(This is actually Part 5 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.)
(CONTINUED FROM PART 4)
“[I] find no fault with the introductory clause [of the 1866 Civil Rights Act], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen. (Congressional Globe, 39th, 1st Sess.(1866), p.1291, center column)”
In 1884, an article by George Collins, appearing in the American Law Review (1884), criticized the Lynch v. Clark ruling:
“In Lynch v. Clark, the vice-chancellor held that the common-law doctrine — that the place of birth and not the nationality of the father determined the political status of the child — was applicable to the United States, constituted a part of the jurisprudence thereof, and that accordingly a person born within the United States, whose father at the time of such birth was an alien, was a citizen of the United States. This case, aside from its fallacious and unsound reasoning, can not be upheld upon principle. It is well settled that the common law is not part of the jurisprudence of the United States. … Birth [in the United States] … does not ispo facto confer citizenship, and it is essential in order that a person be a native or natural born citizen of the United States, that his father be at the time of the birth of such person a citizen thereof, on in case he be illegitimate, that his mother be a citizen thereof at the time of such birth.” (Collins)
In 1894, The Nation magazine reported an opinion by Thomas Bayard, who was U.S. Secretary of State under Grover Cleveland. In Bayard’s opinion, the U.S.-born child of alien parents was not subject to U.S. jurisdiction at the time of its birth, therefore was not a U.S. citizen at birth:
“In 1885, Secretary Bayard decided that the son of a German subject, born in Ohio, was not a citizen under the statute or the Constitution, because “he was on his birth ‘subject to a foreign power,’ and ‘not subject to the jurisdiction of the United States'” (The Nation, Vol.59, No.1521, August 23, 1894, p.134, near bottom of right-most column)
And to make the terminology even more specific, in 1896, an article by Percy A. Bridgham, appearing in the Boston Daily Globe, defined native born as “born within the United States,” and natural born as “born of parents who are U.S. citizens.” In Bridgham’s opinion, one did not need to be native-born in order to be natural-born. His understanding, at the time, was that all post-1787-born Presidents were both native-born and natural-born; the United States has never had a President who was strictly natural-born (natural-born only, without also being native-born).
“The fact that the Constitution says “natural” instead of native shows to my mind that the distinction was thought of and probably discussed. A natural born citizen would be one who by nature, that is by inheritance, so to speak, was a citizen, as distinguished from one who was by nativity or locality of birth a citizen. …
It seems to me that if the founders of the government had meant to confine the presidency to such of its citizens as were born upon the soil of the country, they would have used the word “native,” which is a much more apt word than natural. …
“A comparison of the meanings of native and natural as given by Webster bears me out in my opinion of the intent of the constitution. The very first definition of natural is “fixed or determined by nature,” the nationality of a child born abroad of American parents is fixed by the nature of things and not by the locality of birth. I do not find that our courts have ever passed upon the meaning of the word natural in connection with citizenship, so we must take its ordinary meaning.” (Percy A. Bridgham, People’s Lawyer, Boston Daily Globe, November 9, 1896. See also The Boston Globe: “native born” does not equal “natural born” for Presidential eligibilty)
Also in 1896, the New York Tribune published an article, questioning the eligibility of Mr. Shurmann, the Labor Party presidential candidate. Mr. Schurmann was born in the United States, of non-U.S.-citizen parents:
“Is he [Mr. Shurmann], under these circumstances, “a natural-born citizen” in the sense implied by the fifth clause of Art. II. of the Constitution? Various Attorney-Generals of the United States have expressed the opinion that a child born in this country of alien parents, who have not been naturalized, is, by the fact of birth, a native-born citizen entitled to all rights and privileges as such, and the State Department has always acted on this presumption in deciding upon questions of this nature brought before it. There is, however, no United States statute containing any provision on the subject [of natural born citizenship], nor have any judicial decisions ever been made in regard to it. It is at best an open question, and one which should have made Mr. Schurmann’s nomination under any circumstances an impossibility.” (New York Tribune 1896: Those born of non-citizen parents may not be eligible for POTUS)
In 1904, Alexander Porter Morse argued that parental citizenship is essential to natural born citizenship; one cannot be a natural born citizen unless one’s parents were citizens at the time of one’s birth:
At the time of the adoption of the Constitution, immigration was anticipated and provisions for naturalization would immediately follow the establishment of the government. Those resident in the United States at the time the Constitution was adopted were made citizens. Thereafter the president must be taken from the natural-born citizens. If it was intended that anybody who was a citizen by birth should be eligible, it would only have been necessary to say, “no person, except a native-born citizen”; but the framers thought it wise, in view of the probable influx of European immigration, to provide that the president should at least be the child of citizens owing allegiance to the United States at the time of his birth. (Morse)
In 1916, attorney Breckinridge Long argued that Republican presidential candidate Charles Evans Hughes was not eligible to serve as president. Hughes was born in the United States, but at the time of his birth, his father was not a U.S. citizen. In Long’s Legal Analysis, a U.S.-born child of a non-citizen father is not a natural born citizen of the United States:
It must be admitted that a man born on this soil, of alien parents, enjoys a dual nationality and owes a double allegiance. A child born under these conditions has a right to elect what nationality he will enjoy and to which of the two conflicting claims of governmental allegiance he will pay obedience. Now if, by any possible construction, a person at the instant of birth, and for any period of time thereafter, owes, or may owe, allegiance to any sovereign but the United States, he is not a “natural born” citizen of the United States. If his sole duty is not to the United States Government, to the exclusion of all other governments, then, he is not a “natural born” citizen of the United States. (Long)
So where did this diuspute come from? There is general agreement concerning state citizenship. When the original thirteen colonies became independent states, some of them (for example, Virginia) retained the jus soli principle of English common law. In these jus soli states, any white person born within the borders of the state (other than the child of a vagrant, slave or foreign diplomat) was a citizen of that state. Anyone who became a citizen of any state was automatically a citizen of the United States.
However, there is disagreement as to whether, in 1787, a person could acquire federal citizenship independently of state citizenship. If you did not receive state citizenship at birth from any state, under what circumstances would the federal government still recognize you as a citizen of the United States? Regarding this question, there has been (and still is) a dispute between:
- authorities who believe that all persons born on U.S. soil (except the children of foreign ambassadors) are natural born citizens of the United States, regardless of their parents’ citizenship; and
- authorities who believe that one cannot be a natural born citizen of the United States unless one’s parents were U.S. citizens at the time of one’s birth.
The dispute arises, in very large part, from differing understandings of our nation’s founding principles. Those who believe that the Founding Fathers were guided by a somewhat incomplete understanding of 18th century English common law tend to believe that the jus soli principle governs the meaning of “natural born citizen” in the Federal Constitution. Those who believe that the Founding Fathers were guided by European political theorists, such as Vattel, tend to believe that the meaning of “natural born citizen” is constrained by the jus sanguinis principle. Those who accept the founders word that they did NOT intend the new country to be bound to English Common Law can come down on either side for a variety of legal or simply political reasons.
But lest you want to argue that those old cases are just that, old, and therefore of no modern consequence I would bring to your attention a current case. Well cases, actually, that are winding their way through the courts of several states as I write this. These are specifically attacking the 14th Amendment Theories. The plaintiffs are alleging that the defendant, Barrack Obama, has no standing to run for president and therefore should not appear on the State’s ballots because he is not, Constitutionally, a “natural born citizen.” In the Georgia case, amicus briefs go into a detailed accounting, far more than I have above, showing the realities of 18th century English Common Law, how that law was never adopted as federal law and served only and only on occasion as glossary for terms picked up and used in our own developing legal system, and how in any case, as noted here, there is no conflict between Constitutional sections on presidential eligibility and citizenship definitions because it is clear that “native” and “natural,” what we have called “Statutory” and “Constitutional” citizenship are not the same things even if it has all of the same legal standing except re presidential eligibility.
If the courts themselves believed this to be a long settled question, then they would not have taken on the cases. The fact that there is a debate at all requires viewpoints from more than one side, ipso facto it is not a settled issue and certainly not one without dissent.
So now I ask you, my gentle and analytical readers a simple question that is the very core of the debate between my position and that of Ellen. Does it appear to you that the issue of what constitutes a “Natural Born Citizen” as that term is used in the Constitution to define eligibility to be president, is monolithically accepted (on either side) and therefore unquestionable?
Ellen answers in the affirmative and I in the negative. You get to decide for yourselves.
In the next and mercifully last post of this series, I’ll try to wrap it all up in a conclusion.
(CONTINUED IN THE CONCLUSION)