Two Kinds of Citizen

The Constitution of the United States makes reference to two kinds of citizen:  those born a citizen and those who become a citizen later. The first class they called “natural born citizens,”  and the second class they called “naturalized citizens.” The Constitution mentions “natural born citizen” in connection with the qualifications to be President of the United States and “naturalization”  as an enumerated power of Congress. Elsewhere it just talks about “citizen,” which includes both classes.

This reading of natural born citizen is consistent with historical references and modern ones including the US Constitution Online – Citizenship that says:

“Who is a natural-born citizen? Who, in other words, is a citizen at birth…”

It’s a mistake to look at philosophical works, or law, or court cases, and strain the  interpretation to create a third new class of “super citizen” who is more than a citizen at birth. Such analysis is strained because no source makes such a distinction. No historical source I know of has ever said that a person exists who is born a citizen but is not a natural born citizen. This flawed analysis starts with the assertion that “natural born citizen” has some unusual meaning beyond what it means in common speech (different than the dictionary meaning of “natural born”), and then tries to “derive” this meaning from historical documents by arbitrarily separating the phrase “natural born citizen” from “citizen at birth.” Thus, by assuming the phrase has special meaning the meaning of the texts themselves being altered to support the bias of the interpreter.

When looking at the Leo C. Donofrio argument (in Donofrio v. Wells)  it becomes obvious that the sources he uses to argue against the historical understanding of the term “natural born citizen” are those same arguments used by people opposed to the current law granting citizenship to the children of aliens, not arguments against some special citizenship class called “natural born citizen.” Indeed if one wants to look up Donofrio’s sources, they will be found in the dissenting opinions of citizenship cases and in articles arguing against citizenship for the US-born children of aliens.

In the discussion that follows, we will find those who believe that blood (ancestry) is the most important consideration in citizenship and others who believe that soil (birth place) controls. This is the argument our sources line up on the two sides of. We fill find that the sources on both sides are completely unaware of any question about what natural born citizen means but in disagreement over who is one (a citizen at birth).

One is frustrated by the paucity of historical texts using of the phrase “natural born citizen,” but this is exactly  because there is no such special citizenship class apart from the general concept of “citizen at birth,”  and so the concept of “natural born citizen” is diluted by the use of equivalent phrases such as “birth right citizen,” “citizen at birth” or “born a citizen.” Once this association is made, then the sources start to make sense, and the reason the sources use (or do not) use the term “natural born citizen” becomes logical and and the texts coherent.

I checked the Concise Oxford English Dictionary for the historical meaning of the term “natural born”, and it provided a very simple definition: “having a position by birth.” “Natural born citizen” then means simply a citizen at birth. There’s nothing new here, and indeed this is what is usually understood by the term. If you look at all the uses of “natural born,” it means “born with” some characteristic, e.g. natural-born storyteller, natural-born swimmer, natural-born athlete, natural-born mathematician, natural-born musician, and on and one. A natural born citizen is just someone born in the position of being a citizen.

What follows is a look at the historical sources and law with special attention to arguments raised by Leo C. Donofrio as interpreted by the Investigating Obama (IO) website in the article: The Donofrio “Natural Born Challenge”.

Point 1. While not reading too much into this fact, it must be said that the United Supreme Court refused to hear Donofrio v. Wells after it had been appealed from the New Jersey courts after its dismissal there. Certainly this action by the Supreme Court is inconsistent with the huge importance some bloggers (and Donofrio himself) attributed to the case and its issue of whether Barack Obama, because one of his parents was not a US Citizen, should be qualified to be President of the United States. The case Bush v. Gore gives us evidence that the Supreme Court is not shy in inserting itself in the middle of an election yet they decided not to look at Donofrio’s presidential qualifications challenge (nor that of Cort Wrotnowski following).

Point 2 of the IO article reads in full:

2. A research work in process, this article failed to address the most central document besides the Constitution itself, to the understanding of the original intent and thereby meaning of the “natural born Citizen” criteria, the letter from John Jay to George Washington, July 25, 1787. In it, Jay cites the reason for the criteria being one of national security, that is to guard against a “Commander in Chief of the American army” having foreign allegiance in the way anyone might, who is not a natural born Citizen. This lends essential merit to the dual natural born Citizen criteria pointed out in this article, as a strategist in matters of defense and security would naturally know. Metaphorically, in a neighborhood where crime is high, one does not lock the front door (born in U.S. territory) and leave the back door wide open (commonly and “naturally” understood national allegiance by hereditary right). When security is the concern, one thoroughly guards all of one’s vulnerabilities which are pertinent and feasible to be made secure.

Look at the preceding section.. The only words actually quoted from the Jay letter are “natural born citizen,” “Commander in Chief of the American army” and “naturally.” While the careless reader might think, from the italics, that most of that paragraph is quoted from the Jay letter, nothing could be further from the truth, and indeed the Jay letter says hardly of this. What did Jay really say?

Permit me to hint, whether it would not be wise and reasonable to provide a strong check on the admission of Foreigners into the administration of our national Government, and to declare expressly that the Commander in Chief of the American army shall not be given to, nor devolve on, any but a natural born Citizen.” (underlining in original).

Those words “foreign allegiance,” “dual citizen” and “hereditary right” are simply not there. The word “born” was underlined by Jay himself,  and if I may paraphrase, Jay felt that the Commander in Chief should be a “natural born citizen” and not a “naturalized citizen.” I do not think that Jay or anyone else since would rightly name someone born in the United States a “foreigner,” and so I do not see anything in what John Jay actually said that supports the notion of citizen parents at all.

It should be noted also that prior to the Revolutionary war, all Americans were citizens of some other foreign country. It hardly makes sense for the new Republic to base its citizenship on blood line when it was place that bound them all together. We were a nation full of immigrants.

I’m going to skip over the issue of “standing” in Donofrio v. Wells, since it is moot, the case having been rejected by the Supreme Court, and not relevant to the issue of the kinds of citizens. But I must comment on the ridiculous statement that Barack Obama became an Indonesian citizen. I think it is pretty widely known that Indonesia did not allow dual citizenship at the time Barack Obama was there. It is perhaps a little less widely known, though equally true, that children cannot renounce their US Citizenship, nor can their parents do it for them. Therefore with dual citizenship not an option, Barack Obama could not have become an Indonesian citizen according to Indonesian law; his unrenouncable US citizenship prevented it. Indonesian Naturalization Law.

The next relevant section is Merit: context, corroboration, and case law.

Here we enter into a discussion of the writing of a Swiss philosopher and jurist named Emmerich de Vattel [correct spelling]. De Vattel was a very influential thinker and some of his writing can be seen frequently cited in Court decisions in the United States (although never on the winning side on the topic of citizenship for reasons we will see except for the infamous Dred Scott decision).

The introduction to de Vattel in IO is completely spurious when it says “The Law of Nations has been international law.” The Law of Nations is a translation of a book by the same name from a German author (Wolff) and a commentary on differing national laws.

[De Vattel] applied a theory of natural law to international relations. His treatise was especially influential in the United States because his principles of liberty and equality coincided with the ideals expressed in the  Declaration of Independence. In particular, his defense of neutrality and his rules for commerce between neutral and belligerent states were considered authoritative in the U.S.

Encyclopedia Britannica 2005

Unlike Jay, the IO article does not butcher or misrepresent de Vattel. Swiss society was one of long standing ethnic uniformity. It made sense to consider citizenship a birthright of one born to citizen parents who were citizens. Indeed de Vattel believed that place of birth is irrelevant to citizenship and shows this by saying “By the law of nature alone, children follow the condition of their fathers, and enter into all their rights; the place of birth produces no change in this particular” (a concept totally inconsistent with Constitution, the 14th amendment and US Naturalization law).

In paragraph 214, immediately following the text cited in IO, de Vattel adds this: “Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner.” So de Vattel himself acknowledges British Common Law, in force in the United States at the time the Constitution was written, directly contradicts his own views. De Vattel uses the word “naturalizes” to express his opposition to the concept and to make such a person a “second class” citizen, but this is not a phrase or a concept in British Law for persons born in England. Indeed, the United States Supreme Court in (United States v. Wong Kim Ark) cites British Common Law: “Children, born in England, of such aliens, were therefore natural-born subjects.” Not naturalized!

De Vattel himself only recognizes two kinds of citizens, those who are citizens under natural law whom he calls natural born citizens (or natives) and those whom  he called naturalized citizens. See The Law of Nations Book 1, Chapters 212 and 214.

While in the area of “original intent,” we should consider an act of the First Congress, The Immigration Act of 1790. That act declared that the children of two citizens “born beyond the sea” should be “natural born citizens.” The fact that the Congress felt that it needed to pass a law making the children of citizens born outside the United States citizens, proves that such citizenship was not implicit already in the Constitution (which it would be if the original intent was controlled by The Law of Nations). Further, this demolishes any claim that the original intent of the framers was to define “natural born citizen” as only someone born in the United States and born to two US citizens. If the First Congress didn’t know what the framers intended, who else could claim to?

And 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: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States:

De Vattel loses 6-2

Probably the most important case of all on citizenship, United States v. Wong Kim Ark, was decided by the United States Supreme Court in 1898. Six justices concurred and two dissented. The decision in Wong contains a broad survey of the history of citizenship law and precedent. The majority cited British Common Law; the losers cited de Vattel. This is instructive because more than anything else the discussion over natural born citizenship is a re-argument of the Wong case just substituting the equivalent phrase “natural born citizen” for “born citizen.”

Next we move on to the period immediately following the Civil War, where the question of citizenship for the freed slaves was addressed first by legislation, the Civil Rights act of 1866, followed shortly by the 14th Amendment to the Constitution (1868) and to a comment by Representative John A. Bingham during the debate on the aforementioned Civil Rights Act (not the 14th Amendment) specifically:

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.

The IO article calls Bingham “chief framer of the related 14th Amendment of the Constitution” and therefore we should take his comment as definitive on what the 14th Amendment tells us about natural born citizens. However, the House version of the 14th Amendment did not contain the citizenship language that we are discussing. That was inserted in the Senate by Senator Jacob M. Howard. Since Bingham didn’t write the language, he can hardly be the authoritative definer of it and indeed the House version of the fourteenth amendment lacked the language entirely. The author of the IO article would be more accurate to have included comments from Howard, which at least mention “natural law” perhaps a tip of the hat to de Vattel, namely:

The first amendment is to section one, declaring that all “persons born in the United States and Subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.

Noting once again that the argument is about citizenship for the children of aliens, making no distinction between the concepts of “natural born citizen” and “citizen at birth.” Of course, the Supreme Court in the Wong decision concluded that Howard was wrong when he implied that the children of foreigners and aliens are not fully under the jurisdiction of the United States and that the children of aliens born here are not citizens.

IO inserts this comment:

Since then, the case of Perkins v. ELG, U.S. 325 (1939) provides precedent for requiring these two criteria, for one to be called a “native born citizen”

There is not much to say here. Elg was the child of two naturalized immigrants and born in the United States. The court rebuffed attempts to strip her citizenship when her parents renounced their citizenship, moved back to Sweden and Elg became a dual US/Swedish citizen. The court asserted that Elg was a “natural born citizen”, but never said or implied that both place and parentage were what made it so. The point here is that one can be a dual citizen but still retain natural born status.

Next is trotted out a long quotation from St. George Tucker. Frankly I couldn’t make head nor tail of the center section. In any case his opinion (whatever it is) is neither law nor precedent.

This is a good point to look at the 14th Amendment itself:

Section 1. 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…

And here we see the two kinds of citizen again, those born and those naturalized.

The meaning of the phrase “subject to the jurisdiction thereof” has been central to the question of whether the children born in the United States of aliens are born citizens. The Wong decision said that they were. Some point is made that somehow Barack Obama’s dual citizenship at birth somehow makes him subject to two jurisdictions. If we buy that argument, then Obama is not only a “super citizen” but he is not even a citizen under the 14th Amendment. However, the Supreme Court made it clear that no one within the borders of the United States is not under our jurisdiction unless we, by law, relinquish it. And so, by treaty, foreign ambassadors and their families enjoy some immunity from our jurisdiction and so their children are not born United States citizens. The Wong decision said:

His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Coke, 6a, ‘strong enough to make a natural subject, for, if he hath issue here, that issue is a natural-born subject’

The Wong court also said:

“Subject’ and ‘citizen’ are, in a degree, convertible terms as applied to natives; and though the term ‘citizen’ seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, ‘subjects,’ for we are equally bound by allegiance and subjection to the government and law of the land.’

An extensive list of quotations from Wong and other sources is in my article Natural Born Citizen.

I leave the reader with two final items: first a case before a court in New York in 1844, Lynch v. Clarke where the judge opined:

By the common law, all persons born within the ligeance of the crown of England, were natural born subject, without reference to the status or condition of their parents.

and

The term citizen, was used in the constitution as a word, the meaning of which was already established and well understood. And the constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President. “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,” … The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not.

The second is an obscure US Supreme Court case from 1973,  SUGARMAN V. DOUGALL, 413 U. S. 634 (1973) where the opinion said:

I do not believe that it is irrational for New York to require this class of civil servants to be citizens, either natural born or naturalized.

The laws of the State of New York (for example this one from 1822) also recognize just two types of citizen:

IV And be it further enacted That all the right title claim i and interest which the people of this state have or may or can t have to any lands tenements or hereditaments within this state which may have been devised and conveyed to James Galloway & devisee and trustee for Eleanor Honghton the widow and Elizabeth Houghton the daughter of James Houghton deceased and which by reason of the alienage of Richard Houghton and Thomas Houghton or of the said Joseph Houghton and James Galloway might escheat to the people of this state be and the same is hereby declared to be released and that it shall be lawful for the said James Galloway to execute any trust or devise of any such lands for the benefit of the said cestui que trusts in the same manner he might have done had he been a natural born or naturalized citizen.

Laws of the State of New York By New York (State)

Visit other Obama Conspiracy Theories articles on natural born citizen and be sure to check out What’s Your Evidence library of court cases on the subject. For more citations, see The Great Mother of All Natural Born Citizen Quotation Pages and SCOTUS & “Natural Born Citizen” – A Compendium.