nevertheless, those who accepted the natural law argument did not view the 14th Amendment as granting citizenship to those who had not had it, but rather as affirming the citizenship of the former slaves in a way that could not be contested by those opposed. The point is that the Amendment was not proposed and ratified because the nation had concluded that the previous citizenship rules needed to be changed (obviously, those opposed to the idea that the former slaves should be recognized as citizens wanted no such “change”), but rather because there was such strong disagreement with respect to what the rules actually were, and how they should be applied. Note, for example, that the 14th Amendment defines anyone naturalized as a citizen pursuant to Congress’ authority to make naturalization rules as a Constitutional citizen. But such persons were already “Constitutional citizens,” because the Constitution grants Congress the power to grant citizenship. So in the case of naturalized citizens, the only possible effect of the 14th Amendment was to prevent States from claiming that US citizens residing in that State were not citizens of the State.
Although the Fourteenth Amendment ended the argument regarding the citizenship of the former slaves, it did not end it for other cases. Why not? Because in addition to the clear jus soli requirement established by the 14th Amendment that a person must be born in the United States in order to be a citizen, the Amendment additionally required that the person be “subject to the jurisdiction” of the United States. What does “subject to the jurisdiction” mean? That became the next disputed issue, and its resolution required a Supreme Court decision.
In 1873, the Supreme Court said that the U.S.-born children of foreign citizens are not subject to U.S. jurisdiction, therefore are not U.S. citizens under the 14th Amendment:
‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.’ … The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States. (Slaughter-House Cases, 1873)
In 1884, the Supreme Court reiterated that an individual is a 14th Amendment citizen only if the United States has complete jurisdiction over such individual at the time of her or his birth or naturalization:
The persons declared to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized… (Elk v. Wilkins, 1884)
Then in 1898, the Supreme Court had to decide yet again whether a petitioner was or was not a US citizen. It was the first such case the Court considered following the ratification of the 14th Amendment where the first sentence of the 14th Amendment was used to hold that a person was in fact a citizen. Interestingly, the text of the decision itself falsely claims that there was a prior case that had already done the same, but that claim is provably false. That’s actually a crucial point, as will be shown later.
The 1898 case involved the citizenship status of Mr. Wong Kim Ark, who was born in the United States to Chinese parents who never acquired US citizenship. His citizenship was challenged both because neither of his parents were US citizens, and also because of a law restricting Chinese immigration and prohibiting immigrants from China from becoming naturalized U.S. citizens.
At the beginning of the Court’s majority opinion, the issue before the court is clearly stated as follows:
The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent 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 by virtue of the first clause of the Fourteenth Amendment of the Constitution,
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.
I. In construing any act of legislation, whether a statute enacted by the legislature or a constitution established by the people as the supreme law of the land, regard is to be had not only to all parts of the act itself, and of any former act of the same lawmaking power of which the act in question is an amendment, but also to the condition and to the history [p654] of the law as previously existing, and in the light of which the new act must be read and interpreted.
So the official issue of record before the Court was whether or not the appellant was a citizen of any sort. If he was a citizen, whether that citizenship would be natural citizenship or naturalized citizenship didn’t matter. Nor did it matter whether or not the appellant was or was not a natural born citizen. Neither issue was before the Court, by its own declaration of the facts.
Note also that, were the case to be decided based on British citizenship law as it existed in the latter part of the 18th century, the fact that the appellant was born in the country to parents who were alien friends (permanent legal residents) would make the child a subject made—a “natural born subject” by Act of Parliament. Or, in modern American terminology, a naturalized citizen. And that is essentially the reasoning the Court used to interpret the meaning of the 14th Amendment, and construe it so that Mr. Wong was deemed to be a citizen.
So the majority opinion of the Court was that Wong Kim Ark was a citizen based on the first sentence of the 14th Amendment, and that “subject to the jurisdiction of the United States” means a) physically present on United States soil, AND b) the person was born to parents who were private individuals not employed in any official capacity by a foreign sovereign.
However the court’s interpretation of “subject to the jurisdiction” has been strongly criticized on a number of grounds by those who argue that the intended meaning was “not subject to any foreign power.”
Firstly, in delivering the majority opinion in U.S. v. Wong Kim Ark, Justice Gray admitted that he had “presumed” that, in the 14th Amendment, the word “jurisdiction” means 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).
So the Supreme Court in Wong Kim Ark did not consider evidence showing that the originally intended meaning of “jurisdiction” was sole and complete jurisdiction. 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))
The principal author and advocate of the 14th Amendment told us what what the original intent was:
“I find no fault with the introductory clause, 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; but, sir, I may be allowed to say further, that I deny that the Congress of the United States ever had the power or color of power to say that any man born within the jurisdiction of the United States, and not owing a foreign allegiance, is not and shall not be a citizen of the United States.” John A. Bingham, (R-Ohio) US Congressman, Architect of Section 1 of the 14th Amendment, March 9, 1866 ~ John Bingham, quoted in Cong. Globe, 39th, 1st Sess., 1291 (1866), Sec. 1992 of U.S. Revised Statutes (1866), Cf. U.S. Const. XIVth Amend.
Secondly, the decision violated the principle of stare decisis, because it flatly contradicted its decisions in the Slaughter-House Cases and in Elk v. Wilkins. Justice Gray tried to argue that the circumstances in the Wong Kim Ark case were sufficiently different that a different decision was justified, but his reasoning is specious and violates the Law of Non-Contradiction.
Thirdly, Justice Gray’s majority opinion violates the rule that it is inadmissible to presume that any clause of the Constitution is without effect. That is easily proven by an examination of the Court’s definition of “subject to the jurisdiction”:
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, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall in the well known case of The Exchange and as the equivalent of the words “within the limits and under the jurisdiction of the United States,” and the converse of the words “out of the limits and jurisdiction of the United States” as habitually used in the naturalization acts.
Justice Gray used the conjunction (logical operator) and to connect the two predicate clauses “within the limits…of the United States” and “under the jurisdiction of the United States.” Use of the conjunction and requires that both clauses must apply as constraint predicates. He said “within the limits and subject to the jurisdiction of the United States.” If “subject to the jurisdiction” means only “within the (territorial) limits,” then it is redundant to say “within the (territorial) limits and subject to the jurisdiction.” But if the two predicate clauses denote distinct constraints, then “subject to the jurisdiction” must mean something other than “within the (territorial) limits.”
The Court also claimed that its formulation “within the limits and under the jurisdiction of the United States” was quoted from Justice Marshall’s opinion in The Exchange. But no such quote appears anywhere in the text of THE EXCHANGE V. MCFADDON, 11 U. S. 116 (1812). In fact, the opinion of Justice Marshall clearly and emphatically distinguishes between being in the territory of a sovereign and being subject to the jurisdiction of a sovereign. A person or object can be subject to the jurisdiction of a sovereign even when not in that sovereign’s territory, and can also fail to be subject to the jurisdiction of a sovereign even when in that sovereign’s territory—and there are also gray areas, where an object or person is partially but not fully subject to the jurisdiction of the sovereign of the territory where the person or object is located. But in any case, nothing said by Justice Marshall in The Exchange pertains directly to whatever the Framers of the 14th Amendment meant by “subject to the jurisdiction,” nor does that case involve questions of citizenship.
All persons are subject to U.S. legal and territorial jurisdiction while they are in the United States, although not all to the same extent. A visiting head of state, a foreign ambassador, a visiting warship, a foreign merchant on a business trip, a foreign tourist, an alien with legal US residency, a naturalized US citizen with additional foreign citizenships and a US citizen without any foreign citizenships may be all be “subject to the jurisdiction of the United States” while within the territory of the United States, but certainly not all to the same extent or degree! However, if the word “jurisdiction” in the 14th Amendment is interpreted to mean territorial and legal jurisdiction only, regardless of extent or exclusivity, then all persons born or naturalized in the United States are automatically under U.S. jurisdiction at the time of their birth or naturalization. But this would mean that the phrase, “subject to the jurisdiction thereof” is redundant and without any unique effect (remember, Marbury vs. Madison requires that every clause in the Constitution must have substantive and unique, non-redundant effect):
In the Fourteenth Amendment, there are two requirements: birth or naturalization in the United States and within the jurisdiction of the United States. If all persons who are born in the United States were ipso facto born within its jurisdiction, then the jurisdiction clause would be rendered superfluous. But a singular requirement of a written constitution is that no interpretation can render any part of the constitution to be without force or meaning. (Edward J. Erler, “From Subjects to Citizens: The Social Compact Origins of American Citizenship”, in Ronald Pestritto and Thomas West, eds., The American Founding and the Social Compact, 2003., pp.191-192)
Finally, in the majority’s Opinion of the Court, English common law was “in force” when the United States was founded, “continued to prevail” under the Constitution, and controlled the Constitutional meaning of “subject to the jurisdiction.” According to the jus soli principle of English common law, U.S.-born children of “domiciled” (permanent legal resident) alien parents are citizens by birth.
In the minority’s Dissenting Opinion, the law of nations controlled the Constitutional meaning of citizenship. According to the jus sanguinis principle promoted by European natural law theorists, a child is naturally a citizen at birth only if its parents were citizens at the time of its birth, regardless of the child’s place of birth.
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 Prentiss 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—at least in so far as questions of citizenship are concerned.
Until the 14th Amendment was passed and its citizenship rule was finally applied for the first time by the Court in Wong Kim Ark in order to define someone as a citizen who otherwise would not have been, it was not the case that anyone born in the US was Constitutionally a citizen. What was in fact true, and therefore what the Court must have meant when it claimed that English common law was “in force” when the United States was founded, was that Congressional statute and State law granted citizenship to people born here whose parents were not US citizens at the time of birth. However, the fact that the naturalization statutes passed by Congress excluded non-Whites until after the Wong Kim Ark decision, and the fact that the various State laws universally limited citizenship by race, generally excluding anyone but Europeans, proves that English common law regarding citizenship was absolutely not in force even in the laws of the States, let alone at the Federal level.
Yes, the grant of citizenship to some, but not all, persons born in the US to non-citizen parents has some similarity to the English common law definition of “natural born subject,” but there were three major differences:
Firstly, the State laws and Congressional statutes granting citizenship asserted race-based exclusions, which English common law never did. That fact is mentioned by Justice Gray in Wong Kim Ark. For example, Title 2, Chapter 3, Section 1 of the Code of Virginia, Section 1:
All free white persons born in this state, all free white persons born in any other state of this Union, who may be or become residents of this state, all aliens being free white persons naturalized under the laws of the United States, who maybe or become residents of this state; all persons who have obtained a right to citizenship under former laws, and all children, wherever born, whose father, or if he be dead, whose mother shall be a citizen of this state, at the time of the birth of such children, shall be deemed citizens of this state.
Secondly, although the State laws didn’t require that the parents be citizens, they did require that the parents must have formally renounced all foreign citizenship and allegiance in order for their US-born children to become citizens, which also was never required of “natural born subjects” under British law. That fact is also mentioned by Justice Gray in Wong Kim Ark.
Thirdly, English common law denied the status of “natural born subject” to anyone whose parents were not Christians no matter where they were born. In his Report on Calvin’s Case, Lord Coke asserted that non-Christians—including Muslims and Jews—were “perpetual enemies” of the king, therefore their children, even if born in England, were not natural-born subjects:
Christianity being part and parcel of the law of England, those who did not profess it could not have the rights of Englishmen but, whether born within the king’s allegiance or not, must be aliens, nor could they be alien friends, but must be regarded as alien enemies, even though they might be here under the special permission of the king. Lord Coke, in his report of the judgment of the Exchequer Chamber in Calvin’s case, thus lays down the law: “All infidels are in law perpetui inimici, perpetual enemies (for the law presumes not that they will be converted, that being remota potentia, a remote possibility), for between them, as with the devils, whose subjects they be, and the Christian there is a perpetual hostility, and can be no peace …” (Henry Straus Quixano Henriques, The Jews and the English law, 2005. p.186)
So interpreting Justice Gray’s opinion in Wong Kim Ark as holding that the term citizen in the 14th Amendment must have the semantics of natural born subject as defined in English common law would require excluding non-Christians from being citizens, no matter where born. That is simply an absurd proposition given United States history and tradition, and given the clear and compelling language of the First Amendment. So either Justice Gray didn’t mean to define the term citizen as used in the 14th Amendment to have the same semantics as natural born subject in English common law (other than the semantic difference between citizen and subject,) or else the opinion is so shockingly wrong that it must be reversed.
Finally, if the Constitution directly granted citizenship to whomever was born here “subject to the jurisdiction” of the United States (regardless of what that means) before the passage of the 14th Amendment, then why was the Amendment passed with a tripartite clause asserting citizenship rules as its first sentence whose import was identical to pre-existing Constitutional rules of citizenship? It cannot be the case that any clause of the 14th Amendment makes no change to Constitutional law. Again: Marbury vs. Madison requires that every clause in the Constitution must have substantive and unique, non-redundant effect. We are not allowed to assume that any clause of the 14th Amendment is redundant or does not change Constitutional law in some way. Since each clause in an Amendment to the Constitution regarding citizenship must make some substantive change to the Constitutional citizenship rules that was not previously true at the level of Constitutional law, it therefore follows that each clause of the 14th Amendment that defines who is a Constitutional citizen must either be changing the Constitutional definition of citizen from some previous, but different definition—or else it must be asserting a de novo definition of a citizenship term not previously defined by the Constitution.
Of course, the 14th Amendment has more to say, and so has other effects. Nevertheless, what’s the effective change to the Constitutional law made by each clause of the 14th Amendment, especially for each clause defining who shall be Constitutionally a citizen? What were the Constitutional rules regarding citizenship before the ratification of the Amendment, and what additions or changes to Constitutional law were made by each of its clauses that pertain to citizenship? What was changed by requiring that a citizen be born or naturalized “in the United States”? What was changed by requiring that such persons must also be “subject to the jurisdiction” of the United States? What would be the effect of removing the “born subject to the jurisdiction of the Unite States” clause? And what would be the effect of removing the “born in the United States” clause?
Suppose that the first sentence of the 14th Amendment said “All persons born or naturalized subject to the jurisdiction of the United States, are citizens of the United States and of the State wherein they reside.” Would that still limit US citizenship only to those born on US soil? Or would it then include those born beyond the borders of the United States to parents who were United States citizens? If “subject to the jurisdiction” under that hypothetical wording includes persons born beyond the borders of the United States based on the principle of jus sanguinis, then the phrase should have the same meaning and effect when it occurs in the conjunctive clause “subject to the jurisdiction of the United States and born in the territory thereof.” And inverting the order of the clauses should make no difference, since and is commutative.
One resolution to the conundrum of what Justice Gray meant when he said that English common law was “in effect” when the Constitution was adopted is to assume that he viewed the 14th Amendment as intended to raise to the level of Constitutional law the same rules of citizenship which had generally prevailed in the several States and in Congressional naturalization statutes. That is in fact what the Framers of the 14th Amendment themselves said was their intent. If so, then the only real disagreement between the majority and minority opinions in Wong Kim Ark involved solely the question of what those Congressional and State citizenship laws entailed, and the import and effect of the rules of citizenship they mandated.
But in any case, the fact remains that controlling Supreme Court precedent regarding the first sentence of the 14th Amendment carefully and judiciously avoids any holding that the definition of citizen therein specified pertains to the term “natural born citizen.”
In fact, Justice Gray approvingly quotes Horace Binney from The Alienigenae of the United States Under the Present Naturalization Laws in the majority opinion, where Mr Binney states that a natural born citizen is distinct from the child of an alien born in the United States:
“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.” ~ As quoted in Wong Kim Ark
To say that the “child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen” can have no other interpretation than the fact that, although both children are equally citizens, only the child of the citizen is a “natural born” one. Mr Wong was a citizen, but was not the child a of citizen. Therefore, he was not a natural born citizen.
The Wong Kim Ark majority opinion clearly agrees with the quoted words of Mr. Binney, that only those born in the US who were “the child of a citizen” are natural born.
So, even if the intent of the 14th Amendment were in fact to use the English common law definition of “natural born subject” as the Constitutional definition of “citizen,” the following would still be true:
- As conclusively proven above, to be a natural born subject under British law based on jus soli, one not only had to be born on the soil of the realm, one’s parents also had to be either citizens or aliens—and an “alien” in modern US terminology is a legal (permanent) resident (so the wrongful attempt to use the English common law semantics of natural born subject doesn’t even get that right—also see below);
- In strong analogy to English common law, the State laws in general (from the 18th century until even today) deny citizenship to those who, when born, had parents who were foreigners who had not been granted legal resident status, using the term “transient aliens” to distinguish them from ‘resident aliens’ or ‘alien friends':
Political Code of the State of New York: “The citizens of the state are:1. All persons born in this state and domiciled within it, except the children of transient aliens and of alien public ministers and consuls.”
California Government Code Sections 240-245 Article 1. General: “The citizens of the State are: (a) All persons born in the State and residing within it, except the children of transient aliens and of alien public ministers and consuls.”
- The 14th Amendment by its own text defines only the term “citizen,” not the term “natural born citizen.” The semantics of natural born subject includes both subject born (natural citizen) and subject made (naturalized citizen.) It would be logically incorrect to fail to incorporate the analogous distinction between natural and naturalized citizen into the semantics of the term citizen as used in the 14th Amendment, if the intent was in fact to make the word ‘citizen’ be analogous to the term ‘natural born subject’ as used in English common law.
- To be a subject born, one must not only be born on the soil of the realm, one’s parents must also be citizens of the realm.
There are those who claim that “natural born citizen” is strictly synonymous with “born a citizen,” “citizen from birth” or “citizen by reason of birth.” If that were true, then anyone who was a citizen either from the moment of birth, or because of the facts of birth, would be a “natural born citizen.” That theory can be be disproven as follows:
- All citizens are natural or naturalized. The two terms are mutually exclusive. There are no other options in the naturalness ontological dimension or perspective of citizenship that have been accorded any legally-significant status.
- All citizens either become citizens at birth or else become citizens post-birth. Again, the two terms are mutually exclusive. There are no other options in the time-based ontological dimension or perspective of citizenship that have been accorded any legally-significant status.
- No one argues that all natural born citizens are not also native born citizens. The dispute is about whether the reverse is true—whether all native born citizens are also natural born citizens.
- Those born outside the US to parents who were US citizens are citizens from birth—by statute. So they are also “native born,” because they are citizens from birth.
- The Supreme Court has never ruled that those born outside the US are “natural born citizens.” Nor can it be that the 14th Amendment defines anyone born outside the US as citizens at all. In fact, the Supreme Court has ruled that those born outside the US do not have natural citizenship: In Rogers v. Bellei, 401 U.S. 815 (1971), the Court ruled that the appellant’s native citizenship (from birth, by reason of having been born outside the US to a parent who was a US citizen) could be removed from him by statute. Had the appellant’s citizenship been natural, Congress would have had no authority to remove it, and the Court would have said so. So that proves that not all native born citizens are also natural born citizens. The terms are not perfect synonyms.
- If “native born” and “natural born” were perfect synonyms, then even those born outside the US to US-citizen parents would be “natural born citizens,” because as “native born” citizens they would also be defined to be “natural born citizens.” But as all agree, “natural” and “naturalized” are mutually exclusive terms. Therefore, it would be a violation of the Law of Non Contradiction to assert that all those who are native born are also natural born, because that forces natural born to also include some citizens who are only naturalized citizens from birth.
The final issue in dispute regarding the interpretation of the 14th Amendment and the Supreme Court’s decision in Wong Kim Ark is whether any and all who are “born…in the United States, and subject to the jurisdiction thereof” are natural born citizens, as proven by application of semantics and logic to the syntax of and terms used in the first sentence of the 14th Amendment, or whether the syntax and terminology allow some of those “born…in the United States, and subject to the jurisdiction thereof” to be natural citizens while yet others are naturalized citizens.
Those who claim that the 14th Amendment declares all those “born…in the United States, and subject to the jurisdiction thereof” to also necessarily be Constitutionally-defined as natural born citizens by those words in the first sentence of the 14th Amendment base their argument on three assertions: a) natural citizenship and naturalized citizenship are mutually exclusive (not disputed,) b) in the phrase “All persons born or naturalized in the United States, and subject to the jurisdiction thereof,” the conjunction or is exclusive disjunction, and c) therefore, the 14th Amendment is asserting that being “born in the US and subject to the jurisdiction thereof” and being “naturalized in the US and subject to the jurisdiction thereof” are mutually exclusive.
The counter-argument: The conjunction or in English is usually used to signify inclusive disjunction, which means that the alternatives are not mutually exclusive. Although or in English can signify exclusive disjunction, it is uncommon for that to be the intent in the absence of auxiliary, modifying words or phrases in context that make it clear that the two alternatives are intended to be exclusive. But there is no reason in the historical record that indicates that the intent of those who authored and ratified the 14th Amendment was to Constitutionally assert that citizenship by birth in the US was mutually exclusive with citizenship by naturalization within the US. That distinction had nothing to do with the controversies that motivated the ratification of the Amendment. Citizenship in general was the issue, not whether or not anyone was or was not a natural citizen—by birth or otherwise. The same is true of the issue of record before the Court in Wong Kim Ark.
Although being a natural citizen and being a naturalized citizen are mutually exclusive, being born a citizen (a citizen from and by reason of birth) and being a naturalized citizen are not. When the 14th Amendment was ratified, the laws of Britain and of the several States absolutely included cases where those born in the country acquired citizenship, at birth, by naturalization, and not by the principles of natural law—as proven above. There is no evidence that changing that fact was among the reasons or motivations for the 14th Amendment.
Even if the intent had been to change who was or was not a natural citizen, it is logically impossible for any positive law—even a Constitutional Amendment—to change who are or are not natural citizens—also as proven above. The attempt to do so would violate the Law Of Non-Contradiction, because of the very definition of natural law. Positive law can be declaratory of natural law, but no law can make anything be what it is not. The law cannot convert lead into gold, nor prevent the Sun from rising in the morning.
The purpose of constraint predicates in the subject of a sentence is to denote or describe, not to mandate or prescribe. The purpose of the subject of a sentence is to identify or name the subject or topic of discussion, not to specify prescriptive mandates. It’s the predicate phrase of a sentence that’s supposed to do that. Based on its syntactical structure, the point and purpose of the first sentence of the 14th Amendment is to prescriptively define anyone and everyone who fully satisfies the denotational semantics of the constraint predicate expressions (set membership rules) in the subject of the sentence as citizens of the United States, and of the State in which they reside—and that’s all.
The 14th Amendment does not say “All persons born as natural citizens or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. and of the State in which they reside.” But that hypothetical version of the first sentence of the 14th Amendment must be perfectly synonymous with the actual text, if it is in fact true that all who are “born…in the United States, and subject to the jurisdiction thereof,” are also logically and semantically required to be natural born citizens by definition. Why? Because the assertion under discussion is precisely that “born in the US and subject to the jurisdiction thereof” is the very definition of a natural born citizen. It that’s true, then adding the modifier “as a natural citizen” cannot possibly change the meaning, because the claim is that “born” already means exactly that in the phrase under discussion.
But the addition of the adjectival phrase “as natural citizens,” modifying “born” in the hypothetical version of the first sentence of the 14th Amendment, absolutely does change the meaning of the sentence. Why? Because that hypothetical version of the rule excludes anyone who isn’t “born as a natural citizen in the US” or who isn’t naturalized. So that version of the rule would have excluded all those residents of the United States alive at the moment the Amendment was ratified who either hadn’t been naturalized, or who hadn’t been born as natural citizens—which would have excluded every single former slave of African descent (who hadn’t already been naturalized) from having been made citizens by the 14th Amendment!
But that just cannot be the intent! The most urgent purpose and intent of the 14th Amendment was to make citizens of those who were neither born as citizens nor naturalized as citizens, but who had in fact been born in the United States and subject to its its jurisdiction at the time. Therefore, it is categorically impossible that “born in the United States, and subject to its jurisdiction” was intended to be perfectly synonymous with “natural born citizen,” including and excluding all the same persons.
So, given the totality of the evidence and constraints regarding the interpretation and construction of the 14th Amendment, the correct reading is ‘All persons are citizens of the United States who are subject to the jurisdiction thereof when born in the United States or when naturalized in the Unites States, or both’ (inclusive disjunction.) That interpretation aligns perfectly with the known intent and motivation: To ensure that anyone who was or is either born in the US or naturalized in the US (or both,) and where either of those events occur in the United States while the person is subject to the jurisdiction thereof, shall be deemed to be a citizen of the United States and of the State in which they reside.
To summarize: All citizens are either natural or naturalized. The 14th Amendment is declaratory of the citizenship of all those who are natural citizens without needing the Amendment to be such, but who also satisfy the citizenship rules specified by the Amendment. But for those who would not be citizens but for the 14th Amendment, it makes them citizens by naturalization—by definition of naturalization, which is to deem or declare someone a citizen by positive law enacted by any political entity—such as a statute, or a Constitutional Amendment passed by Congress and ratified by the State legislatures.
The Supreme Court Defines “Natural Born Citizen”
The earlier Supreme Court decision, which was wrongly referenced in the Wong Kim Ark decision as having used the 14th Amendment to decide a person’s citizenship, is known as Minor vs. Hapersett, 88 U.S. 162. That decision did in fact use the 14th Amendment as the basis for its second principal holding concerning the right to vote, but not for its first principal holding concerning whether or not the petitioner was a US citizen (court decisions can involve multiple holdings, which are the precedent-setting decisions the court makes in order to decide the legal and/or factual issues before the court in a particular case.)
In Minor, the court held that the 14th Amendment granted no one at all any right to vote, regardless of sex, age or citizenship. Previous cases had already held that there was no Federal right to vote. The second principal holding in Minor, as well as the holdings in previous cases, are the reason that the 15th, 19th, 24th and 26th Amendments were later proposed and adopted, the language of which forbids the denial of the privilege of voting based on race, previous condition of servitude, sex or age (for those 18-years of age or older.) The 19th Amendment, for example, requires that if one sex is granted the privilege to vote, the other sex must be granted that same privilege equally.
But the court in Minor determined that before it could decide the issue of whether the petitioner (who was an adult White woman) had any Federal right to vote based on the 14th Amendment, it first had to decide whether or not she was a citizen, and if so on what basis? Understanding why the court approached the issue that way is crucial: Firstly, if women as a class be not US citizens, then the second sentence of the 14th Amendment that forbids States from denying citizens any privileges of US citizens would not apply to them, since it only applies to those who are US citizens. Secondly, the court was concerned with whether or not the citizenship of women as a class depended on the 14th Amendment. In other words, the question was whether or not, in the absence of the 14th Amendment, would any women at all be citizens? That second issue mattered for two reasons:
- The legal principle known as judicial restraint:
If women as a class were not citizens before the adoption of the 14th Amendment, then the Court would have to decide whether the first sentence of the 14th Amendment granted women “born in the US and subject to the jurisdiction thereof” US citizenship. But if the woman who was the petitioner in the case at hand could be held to be a US citizen even without applying the first sentence of the 14th Amendment, then the principle of judicial restraint would behoove the Court to avoid deciding whether or not the 14th Amendment grants any women US citizenship. Judicial restraint requires that courts not make precedent-setting holdings when the issues in a case do not require it.
The court has always interpreted the principle of judicial restraint as sufficient reason to use the original (unamended) text of the Constitution before relying on the text of any subsequent Amendments, if such is possible. That’s especially true in the absence of any prior precedents based on a particular clause of the Constitution. They seek to avoid making a “first instance” interpretation of any clause when there are other precedents that can be used instead (where it can be shown that no reasonable meaning of the unused clause could possibly change the outcome.) In this case, since the 14th Amendment definitely did not deprive anyone of citizenship, there was no reason to rely on its first sentence to determine citizenship, if it could be determined that the petitioner was a citizen based on the original text of the Constitution.
- The court reasoned that, if women can be citizens without applying the 14th Amendment, then the 14th Amendment cannot fairly be interpreted as granting them any rights or privileges of citizenship that they have not always possessed, even before the ratification of that Amendment. In fact, this is the crucial point the court relied on in order to reach its second principal holding (that the 14th Amendment did not grant anyone the right to vote)!
In the words of the court in Minor:
It is clear, therefore, we think, that the Constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted. This makes it proper to inquire whether suffrage was coextensive with the citizenship of the States at the time of its adoption. If it was, then it may with force be argued that suffrage was one of the rights which belonged to citizenship, and in the enjoyment of which every citizen must be protected. But if it was not, the contrary may with propriety be assumed. [pp. 171, 172]
The Court in Minor held that the petitioner was in fact a US citizen, and had been such from birth, before the ratification of the 14th Amendment. The reasoning the Court used to reach that holding is actually central to the question of the Supreme Court’s definition of “natural born citizen,” and so that reasoning (and the Court’s definition of “natural born citizen”) needs to be examined in more detail.
But before we do, let us first consider another issue: Is what this essay asserts to be a holding in Minor—that the petitioner was a US citizen based on the original (unamended) text of the Constitution (and in fact had been such since birth, before the ratification of the 14th Amendment)—actually a precedent-setting holding? Or was it, as has been claimed elsewhere, merely dictum, and therefore not binding US Supreme Court precedent?
To answer that question, we first refer to the most recent Supreme Court precedent regarding the principles to be used to distinguish between dicta and holdings that establish binding precedents, which can be found in a case decided in 1996 known as Ogilvie Et Al., Minors v. United States, 519 U.S. 79 (1996). Justice Breyer’s majority opinion in that case stated that when the Court discusses a certain “…reason as an ‘independent’ ground in support of our decision”, then that reasoning is not simply dictum:
“Although we gave other reasons for our holding in Schleier as well, we explicitly labeled this reason an ‘independent’ ground in support of our decision, id., at 334. We cannot accept petitioners’ claim that it was simply a dictum.”
The holding in Minor that the appellant, Mrs. Minor, did not have any Federal right to vote was based on the following facts, all of which must be true for the primary holding to be valid:
- The 14th Amendment added no new rights to US citizens, other than the right to prevent the States from violating those rights, whatever they happened to be. This finding was based on the text of the 14th Amendment.
- All women born under the same essential circumstances as Mrs. Minor had always been citizens of the United States, even before the ratification of the 14th Amendment. This finding was based on the court’s interpretation of what the Constitution says about citizenship.
- Women were almost universally denied the right to vote. Other citizens also are commonly denied the right to vote, including minors and felons. This was a finding of fact.
The chain of reasoning was that a) if voting were a right that any and all citizens have, then it should be apparent that all those recognized as citizens are granted suffrage; b) women generally had not been granted suffrage, either because they were not citizens prior to the ratification of the 14th Amendment or because not all citizens have the right to vote—so the question presented by the case can be decided by determining whether women were citizens even before the ratification of the 14th Amendment; c) women whose circumstances of birth are the same as those of Mrs. Minor are citizens, and have always been citizens even before the ratification of the 14th Amendment; d) therefore, voting is not a right of all citizens, since women have always been citizens and yet denied the right to vote (as are others who are citizens.)
Per Ogilvie, if the Court uses any finding or decision as “independent grounds” for any of its precedential holdings, then these findings or decisions are also precedential holdings—and that rule is transitive: any finding or decision used as “independent grounds” for a later holding is itself a holding, recursively back to ever earlier findings and decisions. That makes it undeniable that the court’s definition in Minor of the term ‘natural born citizen’ is in fact a precedential holding.
The syllabus of the Minor case lists the following as one of the holdings:
2. In that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment to the Constitution as since.
The fact that that decision is listed in the syllabus of the case is evidence that the Court considered its decision on the citizenship question to be a precedent-setting holding, and not a dictum.
FInally, there are other Supreme Court cases that cite the definition given in Minor as controlling precedent regarding the meaning of ‘natural born citizen.’ One such is EX PARTE LOCKWOOD, 154 U.S. 116 (1894):
In Minor v. Happersett, 21 Wall. 162, this court held that the word ‘citizen’ is often used to convey the idea of membership in a nation, and, in that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment of the constitution as since; but that the right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the fourteenth amendment, and that amendment did not add to these privileges and immunities. Hence, that a provision in a state constitution which confined the right of voting to male citizens of the United States was no violation of the federal constitution.
Wong Kim Ark also cites the holding in Minor regarding the definition of natural born citizen…and does so favorably, not using any language that could possibly be construed as intended to change or overturn the definition of natural born citizen as given in Minor.
So the citizenship holding in Minor is binding US Supreme Court precedent, beyond any possibility of denial. Although the second principal holding regarding the right to vote was later mooted by the 19th Amendment, the first principal holding regarding the basis for establishing US citizenship without any reliance on the 14th Amendment or any other law (e.g. a Congressional naturalization statute) still stands as binding Supreme Court precedent which has never been overturned nor obviated by subsequent Amendments to the Constitution.
In Minor, the Supreme Court held that the petitioner was and had been from birth a citizen by providing its official interpretation of the phrase “natural born citizen,” specifically referencing the qualifications to be US President from Article II section 1, and then applying the definition of “natural born citizen” to the petitioner and coming to the conclusion that she satisfied all the conditions to be a “natural born citizen.”
Here’s the text where the Supreme Court explicitly defines the meaning of “natural born citizen”:
Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides [n6] that “no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,” [n7] and that Congress shall have power “to establish a uniform rule of naturalization.” Thus new citizens may be born or they may be created by naturalization.
The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. …
Recall that the issue before the Court was whether or not the 14th Amendment required the States to grant women the right to vote, and that one assertion of the petitioner was that the first sentence of the 14th Amendment declared her to be a citizen, even if she had not been before the ratification of the Amendment. In spite of that, the Court not only refused to use the 14th Amendment to decide whether or not she was a citizen, it specifically stated, while fully and comprehensively considering both the issue of citizenship under the Constitution and the meaning of the 14th Amendment in particular, that “The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.”
The Constitution does say in words “who shall be citizens.” It says that in the first sentence of the 14th Amendment. But according to the Supreme Court, the first sentence of the 14th Amendment “does not, in words, say who shall be natural-born citizens.” That is an explicit rejection, in an official, precedential holding by the Supreme Court, that the 14th Amendment does not define the term natural born citizen. That exact same language is quoted approvingly in other Supreme Court decisions, including in Wong Kim Ark.
Continuing with our analysis of the holding in Minor the Court concluded that, since the term “natural born citizen” was used in the Constitution as one of the qualifications to be President, that anyone who qualified as a “natural born citizen” necessarily was named by the Constitution as a citizen. So the Court proceeded to research the meaning of “natural born citizen” to see whether it could rule the petitioner to be a citizen based on the definition of that term. Pursuant to its research, it then defined “natural born citizens” as “all children born in a country of parents who were its citizens.”
Note that the Court in Minor states in its definition that “natural born citizens” are distinct from “aliens or foreigners.” That’s actually a very important semantic distinction. To see why, it is necessary to understand the 18th-century common law meanings of the words alien and foreigner:
According to Black’s Law Dictionary, the word “foreigner” can be used in a municipal context and in an international context. In a municipal context, anyone who is not a member of a community is a “foreigner” in that community. In an international context, anyone owing allegiance to a foreign state or sovereign is a “foreigner”:
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 was born in a foreign country or is 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.
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.
So someone who is a citizen of the United States could also be a foreigner, if he or she retains or acquires foreign citizenship. Even if born in the US, a US citizen could be or become a foreigner simply by also having or later acquiring foreign citizenship. A US citizen—even from birth—could also have foreign citizenship from birth—either by having been born outside the US, or by having even one parent who is an alien or foreigner. So the fact that the Supreme Court has defined “natural born citizens” as distinct from “aliens or foreigners” excludes anyone from qualifying as a “natural born citizen” who has foreign parentage (because of the jus sanguinis principle of natural law, which by definition of natural law applies regardless of the laws of any country,) anyone who has foreign citizenship, or anyone who was not born in the United States.
Starting with the very next sentence following the first quote from the case given above, the Court then continues to discuss the fact that yet other persons could be citizens who don’t qualify as “natural born citizens.” To understand the message the Court intends to convey, it is important to remember that the issue on which the court was focusing was whether or nor the petitioner was a citizen regardless of the first sentence of the 14th Amendment. The definition of “natural born citizen” was relevant solely because a) Article II, section 1 establishes “natural born citizen” as the strictest class of citizenship, and b) anyone who qualifies as a “natural born citizen” necessarily qualifies as a citizen:
… 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 [regarding citizenship, but not regarding “natural born citizenship”], but never as to the first [because anyone who qualifies as a “natural born citizen” is a citizen beyond dispute]. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words “all children” are certainly as comprehensive, when used in this connection, as “all persons,” and if females are included in the last they must be in the first. That they are included in the last is not denied. In fact the whole argument of the plaintiffs proceeds upon that idea.
The Court notes in passing that those born in the United States, regardless of the citizenship status of their parents, may nevertheless qualify as citizens. The fact it uses the word “citizens” in that clause instead of using the phrase “natural born citizens” categorically falsifies any claim that the Court intended to convey the idea that anyone born of non-citizen parents might possibly be “natural born citizens.” The doubt the Court was expressing concerned whether or not such persons might even be citizens at all.
The Minor Court provided no name for the class of citizens “born within the jurisdiction without reference to the citizenship of their parents,” but did refer to them using the general term “citizens.” Based on the legal principle of interpretation known as generalia specialibus non derogant (“the general does not detract from the specific,”) the use of the general term “citizen” must not be conflated with the use of the specific term “natural born citizen,” unless the text makes it explicit that such was intended.
The text in Minor not only states no such thing, it in fact states precisely the opposite. In addition to defining “natural born citizen,” the opinion also separately defines the term “citizen,” giving a different definition:
The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association…
For convenience it has been found necessary to give a name to this membership. The object is to designate by a title the person and the relation he bears to the nation. For this purpose the words ‘subject,’ ‘inhabitant,’ and ‘citizen’ have been used, and the choice between them is sometimes made to depend upon the form of the government. Citizen is now more commonly employed, however, and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the States upon their separation from Great Britain, and was afterwards adopted in the Articles of Confederation and in the Constitution of the United States. When used in this sense it is understood as conveying the idea of membership of a nation, and nothing more. [pg. 166]
It cannot be the case that any court that provides one definition for “citizen” but a different definition for “natural born citizen” intended to use those terms interchangeably. Nor can the fact be challenged that the Minor decision defines the term citizen as ‘member of a nation, and nothing more,’ but defines natural born citizen as ‘born in the US, to parents who were US citizens—distinguished from aliens and foreigners.’ The two definitions are not the same at all. One is general. The other is specific. Per generalia specialibus non derogant, the general must not detract from the specific.
In the above quoted paragraphs from the Minor opinion, the Court explicitly distinguishes two classes of native-born citizenship:
- Citizenship given to “children born in a country of parents who were its citizens…distinguished from aliens or foreigners”—”never” any “doubt” about the citizenship of this class;
- Citizenship (possibly) given to “children born within the jurisdiction without reference to the citizenship of their parents”—who, since they are a distinct class from the first, must have at least one parent who was not a citizen; “as to this class there have been doubts”
There is also obviously (at least) yet a third class: Persons naturalized after birth, who cannot be “native born.”
The Minor Court’s opinion doesn’t explicitly say whether the second class—those who are native-born but have at least one parent who was not a citizen—are naturalized citizens. There are and were laws that define such persons as citizens—for example, the 14th Amendment. But unless such persons are citizens by natural law, and not just by Constitutional or statutory law, they cannot be natural-born by definition.
But in any case, the Minor decision categorically excludes anyone who can be considered an alien or foreigner from being a natural born citizen. And, as shown above, anyone not born in the US, or anyone who has foreign citizenship, is either an alien, a foreigner, or both. And so are their children, because the natural law citizenship principle of jus sanguinis endows any such children with whatever citizenship either one of their parents has—unless the parent has renounced and relinquished any and all foreign citizenships, as all those who become naturalized US citizens are required to do. So that excludes anyone with an alien or foreign parent, where such parent has not become naturalized as a US citizen before the child’s birth, from being a “natural born citizen” of the United States.
Of course, the Court’s discussion regarding the doubtful status as citizens of those born in the US to non-citizen parents is dicta, because it was not used as grounds for any of their holdings in the case. They actually state that “doubts” regarding the citizenship of those without two citizen parents have no relevance to the case before them—thereby explicitly labeling their discussion of any hypothetical class of citizens beyond the class “born in the US of citizen parents” as dicta.
After defining natural born citizen and mentioning the unresolved issue of those born in the country with at least one non-citizen parent, the court continues by comparing the facts of the petitioner’s birth against the definition of “natural born citizen” that it determined to be Constitutionally and historically correct, and concludes that, since the petitioner was born in the US to parents who were US citizens at the time of her birth, she was in fact a “natural born citizen”—and so also necessarily a citizen—of the United States.
Since the petitioner was born in the US, and since both her parents were US citizens when she was born, there was no need to consider whether any alternative definitions or theories of citizenship could be used to assign citizenship. The Court saw no need to concern itself with citizenship acquired by naturalization, nor with any other classes or types of citizenship based on any other theories, “natural law” and/or English common law definitions or other Constitutional clauses, such as the first sentence of the 14th Amendment. Therefore, they exercised proper judicial restraint and left those questions undecided.
Since the citizenship issue in Minor was decided by defining “natural born citizen” based on the text of Article II, section 1, but the citizenship issue in Wong Kim Ark was decided based on the first sentence of the 14th Amendment, the two decisions do not conflict with each other. Therefore, Wong Kim Ark does not supersede Minor.
It is worth noting that, had the petitioner in Wong Kim Ark been a “natural born citizen,” failure to simply use the precedent established in Minor to rule that Wong Kim Ark was a citizen would have been a failure to abide by judicial restraint. The fact that the Wong Kim Ark Court, unlike the Minor Court, decided that it was necessary to decide the citizenship issue using the first sentence of the 14th Amendment, instead of using the “natural born citizen” clause, demonstrates that a person who satisfies the 14th Amendment’s qualifications for citizenship does not necessarily qualify as a “natural born citizen.” The only reason to make a “first instance” interpretation of the first sentence of the 14th Amendment would be because the question could not be settled using any existing precedent, such as the one in Minor.
The settled law of the land is that the US President must be a natural born citizen, and that to be a natural born citizen, you must have been born in the United States to parents both of whom were US citizens when you were born.
You may disagree with the goal of the Constitutional Convention, and/or with the means they chose to achieve it. But it’s not a technicality, not an anachronism no longer relevant in modern times, nor is it racist. Especially in modern times, it enables persons of any race or ethnic heritage to become President. And it’s what the Constitution requires.
You may also disagree with binding precedent regarding the meaning of “natural born citizen” as established in Minor. But in our system, the Constitution, and the Supreme Court’s interpretation of it, are the “supreme law of the land.” And if one faction gets to disregard the Constitution and/or the Supreme Court because they disagree, then that sets a precedent where all other factions can do the same. And get away with it. Is that really what you want?