NewMediaJournal.us
www.NewMediaJournal.us
Return
to Article
Kindle Compatible
Nancy Salvato, Senior Editor
Defining Article 2, Section 1 in Context
April 6, 2009
According to Article II, Section 1 of the United States Constitution, no
person except a “natural born citizen” (citizen at birth) shall be
eligible to the office of President.
The question that needs to be answered definitively is what exactly is a
“natural born citizen”? To understand this phrase, we need to look at
the context in which it was written.
It is clear that the Framers included that phrase in the requirements
for Commander in Chief because they wanted to ensure loyalty to the US
Constitution and not give undue influence to any one country, group, or
person.
“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...” – Yinger
Hamilton wrote, in Federalist
Essay 68,
“Nothing was more to be
desired than that every practicable obstacle should be opposed to cabal,
intrigue, and corruption. These most deadly adversaries of republican
government might naturally have been expected to make their approaches
from more than one quarter, but chiefly from the desire in foreign
powers to gain an improper ascendant in our councils. How could they
better gratify this, than by raising a creature of their own to the
chief magistracy of the Union? But the convention have guarded against
all danger of this sort, with the most provident and judicious
attention. They have not made the appointment of the President to depend
on any preexisting bodies of men, who might be tampered with beforehand
to prostitute their votes; but they have referred it in the first
instance to an immediate act of the people of America, to be exerted in
the choice of persons for the temporary and sole purpose of making the
appointment. And they have excluded from eligibility to this trust, all
those who from situation might be suspected of too great devotion to the
President in office. No senator, representative, or other person holding
a place of trust or profit under the United States, can be of the
numbers of the electors.”
St. George Tucker wrote in
St. George Tucker’s Treatise on the Constitution (1803),
“That provision in the
constitution which requires that the president shall be a native-born
citizen (unless he were a citizen of the United States when the
constitution was adopted,) is a happy means of security against foreign
influence, which, whereever it is capable of being exerted, is to be
dreaded more than the plague. The admission of foreigners into our
councils, consequently, cannot be too much guarded against; their total
exclusion from a station to which foreign nations have been accustomed
to, attach ideas of sovereign power, sacredness of character, and
hereditary right, is a measure of the most consummate policy and wisdom.
It was by means of foreign connections that the stadtholder of Holland,
whose powers at first were probably not equal to those of a president of
the United States, became a sovereign hereditary prince before the late
revolution in that country. Nor is it with levity that I remark, that
the very title of our first magistrate, in some measure exempts us from
the danger of those calamities by which European nations are almost
perpetually visited. The title of king, prince, emperor, or czar,
without the smallest addition to his powers, would have rendered him a
member of the fraternity of crowned heads: their common cause has more
than once threatened the desolation of Europe. To have added a member to
this sacred family in America, would have invited and perpetuated among
us all the evils of Pandora's Box.” –
Blackstone’s Commentaries
George Washington, our 1st
President, warned,
“Passionate attachment of one
nation for another, produces a variety of evils...Sympathy for the
favorite nation, facilitating the illusion of an imaginary common
interest, in cases where no real common interest exists, and infusing
into one the enmities of the other, betrays the former into a
participation in the quarrels and wars of the latter, without adequate
inducement or justification. It leads also to concessions to the
favorite nation, of privileges denied to others, which is apt doubly to
injure the nation making the concessions; by unnecessarily parting with
what ought to have been retained; and by exciting jealousy, ill- will,
and a disposition to retaliate, in the parties from whom equal
privileges are withheld.
And it gives to ambitious, corrupted, or deluded citizens, (who devote
themselves to the favorite nation,) facility to betray or sacrifice the
interests of their own country, without odium, sometimes even with
popularity; gilding, with the appearance of a virtuous sense of
obligation, a commendable deference for public opinion, or a laudable
zeal for public good, the base or foolish compliances of ambition,
corruption, or infatuation.”
–
Washington’s Farewell
Fourteenth Amendment (1868)
The Fourteenth Amendment
established that US citizenship is the primary citizenship in this
country, and that state citizenship depends upon citizenship of the
United States and the citizen's place of residence. The States have no
power to restrict their citizenship to any classes or persons.
The Fourteenth Amendment established a written national rule declaring,
"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 author of the
citizenship clause, Senator Jacob M. Howard (MI) described the
clause as excluding not only Indians but “persons born in the United
States who are foreigners, aliens, who belong to the families of
ambassadors or foreign ministers.”Full and complete jurisdiction
precludes citizenship to any person who was beholden to any sovereignty
other than a U.S. state or the federal government.
The author behind the equal protection clause of the 14th Amendment,
Rep. John A. Bihgham (OH) referenced Section 1992 of the
Revised Statutes.
“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.” (Cong. Globe, 39th, 1st
Sess., 1291 (1866))
Therefore, the status of
“natural born citizen” would seem to be conditional upon being born
“subject to the jurisdiction” of the United States and not being born
with more than one allegiance if understood within the context of the
time when it was written. This would seem to prevent us from
interpreting natural-born citizen under common law rules because it
eliminates the possibility of a child being born with more than one
allegiance. However, the courts set the precedent that under the common
law rule of jus soli -the law of the soil- persons born in the United
States generally acquired U.S. citizenship at birth.
P.A. Madison
United States v. Wong Kim Ark (1898)
In delivering the opinion of the
Supreme Court for United States v. Wong Kim Ark, when determining
“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 domicile 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,” Justice
Gray stated,
“In construing any act of
legislation...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 of the law as previously existing, and in the light of which the
new act must be read and interpreted.”
Because the Constitution
does not define “natural born citizen” it 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.”
To defend his argument, Justice Gray cited several cases which
established precedent for the court’s decision, “The question must be
answered in the affirmative.”
United States v. Rhodes (1866)
Mr. Justice Swayne, said, “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.”
“The fundamental principle of
the common law with regard to English nationality was birth within the
allegiance, also called "ligealty," "obedience," "faith," or "power" of
the King. The principle embraced all persons born within the King's
allegiance and subject to his protection. Such allegiance and protection
were mutual -- as expressed in the maxim protectio trahit subjectionem,
et subjectio protectionem -- and were not restricted to natural-born
subjects and naturalized subjects, or to those who had taken an oath of
allegiance, but were predicable of aliens in amity so long as they were
within the kingdom. Children, born in England, of such aliens were
therefore natural-born subjects. But the children, born within the
realm, of foreign ambassadors, or the children of alien enemies, born
during and within their hostile occupation of part of the King's
dominions, were not natural-born subjects because not born within the
allegiance, the obedience, or the power, or, as would be said at this
day, within the jurisdiction, of the King.”
Minor v. Happersett (1875)
Chief Justice Waite’s court
opinion included a definition of natural-born citizens based on the
common-law at the time of the US Constitution’s passage and subsequent
legislation. His opinion diverges slightly from Justice Swayne’s.
“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 [p168] 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.”
Dissenting Opinion in U.S.v. Wong Kim Ark (1898)
Chief Justice Fuller objected to
the idea that the only thing “natural born” ever meant in the first
place was that the individual in question was born on U.S. soil:
“[I]t is unreasonable to
conclude that ‘natural born citizen’ applied to everybody born within
the geographical tract known as the United States, irrespective of
circumstances; and that the children of foreigners, happening to be born
to them while passing through the country, whether of royal parentage or
not, or whether of the Mongolian, Malay, or other race, were eligible to
the presidency, while children of our citizens, born abroad, were not.”
E. de Vattel’s Law of Nations (1758)
"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 a 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.”
At issue, then, is whether
or not a parent must be a citizen in allegiance to the U.S. Constitution
in order for a person born under the jurisdiction of the United States
to be considered a “natural born citizen”.
The definition of “natural born citizen” as it currently stands takes
the following into consideration.
State Dept. Foreign Affairs Manual
▪ U.S. laws governing the
acquisition of citizenship at birth embody two legal principles:
1. Jus soli (the law of the soil), a rule of common law under which the
place of a person’s birth determines citizenship. In addition to common
law, this principle is embodied in the 14th Amendment to the U.S.
Constitution and the various U.S. citizenship and nationality statutes.
2. 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. This rule, frequently called
“citizenship by descent” or “derivative citizenship”, is not embodied in
the U.S. Constitution, but such citizenship is granted through statute.
As laws have changed, the requirements for conferring and retaining
derivative citizenship have also changed.
Title 8, Section 1401, of the U.S. Code provides the current
definition for a natural-born citizen.
▪ Anyone born inside the United States and subject to the jurisdiction
of the United States, which exempts the child of a diplomat from this
provision
▪ Any Indian or Eskimo born in the United States, provided being a
citizen of the U.S. does not impair the person's status as a citizen of
the tribe
▪ Any one born outside the United States, both of whose parents are
citizens of the U.S., as long as one parent has lived in the U.S.
▪ Any one born outside the United States, if one parent is a citizen and
lived in the U.S. for at least one year and the other parent is a U.S.
national
▪ Any one born in a U.S. possession, if one parent is a citizen and
lived in the U.S. for at least one year
▪ Any one found in the U.S. under the age of five, whose parentage
cannot be determined, as long as proof of non-citizenship is not
provided by age 21
▪ Any one born outside the United States, if one parent is an alien and
as long as the other parent is a citizen of the U.S. who lived in the
U.S. for at least five years (with military and diplomatic service
included in this time)
Separate sections confer citizenship on persons living in US territories
as of a certain date, and usually confer natural-born status on persons
born in those territories after that date. Concerning the Panama Canal
Zone and the nation of Panama, the law states that anyone born in the
Canal Zone or in Panama itself, on or after February 26, 1904, to a
mother and/or father who is a United States citizen, was "declared" to
be a United States citizen. The terms "natural-born" or "citizen at
birth" are missing from this section.
When Arizona Senator John McCain ran for president, some theorized that
because McCain was born in the Canal Zone, he was not actually qualified
to be president. However, it can be argued that section 1403 applied to
a small group of people to whom section 1401 did not apply. McCain is a
natural-born citizen under 8 USC 1401(c): "a person born outside of the
United States and its outlying possessions of parents both of whom are
citizens of the United States and one of whom has had a residence in the
United States or one of its outlying possessions, prior to the birth of
such person." Not everyone agrees that this section includes McCain -
but absent a court ruling either way, the 2008 a resolution sponsored by
Sen. Claire McCaskill and co-sponsored by Sen. Hillary Clinton, Sen.
Thomas Coburn, Sen. Patrick Leahy , Sen. Barack Obama, and Sen. Jim Webb
recognizing that John Sidney McCain, III, is a natural born citizen and
which was introduced and passed Senate without amendment stands. This
resolution stated that John Sidney McCain, III, is a "natural born
Citizen" under Article II, Section 1, of the Constitution of the United
States
(Michigan Law Review).
Although President Obama has a Kenyan father, and was later adopted by
an Indonesian National, the fact that his mother was a citizen should
legitimize his being born a U.S. citizen. It is unlikely his birth
certificate would indicate that he is born of some other lineage,
however his birth certificate is sealed and the public does not have
access to his records.
What is equally relevant to his current legitimacy as president is
whether his citizenship was renounced when he moved to Indonesia with
his mother and adopted father and attended a Muslim school.
In 2004, A bill (S.2128) to define the term "natural born Citizen" as
used in the Constitution of the United States to establish eligibility
for the Office of President was introduced by Sen. Don Nickles and was
cosponsored by Sen. James Inhofe and Sen. Mary Landrieu. The bill never
became law.
There is a need to have an acceptable definition of natural-born citizen
that cannot be politicized. The definition must be ensconced in the
Constitution. Whether common law ideas or Vattel’s ideas prevail, we
need to define what is to be acceptable in our Commander in Chief.
Furthermore, evidence of birth in allegiance to the United States must
be required of all candidates for president of the United States. All of
the arguments made by the Framers regarding foreign influence must be
taken into consideration because they knew then as we know now; the
sovereignty of our great nation is at risk.
About Nancy Salvato
Nancy Salvato is the President and Director of Education and the
Constitutional Literacy Program for
BasicsProject.org, a
non-profit, non-partisan 501(c)(3) research and educational
project whose mission is to re-introduce the American public to
the basic elements of our constitutional heritage while
providing non-partisan, fact-based information on relevant
socio-political issues important to our country, specifically
the threats of aggressive Islamofascism and the American Fifth
Column. She serves as a Senior Editor for The New Media Journal.
She received her BA in history from Loyola University and her
M.Ed. in Early Childhood Education from National-Louis
University. She is certified to teach in grades K-9 and 6-12
and as a teacher has worked with students in preschool, 1st,
5th, 6th, 7th, 8th,
9th, 11th, and 12th grades. She
has also worked as an adjunct instructor at the graduate school
level. She continues to augment her education and areas of
expertise by taking college courses and participating in a
variety of workshops.
|
|
