Citizenship Debate: Part 1

02 Mar

(This is actually Part 2 of a multi-part series.  Please scroll down (or link from the left panel) to read these posts in the proper sequence.  It all flows from a post on “Straw Men, Red Herrings, and Big Lies” and the comments attached so to really understand it all, you need to read that one too.)


OK, after the preamble in the first section (The Introduction), here is the situation in a nutshell.  Despite out of context quotes culled from decisions, dissentions, and general thoughts on the matter, when the Supreme Court (in 1898) liberalized U.S. citizenship at birth, it did not alter the meaning of natural born citizenship.

Here is the facts: to this day, the Supreme Court has never ruled directly and unequivocally that someone born in the U.S., of a non-citizen parent, is a natural born citizen. In fact, despite how those cherry picked quotes in the rebuttal to me might sound, throughout the history of this country, supreme court references to “natural born citizens” have consistently used the term only when actually referring to persons born on U.S. soil, to U.S.-citizen parents. For example:

  • In Scott v. Sandford (1856), the Supreme Court called unexceptionable, the position that: “natural-born citizens are those born in the country of parents who are citizens” (Scott v. Sandford, 1856) (My italics for emphasis).
  • In Minor v. Happersett (1874), the Supreme Court defined two classes of persons. The first class consisted of U.S.-born children of U.S.-citizen parents. The second class consisted of all other U.S.-born children. The Court used the term “natural born citizen” only in reference to members of the first class.
  • In Kwock Jan Fat v. White (1920), the Supreme Court referred to Mr. Kwock as a natural born citizen. He was born in the United States. At the time of his birth, his father was a native-born American citizen, and his mother was a statutory citizen by marriage.
  • In Perkins v. Elg(1939), the Supreme Court referred to Marie Elizabeth Elg as a natural born citizen. She was born in the United States. When she was born, her father was a U.S. citizen by naturalization, and her mother was a U.S. citizen by marriage.

But it does appear that there are references to a potential difference of opinion as to what might constitute a “Constitutional” natural born citizen and a “statutory” one.

Three years after the U.S. Constitution was adopted, Congress enacted the Naturalization Act of 1790. The Act granted U.S. citizenship, at birth, to foreign-born children of American parents and to the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States.  It said that they shall be considered as (my italics) natural born citizens.

Legal language is very specific and uses terms with great care and specificity.  And when the founding documents were being drafted, the framers made it clear in letters and other writing that they were keenly aware of the magnitude of what they were creating and had long, passionate debates over nearly every word in those documents to make sure they said exactly and precisely what they meant.  It was not an accident or ommision that resulting in saying the President had to be a natural born citizen but others needed only to be citizens.  Following Vattel’s writing closely, the terms, to them, were precise.

It is, therefore, very important to note that the 1790 Act did not say that foreign-born children of American parents are natural-born citizens. It merely said that such children shall be considered as natural born citizens.  For all practical purposes the law would draw no distinction except the Constitutional one regarding the President.

Why is that important to note?  In contrast, the 14th Amendment citizenship clause states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens…”.  Note that the wording does not say that such persons are considered as citizens or are declared to be citizens. Instead, the Amendment says that such persons are citizens.  And that has led to a question debated since then with various and sometimes contradictory conclusion.  The question is: is there a distinction between those individuals who actually “are” natural born citizens in fact as opposed to those individuals who are merely “considered as” or “deemed to be” natural born citizens by statute or law?

Before we dismiss such notions as simply semantic hairsplitting, we need to understand that such a distinction already existed in eighteenth-century English law. When aliens were naturalized by Parliament, they did not become natural-born subjects in any factual or literal sense. Instead, they were “taken and reputed” to be natural-born subjects.  Likewise, the Act of Anne did not say that foreign-born children of English fathers are natural-born subjects. The Act merely said that such children shall be “deemed and adjudged” to be natural-born.  In such documents precise language and words is critical; these were educated people and wrote – or left off – precisely what they intended.

The Act did not say or imply in any way that the foreign-born child of natural born parents … was himself a natural born subject. It said that he was to be “deemed and adjudged” to be such, albeit “to all intents, constructions and purposes whatsoever.”  In the statutory sense, therefore, all English subjects (except persons made denizens by the king) were called natural-born subjects. Naturalized subjects and foreign-born children of English fathers were deemed to be natural-born subjects by law. Likewise, in American law, all American citizens, regardless of whether they are naturalized or natural born, have the same rights.

But here is where the issue gets muddy.  There might be a Constitutional difference between naturalized citizens and natural born citizens, but there is no statutory difference between the two. In the statutory sense, all American citizens are considered the same as natural born citizens.  So does this settle the issue in Ellen’s favor?  Well. stick around to find out.

In any case, the Supreme Court long has rejected the notion that naturalized citizens may or should possess rights different from those of other citizens under the law: …

“[The naturalized citizen] is distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none.” (Craig v US — Ruling US Court of Appeals 10th Circuit, 2009). 

Now here you really need to carefully re-read that italicized clause again, “…except so far as the constitution makes the distinction.”  Because that is the crux of the whole debate here.  It is not whether ANY citizen, that is, an individual whose citizenship is derived in any fashion, is to be treated at law vis-a-vis their citizenship.  It is rather, does the Constitution allow one of those categories to become President to the exclusion of the others?  I think it does.  Since this is critical lets delve a little deeper.

For purposes of this discussion, the difference between Constitutional and statutory natural born citizens is defined as follows:

  • Constitutional natural born citizen” refers to the term “natural born citizen” in the context of presidential eligibility. It refers to the meaning of “natural born citizen” in the Constitution, whatever the Supreme Court ultimately decides such meaning to be but initially and until changed refers to an individual born to parents who are already citizens. (But the parents could have attained their citizenship via any lawful means.)
  • Statutory natural born citizen” refers to a person who is deemed to be a “natural born citizen” by someone’s understanding or interpretation of Federal or State law. Under English law, all English subjects (except denizens by royal charter) were natural-born subjects in the statutory sense. Likewise, since all American citizens have the same rights, all American citizens, including naturalized citizens, could be construed as statutory natural born citizens.

So what about today?  Currently, there is no Federal law that explicitly defines “natural born citizen” or explicitly confers “natural born citizenship” to anyone. However, the mainstream news media, based on the perspective evident in their articles and opinions, apparently understands and interprets Federal law as implicitly granting “natural born citizen” status to certain individuals at birth.  For our purposes of discussion however, and to make the distinction clear, if a person is deemed a “natural born citizen” pursuant to a statute, we refer to such person as a “statutory natural born citizen”.

A statutory natural born citizen, therefore, is not necessarily the same thing as a Constitutional natural born citizen.  Am I alone in creating this distinction?  No, I’m not.  The U.S. State Department itself warns against confusing the two concepts:

“…the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes.” (U.S. Department of State Foreign Affairs Manual — 7 FAM 1130, page 9)

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

At least one lower-court judge has expressed his opinion that the US-born children of illegal-immigrant parents are “natural born citizens”.  But based on the State Department’s view we just noted above, his use of the term “natural born citizen” is statutory, not Constitutional.  For example below is an excerpt from that decision:

Petitioner, Sebastian Diaz-Salazar, entered the United States illegally in 1974 and has been living and working in Chicago since that time. … The petitioner has a wife and two children under the age of three in Chicago; the children are natural-born citizens of the United States. (Diaz-Salazar v. I.N.S., 1983)

So if we take that wording as a quote out of the larger context, it appears to hold a position that is not accurate or not accepted by our own State Department.  That would have  raised a huge ruckus in 1983 so that simple interpretation has got to yield to a more complex one..

Because of the potential mess the granting of Constitutional Natural Born Citizenship could result in, such as electing a president whose true allegiances were to a foreign country, H.R.1940, also known as the Birthright Citizenship Act of 2007, would change the existing law so that it would no longer grant “citizenship at birth” to children of illegal immigrants.  If Congress were to pass H.R.1940, it would alter the meaning of “citizen at birth”, and therefore would alter our statutory definition of natural born citizen. If H.R.1940 were enacted, the U.S.-born children of illegal immigrants could no longer be regarded as statutory natural born citizens.  But this would take us into a completely different topic and issue.

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

I would generally agree with that from a practical standpoint.  But to do so without an amendment to the constitution making it clearly OK, leaves us with one more incident where what is supposed to be our guiding document is simply ignored when it does not suit our desires. If the Constitution contains something that is no longer appropriate for modern-day society, the proper remedy is a Constitutional Amendment. If we want to be a nation that is ruled by law and the Constitution, we cannot simply dismiss Constitutional requirements, merely because they are inconvenient or we think they don’t matter anymore. If any one part of the Constitution doesn’t matter, why would any other part of the Constitution matter?

The Constitution affirms, defends and protects many of our rights — free speech, freedom of religion, privacy, trial by jury, and so on. If we say it’s okay to ignore the Constitution regarding one issue such as presidential eligibility, we open the door for someone else to say it’s okay to ignore the Constitution regarding our rights as citizens.

The original purpose of the “natural born citizen” provision was to protect the presidency from foreign influence. A President might pose a national security risk if she or he was born with foreign ties or allegiance.  When we decide, as a nation not as an individual, that such a risk is no longer valid then we ought to change the rules via an amendment.  It is an amendment which, depending on the actual wording, I might well vote for.  But until it is put before us and ratified, that is a moot point.

So lets get a little deeper into the history of these concepts.


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Posted by on March 2, 2012 in Uncategorized


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