This is the second in a series of Constitution-related posts.
Natural-born, Native-born, and Naturalization
Let’s start this discussion with some definitions, dispel some assumptions, and request some civility in the follow-up discussion. This discussion is going to be, as much as possible, restricted to the qualifications for the Office of President of these United States and the portion of U.S. Constitution, Article II, Section 1 which states “No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President”.
Please note that even though the remainder (age and residency requirements) was left out for this discussion that all of the Constitution is extremely precise in the usage of language. This is easily demonstrated in the 60-plus votes it took during the Constitutional Convention just to get the wording and agreement from all parties on the qualifications of, and method for, the election of the President. One final note is that the citizens made the Constitution and their government. The Constitution and government did not make the citizens. The citizens had the unalienable rights to life, liberty, and the pursuit of happiness granted to them by nature and their Creator and not by the Constitution or government.
Definitions & References
The two primary concepts involved with the founders version of natural-born citizen are; Jus soli (the law of the soil), a rule of common law under which the place of a person’s birth determines citizenship, and Jus sanguinis (the law of the bloodline), a concept of Roman or civil law under which a person’s citizenship is determined by the citizenship of one or both parents. There are also two primary legal cases brought before the SCOTUS; Minor v. Happersett, 88 U.S. 162 (1875) [voting rights case] and United States v. Wong Kim Ark, 169 U.S. 649 (1898) [birthright citizenship clause]. Add in references to the 14th (Citizenship following Reconstruction; ratified: July 9, 1868) & 19th (Women’s Suffrage; ratified: August 18, 1920) amendments in addition to other documents and rulings of the time of the Constitutional Convention should provide us solid grounds for discussion.
Eloquently stated by Mario Apuzzo, Esq. ‘When determining whether a child born in the U.S. is an Article II “natural born Citizen,” the question is not whether the parents of the child are foreign born. Rather, the question is whether they are “citizens of the United States” at the time of the child’s birth in the United States ‘ and he continues “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.’
The John Jay Letter (Constitutional Convention)
During the Constitutional Convention, the most direct evidence about the origins of the “natural born citizen” clause comes from a letter that John Jay (1) wrote to George Washington, who was at the time serving as President of the Constitutional Convention. In this letter, dated July 25, 1787, Jay wrote (emphasis in the original): Permit me to hint, whether it would not be wise & 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 [sic] army shall not be given to, nor devolve on, any but a natural born Citizen. At the point this letter was written Jay had no knowledge that the convention would make the President the Commander-in-Chief; nevertheless, this document explicitly argues for a “natural-born” citizen a requirement of a high executive position.
The Electoral College
The delegates at the Constitutional Convention were deeply concerned about foreign influence on the national government, and in particular on the President therefore selection of the President by the legislature was abandoned for selection by an Electoral College. On March 25, 1800, Charles Pinckney made the only documented statement by one of the Founders connecting the Electoral College and the presidential eligibility clause. The Founders “knew well,” he said “that to give to the members of Congress a right to give votes in this election, or to decide upon them when given, was to destroy the independence of the Executive, and make him the creature of the Legislature. This therefore they have guarded against, and to insure experience and attachment to the country, they have determined that no man who is not a natural born citizen, or citizen at the adoption of the Constitution, of fourteen years residence, and thirty-five years of age, shall be eligible…” These beliefs are reiterated in several of the Federalists papers but none so clearly as Federalist No. 68 “The Mode of Electing a President” by Hamilton
Another founder, Benjamin Franklin, made the point of foreign influence clearly and within his own family when he left none of his assets to William (eldest living son) that were linked to America because of William siding with the British during the revolution whereas his will states in part “The part he [William] acted against me in the late war, which is of public notoriety, will account for my leaving him no more of an estate he endeavoured [sic] to deprive me of” referring to all of his lands and owning’s within the boundaries of the new United States of America. This point is made in part to show that Jus sanguinis and Jus soli were weighted heavily including loyalty to the new America—this was solemn according to the final cost to Franklin’s eldest living son.
The Naturalization Act of 1790
Provided the first rules to be followed by the United States in the granting of national citizenship. This law limited naturalization to immigrants who were “free white persons” of “good moral character”. It thus left out indentured servants, slaves, free blacks, and later Asians. While women were included in the act, the right of citizenship did “not descend to persons whose fathers have never been resident in the United States….” Citizenship was inherited exclusively through the father. This was the only statute that purported to grant the status of natural born citizen.’…’ The Act also establishes the United States citizenship of children of citizens, born abroad, without the need for naturalization: “the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens”. (2)
The Naturalization Act of 1795
Repealed and replaced the Naturalization Act of 1790. The 1795 Act differed from the 1790 Act by increasing the period of required residence from two to five years in the United States, by introducing the Declaration of Intention requirement, or “first papers”, which created a two-step naturalization process, and by conferring the status of citizen and not natural born citizen.
Minor v. Happersett (1875)
In Minor v. Happersett, 88 U.S. 162, 167-68 (1875), our U.S. Supreme Court, providing the same definition of a “natural born citizen” as did Emer de Vattel in his The Law of Nations, Section 212 (1758), but without citing Vattel, and not in any way referring to the English common law, stated:
“The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens.” (3)
Wong Kim Ark & the 14th Amendment
Two quotes from Justice Grey on this matter should suffice to give the general gist of this SCOTUS case;
Question: But doesn’t the Constitution use the term “citizen” rather than “subject?”
Justice Gray: “The term citizen, as understood in our law, is precisely analogous to the term subject in the common law, and the change of phrase has entirely resulted from the change of governments” hence “subject and citizen are, in a degree, convertible terms as applied to natives.” Accordingly, “[a]ll persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.”
Question: So what was existing law under the original Constitution?
Justice Gray: Well, “[t]he Constitution of the United States, as originally adopted, uses the words ‘citizen of the United States,’ and ‘natural-born citizen of the United States.” However,”[t]he Constitution nowhere defines the meaning of these words.” Hence, “[i]t must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution….” as “[t]he interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”
What is a “Natural-born” citizen?
Under the language used at the time of the founding this would require two hurdles to be met; 1) Jus soli (the law of the soil) whether within the confines of ‘America’ at the time of adoption, or within the laws as adjudicated later, and 2) Jus sanguinis (law of the bloodline) which in the case of American jurisprudence is the rights of the father transferred to the children (normally the eldest living son.) With consideration that, at the time, the wife received her “rights” from the husband and “rights of the father” also required that he was an active “Citizen of the United States” there are still many questions to be answered and it is a personal belief that the SCOTUS take any case in order to answer once and for all this question.
1. John Jay, although not a delegate to the Convention was a President of the Continental Congress, author of several Federalist Papers, and first Chief Justice of the U.S. Supreme Court among other notable positions. It seems reasonable, therefore, that his letter carried some weight.