27240350 stephen tonchen obama presidential eligibility

Stephen Tonchen – Obama Presidential Eligibility - An Introductory Primer

of 97

Obama Presidential Eligibility - An Introductory Primer

Author: Stephen Tonchen Last revised: February 21, 2010

Reprinted with Specific Permission

The most current version of this document is found at http://people.mags.net/tonchen/birthers.htm

Introduction

The U.S. Constitution was adopted on September 17, 1787. Anyone born after that date must be a "natural born citizen" in order to be eligible to serve as president [01].

According to Dr. Lawrence Solum, a law professor at the University of Illinois College of Law, we know two things for sure about the meaning of "natural born citizen":

• People who are born in the United States, of parents who are U.S. citizens, are definitely, without doubt, natural born citizens.

• People who acquire U.S. citizenship through naturalization are definitely not natural born citizens [02].

But what about everyone else? What about foreign-born children of U.S.-citizen parents? And what about U.S.-born children of non-citizen parents? They might be U.S. citizens by law, but are they natural born citizens? So far, Federal law, the Constitution and the courts have not answered these questions.

In 2004, Senator Don Nickles predicted that, if these questions remain unanswered, they will someday become "a real issue":

The definition of this term ["natural born citizen"] is an issue that has been debated in legal circles for years and has never been ruled on by the courts. Clarification is needed before this becomes a real issue. (Nickles)

Senator Nickles' prediction has come true. Today, an increasing number of Americans are concerned that Barack Obama, whose father was not a U.S. citizen, might not be a "natural born citizen" and therefore might not be eligible, under the Constitution, to serve as president [03].

Members of the mainstream news media generally believe that all persons born in the United States are "natural born citizens", regardless of their parents' citizenship. But this belief, though widely held, is not consistent with what the Supreme Court has said regarding natural born citizenship, nor it is consistent with American and English history.

Six years after the 14th Amendment became part of the U.S. Constitution, the U.S. Supreme Court -- in Minor v. Happersett (1874) -- commented that, if you were born in the United


of 97

States and both of your parents were U.S. citizens at the time of your birth, you are, without doubt, a natural born citizen. In the same case, the Supreme Court also remarked that, if you were born in the United States and your parents were not U.S. citizens when you were born, your natural born citizenship is in doubt [04]. The Supreme Court has never resolved this "doubt" because, until now, there has never been any need to do so [05].

With only two exceptions, every U.S. president who was born after 1787, was born in the United States, of parents who were both U.S. citizens. The two exceptions were Chester Arthur and Barack Obama. When Chester Arthur ran for office in 1880, he lied to newspaper reporters about his family history and burned most of his family records, to conceal the fact that, when he was born, his father was not a U.S. citizen (Historical Breakthrough - Chester Arthur - http://www.ronpaulwarroom.com/?p=18831)

President Obama publicly admits that his father was a Kenyan native who never became a U.S. citizen. At birth, President Obama acquired British/Kenyan nationality by descent from his father. Thus, the 2008 election was the first time in history that the United States knowingly elected a post-1787-born president whose parents were not both U.S. citizens. Moreover, 2008 was the first time that the U.S. knowingly elected a post-1787-born president who, in addition to being a U.S. citizen, was also a foreign national at birth.

U.S.-born children of non-citizen parents are U.S. citizens by modern-day law, but there is unresolved doubt as to whether such children are Constitutional natural born citizens. This doubt is not based on the imaginings of tin-foil-hat-wearing conspiracy theorists on the lunatic fringe of society. This doubt comes from what the Supreme Court has actually said, as well as a variety of other historical and legal sources which are presented and discussed here.

This Primer introduces the Obama Eligibility Controversy, in question-and-answer format, for a non-technical general audience. We've double-checked the facts presented here, cited their sources, and believe them to be correct. Please contact us if you find any material in this Primer that you believe to be inaccurate. (http://people.mags.net/tonchen/sendmail.htm)


of 97

Contents

1. What is a "Birther"? 2. What are the eligibility requirements for president? 3. Why do Birthers think Barack Obama might not be eligible to serve as president? 4. Where should we begin looking for the original Constitutional meaning of "natural born citizen"?

4.1 Modern-day word usage 4.2 U.S. Constitution and Early Naturalization Acts 4.3 U.S. Federal Law 4.4 English Common Law 4.5 English Urban Citizenship 4.6 European Precedent 4.7 Eighteenth Century Literature 4.8 U.S. Supreme Court

5. In a nutshell, what is the Obama eligibility controversy? 6. Does the Birthers' viewpoint have any historical or legal merit? 7. What was the original purpose of the presidential "natural born citizen" requirement? 8. What is the difference between a "Constitutional" and a "statutory" natural born citizen? 9. Wouldn't the most recent modern-day statutory meaning of "natural born citizen" take precedence over the original Constitutional meaning? 10. If Obama is not a "Constitutional natural born citizen", so what? Why should anyone care? 11. Why has every Birther lawsuit been denied or dismissed? 12. What is a 14th Amendment natural born citizen? 13. What was the originally intended meaning of "jurisdiction" in the 14th Amendment? 14. Doesn't the Wong Kim Ark decision make Obama a "natural born citizen"? 15. Doesn't the Julia Lynch case show that Obama is a "natural born citizen"? 16. What was "Calvin's Case"? 17. Did "natural born" imply exclusive allegiance at birth? 18. What was Vattel's "Law of Nations"? 19. Why is there disagreement over the meaning of "natural born citizen"? 20. When we put the pieces together, what do we get? 21. What's the "beef" with President Obama's birth certificate? 22. Didn't the State of Hawaii recently verify that President Obama was born in Hawaii? 23. Doesn't the mere existence of Barack Obama's original Hawaiian birth certificate prove that he was born in Hawaii? 24. Do Birthers actually believe that President Obama was born in a foreign country? 25. If President Obama's birth certificate shows conclusively that he was born in Hawaii, would it end the eligibility controversy? 26. Aren't Obama eligibility challenges merely partisan attacks by Republicans against a Democratic president? 27. What is "Quo Warranto"? 28. What can we do? Footnotes References Acknowledgments Disclaimer Revisions Copyright


of 97

1. What is a "Birther"?

News commentators and Internet bloggers sometimes use the word "Birther" as a term of derision and contempt towards people who question Barack Obama's presidential eligibility. The New Oxford American Dictionary defines "birther" as:

a conspiracy theorist who challenges President Obama's U.S. birth certificate.

Despite the word's demeaning connotation, some Obama eligibility questioners have adopted the "Birther" label. See, for example, birthers.org.

This Primer defines "Birther" as anyone who has a fact-based reason to suspect that the circumstances of Barack Obama's birth -- for example, his British/Kenyan citizenship at birth -- are not consistent with the presidential eligibility requirements set forth in the U.S. Constitution. This definition of "Birther" is based, in part, on a commentary, titled A Constitutional Crisis is Brewing, published on the Birther website.

As the Birthers, we are pointing out that the conditions of Barack Hussein Obama, II's birth is [sic] not only important, but critical to the constitutional order of our Nation. (A Constitutional Crisis is Brewing)

Birthers are people who are aware of facts -- not mere conjecture or speculation -- indicating that Barack Obama's legal status at birth might disqualify him from serving as president. The President's circumstances and activities after his birth -- his purported adoption and citizenship in Indonesia, his alleged use of a foreign passport, etc. -- are of interest, but are not the issues which define who the Birthers are [06].

2. What are the eligibility requirements for president?

Article II Section 1 of the U.S. Constitution 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; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

This means that, in modern times, you cannot legitimately serve as president of the United States, unless you are:

• at least 35 years of age, • a resident of the United States for at least 14 years, and • a natural born citizen.

Regarding the third requirement ("natural born citizen"), the Constitution makes a special exception for persons who became U.S. citizens before September 17, 1787, the date on which the U.S. Constitution was adopted. Such persons may serve as president, even if they are not natural born citizens [07].


of 97

Today, no one qualifies for this special exception. No one alive today was a citizen when the Constitution was adopted. In modern times, if you wish to be president, it is not enough to be a U.S. citizen -- you must be a U.S. natural born citizen.

3. Why do Birthers think Barack Obama might not be eligible to serve as president?

Birthers believe (or at least suspect) that Barack Obama is not a natural born citizen. They say that, in order to be a natural born citizen, you must meet two requirements: a birthplace requirement (you must be born in the United States), and a parental citizenship requirement (both of your parents must be U.S. citizens at the time of your birth).

Birthers make two clarifying points regarding the parental citizenship requirement:

• Your parents do not need to be natural born citizens in order for you to be a natural born citizen. They only need to be citizens. It does not matter how your parents became U.S. citizens. They could have acquired their citizenship at birth. They could have, as immigrants, acquired U.S. citizenship through naturalization. At one time in American history, a woman's citizenship was that of her husband. For you to be a natural born citizen, both of your parents had to be citizens at the time of your birth, but they did not have to be natural born citizens.

• All citizens, regardless of the means by which they became citizens, have the same rights. But serving as president is a privilege, not a right. The only difference between natural born citizens and other citizens is that natural born citizens may become president and other citizens may not [08].

There is some question as to whether President Obama meets the birthplace requirement. Unsubstantiated rumors suggest he might have been born in Kenya [09]. There is also speculation that the President might have been born in Canada [10].

Far more importantly, Obama publicly acknowledges he does not meet the parental citizenship requirement. His father was a British/Kenyan citizen who never became a U.S. citizen.

As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.'s children. ... In other words, at the time of his birth, Barack Obama Jr. was both a U.S. citizen (by virtue of being born in Hawaii) and a citizen of the United Kingdom and Colonies (or the UKC) by virtue of being born to a father who was a citizen of the UKC. (FactCheck.org: Does Barack Obama have Kenyan citizenship?)

Birthers believe, based on their understanding of American and English history, that an individual must be U.S.-born of U.S.-citizen parents in order to be a natural born citizen. If the Birthers' understanding is correct, Barack Obama is not a natural born citizen and is therefore not eligible to serve as president. But is the Birthers' understanding correct?

4. Where should we begin looking for the original Constitutional meaning of "natural born citizen"?


of 97

In this Primer, we begin by looking in places where the Constitutional meaning of "natural born citizen" is not found. Listed below are eight sources which do not adequately define "natural born citizen" as used in the U.S. Constitution.

• Modern-day word usage • U.S. Constitution and Massachusetts Naturalization Acts • U.S. Federal Law • English Common Law • English Urban Citizenship • European Precedent • Eighteenth Century Literature • U.S. Supreme Court

Even though these sources do not have what we are looking for, we examine them first because they give us important clues, background information and context that we will need later. Our apologies in advance for the amount of material covered under Question 4, but all of it is important. We will try to keep it brief and simple.

4.1 Modern-day word usage: In the popular press and contemporary legal writings, the term "natural born citizen" is often construed to mean either (a) anyone who is a U.S. citizen at birth, or (b) anyone who is born in the United States. For example, Black's Law Dictionary defines "natural born citizens" as:

Persons who are born within the jurisdiction of a national government, i.e. in its territorial limits, or those born of citizens temporarily residing abroad. (Black's Law Dictionary, 6th Ed., 1991)

The modern-day "consensus" of opinion is that anyone born in the United States is a natural born citizen:

Anyone born after the adoption of the U.S. Constitution in 1787 must be a "natural born Citizen" of the United States to constitutionally fill the office of President or Vice-President. ... Some debate exists as to the meaning of this phrase. Consensus exists that anyone born on U.S. soil is a "natural born Citizen." One may also be a "natural born Citizen" if, despite a birth on foreign soil, U.S. citizenship immediately passes from the person's parents. (Legal Information Institute: Natural Born Citizen)

But the Supreme Court has never supported this "consensus" opinion. On the contrary, in 1874 -- six years after the 14th Amendment became a part of the U.S. Constitution -- the Supreme Court expressed "doubts" concerning the viewpoint that all persons born in the U.S. are natural born citizens, regardless of their parents' citizenship [04]. Since these doubts came from the Supreme Court, only the Supreme Court can resolve them. So far, it has not.

According to Law professor, Dr. Lawrence Solum, there are only two things we know for sure about the Constitutional meaning of "natural born citizen":

• U.S.-born children of U.S.-citizen parents are definitely, without doubt, natural born citizens; and


of 97

• natural born citizenship is established only at birth and cannot be acquired after birth through naturalization.

Except for these two points, the meaning of "natural born citizen" remains unsettled and unclear:

What is the legal significance of what we can call "the natural born citizen clause"? There is general agreement on the core of settled meaning. Anyone born on American soil whose parents are citizens of the United States of American [sic] is a "natural born citizen." Anyone whose citizenship is acquired after birth as a result of "naturalization" is not a "natural born citizen." But agreement on these paradigm cases does not entail that the clause has a clear meaning. (Solum, p.1)

4.2 U.S. Constitution and Massachusetts Naturalization Acts: The U.S. Constitution, and the Naturalization Acts of Massachusetts (1776-1790), use the term "natural born citizen" but do not define it.

According to the U.S. Supreme Court, the meaning of "natural born citizen" is not found in U.S. Constitution:

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. (Minor v. Happersett, 1874)

In 2008, the Senate passed a nonbinding resolution, expressing the opinion that John McCain is a natural born citizen [11]. The resolution acknowledged that "natural born citizen" is not defined in the U.S. Constitution [12]:

Whereas the term 'natural born Citizen', as that term appears in Article II, Section 1, is not defined in the Constitution of the United States; (Senate Resolution 511)

4.3 U.S. Federal Law: No existing Federal law defines "natural born citizen"; and no existing Federal law specifies who is, and who is not, a "natural born citizen". Modern-day laws use the word "citizen", but the term "natural born citizen" does not appear in any existing Federal statute [13].

In 1790, Congress passed the Naturalization Act of 1790, which used the term "natural born citizen" in connection with foreign-born children of U.S.-citizen parents:

And the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens (Naturalization Act of 1790)

Five years later, Congress repealed the 1790 Act and replaced it with the Naturalization Act of 1795. In the 1795 Act, the words "natural born" were deleted, leaving just "citizens":

... and the children of citizens of the United States born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United


of 97

States. (Naturalization Act of 1795)

Throughout history, Congress has enacted various laws that confer U.S. citizenship to certain children at birth. For example, the 1866 Civil Rights Act stated:

All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States (1866 Civil Rights Act)

But after 1790, Congress never again passed any law containing the term "natural born citizen".

• In 2004, Senate Bill S.2128: Natural Born Citizen Act gave a definition of "natural born citizen", but it never became law.

• In 2008, the U.S. Senate passed Resolution 511 regarding presidential candidate John McCain's natural born citizenship, but the resolution was nonbinding and had no legal effect.

As of the time of this writing, there is no Federal statute that defines who is, and who is not, a natural born citizen.

4.4 English Common Law: A "subject" of a monarch is not the same thing as a "citizen" of a self-governing republic. Nevertheless, the meaning of "natural-born subject" under English common law might shed some light on the possible meaning of "natural born citizen" in the U.S. Constitution.

During the eighteenth century, the population of England consisted of "subjects" and "aliens". Subjects had property ownership and inheritance rights; aliens did not.

In 1787, when the U.S. Constitution was being written, there were four kinds of English "subjects":

• Natural subjects were subjects, at birth, according to natural law. These subjects were born on English soil and, at the time of their birth, their parents were under the "obedience" or "allegiance" of the king.

• Statutory subjects were subjects, at birth, according to man-made law. For example, Parliament had enacted laws which granted statutory subjecthood, at birth, to foreign-born children of English fathers.

• Naturalized subjects were aliens at birth, but at some point after birth, became subjects through a legal process called naturalization.

• Denizens ("adopted subjects") were aliens at birth, but at some point after birth, became subjects by letters patent issued by the king.

The first three categories of subjects were called "natural-born subjects". Members of the first category -- those who acquired subjecthood by natural law -- were "true" natural-born subjects. In contrast, statutory subjects and naturalized subjects acquired their subjecthood by man-made law, not natural law. They were "deemed and adjudged" to be natural-born subjects, but were not natural-born subjects in fact. A denizens was a subject who was in a middle state between an alien and a natural-born subject.


of 97

In Calvin's Case of 1608, the English Court of the King's Bench defined who were, and who were not, natural-born subjects by natural law. The Court's ruling was still in effect, and was part of English common law, when the U.S. Constitution was written [14].

The Chief Justice of the Court of Common Pleas, Sir Edward Coke (pronounced "cook"), wrote a comprehensive Report explaining the Court's decision in detail. Coke's Reports, as well as his four-volume Institutes of the Lawes of England, were well known and widely read in the English colonies in America [15]. When the U.S. Constitution was written, the Founding Fathers were undoubtedly aware of Calvin's Case and the definition of natural subjecthood that had emerged from it.

In Calvin's Case (1608), the Court ruled that, except in a few special cases, a child was "subject born" (i.e., a natural-born subject by natural law) if two requirements were met at the time of the child's birth: a birthplace requirement (the child had to be born within the king's realm), and a parental allegiance requirement (the child's parents had to be under the "obedience" of the king at the time of the child's birth). As Lord Coke explained:

There be regularly (unless it be in special cases) three incidents to a subject born. 1. That the parents be under the actual obedience of the King. 2. That the place of his birth be within the King's dominion. And, 3. The time of his birth is chiefly to be considered; for he cannot be a subject born of one kingdom that was born under the ligeance of a King of another kingdom, albeit afterwards one kingdom descend to the King of the other. (Coke)

In his New Abridgement of the Law (1736), Matthew Bacon gave this summation:

All those are natural-born subjects whose parents, at the time of their birth, were under the actual obedience of our King, and whose place of birth was within his dominions. (Bacon, Matthew, p.77).

An individual was an English subject at birth only if she or he was "born within the allegiance of the king". According to Francis Bacon (1561-1626), the phrase "born within the allegiance of the king" was a figure of speech referring to:

...children whose parents were at the time of their birth at the faith and obeisance of the king of England. (Bacon, Francis, pp.652-653)

Even if a child was born on English soil, such child was not a natural-born subject unless, at the time of its birth, its parents were under the "obedience" or "allegiance" of the king.

... something more than mere birth within the realm was required. The parents had to be in actual obedience. (Parry)

After reading Lord Coke's Report on Calvin's Case, the Founding Fathers undoubtedly understood that a child's legal status at birth depended, not only on the child's place of birth, but also on the parents' allegiance at the time of the child's birth [16].

A parent's allegiance (obedience) was determined as follows:


of 97

• Subjects were within "permanent" allegiance of the king. Their children, if born in England, were natural-born subjects.

• Alien friends were within "local" allegiance of the king. Local allegiance was temporary. It existed only while the alien friend was on English soil, and expired as soon as he or she left the king's realm. Nevertheless, local allegiance was sufficient to meet the parental allegiance requirement. If a child of an alien friend was born on English soil, such child was a natural-born subject.

• Alien enemies were not within the allegiance of the king. Their children, even if born in England, were not natural-born subjects.

• Ambassadors were official representatives of a foreign government. They were under the allegiance of the country that sent them. They were not within the allegiance of the king. Their children, even if born in England, were not natural-born subjects.

As a general rule, children born on English soil were English natural-born subjects. But there were exceptions to this rule. While characterizing these exceptions as "unimportant", Albert Venn Dicey (1835-1922) acknowledged that the underlying reason for these exceptions was that, "in theory", natural subjecthood stemmed from allegiance, not the locality of one's birth:

The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, though at common law nationality or allegiance in substance depended on the place of a person's birth, it in theory at least depended, not upon the locality of a man's birth, but upon his being born within the jurisdiction and allegiance of the king of England; and it might occasionally happen that a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of the crown. (Albert Dicey, The Conflict of Laws, 1896, as quoted in U.S. v. Wong Kim Ark, 1898)

In exceptional instances, birth on English soil did not confer English subjecthood. All of these exceptional instances were cases in which a child's parents were not under the "obedience" (i.e., allegiance) of the king:

Lord Coke ... laid down the principle that any person born within the king's dominion became the king's subject at birth, provided that his parents were at the time under the actual obedience of the king; this proviso excluded any child born in England whose father was at the time the ambassador to England of a foreign power, and any child of an enemy alien... but apart from these two exceptions all persons born in England are subjects of the king whatever their parentage, because (apart from these exceptions) aliens living in this country are protected by the king and therefore owe him local allegiance. ...

... Lord Coke's judgment did not affirm the jus soli as such; he did not lay down the principle that mere birth within the realm conferred the status of a subject, and then qualify it by two exceptions: what he did was to lay down a different principle, that what constitutes the person a subject at birth is the fact of his birth within the king's allegiance, and this carried with it the consequence that the two excepted classes were not subjects, because they were not born within the allegiance of the king. (Ross, p.7)

Under English law, there were three ways by which someone could become a "natural-born


of 97

subject" of the English king: by natural law, by statute, and by naturalization. According to the rule established by Calvin's Case (1608), you were a natural-born subject by natural law if you were born within the king's realm and your parents were within the king's allegiance or obedience at the time of your birth. Almost all children born in England were natural-born subjects by natural law, because almost all children born in England were born of parents who were within the king's allegiance. Nevertheless, the ruling in Calvin's Case made it very clear that birthplace alone did not confer subjecthood to anyone. If you were born on English soil but, at the time of your birth, your parents were not within the allegiance of the king, you were not a natural-born subject [17]. (For a more detailed discussion of Calvin's Case, see Question 16).

4.5 English Urban Citizenship: In England and its colonies before the American Revolution, a "citizen" was someone who lived in a city, practiced a trade or conducted business in the city, and could vote and hold public office in that city. A citizen of an English or colonial American city was not the same thing as a citizen of a nation or state. Nevertheless, the rules governing English urban citizenship might provide a hint or clue as to the possible meaning of "natural born citizen" in the U.S. Constitution.

Prior to the American Revolution, the population of England and its American colonies was divided into two groups: "subjects" and "aliens". Subjects had certain legal rights and privileges which aliens did not have. Aliens were sometimes called "strangers".

English subjects were divided into two subgroups: free subjects and unfree subjects. Unfree subjects were sometimes called serfs, bondmen/bondwomen, indentured servants, or villeins.

Unfree subjects were not slaves. Unfree subjects had legal rights which slaves did not have:

One may be a villein in England, but not a slave. (Sir John Holt, Chief Justice of King's Bench, 1701, as quoted in Banks, pp.14-15)

In England, your servile status (free or unfree) at birth depended on the status of your father at the time of your birth. If your father was "free" when you were born, you were "free" at birth. If your father was not "free" at the time of your birth, your status at birth was "unfree".

...Sir Edward Coke, in one of the great treatises on the English common law, the four volume Institutes of the Laws of England, wrote that if a bondman or serf (villein) marries a free woman, their children would be villeine [unfree], but if a bondwoman (niefe) married a free man, their children would be free. According to Lord Coke, the English common law rule, that the status of the child follows the father, is grounded in the notion of marital unity. Under common law the legal identity and status of a wife merged with that of her husband; they became one in the eyes of the law, and that one was the husband. Therefore, the legal status of the father naturally governs the legal status of the child. ...

But Lord Coke's statement only governs the status of a legitimate child of a freeman and bondwoman. ...

Coke acknowledges that some judges have mistakenly held that an "illegitimate" child of a bondwoman is a villeine, and thus unfree. The correct rule, he writes, is


of 97

that a child born to unwed parents is a child of no one (quasi nullius filius), because the child cannot be heir to anyone. Thus this child is not a villeine unless the child places her/himself in bond before a court. (Banks, pp.17-18)

There were various ways by which a subject's status could change from free to unfree, or from unfree to free. But a subject's status at birth was the status of his father -- except that an illegitimate child was, at birth, "free" by default.

Within a city or town, free subjects were further divided into "freemen" (citizens) and "foreigners" (non-citizens). The word "foreigner" sometimes means "alien" -- a person born in a foreign country, to non-English parents. But in the context of urban citizenship, a "foreigner" in a city or town was anyone, subject or alien, who was not a citizen of that city or town.

English freemen (citizens) had certain rights and privileges, called Freedom of the City, which foreigners (non-citizens) did not have. These rights and privileges included "economic" freedom (the right to conduct business or practice a trade in the city) and "political" freedom (the right to vote and hold public office).

Indeed, the importance of the freedom, i.e., the status of citizen, must not be underestimated... The citizen -- or freeman, as he was designated throughout the colonial period -- considered his citizenship a more highly prized right than does the average citizen of the present day. ...the title of freeman was not an empty one. Not only did it possess for him profound political significance, but it was the condition of his economic independence. Unless one were a freeman, he did not posses the right of suffrage, nor was he eligible to election to public office. Furthermore, non-freemen were not permitted to practice trades or carry on any business whatsoever. (Seybolt, p.3) The all-important dividing line among townsmen was between freemen and non-freemen. Freedom of the city involved both privileges and obligations set down in local ordinances and enforced in the Lord Mayor's Court. The effect of these ordinances was to provide the freemen, or citizenry, with a virtual monopoly over both political and economic affairs. Only freemen could hold civic office and only freemen could vote in municipal and parliamentary elections. (John Evans, as quoted by Luu, p.60)

Webster defined "citizen" as:

The native of a city, or an inhabitant who enjoys the freedom and privileges of the city in which he resides; the freeman of a city, as distinguished from a foreigner or one not entitled to its franchises. (Webster, as quoted by Spooner)

In 18th-century England, most English subjects did not have suffrage (the right to vote). In rural areas, a subject could vote only if he owned property whose rental income was at least 40 shillings per year. In a city or town (borough), a subject could vote only if he was a freeman ("citizen") of that city or town:

There were two types of seats in the Commons: county and borough, the latter


of 97

meaning that the constituency was a particular town. Typically, the right to vote was earned, for county constituencies, by owning land valued at forty shillings per year. In "freeman boroughs," one could vote by being a "freeman," in other words by being granted the town's "freedom" -- the right to carry on one's trade within its walls. (Olsen, p.6)

There were several ways to obtain citizenship in an English city or town. The three most important were: birth, apprenticeship, and redemption.

• birth: Someone could claim citizenship by birth if, at the time of his birth, his father was a citizen [18].

• apprenticeship: If a boy, at age 14, entered a seven-year apprenticeship, and if he completed it successfully, he earned the right to be citizen (freeman) of his town or city.

• redemption: A foreigner could become a citizen by demonstrating a marketable skill and paying a redemption fee [19].

Apprenticeship was the most-frequently-used pathway to urban citizenship:

In sixteenth century London, for example, it has been estimated that 90 per cent of Londoners became citizens through apprenticeship (Withington, p.29)

Most literature of local citizenship in England during the early modern period [1500-1800] focused on London. In it, freeman is the equivalent of citizen. ...London historians tell us that during most of the early modern period, citizenship was mainly identified with apprenticeship and the exercise of a specific trade, craft, or occupation. Most admissions to freedom were acquired on the basis of apprenticeship... (Herzog, p.178)

In Colonial American cities and towns, every young person who was not of "independent living" was either (a) an apprentice engaged in learning and mastering a trade, or (b) a bondsman, i.e., serf or slave (Seybolt, p.4). Young people who successfully completed their apprenticeships became, in adulthood, freemen (citizens) of their town or city.

In England, you were eligible for apprenticeship only if, at the time of your birth, your parents were free English subjects. Prior to 1737, aliens and their children were barred from apprenticeship; the only way they could become freemen was through redemption:

A primary qualification for apprenticeship was that a boy or girl should be of free condition and not a villein. ...no "foreigner" should be enrolled as an apprentice unless he first swore that he was a free man and not a serf, and later serf is defined as the son of a man who was a serf at the time the boy was born. We may take this to mean that if a villein became of free condition by residence, his sons born subsequently were eligible for apprenticeship, but that sons born previously, even if they became of free condition themselves, were excluded as having the taint of servile origin. ... From 1483 onwards the apprenticeship of alien-born children was frequently forbidden alike by company and City ordinance. (British History Online: Apprenticeship).


of 97

Until 1737, London's statutes forbade the sons of foreigners, even those born in the kingdoms to naturalized parents, to become freemen by apprenticeship; they could obtain recognition as freemen only through redemption. (Herzog, p.182)

In 1707, every freeman in New York City was required to take an oath, swearing that he will not take, as an apprentice, any child whose parents were either aliens (not English subjects) or bondmen (non-free):

Ye shall Swear, That ... Ye shall take no Apprentice, but if he be free-born (that is to say) no Bond-man's Son, nor the Son of an Alien ... (Oath of a Freeman of the City of New York, 1707, as quoted by Seybolt, p.11).

In summary, there was a difference between a "subject" of the English king and a "citizen" of an English (or colonial American) city or town.

Subjects were passive members of English society. They had inheritance and property rights, but as a general rule, they did not activity participate in the government's decision making process. Most subjects could not vote or hold public office. Subjecthood, by itself, did not confer a "free" status; some subjects were serfs or villeins. The parental requirements for English subjecthood were minimal. It did not matter whether your parents were subjects or aliens, free or unfree, permanent residents or temporary visitors. As long as your parents were under the obedience of the king at the time of your birth, you were, if born on English soil, an English subject at birth.

Citizens, on the other hand, were active members of English society. They were free. They could vote and hold public office. The parental requirements of English citizenship were more stringent than those of English subjecthood. Throughout much of English history, you were eligible for apprenticeship (the primary means of acquiring citizenship) only if your father was a free subject (not a bondman and, prior to 1737, not an alien). You could claim citizenship by birth only if your father was a citizen at the time of your birth.

4.6 European Precedent: When the U.S. Constitution was written, continental (mainland) western Europe was comprised of states, each ruled by a strong individual leader or king. Embedded within each state were local communities (towns and villages). As a general rule, anyone who established his permanent residence (domicile) in a community, and owned property in the community, was a "member" or "citizen" of that community:

Comparing practices in England, France, Germany, and northern Italy, Susan Reynolds concludes that a common heritage indeed existed in medieval Western Europe. ... In both towns and villages, community members were typically adult male heads of households who resided permanently in the jurisdiction. (Herzog, pp.170)

Each person living under an eighteenth-century western European monarchy was both (a) a "subject" of a king, and (b) a "citizen" (member) of a local community.

...an important group of historians argues that the citizenship regime that evolved in Western Europe from the eleventh to the thirteenth century persisted with slight modification to the eighteenth century. According to this view,


of 97

municipal communities continued to be associations of free individuals during the early modern period [1500-1800]. ... Community members -- usually identified as resident heads of households possessing property -- were allowed to use communal land and could actively participate in [local] decision making. Rather than changing, in the early modern period local citizenship was simply overshadowed by the appearance and consolidation of kingdoms. ... Although still members and citizens, individuals were now instituted first and foremost as subjects. (Herzog, pp.170-171)

The relationship between subjecthood and citizenship varied from nation to nation:

France: In medieval times, local communities decided who were "French" and who were not. By the sixteenth century, the king had taken over that responsibility. Local communities no longer had any say in the matter:

According to most historians of France, by the sixteenth century the subjection of local communities to the king was complete. Instead of a territory composed of different local communities, France became a kingdom. One consequence of this development was that the status and rights of people were no longer determined by reference to their local membership. Instead, they were determined by their relationship to the monarch. ... Because of this process the king obtained a monopoly over the classification of people as natives or foreigners, which had earlier been exercised by local communities, and he had gained control over alien property (droit d'aubain), which had earlier belonged to local lords. (Herzog, p.191).

An individual was a native Frenchman, with inheritance rights, if (a) he was born in France, (b) at least one of his parents was French at the time of his birth, and (c) after his birth, he continued to live in France:

Historians agree that for the purpose of inheritance a person was French if he or she resided in the territory and had been born there to at least one French parent. This definition required the combination of two conditions: descent and birth in the territory. (Herzog, p.192)

If a child was foreign-born of French parents, or was French-born of alien parents, the child's legal status depended on the child's and its parents' residence:

In the time of the ancien regime [1650-1789], the criterion of residence was very important: when recognition of French nationality could only be based upon French parents giving birth abroad or foreign parents giving birth in France, the parlements required that current and future residence be established in the kingdom. This was a sign of personal allegiance, both present and future, to the king. (Weil, p.79)

Birthplace alone was not enough to confer French nativeness or nationality. A child, born in France, was not a French native unless some other requirement -- a residence


of 97

requirement or a parental nationality requirement -- was also met. The notion that jus soli prevailed in eighteenth-century France appears to be an oversimplification [20].

Netherlands: In the Dutch Republic [1581-1795], there was no such thing as national citizenship. The word "citizen", or burgher, referred to members of local communities, not members of a nation or state:

Under the Old Regime, no such thing as Dutch citizenship existed. The state, i.e., the Dutch Republic, was a federation composed of seven sovereign provinces. These provinces did not have citizens either, at least in the formal sense. Citizenship in the Dutch Republic was a local, more specifically an urban phenomenon. There was nothing unusual about this: urban citizenship was the norm throughout early modern Europe. (Prak)

In some local Dutch communities, citizenship was based on the jus soli principle, while in other communities, the jus sanguinis principle prevailed:

In the 18th century, in the Dutch Republic, there was no national civil law which united the whole population. Each town had its own civil law stipulating citizen rights and obligations, based on the citizenship model of the Roman Republic. Citizenship law of the burghers was still restricted to only the town's population, and completely excluded the people of the countryside.

The rights of citizenship were based on the principle of jus soli, signifying that rights would be granted to all those born on the territory. However, this was not applied uniformly and in some cities as for example in Nijmegen, citizenship could be acquired only by jus sanguinis. (Wikipedia: Dutch Nationality)

Germany: When the U.S. Constitution was being written, German citizenship was based on residence:

In Germany, ... the criterion for many centuries was ... the fact of residence in the territory, or of residence with official permission (Ross, p.2)

Later in German history, jus sanguinis became the rule of German citizenship at birth.

...the German definitions of citizenship are more closely and fundamentally related to heritage and nationalism and jus sanguinis. (Dellolio)

Italy:

Italian cities were free to establish their own citizenship criteria:

...different communities belonging to the same state each maintained its separate communal institutions, statutes, councils, and officers and its


of 97

own citizenship criteria. The inhabitants of each community were considered a separate group and were treated as foreigners in other jurisdictions. (Herzog, p.177)

As a general rule, local citizenship was acquired either by birth or by integration into the community. A child was a citizen by birth if it was born within the community and at least one of its parents was a citizen.

Persons became citizens either by birth or by statutory process. Under the formulation articulated by Bartolus, and apparently followed in the Italian cities of the thirteenth and fourteenth centuries, a citizen by birth -- civis ab origine -- was one who had been born within the territory of the state and to at least one parent who was already a citizen of the state. (Price, p.124).

Those who were not citizens by birth could become citizens by integrating into the community.

...Venice, Florence, Pescia, Rome, Brescia, Torino, and Mantova stressed the importance of residence, integration, and reputation for the purpose of obtaining citizenship. (Herzog, p.175)

The Italian "fiscal" court (regia camera della sommaria) was responsible for collecting taxes. Since tax rates varied according to citizenship, the fiscal authorities were required to decide who were citizens and who were not. Local communities could establish their own citizenship rules, but the court decided how those rules should be applied for taxation purposes.

...the fiscal court...was the body responsible for tax collection. Tax collection depended on citizenship, and so the court was often charged with distinguishing citizens from non-citizens. ... Local citizenship criteria would continue to exist, yet there would be a single body responsible for determining how these criteria would be applied so that, in spite of local differences, people could attain recognition as citizens of the kingdom. ... It meant that the power to recognize people as citizens was no longer only in municipal hands but now, because of the involvement of the court, was shared between the municipality and the king. (Herzog, p.177)

The fiscal court did not have the power to grant citizenship to anyone or to revoke anyone's citizenship. However, if a taxpayer wanted to pay lower taxes, he had to prove that he was a citizen of his local community. In general, if you were a permanent legal resident of an Italian community, you were deemed to be an Italian citizen for taxation purposes.

Beginning in the mid-sixteenth century and especially through the seventeenth, the court generally held that permanent residence was the principle method for citizenship acquisition. Residence had to be accompanied by an animus permanendi, that is, by a wish to remain in the jurisdiction "for good" and by the promise to establish a stable home in the


of 97

territory. This wish could be orally attested to, or it could be deduced by observing the behavior of petitioners. (Herzog, p.172-173)

Spain:

In the Castile region of Spain, there was no such thing as citizenship by birth. Your place of birth, and the status of your parents at the time of your birth, were irrelevant. You became a citizen of a community when you made a choice to join that community and integrate yourself into it. In Spain and in Spanish America, one's "citizenship" or "nativeness" was determined by one's behavior, not the circumstances of one's birth.

...over time and especially in the seventeenth and eighteenth centuries, Castilian and then Spanish nativeness became associated with local citizenship. People were natives, or became natives, once they established, with the intent to remain permanently, residence in a community located on Spanish territory, or once they gave other proofs of their wish to tie themselves to such community. ... Indeed, like citizenship, nativeness operated on the margins of formal declarations... People obtained it, or lost it, because of the way they behaved rather than because of birth or royal recognition. (Herzog, p.66) ...in Castile, the native born were required to integrate into the community if they wished to obtain recognition as citizens, whereas in Italy birth appears to have granted this status automatically. (Herzog, p.175)

In summary, when the U.S. Constitution was being written, there was no uniform citizenship "rule" that prevailed throughout continental (mainland) western Europe. In some places, the jus soli principle dominated, and in other places, it did not. Often, a child born in a particular city or state was not regarded as a native, subject or citizen of that city or state unless some other requirement -- parental residence, parental citizenship or parental allegiance -- was also met at the time of the child's birth.

4.7 Eighteenth Century Literature: We are not aware of any English-language literature which, prior to the writing of the Constitution, explicitly defined "natural born citizen". Nevertheless, the manner in which the English-language phrases "natural citizen" and "natural born citizen" were used during the 17th and 18th centuries might provide clues regarding the Constitutional meaning of "natural born citizen".

Bodin: In 1576, French political philosopher, Jean Bodin (1530-1596), published his most famous work, Les Six livres de la Republique.

Bodin's Republique became known in England soon after the first French edition was published in 1576. Richard Knolles began the translation for the first English edition in 1603, in the immediate aftermath of James's accession to the throne, and several years after Bodin's death. (Price, p.132)

Even before the English translation was completed in 1606, English speaking people -- many of whom knew French -- were reading and appreciating Bodin's work.


of 97

Bodin's political works were well-known in early seventeenth-century England. One historian claimed that in 1600 no other political writer was cited in England "more often or more favorably" than Bodin. Another historian cited a dozen treatises from the Elizabethan and Stuart periods making use of Bodin's formulation of the idea of sovereignty. James himself, in The Trew Law of Free Monarchies, written in 1598, derived many of his ideas from Bodin... (Price, p.131)

Bodin defined "citizen" as a free subject who submits to authority for the greater good [21].

When the head of the family leaves the household over which he presides and joins with other heads of families in order to treat of those things which are of common interest, he ceases to be a lord and master, and becomes an equal and associate with the rest. He sets aside his private concerns to attend to public affairs. In so doing he ceases to be a master and becomes a citizen, and a citizen may be denned as a free subject dependent on the authority of another. (Bodin)

According to Bodin, the "natural citizen" of a society is someone who acquires citizenship, at birth, from at least one of his parents:

Just as slaves can be slaves either by birth or by convention, so citizens can be either natural or naturalized. The natural citizen is the free subject who is a native of the commonwealth, in that both, or one or other of his parents, was born there... The naturalized citizen is one who makes a voluntary submission to the sovereign authority of another, and is accepted by him as his subject. (Bodin)

Patsall:

The twelve-volume classic, Institutio Oratoria, by Marcus Fabius Quintilianus, was written during the first century AD. It was popular in Europe during the 15th and 16th centuries:

...enthusiasm for Quintilian spread with humanism itself, reaching northern Europe in the 15th and 16th centuries. Martin Luther, the German theologian and ecclesiastical reformer, claimed that he preferred Quintilian to almost all authors, "in that he educates and at the same time demonstrates eloquence, that is, he teaches in word and in deed most happily" (Wikipedia: Quintilian)

In 1774, Patsall translated Institutio Oratoria from Latin to English. His translation might be one of the earliest English-language writing in which the phrase "natural born citizen" appears (Greschak). Patsall's work shows that the phrase "natural born citizen" existed, and was used, prior to the American Revolution.

Institutio Oratoria contains this Latin sentence:

Quare, si fieri, potest et verba omnia et vox huius alumnum urbis


of 97

oleant, ut oratio Romana plane videatur, non civitate donata. (Quintilianus, Institutio Oratoria, Book 1, Chapter VIII)

Patsall translated this sentence as:

Therefore, if possible, every word and the very tone of voice, should bespeak the natural born citizen of Rome, that the language may be purely Roman, and not so by a right different from birth and education. (Patsall's English translation of Institutio Oratoria, as quoted by Greschak)

This translation seems to imply that the "natural born citizen" of Rome was someone who was "purely" Roman by birth and upbringing.

Vattel: In 1758, Swiss philosopher, Emmerich de Vattel published Le Droit des Gens ("The Law of Nations"). It was written in French, and was popular in America, both before and especially after the American Revolution [23]. Some of the Founding Fathers knew enough French to read Vattel's work in its original form.

In Law of Nations, Book 1, Chapter 19, Vattel defined two concepts: citizen and native. A child acquires, at birth, the citizenship of its father, regardless of where the child is born.

As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, these children naturally follow the condition of their fathers, and succeed to their rights. ... The country of the father is therefore that of the children, and these become true citizens merely by their tacit consent. ... 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, and cannot, of itself, furnish any reason for taking from a child what nature has given him (Vattel, §212,215)

In Vattel's view, citizenship is acquired by descent from one's father, regardless of one's place of birth. However, if your place of birth is within the country of your parents' citizenship, you are (at birth) more than just a "citizen" of your parents' country -- you are also a "native" or "indigene" of that country [24].

The original French-language version of Vattel's Law of Nations contained this sentence:

Les naturels, ou indigenes, font ceux qui font nes dans le pays, de parens citoyens. (Des citoyens et naturels)

The first English translation of Law of Nations, published in 1759, rendered the above sentence as:

The natives, or indigenes, are those born in the country, of parents who are citizens.


of 97

These words were quoted, verbatim, by the Supreme Court in The Venus (1814).

In an updated English translation published in 1797, the word "indigenes" was changed to "natural born citizens":

The natives, or natural born citizens, are those born in the country, of parents who are citizens. (Vattel, §212)

In the English translation (1606) of Bodin's Republique, Patsall's English translation (1774) of Institutio Oratoria, and in a later English translation (1797) of Vattel's Law of Nations, natural citizenship and natural born citizenship were not determined by birthplace alone, but also depended, to some extent, on parentage and/or upbringing.

4.8 U.S. Supreme Court: So far, the U.S. Supreme Court has not given a full or complete definition of "natural born citizen". In 1874, the Court mentioned the 1797 English-language Law of Nations definition of "natural born citizen":

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 (Minor v. Happersett, 1874)

In 1874, the Supreme Court said, in effect:

• The meaning of "natural born citizen" is not found in the U.S. Constitution. • There is no doubt that, if you were born in the United States and both of your parents

were U.S. citizens at the time of your birth, you are a natural born citizen. • Throughout American history, some "authorities" have expressed the opinion that all

children born in the United States, regardless of their parents' citizenship, are U.S. citizens at birth and possibly natural-born citizens as well. This opinion remains in doubt.

In U.S. v. Wong Kim Ark (1898), the Supreme Court discussed birthright citizenship at length, but did not decide whether birthplace alone confers natural born citizenship. The Court ruled that Wong was a citizen, but did not rule that he was a natural born citizen. (For further discussion regarding Wong Kim Ark, see Question 14).


of 97

To summarize, persons born in the U.S., of parents who are U.S. citizens, are definitely, without doubt, natural born citizens. The above-listed sources do not establish conclusively, one way or the other, whether natural born citizenship extents to U.S.-born children of non-citizen parents. Nevertheless, the above sources provide background information and historical context for the remainder of this Primer.

5. In a nutshell, what is the Obama eligibility controversy?

The following information comes directly from Barack Obama's "Fight the Smears" website:

When Barack Obama Jr. was born on Aug. 4, 1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom's dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.'s children. Since Sen. Obama has neither renounced his U.S. citizenship nor sworn an oath of allegiance to Kenya, his Kenyan citizenship automatically expired on Aug. 4, 1982. (FactCheck.org, as quoted in Obama's "Fight the Smears" webpage regarding his birth certificate, emphasis added).

The above information raises this question:

If Barack Obama was born in the United States but, at the time of his birth, his father was a citizen of a foreign country and not a U.S. citizen, does Barack Obama meet the Constitutional "natural born citizen" requirement for presidency?

In other words, even if Barack Obama were a U.S. citizen at birth, can he be a U.S. natural born citizen if his citizenship status at birth was "governed", even if only partially, by the laws of a foreign country?

Obama eligibility supports say "Yes". They believe there are only two kinds of American citizens: naturalized and natural born. A naturalized citizen is someone who becomes a citizen after his or her birth, through a legal process called "naturalization". A natural born citizen is anyone who is a U.S. citizen at birth. Since President Obama was born in the United States and was therefore a U.S. citizen at the time of his birth, he is a natural born citizen, regardless of his parents' citizenship.

Birthers say "No". They believe that, when the Constitution was written, the term "natural born citizen" referred to individuals who were, at birth, citizens of the United States only and were not citizens at birth of any other country. Some children are born with dual nationality. They acquire U.S. citizenship at birth; they also acquire foreign citizenship at birth, either from their birthplace or by descent from their parents. Birthers say that, while these children are U.S. citizens, they are not natural born citizens. In order to be a natural born citizen of the United States, you must not be a citizen, at birth, of any foreign country; which means, you must be born in the United States, of parents who were exclusively U.S. citizens at the time of your birth.

Thus we have two opposing viewpoints regarding the meaning of "natural born citizen". Which one is correct? So far, the Supreme Court has not answered this question because,


of 97

until now, there was no reason to. Now, the Supreme Court needs to do its job and answer the question.

6. Does the Birthers' viewpoint have any historical or legal merit?

Birthers believe that, in order to be a natural born citizen, you must be born in the United States and both of your parents, at the time of your birth, must be U.S. citizens. The Birthers support their viewpoint with the following information:

• Every U.S. president who was born after 1787 -- except Barack Obama and Chester Arthur -- was born in the United States, to parents who were both U.S. citizens. When Chester Arthur was elected in 1880, the voting public did not know that his father was not yet naturalized when Chester was born. The 2008 election is the first time in American history that the United States knowingly elected a post-1787-born president whose parents, at the time of his birth, were not both U.S. citizens.

• While running for vice president in 1880, Chester Arthur told outright lies and burned historical records, to conceal the fact that, when he was born, his father was a British Subject and not a U.S. citizen [25]. If "natural born citizen" meant anyone born in the United States, regardless of parental citizenship, why did Chester Arthur go through so much trouble to convince the public that, when he was born, his parents were U.S. citizens? Did he believe that his birth to a non-citizen father made him ineligible to serve as president or vice president? (Historical Breakthrough - Chester Arthur)

• On March 9, 1866, Representative John Bingham of Ohio, considered the father of the 14th Amendment, said the following in a speech before House of Representatives:

[I] find no fault with the introductory clause [S 61 Bill], 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. (John Bingham, 1866, as quoted in Defining Natural Born Citizen)

• Occasionally, the U.S. Supreme Court has used the word "citizen" in reference to individuals who were either not born in the United States or not born of U.S.-citizen parents. Such individuals were U.S. citizens by law or by naturalization. But the Supreme Court has never referred to such persons as natural born citizens. In those few cases in which the Supreme Court has declared an individual to be a "natural born citizen", the individual was always U.S.-born to U.S.-citizen parents. For example, in Perkins v. Elg (1939), Marie Elizabeth Elg was born in the United States in 1907. A year before her birth, her father became a U.S. citizen by naturalization, and her mother acquired U.S. citizenship through marriage. Thus when Miss Elg was born, both of her parents were U.S. citizens. The Supreme Court deemed Miss Elg to be a natural born citizen.

• In 1797 (a decade after the Constitution was adopted), the English translation of Emmerich de Vattel's, Law of Nations was revised to include the term "natural born citizen". The revised English translation helps to clarify the meaning of "natural born citizen", as English-speaking people generally understood it towards the end of the 18th century:

The natives, or natural born citizens, are those born in the country, of


of 97

parents who are citizens. (Vattel, §212)

• In 1874, in Minor v. Happersett, the Supreme Court acknowledged the definition of natural born citizen which had appeared in the 1797 English translation of Vattel's Law of Nations:

...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. (Minor v. Happersett, 1874)

• In Minor v. Happersett, the Supreme Court expressed "doubts" regarding the citizenship of U.S.-born children whose parents were not U.S. citizens. In Wong Kim Ark (1898), the Supreme Court examined these "doubts", but did not render any decision or ruling pertaining to natural born citizenship. The Court ruled that Wong was a citizen; it did not rule that he was a natural born citizen. To date, the Supreme Court has never answered the question as to whether natural born citizenship extends to children of non-citizen parents.

This information does not prove the Birthers' case. But it show that Birthers have a rational basis for questioning Barack Obama's presidential eligibility.

7. What was the original purpose of the presidential "natural born citizen" requirement?

In Alexander Hamilton's first draft of the U.S. Constitution, an individual was eligible to serve as president if he or she was either (a) a U.S. citizen when the Constitution was adopted, or (b) a U.S. citizen by birth:

No person shall be eligible to the office of President of the United States unless he be now a citizen of one of the States, or hereafter be born a citizen of the United States. (Works of Alexander Hamilton, page 407).

The problem was that the phrase, "born a citizen of the United States," did not protect the presidency from foreign influence. Someone who was "born a citizen of the United States" might also be, at birth, a citizen or subject of a foreign country.

Dual citizenship: When the thirteen colonies became independent States, each State had the right to decide, for itself, the citizenship status of any child that was either (a) born in that State, or (b) born of parents who were citizens of that State. Any child who was "born a citizen" of a State, according to the laws of that State, was automatically a citizen of the United States [26].

Each State had the right to grant "citizenship by birth" to:

• children born in the State, of parents who were citizens of a foreign country; and


of 97

• children born in a foreign country, of parents who were citizens of the State [27].

Such children might be born with dual nationality. The child might be, at birth, both a citizen of the State and a citizen or subject of a foreign country.

For example, when the U.S. Constitution was being written, a child was an English subject at birth if such child was either (a) born in the U.S., of English parents, or (b) born in England, of U.S. citizen parents. Depending on the applicable State law, it was possible that someone who was "born a citizen" of a State might also be a British subject at birth.

...children and grandchildren, born of British parents in foreign countries, are British-born subjects; yet these, no doubt, by the laws of the respective foreign countries, are also deemed natural-born subjects there. I am aware of the difficulties which such persons may labor under with these double claims of allegiance upon them. ...the king cannot reckon upon the full and absolute obedience of such persons, because they owe another fealty besides that due to him... (Reeve, 1808, as quoted in American Law Register, Volume 3, 1864, p.615, emphasis added)

John Jay's Letter: In a letter to George Washington (July 25, 1787), John Jay (1745-1829) suggested that term "born a citizen" in the draft Constitution be changed to "a natural born citizen". Jay's stated reason for the change was to "check" (prevent) "the admission of foreigners into the administration":

Permit me to hint whether it would not be wise and 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 army shall not be given to, nor devolve on any but a natural born citizen. (John Jay, Letter to George Washington, 25 July 1787)

John Jay believed, and the Framers of the Constitution agreed, that foreigners should be barred from the presidency. St. George Tucker (1752-1827) explained why:

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, wherever 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... To have added a [foreign] member to this sacred family in America, would have invited and perpetuated among us all the evils of Pandora's Box. (St. George Tucker, as quoted in Madison(2008))

According to U.S. Supreme Court Justice Joseph Story (1779-1845), early patriots were eligible to be president, even though they were naturalized citizens and not natural born citizens. But after their generation passed away, only natural born citizens were eligible to be president. The reason for this "natural born citizen" requirement was to "cut off all chances" of foreign influence in the presidency.

It is indispensable, too, that the president should be a natural born citizen of the


of 97

United States; or a citizen at the adoption of the constitution, and for fourteen years before his election.

This permission of a [pre-1787-born] naturalized citizen to become president is an exception from the great fundamental policy of all governments, to exclude foreign influence from their executive councils and duties. It was doubtless introduced (for it has now become by lapse of time merely nominal, and will soon become wholly extinct) out of respect to those distinguished revolutionary patriots, who were born in a foreign land, and yet had entitled themselves to high honours in their adopted country. A positive exclusion of them from the office would have been unjust to their merits, and painful to their sensibilities.

But the general propriety of the exclusion of foreigners, in common cases, will scarcely be doubted by any sound statesman. It cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interposes a barrier against those corrupt interferences of foreign governments in executive elections, which have inflicted the most serious evils upon the elective monarchies of Europe. Germany, Poland, and even the pontificate of Rome, are sad, but instructive examples of the enduring mischiefs arising from this source. (Story)

Precedent for foreign exclusion: It was not unusual for a nation to exclude foreigners from its highest levels of government. The Torah, for example, prohibited the appointment of a foreigner as king:

One from among your brethren you shall set as king over you; you may not put a foreigner over you, who is not your brother. (Deuteronomy 17:15, RSV)

In 1701, the English Parliament passed a law barring from public office any person who was not an English subject at birth:

...no person born out of the Kingdoms of England, Scotland, or Ireland, or the dominions thereunto belonging (although he be naturalized or made a denizen), except such as are born of English parents, shall be capable to be of the Privy Council, or a member of either House of Parliament, or to enjoy any office or place of trust, either civil or military, or to have any grant of lands, tenements or hereditaments from the Crown, to himself or to any other or others in trust for him; (Act of Settlement, 1701)

According to the English law of 1701, it does not matter how loyal you are to the English king. It does not matter that you had completely renounced all foreign ties and allegiances. It does not matter that you had sworn an oath of exclusive allegiance to the king. If you were a foreigner at the time of your birth, you are not eligible to hold any public office, even if you are, by law, not a foreigner anymore.

Limited Scope: Natural born citizenship is acquired only at birth [28]. Therefore, the presidential natural born citizenship provision, in the Constitution, cannot prevent the inauguration of a president who had developed foreign ties after she or he was born. At most, the provision only excludes persons who were foreigners at birth.


of 97

When the Constitution was written, there were only two ways that a child could be a foreigner at birth:

• by being born in a foreign country; or • by being born of parents who were citizens or subjects of a foreign country.

If you were born in the United States and your parents were exclusively U.S. citizens at the time of your birth, you were, without doubt, completely free of foreign influence at birth -- you were, without doubt, not a foreign citizen at birth and not under any foreign legal jurisdiction at birth. On the other hand, if you were born outside of the United States or if your parents were not exclusively U.S. citizens when you were born, you might have been, at birth, both a U.S. citizen and a "foreigner", i.e., a citizen or subject of foreign country.

The Founding Fathers undoubtedly understood that the presidential natural born citizen provision would be of limited effect. Since natural born citizenship is acquired only at birth and cannot be acquired after birth, the provision would have no effect on persons who became foreigners after they were born. The provision would, at most, only exclude persons who were, in some way, linked to a foreign government at birth.

But in order for the provision to accomplish even this narrow and limited purpose (the exclusion of people who had foreign ties at birth), the term "natural born citizen" had to mean someone who was, at birth, a citizen of the United States exclusively, and was, at birth, not a citizen or subject of any other country. In other words, the term "natural born citizen" had to mean "born in the U.S., of exclusively-U.S.-citizen parents". Otherwise, the "natural born citizen" provision would make little sense. It would not disallow the inauguration of a president who, although "born a citizen" of the United States, was also a "foreigner" -- a subject or citizen of a foreign country -- at the time of her or his birth.

8. What is the difference between a "Constitutional" and a "statutory" natural born citizen?

"Constitutional natural born citizen" refers to the term "natural born citizen" when it appears in the Constitution or in a Constitution-related document such as a Supreme Court decision. It refers to the meaning of "natural born citizen" in the Constitution, whatever the Supreme Court ultimately decides such meaning to be.

"Statutory natural born citizen" refers to someone who is deemed a "natural born citizen" as a result of a Federal or State law.

Currently, there is no Federal law that explicitly defines "natural born citizen" or explicitly conveys "natural born citizenship" to anyone. However, existing laws are sometimes understood or interpreted as conveying natural born citizenship to certain individuals at birth. At this point, we do not pass judgment on these understandings and interpretations. We merely say that, if someone is deemed to be a "natural born citizen" pursuant to a law or statute, we refer to such person as a "statutory natural born citizen".

A statutory natural born citizen is not necessarily the same thing as a Constitutional natural born citizen. The U.S. State Department warns against confusing the two concepts:


of 97

...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 (Top of page 9, in U.S. Department of State Foreign Affairs Manual -- 7 FAM 1130)

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.

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.

To summarize:

• "Statutory natural born citizen" is the meaning of "natural born citizen" when such meaning depends on a Federal or State law. As Federal and State laws change, the meaning of "statutory natural born citizen" changes accordingly.

• "Constitutional natural born citizen" is the meaning of "natural born citizen" as used in the Constitution.

If Barack Obama was born in Hawaii, he could be regarded as a statutory natural born citizen. But a statutory natural born citizen is not necessarily a Constitutional natural born citizen.

9. Wouldn't the most recent modern-day statutory meaning of "natural born citizen" take precedence over the original Constitutional meaning?

Not necessarily. The only proper and legitimate means of changing the Constitution is the Constitutional Amendment process. Congress cannot change the Constitution by simply passing a law. Nor can the Constitution be changed by someone's understanding or interpretation of an existing law.

Neither Congress nor society can change the meaning of the Constitution by redefining a word or term that the Constitution uses. As the U.S. State Department has warned (see Question 8), we cannot assume that "natural born citizen" by modern-day statute or modern-day word usage is the same thing as "natural born citizen" in the Constitution.

10. If Obama is not a "Constitutional natural born citizen", so what? Why should anyone care?

Understandably, some Americans question the wisdom of "enforcing the law" and "upholding the Constitution" when the specific requirement being upheld or enforced seems to be an antiquated technicality. As long as Barack Obama is doing his job as president, why should


of 97

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?

Birthers say that, 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 ignore a Constitutional requirement, merely because it is inconvenient or we think it doesn't matter. 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 Obama's eligibility, we open the door for someone else to say it's okay to ignore the Constitution regarding our rights as citizens.

11. Why has every Birther lawsuit been denied or dismissed?

So far, every lawsuit challenging Obama's presidential eligibility has been either denied without comment or dismissed on a technicality -- lack of standing, lack of jurisdiction, mootness, etc. So far, neither the Supreme Court nor any other court has considered, in an open hearing, the actual substance or merit of any of these cases. Although some judges have expressed personal opinions, or dicta, regarding Obama's eligibility, no court -- as of the time of this writing -- has ruled on whether or not Barack Obama is a Constitutional natural born citizen.

12. What is a 14th Amendment natural born citizen?

Obama eligibility supporters have, on occasion, argued that the 14th Amendment, adopted in 1868, implicitly redefined, or at least clarified, the meaning of "natural born citizen"; and under this new or clarified meaning, Barack Obama is a "natural born citizen".

The 14th Amendment citizenship clause states:

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. (Constitution - Amendment 14)

Before the 14th Amendment was enacted, each State had the right to determine the citizenship of children born within its borders. Anyone who became a citizen of a State also became a citizen of the United States [26].

The 14th Amendment citizenship clause describes a category of people, which we call the "14th Amendment Citizen" (14AC) class. This 14AC class consists of every person who (a) was born or naturalized in the United States, and (b) was subject to U.S. jurisdiction at the time of his or her birth or naturalization.

The 14th Amendment requires every State to recognize, as U.S. citizens, all persons belonging to the 14AC class. Each State may grant or deny citizenship to non-14AC people. But the 14th


of 97

Amendment prohibits any State from denying citizenship-related rights, privileges and benefits to 14AC-class members.

The citizenship clause of the 14th Amendment only mentions citizens. It does not mention natural born citizens. Nevertheless, Obama eligibility supporters have argued that the 14th Amendment implies that a "natural born citizen" is anyone who meets two requirements:

• born in the United States, and • subject to U.S. jurisdiction at the time of his or her birth.

The argument goes as follows: Barack Obama was born in Hawaii, which was, in 1961, a part of the United States. Therefore he met the first requirement. His mother was a U.S. citizen; and his father, though not a U.S. citizen, was nevertheless in the United States legally. Therefore, Barack Obama, at the time of his birth, was under the territorial and legal jurisdiction of the United States, and thus met both requirements of natural born citizenship according to the 14th Amendment.

Birthers raise three objections to the "14th Amendment natural born citizen" argument:

• It is not consistent with the meaning of "jurisdiction" as defined by the framers of the 14th Amendment.

• It is not consistent with the Supreme Court opinion in Marbury v. Madison (1803) regarding Constitutional interpretation.

• The Supreme Court has implicitly rejected the notion that the meaning of "natural born citizen" can be ascertained or derived from the 14th Amendment.

(1) Originally intended meaning of "jurisdiction": According to transcripts of the Congressional debates regarding the 14th Amendment, the word "jurisdiction", as used in the 14th Amendment, means sole and complete U.S. jurisdiction, i.e., not subject to any foreign power. President Obama admits that his citizenship status at birth was "governed" by the laws of a foreign country. Since the President's birth was not subject to sole and complete U.S. jurisdiction, he does not qualify for citizenship under the 14th Amendment. President Obama might be a U.S. citizen at birth by modern-day statute, but he is not a U.S. citizen at birth according to the originally intended meaning of the 14th Amendment. (See Question 13).

(2) Marbury v. Madison (1803): The "14th Amendment natural born citizen" argument is not consistent with the Supreme Court's opinion in Marbury v. Madison (1803). In that opinion, Chief Justice Marshall stated:

It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it. (Marbury v. Madison, 1803)

All persons are subject to U.S. legal and territorial jurisdiction while they are in the United States. If the word "jurisdiction", in the 14th Amendment, is interpreted to mean territorial and legal jurisdiction only, then all persons born or naturalized in the United States are automatically under U.S. jurisdiction at the time of their birth or naturalization. This would mean that the phrase, "subject to the jurisdiction thereof," is redundant and without any unique effect.


of 97

In the Fourteenth Amendment, there are two requirements: birth or naturalization in the United States and within the jurisdiction of the United States. If all persons who are born in the United States were ipso facto born within its jurisdiction, then the jurisdiction clause would be rendered superfluous. But a singular requirement of a written constitution is that no interpretation can render any part of the constitution to be without force or meaning. (Erler, pp.191-192)

According to Chief Justice Marshall, we cannot interpret the Constitution in a manner that renders a portion of the Constitution to be without effect. In order to have any effect, the word "jurisdiction", in the 14th Amendment, must mean something more than territorial and legal jurisdiction only [29].

(3) Implicit Supreme Court rejection: Birthers point out that the Supreme Court has implicitly rejected the "14th Amendment natural born citizen" argument. In Minor v Happersett (1874), the Supreme Court said that the meaning of "natural born citizen" is not found in the U.S. Constitution:

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. (Minor v Happersett, 1874)

In 1898, the Supreme Court repeated the same point -- that the meaning of "natural born citizen" cannot be determined from the U.S. Constitution alone:

The Constitution of the United States, as originally adopted, uses the words "citizen of the United States," and "natural-born citizen of the United States." ... The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." In this as in other respects, 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. (U.S. v. Wong Kim Ark, 1898)

In Minor v. Happersett (1874) and in U.S. v. Wong Kim Ark (1898), the Supreme Court rejected the notion that the meaning of "natural born citizen" can be ascertained from the Constitution, without reference to legal and historical sources outside the Constitution. When both cases were decided, the 14th Amendment (ratified in 1868) was a part of the Constitution; thus, if the meaning of "natural born citizen" is not found in the Constitution, it is not found in the 14th Amendment.

13. What was the originally intended meaning of "jurisdiction" in the 14th Amendment?

On April 9, 1866, Congress passed the Civil Rights Act of 1866, which stated:

All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States (1866 Civil Rights Act)


of 97

Two months later, Congress completed the 14th Amendment and presented it to the States for ratification:

The United States Congress proposed the Fourteenth Amendment on June 13, 1866 and on July 9, 1868, three-fourths of the states (28 of 37) had ratified the amendment. (Wikipedia: Fourteenth Amendment)

The 14th Amendment stated:

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. (Constitution - Amendment 14)

Since Congress proposed the 14th Amendment only two months after it passed the Civil Rights Act of 1866, it is unlikely that the meaning of "subject to the jurisdiction thereof" (in the 14th Amendment) contradicted the meaning of "not subject to any foreign power" (in the 1866 Civil Rights Act).

If someone was subject to a foreign power at birth, it is unlikely that the 14th Amendment and the 1866 Civil Rights Act would have treated him or her differently. It is unlikely that the 14th Amendment would have granted citizenship to an individual whom the 1866 Civil Rights Act would have denied citizenship to.

The 1866 Congressional debates confirm that the two citizenship clauses -- the one in the 14th Amendment, and the one in the 1866 Civil Rights Act -- were intended to have the same meaning and effect. During those debates, the primary framers of the 14th Amendment citizenship clause, Sen. Jacob Howard and Sen. Lyman Trumbull, made it clear that "jurisdiction", as used in the 14th Amendment, means sole and complete U.S. jurisdiction, i.e., not subject to any foreign power:

Sen. Lyman Trumbull: The provision is, that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens." That means "subject to the complete jurisdiction thereof." What do we mean by "complete jurisdiction thereof?" Not owing allegiance to anybody else. That is what it means.

Sen. Jacob Howard: [I] concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word "jurisdiction," as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now. (Madison(2007))

In 1873, the Supreme Court said that the U.S.-born children of foreign citizens are not subject to U.S. jurisdiction, therefore are not U.S. citizens under the 14th Amendment:

'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 phrase, 'subject to its jurisdiction' was intended to exclude


of 97

from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States. (Slaughter-House Cases, 1873)

In 1884, the Supreme Court reiterated that an individual is a 14th Amendment citizen only if the United States has complete jurisdiction over such individual at the time of her or his birth or naturalization:

The persons declared to be citizens are "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized... (Elk v. Wilkins, 1884)

Sole and complete U.S. jurisdiction was a core requirement for 14th Amendment citizenship. The 14th Amendment granted citizenship to emancipated slaves and their descendants, because they were, and have always been, under sole and complete U.S. jurisdiction. Native American Indians were subject to tribal jurisdiction and thus were not under sole and complete U.S. jurisdiction. Thus the 14th Amendment did not grant citizenship to American Indians, even though virtually all American Indians were born in the United States.

On his web site, President Obama claims that his father was a British subject and that, in 1961, the citizenship status of children of British subjects was "governed" by the British Nationality Act of 1948. Thus Obama's citizenship status, at birth, was "governed" by British law, in addition to U.S. law.

If Obama's citizenship status at birth was "governed" by the laws of a foreign country, how could he, at birth, be subject to sole and complete U.S. jurisdiction, which is an essential requirement for 14th Amendment citizenship?

14. Doesn't the Wong Kim Ark decision make Obama a "natural born citizen"?

Wong Kim Ark was born in the United States in 1873. His parents were Chinese immigrants and permanent legal residents of the United States, but were not U.S. citizens. In U.S. v. Wong Kim Ark (1898), the Supreme Court ruled, in a 6 to 2 decision, that Wong was a U.S. citizen at birth:

The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil 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. For the reasons above stated, this court is of opinion that the question must be answered


of 97

in the affirmative. (Horace Gray, Majority Opinion, U.S. v. Wong Kim Ark, 1898)

The Wong Kim Ark case does not directly apply to Barack Obama's presidential eligibility, for two reasons:

• The Supreme Court did not rule that Wong was a natural born citizen. It merely ruled that he was a citizen. Even if Barack Obama's circumstances at birth were identical to those of Wong Kim Ark, the Court's ruling would, at most, only convey citizenship to the President. It would not convey natural born citizenship, which is what the President needs in order to be eligible to hold office.

• Wong was granted citizenship because, at the time of his birth, his parents had "permanent domicile and residence" in the United States and was "carrying on business" in the United States. President Obama's father did not meet these conditions. He was not a permanent resident and he was not doing business in the U.S. He was visiting the U.S. temporarily, for the purpose of getting an American education.

In the majority opinion, Justice Horace Gray cited sources which seem to suggest natural born citizenship requires something more than birth on U.S. soil. For example, he quoted the following from Minor v. Happersett (1874):

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. (Minor v. Happersett (1874), as quoted in U.S. v. Wong Kim Ark (1898))

Justice Gray also quoted from an article, by Horace Binney, which used the term "natural born" in connection with a child of a U.S. citizen, but not in connection with a U.S.-born child of an alien. In Binney's opinion, both children were U.S. citizens, but only the U.S.-born child of a citizen was labeled "natural born":

The right of citizenship never descends in the legal sense, either by the common law or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle. (Horace Binney, as quoted in U.S. v. Wong Kim Ark (1898))

Nevertheless, Obama eligibility supporters argue that, even though the Court did not hold that natural born citizenship is determined by birthplace alone, Justice Gray's reasoning leads to that conclusion.

• Under English common law, all children born on English soil (except the children of foreign diplomats and alien enemies) were natural-born subjects. According to Justice Gray, English common law "continued to prevail" under the Constitution, suggesting


of 97

that the jus soli principle of English common law controlled the Constitutional meaning of natural born citizen.

• Justice Gray cited Lynch v. Clarke (1844), in which Vice Chancellor Sandford had ruled that Julia Lynch was a U.S. citizen at birth. Miss Lynch was born in New York, but at the time of her birth, her parents were not U.S. citizens. In his dicta (side commentary), the Vice Chancellor expressed his opinion that Julia Lynch was not only a U.S. citizen at birth, but also a natural born citizen.

• In the dissenting opinion in U.S. v. Wong Kim Ark, Justice Fuller mentioned natural born citizenship:

Considering the circumstances surrounding the framing of the Constitution, I submit that it 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. (C.J. Fuller, Dissenting Opinion, U.S. v. Wong Kim Ark, 1898)

Why would Justice Fuller have mentioned "natural born citizen" in his dissenting opinion, unless he believed that the majority's reasoning, when carried to its logical conclusion, affected the term's meaning?

• In United States v. Low Hong (1919), the defendant was born in the United States, but was subject to deportation, presumably because his parents were, at the time of his birth, aliens not permanently or legally residing in the U.S. The Fifth Circuit Court of Appeals issued dicta that the defendant was a "natural born citizen" according to the reasoning of U.S. v. Wong Kim Ark (The Federal Reporter Vol 261, 1920, p.74) [30]

• According to Judge Dreyer (Ankeny v. Indiana, 2009), the Supreme Court did not rule that Wong Kim Ark was a natural born citizen but the Court's reasoning seems to imply that he was:

Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are "natural born Citizens" for Article II, Section 1 purposes, regardless of the citizenship of their parents. (David J. Dreyer, Ankeny v. Indiana, 2009, boldface emphasis added) [31]

Based on these and other considerations, some Obama eligibility supporters have argued that Justice Gray's reasoning, when carried to its logical conclusion, supports their viewpoint that natural born citizenship is determined by birthplace alone, without regard to parental citizenship.

English Common Law: In U.S. v. Wong Kim Ark, the Court's reasoning was based largely on the English common law "rule" that, generally speaking, children born on English soil were, at birth, English natural-born subjects, regardless of whether their parents were subjects or aliens. According to the majority's opinion, this "rule" of English common law was "in force" when the U.S. Constitution was being written and thereafter "continued to prevail" in the United States:


of 97

It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born. The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established. (Page 169 U. S. 658, U.S. v. Wong Kim Ark, 1898)

In his dissenting opinion, Justice Fuller argued that the majority was factually incorrect on this point. Regarding the "rule" of English common law, the minority and majority disagreed, not over a legal issue, but over a matter of historical fact:

And it is this rule, pure and simple, which it is asserted determined citizenship of the United States during the entire period prior to the passage of the act of April 9, 1866, and the ratification of the Fourteenth Amendment, and governed the meaning of the words "citizen of the United States" and "natural-born citizen" used in the Constitution as originally framed and adopted. I submit that no such rule obtained during the period referred to, and that those words bore no such construction... (Justice Fuller, Dissenting Opinion, Wong Kim Ark, 1898)

Federalist Blog author, P.A. Madison, argues that Justice Fuller was correct. When the original thirteen colonies gained their independence and became States, many of them retained aspects of English common law for their own purposes. But English common law did not "continue to prevail" at the Federal or national level (Madison(2006)).

George Mason (1725-1792), called the "Father of the Bill of Rights" and considered one of the "Founding Fathers" of the United States, is widely quoted as saying:

The common law of England is not the common law of these states. (Debate in Virginia Ratifying Convention, 19 June 1788)

In 1884, the following commentary appeared in the prestigious American Law Review:

In Wheaton v. Peters, the Supreme Court say: "It is clear there can be no common law of the United States. The Federal government is composed of twenty-four sovereign and independent states, each of which may have its local usages, customs and common law. There is no principle which pervades the Union and has the authority of law, that is not embodied in the constitution or laws of the Union. The common law could be made a part of our Federal system only by legislative adoption." ...

There is nothing in the constitution to indicate that the term "citizen" was used in reference to the common-law definition of "subject," nor is there any act of Congress declaratory of the common-law doctrine, and the subject of citizenship


of 97

being national, questions relating to it are to be determined by the general principles of the law of nations. (Collins)

In a recent speech to the Federalist Society, Supreme Court Justice Antonin Scalia confirmed that English common law did not "control" at the national or Federal level after the United States gained its independence from Great Britain:

The common law is gone. The federal courts never applied the common law and even in the state courts it's codified now. (Audio/Video: Justice Scalia speech, Nov 22, 2008)

Original Intent: In delivering the majority opinion in U.S. v. Wong Kim Ark, Justice Gray admitted that he had "presumed" that the phrase "subject to the jurisdiction thereof", in the 14th Amendment, meant territorial and legal jurisdiction only. Evidence regarding the Framers' original intent, as expressed during the Congressional debates over the 14th Amendment, was deemed "not admissible".

The words 'in the United States, and subject to the jurisdiction thereof,' in the first sentence of the fourteenth amendment of the constitution, must be presumed to have been understood and intended by the congress which proposed the amendment ... as the equivalent of the words 'within the limits and under the jurisdiction of the United States'... Doubtless, the intention of the Congress which framed and of the States which adopted this Amendment of the Constitution must be sought in the words of the Amendment, and the debates in Congress are not admissible as evidence to control the meaning of those words. (Wong Kim Ark, 1898).

The Supreme Court did not consider evidence showing that the originally intended meaning of "jurisdiction" was sole and complete jurisdiction. (For a discussion of the originally intended meaning of "jurisdiction" in the 14th Amendment, see Question 13). According to the Federalist Blog, the Court's refusal to consider such evidence was "inexcusable":

A refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge's refusal to consider legislative intent. (Justice John Paul Stevens, as quoted by Madison(2006))

Chester Arthur: Wong Kim Ark's circumstances, though different from Barack Obama's, were similar to those of President Chester Arthur. Mr. Wong and President Arthur were born in the United States. When each was born, his father was a permanent legal U.S. resident but not a U.S. citizen.

Chester Arthur became vice president in 1880, and became president when James Garfield was assassinated in 1881. At the time, the general public was unaware that, when Chester Arthur was born in 1829, his father, William Arthur, was a British subject and not a U.S. citizen (Historical Breakthrough - Chester Arthur). Therefore Chester's natural born citizenship and presidential eligibility were in doubt.

Prior to 1898, there were two cases in which an elected Federal official was found to be constitutionally ineligible to the office he was holding: Senator Albert Gallatin (1793), and


of 97

Senator James Shields (1849). In both cases, the ineligible official was removed from office, and every official action that he took while in office was nullified and erased. Thus, in 1898, if the general public had learned of Chester Arthur's dual citizenship at birth, and if the ensuing public hearings had determined that he was ineligible, all of his judicial appointments might have been reversed.

During his three-year presidency, Chester Arthur made 19 judicial appointments: two to the Supreme Court, four to United States circuit courts, and thirteen to the United States district courts. In 1882, he appointed Samuel Blatchford and Horace Gray to the U.S. Supreme Court. President Arthur also appointed David Josiah Brewer to the U.S. 8th Circuit Court in 1884. In 1889, President Harrison appointed Brewer to the U.S. Supreme Court.

Blatchford died in 1893. When the Wong Kim Ark case was decided in 1898, two members of the Supreme Court -- Horace Gray and David Brewer -- had been Arthur appointees at some point during their careers. Both voted with the majority in the Wong Kim Ark case.

Did Chester Arthur's uncertain eligibility influence the Supreme Court's reasoning in U.S. v. Wong Kim Ark? The Court did not rule that Wong was a natural born citizen. But according to some Obama eligibility supporters, the Court's reasoning seems to imply that all children born in the United States (except the children of foreign diplomats and alien enemies) are natural born citizens, which would mean that Chester Arthur was a natural born citizen and thus eligible to serve as president.

Was the Supreme Court's reasoning in U.S. v. Wong Kim Ark influenced by a desire to implicitly grant natural born citizenship posthumously to Chester Arthur, so as to retroactively legitimize his presidency and thereby protect the legacies and careers of his judicial appointees? (Wrotnowski supplemental brief regarding Chester Arthur).

Summary: In Wong Kim Ark, the Supreme Court made two assertions: that the jus soli principle of English common law "continued to prevail under the Constitution", and that, in the 14th Amendment, "jurisdiction" meant something less than sole and complete jurisdiction. The historical veracity of these two assertions has been questioned by multiple sources [32].

15. Doesn't the Julia Lynch case show that Barack Obama is a "natural born citizen"?

Julia Lynch was born in New York in 1819. At the time of her birth, her parents were not U.S. citizens -- they were Irish subjects of Great Britain, visiting the United States. Shortly after Julia's birth, the Lynch family returned to Ireland, where Julia remained until adulthood.

In Lynch v Clarke (1844), a New York State court ruled that Julia was a U.S. citizen at birth. In the opinion of Vice-Chancellor Lewis Halsey Sandford, who presided over this case, there is "no doubt" that Julia Lynch was also a natural born citizen:

After an exhaustive examination of the law, the Vice-Chancellor said that he entertained no doubt that every person born in within the dominions and allegiances of the United States, whatever the situation of his parents, was a natural-born citizen; and added, that this was the general understanding of the


of 97

legal profession, and the universal impression of the public mind. (Cases on Constitutional Law - Part 2, pp.581-582)

An article in the New York Legal Observer elaborated:

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 position would be decisive in his favor that by the rule of the common law, in force when the constitution was adopted, he is a citizen." (Dicta from Lynch v. Clarke (1844), cited by Article in New York Legal Observer, pp.246-247).

Later in American history, the Opinion of Lincoln's Attorney General Edward Bates (1862), the Opinion of U.S. Secretary of State William Marcy (1854), and the dissenting opinion in Dred Scott v. Sandford (1856), echoed the same viewpoint -- that you are a U.S. citizen (and presumably a U.S. natural born citizen as well) if you were born in the United States, regardless of your parents' citizenship at the time of your birth.

In 1866, George Bancroft wrote:

...everyone who saw the first light on the American soil was a natural-born American citizen (Bancroft, p.201)

In 1829, William Rawle expressed the same opinion -- that natural born citizenship is determined by birthplace alone:

Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity. (Rawle)

An Ongoing Debate: Throughout American history, some "authorities" have expressed the opinion that birth within the United States is, by itself, sufficient to confer natural born citizenship. Other authorities have expressed an opposing opinion -- that citizenship at birth properly belongs only to children whose parents are U.S. citizens.

In 1820, Virginia Representative A. Smyth said:

When we apply the term "citizens" to the inhabitants of States, it means those who are members of the political community. The civil law determined the condition of the son by that of the father. A man whose father was not a citizen was allowed to be a perpetual inhabitant, but not a citizen, unless citizenship was conferred on him. (Rep. A. Smyth (VA), House of Representatives, December 1820, in Abridgment of the Debates of Congress, from 1789 to 1856, Vol VII, 1858, p.30)

In 1845, an article, entitled ""Massachusetts and South Carolina", appearing in The New


of 97

Englander, explained that, in the U.S. Constitution, the term "natural born citizen" means a U.S. citizen not owing allegiance, at birth, to any foreign state:

The expression 'citizen of the United States' occurs in the clauses prescribing qualifications for Representatives, for Senators, and for President. In the latter the term 'natural born citizen' is used, and excludes all persons owing allegiance by birth to foreign states; in the other cases the word 'citizen' is used without the adjective, and excludes persons owing allegiance to foreign states, unless naturalized under our laws. ("Massachusetts and South Carolina", The New Englander, Volume 3, 1845, p.414)

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)

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. (Collins)

Thus throughout American history, there has been an ongoing dispute between:

• authorities who believe that natural born citizenship is determined by birthplace alone; and

• authorities who believe that parental U.S. citizenship is a requirement for U.S. natural born citizenship.

So far, the Supreme Court has not settled this dispute. In 1874, the Supreme Court said there were "doubts" regarding the natural born citizenship of U.S.-born children of non-citizen parents, but so far, the Court has not resolved those doubts [33].

Case Law: Although some authorities, throughout history, have expressed the opinion that birth on U.S. soil is, by itself, sufficient to confer U.S. citizenship, there is no pre-Civil War case law supporting that viewpoint:


of 97

Lynch v. Clarke [1844] is the only antebellum [pre-Civil War] decision (and apparently the only reported case in our history) that clearly finds that jus soli per Calvin's Case determines United States citizenship. Whatever light the case provides, though, should be adjusted by the fact that it is the unreviewed opinion of a single state-court judge and that shortly thereafter, in Ludlum v. Ludlum, that state's highest court, all justices concurring, spoke differently, saying that birthright citizenship depended on parentage rather than the "boundaries of the place." (Mayton)

A later New York State case, Munro v. Merchant (1858), contains this summation:

A child born in this state of alien parents, during its mother's temporary sojourn here, is a native born citizen.

The summation, however, does not reflect the actual ruling in the Munro v. Merchant case. The Court said that if (emphasis on the word "if") Lynch v. Clarke were law, it would be relevant to the plaintiff's citizenship at birth. But, in Munro v. Merchant, the Court was not required to decide the plaintiff's citizenship at birth.

In Lynch v. Clarke, (1 Sand. Ch. R. 583,) the question was precisely as here, whether a child born in the city of New York of alien parents, during their temporary sojourn there, was a native born citizen or an alien; and the conclusion was, that being born within the dominion and allegiance of the United States, he was a native born citizen, whatever was the situation of the parents at the time of the birth. That case, if law, would seem to be decisive of the present question, But, admitting the plaintiff to be an alien, the cases already cited show that the terms "heirs or assigns," in the 9th article of the treaty, is not to be confined to the immediate descendants, but is to be extended indefinitely till the title comes to a citizen. (Munro v. Merchant, Reports of cases in law and equity in the Supreme Court of the State of New York, 1858, p.400)

Summary: In Lynch v. Clarke (1844), Vice-Chancellor Sandford ruled that Julia Lynch was a U.S. citizen at birth, even though her parents were not U.S. citizens at the time of her birth. The ruling was exceptional. It was the only one in U.S. history that found that jus soli alone determined U.S. citizenship. In his dicta, the Vice-Chancellor expressed his (non-legally-binding) opinion that Miss Lynch was also a natural born citizen. The fact that Miss Lynch was deemed to be a natural born citizen according to a State judge's dicta does not necessarily mean that she was a natural born citizen under the Federal Constitution (see Question 8).

16. What was "Calvin's Case"?

Calvin's Case (1608) was an historic legal case in which England's highest court gave a natural law definition of "natural-born subject". This "natural law" definition remained in effect in England well into the 19th century [14]. It was part of English common law when the U.S. Constitution was being written.

Pathways to English Subjecthood: During the 18th century, the population of England and the English colonies in America consisted of subjects and aliens. Subjects had property ownership and inheritance rights; aliens did not.


of 97

An individual became an English subject in one of four ways:

• By natural law: According to the natural law espoused by Calvin's Case of 1608, children were, at birth, natural-born subjects of the English king if they were born within the king's territory, to parents who were under the actual "obedience" of the king (See Section 4.4 under Question 4):

All those are natural-born subjects whose parents, at the time of their birth, were under the actual obedience of our King, and whose place of birth was within his dominions. (Bacon, Matthew, p.77).

• By statute: When William Blackstone wrote his Commentaries (1765), Parliament had enacted laws which granted automatic natural-born subject status, at birth, to foreign-born children of English fathers. These children were born in a foreign country and were, by natural law, natural-born subjects of a foreign king. But by English law, these children were "deemed and adjudged" to be English natural-born subjects "for all intents and purposes":

...all children, born out of the king's ligeance [territory], whose fathers were natural-born subjects, are now natural-born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain. (Blackstone)

• By naturalization: Naturalized subjects were persons who were aliens at birth, but at some point after birth, became natural-born subjects by a legal process called "naturalization". Naturalized subjects had the same rights as other natural-born subjects, except that they could not hold public office. Subjecthood by naturalization was available only to Christians who took the Oath of Supremacy and Oath of Allegiance (see English Oaths, 1642). Naturalization had a retroactive effect. When someone became a naturalized subject, all of his children acquired property and inheritance rights, regardless of when they were born.

Naturalization cannot be performed but by act of parliament: for by this an alien is put in exactly the same state as if he had been born in the king's ligeance; except only that he is incapable, as well as a denizen, of being a member of the privy council, or parliament, &c. No bill for naturalization can be received in either house of parliament, without such disabling clause in it. Neither can any person be naturalized or restored in blood, unless he hath received the sacrament of the Lord's supper within one month before the bringing in of the bill; and unless he also takes the oaths of allegiance and supremacy in the presence of the parliament. (Blackstone)

• By denization: Denizens, or "adopted subjects", were aliens at birth. At some point after birth, they received letters patent from the king. The rights of denizens were limited by the terms and conditions of the letters patent, which varied from person to person. Denization was not retroactive. It did not confer any rights to children which were born prior to their fathers' denization.


of 97

A denizen is an alien born, but who has obtained ex donatione regis letters patent to make him an English subject: a high and incommunicable branch of the royal prerogative. A denizen is in a kind of middle state between an alien, and natural-born subject, and partakes of both of them. He may take lands by purchase or devise, which an alien may not; but cannot take by inheritance: for his parent, through whom he must claim, being an alien had no inheritable blood, and therefore could convey none to the son. And, upon a like defect of hereditary blood, the issue [children] of a denizen, born before denization, cannot inherit to him; but his issue [children] born after, may. A denizen is not excused from paying the alien's duty, and some other mercantile burdens. And no denizen can be of the privy council, or either house of parliament, or have any office of trust, civil or military, or be capable of any grant from the crown. (Blackstone)

Persons who acquired subjecthood by any of the first three methods were called "natural-born subjects". All natural-born subjects had essentially the same property ownership and inheritance rights. The table below summarizes the differences among the four methods of subjecthood acquisition.

Methods of Subjecthood Acquisition

Natural law Statute Naturalization Denization

General description:

Subjecthood conferred, at birth, to children who were either (a) born on English soil, of parents who were English subjects or alien friends; or (b) in special cases, born in foreign countries, of English parents who were royalty or in the king's diplomatic or military service.

Subjecthood granted, at birth, to children born in foreign countries, of English fathers who were civilian (non-diplomatic, non-military, non-royalty) natural-born subjects.

Subjecthood granted by Parliament to adults who underwent a legal process called "naturalization".

Subjecthood granted by letters patent issued by the king.

Subjecthood acquired by...

Natural law Man-made law Man-made law Royal prerogative


of 97

When was subjecthood acquired?

At birth At birth After birth After birth

Were subjects "born within the allegiance of the king"?

Yes (by natural law)

Yes (by statute)

No No

Were subjects referred to as "natural-born subjects":

Yes Yes Yes No

Could subjects hold public office (if they met other requirements):

Yes Yes No No

Was subject's allegiance, at birth, to the English king exclusively?

Yes No No No

Comparison of Subjecthood Acquisition Methods

Facts of Calvin's Case: James Charles Stuart was born in Scotland in 1566. His father, Lord Darnley, was an English subject. James became king of Scotland in 1567, when he was 13 months old. He remained king of Scotland until his death in 1625.

Queen Elizabeth I of England died in 1603, at which time James inherited the English throne. Scotland and England were separate countries, each with its own Parliament and its own set of laws. But from 1603 to 1625, James was king of both countries at the same time. He was both King James I of England and King James VI of Scotland [34].

Robert Calvin was born in Scotland in 1606, and was heir to some property in England. Under English law, only English subjects were permitted to inherit English property. The question before the Court was whether Calvin was a subject of King James and thus eligible to inherit within his realm.

In 1608, the Court of the King's Bench defined "natural-born subject" according to the Court's theory of natural law, and ruled that Robert Calvin was such a subject at birth. The Court's "natural law" definition of "natural-born subject" remained part of English law well into the mid-19th century [14].


of 97

Chief Justice of the Court of Common Pleas, Sir Edward Coke, wrote a Report explaining the Court's decision. When the U.S. Constitution was written, the Founding Fathers were undoubtedly aware of Calvin's Case and the definition of "natural-born subject" that had emerged from it [15].

Dual Meaning of Ligeance: Throughout much of English history, subjecthood was tied to ligeance. Anyone born within the king's ligeance was a subject at birth, and anyone born outside the king's ligeance was an alien at birth. But the word ligeance had a double meaning. Sometimes it meant territory; at other times, it meant faith, loyalty and obedience [35].

In the fifteenth century, Thomas de Littleton (1407-1481) understood "ligeance" to mean territorial extent only. The wording of statutes enacted during the sixteenth century suggested that birthplace alone determined whether someone was a subject or alien:

In his Tenures (c. 1450-60), [Littleton] defined aliens as those 'born out of the liegance of our lord the king...'. He further elaborated that 'born out of the liegance' meant 'born in such country as is out the king's liegeaunce...' Statutes enacted in the Tudor years [1485-1603] were in complete agreement with Littleton's definition in that alien status was defined by birthplace only. (Kim, p.149).

But the meaning of ligeance underwent a transformation during the sixteenth-century Elizabethan succession debates.

Elizabethan Succession Controversy: When Queen Elizabeth I of England (1533-1603) reached age 30, it became apparent that she was not likely to marry or have children. Various legal commentators published pamphlets -- called Elizabethan Succession Tracts -- in which they debated who should, and who should not, inherit the English throne at the end of Elizabeth's reign.

The debate helped to forge a consensus of legal opinion that a child's personal status at birth -- whether subject or alien -- was properly based on the faith, obedience and loyalty of the parents at the time of the child's birth, not the territory in which the child was born. The English word allegiance (a variation of ligeance) first appeared in the Elizabethan Succession Tracts.

• In 1563, John Hales (a Protestant) published a tract arguing that neither Margaret of Lennox nor Mary Stuart (both Catholics) should be Queen Elizabeth's successor. Margaret of Lennox was born in England; Mary Stuart was born in Scotland. According to Hales, both women were ineligible to the English throne, not because of their respective places of birth, but because neither woman's father was an Englishman. Hales argued that children naturally follow the condition and estate of their fathers; and the proposition -- that any child born in England is automatically an English subject at birth, regardless of the parents' condition or estate -- "cannot be justified by any reason". (Kim, p.160).

• In 1567, Catholic lawyer, Sir Edmund Plowden, agreed that one's subjecthood was properly based on allegiance, not one's place of birth. He argued that, even though Mary Stuart was born in a foreign country, she did "homage" to the King of England, and therefore she was within the king's ligeance (Kim, p.170).


of 97

• A Protestant rebuttal pamphlet, titled Certaine Errours Uppon the Statute, accused Plowden of confusing "homage" and "ligeance". Homage is a matter of human law. It is a relationship that someone chooses to enter into, at some point after her or his birth. Ligeance, on the other hand, is a matter of natural law. It is established only at birth and is determined by the circumstances of one's birth (Kim, pp.172-173).

When Calvin's Case was decided in 1608, the consensus of legal opinion was that allegiance, rather than place of birth, determined whether a child was a subject or an alien at birth. The phrase "born within the ligeance of the king" no longer meant "born within the king's territory". It now meant "born within the king's allegiance", or in other words, "born of parents who were within the faith and obedience of the English king". Earlier legal writings and court rulings, which contained the word ligeance, would be re-interpreted to conform to the word's new meaning.

By the time of Calvin's Case, it was no longer sensible to doubt that allegiance was the decisive criterion of a person's legal status. In fact, all through the fifteenth and sixteenth centuries, allegiance had been discussed in legal proceedings whenever the geographical location of an event was mentioned. ... This ligeance, of course, also meant the bond of faith linking the king and his beloved subjects. Without saying it, lawyers had all along been talking about faith each time they mentioned ligeance. The bond of faith thus became the pivotal element of legal reasoning. (Kim, p.178)

In 1604, Parliament enacted a law declaring, in effect, that a child, born in England, was an English natural-born subject only if its parents were English subjects at the time of its birth. Children born in England, of alien parents, were denizens, not natural-born subjects.

To place the Children, born within this Realm, of foreign Parents, in Degree for the first Birth or Descent only, as Aliens made Denizens, and not otherwise. (House of Commons Journal, Volume 1, 21 April 1604)

The ruling in Calvin's Case reflected the prevailing viewpoint that one's place of birth did not, by itself, confer natural-born subjecthood; that without some measure of parental obedience or allegiance, it was impossible for a child to be a natural-born subject at birth, even if such child was born on English soil. In his Report on Calvin's Case, Lord Coke quoted -- often word-for-word -- directly from the Elizabethan Succession Tracts.

...any place within the king's dominions may make a subject born, but any place within the king's dominions without obedience can never produce a natural subject. (Coke) ...it is nec coelum, nec solum [neither sky nor soil], but ligeantia [ligeance] and obedientia [obedience] that make the subject born (Coke)

The Court's Ruling: The Court ruled that ligeance is not any particular territory or geographical location. Rather, it is a personal relationship between an individual and his sovereign. In this relationship, the sovereign governs and protects the individual, and in return, the individual owes faith, loyalty and obedience to the sovereign.


of 97

...ligeance is the mutual bond and obligation between the King and his subjects, whereby subjects are called his liege subjects, because they are bound to obey and serve him; and he is called their liege lord, because he should maintain and defend them.

... This word ligeance is well expressed by divers several names or synonyma which we find in our books. Sometimes it is called the obedience or obeisance of the subject to the King... Sometimes ligeance is called faith...

...ligeance, and faith and truth which are her members and parts, are qualities of the mind and soul of man...

...it followeth, that seeing the King's power, command, and protection extendeth out of England, that ligeance cannot be local, or confined within the bounds thereof.

...ligeance is a quality of the mind, and not confined within any place... (Coke)

Ligeance -- the tie or bond between an individual and his sovereign -- is established in one of four ways: by natural law, by gift, by residence in English territory as an alien friend, or by taking an oath.

There is found in the law four kinds of ligeances:

the first is, ligeantia naturalis, absoluta, pura, et indefinita [natural, absolute, pure and unlimited allegiance], and this originally is due by nature and birthright, and is called alta ligeantia [high allegiance] and he that oweth this is called subditus natus [subject born].

The second is called ligeantia acquisita [acquired allegiance], not by nature but by acquisition or denization, being called a denizen, or rather donaizon, because he is subditus datus [subject made by gift].

The third is ligeantia localis [local allegiance] wrought by the law, and that is when an alien that is in amity cometh into England, because as long as he is within England, he is within the King's protection; therefore so long as he is there, he oweth unto the King a local obedience or ligeance, for that the one (as it hath been said) draweth the other.

The fourth is a legal obedience, or ligeance which is called legal, because the municipal laws of this realm have prescribed the order and form of it; and this to be done upon oath at the Torn or Leet. (Coke)

Of the four kinds of legiance, only the first two confer subjecthood. Consequently, there were only two kinds of English subjects: subjects born and subjects made by gift:

• Subjects born acquired their subjecthood, at birth, by natural law. • Subjects made by gift acquired their subjecthood by non-natural means, either at birth

or at some point after birth. These subjects acquired their subjecthood by statute, by


of 97

naturalization or by denization.

Natural allegiance -- the allegiance that a subject born acquires at birth by natural law -- had three characteristics:

• Natural allegiance is personal. A subject's loyalty is to the king himself, not his Crown or kingdom. One's natural allegiance is an obligation to serve and obey the person (or the legitimate successor of the person) who happened to be king at the time of one's birth:

And it was resolved, that [ligeance] was due to the natural person of the King ... and it is not due to the politic capacity only, that is, to his Crown or kingdom distinct from his natural capacity... (Coke)

• Natural allegiance is perpetual. A subject born does not have the right to expatriate himself from England and become a subject or citizen of another country. All persons who were English subjects by natural law, were English subjects for life.

Seeing then that faith, obedience, and ligeance are due by the law of nature, it followeth that the same cannot be changed or taken away; ... (Coke)

Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislature. An Englishman who removes to France, or to China, owes the same allegiance to the king of England there as at home, and twenty years hence as well as now. For it is a principle of universal law, that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other; and cannot be devested without the concurrent act of that prince to whom it was first due. (Blackstone)

• Natural allegiance is exclusive. A child who acquired natural allegiance at birth, owed allegiance to the English king exclusively and did not owe any allegiance, at birth, to any other sovereign (see Question 17).

And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. (Blackstone)

The Court ruled that you were, by natural law, a subject born if you were born within the king's territory, of parents who were under the king's "obedience" at the time of your birth:

There be regularly (unless it be in special cases) three incidents to a subject born. 1. That the parents be under the actual obedience of the King. 2. That the place of his birth be within the King's dominion. And, 3. The time of his birth is chiefly to be considered; for he cannot be a subject born of one kingdom that was born


of 97

under the ligeance of a King of another kingdom, albeit afterwards one kingdom descend to the King of the other. (Coke)

When Robert Calvin was born in 1606, his place of birth (Scotland) was within King James' territorial jurisdiction. Calvin's parents, though not English subjects, were under the "obedience" of King James. Consequently, Calvin met the two "natural law" requirements of natural-born subjecthood -- the birthplace requirement (he was born within the king's dominion) and the parental allegiance requirement (his parents, at the time of his birth, were under the king's obedience). Thus, Calvin was, by natural law, a natural-born subject of King James, and as such, was eligible to inherit property anywhere within James' realm.

Alien Friends and Alien Enemies: The English Court did not rule that all children born on English soil were natural-born subjects. The children of foreign ambassadors and alien enemies, even if such children were born within English territory, were not natural-born subjects of the English king. Presumably, these children were, at birth, subjects of the (foreign) prince to which their (alien) parents owed allegiance.

"Alien friends" of the English king were defined as subjects of a foreign monarch that was in league with the English king:

Leagues between our Sovereign and others are the onely means to make aliens friends... (Coke)

"Alien enemies" included the following:

• Foreign invaders: Foreign military personnel undertaking a hostile invasion or occupation of English territory were deemed to be alien enemies. Their children, even if born in England, were not natural-born subjects:

...for if enemies should come into the realm, and possess a town or fort, and have issue [child] there, that issue [child] is no subject to the King of England, though he be born upon his soyl, and under his meridian, for that he was not born under the ligeance of a subject, nor under the protection of the King. (Coke)

• Non-combatant subjects of hostile regimes: In the case of Amin v. Brown (2005), the English High Court affirmed the ancient rule that, whenever "war" breaks out between England and a foreign country, all citizens and subjects of that foreign country -- including civilians not engaged in hostile activities against England -- immediately become "alien enemies" of the English king. This "rule" has been "on the books" for centuries and is still part of English law today. But the rule is likely to become obsolete, since in modern times, war "in the technical sense" occurs rarely, if at all:

Mrs. Amin lived in Iraq and owned a house in London, which she rented out. The rent was paid to Mr. Brown, an English solicitor, as agent for Mrs. Amin. Mrs. Amin's case was that Mr. Brown had used the rent money to refurbish the house without instruction from her. In his defense, Mr. Brown did not claim that he was entitled to carry out works on the house. Instead, he raised several arguments as to Mrs. Amin's right to bring the


of 97

claim at all, including that she had no standing to sue because she was an Iraqi citizen and therefore an enemy alien.

Justice Collins concluded that this disability of enemy aliens continues to be "part of the rules of English law relating to the traditional laws of war ... [but] that there is no warrant for extending it to modern armed conflict not involving war in the technical sense." Accordingly, since he accepted the U.K. government's position that its use of force against Iraq was authorized by a combination of UN Security Council resolutions, Justice Collins held that the United Kingdom was not at war with Iraq and therefore that Mrs. Amin could not be an enemy alien.

Although Amin establishes that the procedural rule on enemy aliens still exists, it might also be taken as evidence that the rule will seldom apply. International law now prohibits what Justice Collins described as "war in the technical sense." (Knop)

• Non-Christians: In his Report on Calvin's Case, Lord Coke asserted that non-Christians were "perpetual enemies" of the king, therefore their children, even if born in England, were not natural-born subjects:

Christianity being part and parcel of the law of England, those who did not profess it could not have the rights of Englishmen but, whether born within the king's allegiance or not, must be aliens, nor could they be alien friends, but must be regarded as alien enemies, even though they might be here under the special permission of the king. Lord Coke, in his report of the judgment of the Exchequer Chamber in Calvin's case, thus lays down the law: "All infidels are in law perpetui inimici, perpetual enemies (for the law presumes not that they will be converted, that being remota potentia, a remote possibility), for between them, as with the devils, whose subjects they be, and the Christian there is a perpetual hostility, and can be no peace ..." (Henriques, p.186)

Lord Coke's opinions regarding non-Christians were discarded during the 1800s. But during the 1600s and 1700s, lawyers were uncertain whether English Law conferred subjecthood and property ownership rights to children born in England, of non-Christian parents.

The capacity of Jews to hold land or other real property in England was ... for a long time a question of serious doubt among lawyers. If all Jews, whether born within the realm or not, were aliens and perpetual enemies of the king, then they were incapable of holding land, for until the year 1870 no alien could hold land in England. ... Even as late as 1830 there were those who thought that this alleged incapacity [of Jews to hold real property in England] still existed, for Mr. Blunt, in his excellent History of the Jews in England, published in that year, is unable to resist this conclusion, and in the same year that unrivalled Master of Real Property law, Lord St. Leonards, then Solicitor-General, [asked] for a declaratory law to resolve all doubts as to the power of Jews to hold landed property in fee... ...he had himself been dissuaded some years before from buying


of 97

some landed property of a Jew by Sir Samuel Romilly who had given it as his opinion that he could not obtain a good title from a Jew. (Henriques, pp.191-192)

• Unlicensed Inhabitants: According to an article appearing in the Harvard Journal of Law and Public Policy, "alien enemies" included aliens who had entered England illegally:

Coke seems to have understood the phrase "aliens in amity" to exclude more than hostile enemy soldiers, more even than the subjects of foreign sovereigns with whom the English monarch was at war. Although it could not have been his intention to exclude from the meaning of "aliens in amity" any alien who was in England in violation of English immigration law -- there were no such laws -- Coke did make certain other relevant statements with an apparently similar meaning.

He explained that an alien was either a friend (amicus) or an enemy (inimicus) at birth, and could become a friend only if there was a "league" between the alien's sovereign and that of England. If an alien's sovereign was "in league" with the English sovereign, the alien was a friend (amicus) and could enter England without "license" of the English sovereign. The implication is that if an alien requiring a "license" came into England without one, he would be regarded as not "in amity". Thus, his children born in England would not be born "within the allegiance." (Wood)

In order for a child to acquire English subjecthood at birth, something more than birth on English territory was needed: the parents had to be in the obedience of the king. Since alien enemies and foreign diplomats were not under the obedience of the king, their children, even if born in England, were not natural-born subjects. "Alien enemies" were more than subjects or citizens of a foreign country with which England was at war. "Alien enemies" also included aliens who were violating English law and/or were (at least perceived to be) opposed to England's core values and beliefs.

Summary: Everyone was either a subject at birth or an alien at birth. Persons who were aliens at birth could, in later life, become naturalized subjects (by naturalization by Parliament) or denizens (by letters patent issued by the king). Such persons were made subjects by gift after they were born.

You were a subject at the time of your birth only if you were "born within the allegiance of the king". There were two ways by which someone could be "born within the allegiance of the king": by nature (i.e., by the natural law espoused by Calvin's Case), and by gift (i.e., by man-made laws enacted by Parliament).

• By natural law, you were subject born (i.e., a true natural-born subject at birth) if you were born within the king's territory and, at the time of your birth, your parents were under the king's obedience. In special cases, if English parents were royalty or in the king's service, their foreign-born children were natural-born subjects. But as a general rule, subject born implied birth within the king's realm.

• By man-made laws enacted by Parliament, you were, at birth, a subject by gift if you


of 97

were born in a foreign country, of a civilian (non-royalty, non-diplomatic, non-military) English father. You were, at birth, "deemed and adjudged" to be a natural-born subject of the English king, but you were not a natural-born subject in fact.

Regardless of whether you acquired your subjecthood by natural law or by man-made law, you were a subject at the time of your birth only if you were born within the allegiance of the king:

The first clear indication that the jus sanguinis was already part of English law is to be found in the debate held in Parliament in 1343 (Rot. Parl. II.139). At the conclusion of that debate it was resolved that, under the existing common law, the king's children born abroad were not aliens, so that the fact of their birth abroad could not affect their succession to the crown; and that an identical rule applied to children born abroad to parents in the king's service. This, however, was not really an assertion of the jus sanguinis any more than the common law rule about persons born within the realm was an assertion of the jus soli. The truth rather is that both were assertions of the principle that a person is a subject from birth if born within the king's allegiance. Just as the child of an alien father born within the realm is a subject if, but only if, his father at the time of his birth owed allegiance to the king, so also the child of an English father born in foreign parts is a subject if his father's position was such as to constitute the birth a birth within the allegiance. (Ross, p. 9).

According to the English Court's ruling in Calvin's Case (1608), you were subject born (a natural-born subject according to natural law) if you met two requirements at the time of your birth: a birthplace requirement (you had to be born within the king's realm) and a parental allegiance requirement (your parents, at the time of your birth, had to be under the king's "obedience"). In special cases [36], the birthplace requirement was waived. If the parents were English royalty or in the service of the king, their children, even if foreign-born, were natural-born subjects. But there were no exceptions to the parental allegiance requirement. When a child was born, if its parents were not under the "obedience" or "allegiance" of the king, there was no way the child could be, by natural law or by man-made law, a subject at birth, regardless of the child's place of birth.

17. Did "natural born" imply exclusive allegiance at birth?

When the U.S. Constitution was being written, the term "natural-born subject" referred to three classes of people:

• Natural-law subjects (subjects born) were, at birth, natural-born subjects according to the natural law theory espoused by Calvin's Case of 1608. Except in special cases [36], they were born within the king's realm, of parents who were subjects or alien friends.

• Statutory subjects were, at birth, natural-born subjects according to man-made laws enacted by Parliament. They included foreign-born children of civilian (non-royalty, non-diplomatic, non-military) English fathers.

• Naturalized subjects were aliens at birth, but at some point after birth, became subjects by naturalization.

All three of the above groups were referred to as "natural-born subjects". Members of the


of 97

second and third groups (statutory subjects and naturalized subjects) were not born with exclusive allegiance to the English king.

• Statutory subjects were foreign-born children of English civilian fathers. These children were born with dual nationality. According to the natural law theory of Calvin's Case, they owed natural allegiance to the foreign king in whose territory they were born. By English law, they were also, at birth, English subjects who owed allegiance to the English king.

...children and grandchildren, born of British parents in foreign countries, are British-born subjects; yet these, no doubt, by the laws of the respective foreign countries, are also deemed natural-born subjects there. I am aware of the difficulties which such persons may labor under with these double claims of allegiance upon them. ...the king cannot reckon upon the full and absolute obedience of such persons, because they owe another fealty besides that due to him... (Reeve, 1808, as quoted in American Law Register, Volume 3, 1864, p.615)

• Naturalized subjects were aliens at birth. When they were born, they did not owe any allegiance to the English king. At some point after birth, they became English subjects through a legal process called naturalization.

Thus, the term "natural-born subject" sometimes referred to people who were not born on English soil and did not, at birth, owe allegiance to the English king exclusively. However, as we intend to show, "true" natural-born subjects (subjects born) -- those who acquired their subjecthood by natural law -- owed natural allegiance to the English king only and, at birth, did not owe allegiance to any other sovereign.

Natural vs. man-made: All English subjects, except denizens, were referred to as "natural-born subjects". There were two categories of "natural-born subjects":

• Natural-law subjects (subjects born) were natural-born subjects in fact. Except in special cases [36], they were born on English soil, of parents who were subjects or alien friends of the English king.

• Man-made subjects (subjects by gift) were aliens at birth, but were granted English subjecthood by man-made law. There were two categories of man-made subjects: Statutory subjects received subjecthood at birth. Naturalized subjects received subjecthood at some point after birth. Both statutory and naturalized subjects received English subjecthood by man-made law, not natural law.

The wording of the Act of Anne (1709) suggests that statutory subjects (foreign-born children of civilian English fathers) were not natural-born subjects in fact, but were "deemed and adjudged" to be such by man-made laws:

The Act [of Anne, 1709] did not say in terms 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". (Parry)


of 97

According to Dowdy's report to Congress (1967), only those born within the king's realm -- that is, only those who acquired their subjecthood by natural law -- were "true" natural-born subjects; all other subjects were "naturalized":

No child born outside of the dominion of the King was ever a true "natural-born subject." They were naturalized subjects. It is true that by the naturalization acts under which they had become naturalized subjects had "deemed" them to be natural-born subjects (despite the fact that they were not so in fact), and the very fact that these were "deemed" to be natural-born by the naturalization act reveals that the true "natural-born" subjects were those born within the dominion of the King without the necessity of a naturalization law to "deem" them to be in law what they were not in fact. (Dowdy)

Naturalization at birth: "Naturalization", as generally understood, is a legal process by which an alien adult becomes an English subject. But in some contexts, the word "naturalization" may also refer to man-made laws which confer subjectood at birth. According to Dowdy, there were only two kinds of English subjects:

• those who became subjects by natural law, i.e., by being born within the king's realm; and

• those who became subjects by naturalization.

Those who became subjects by natural law were "true" natural-born subjects. Statutory subjects -- the foreign-born children of civilian English fathers -- acquired English subjecthood at birth by man-made laws. Under Dowdy's scheme of things, statutory subjects were naturalized at birth.

Vattel used the word "naturalize" in a similar manner, implying that naturalization can, in some cases, occur at birth. According to Vattel, children received nationality by descent from their parents; therefore, when children of alien parents were born in England, such children were not "natural" English subjects according to Vattel's natural law; rather, England "naturalized" them at birth:

Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalizes the children of a foreigner. (Vattel, § 214)

Ordinarily, naturalization is a legal process by which an alien adult acquires English nationality. But in a more general sense, naturalization could be understood as any acquisition of English subjecthood by man-made law (i.e., "by gift"), regardless of whether subjecthood is conferred at birth or at some point after birth.

Fiction of Law: A series of English legal cases -- Foster v. Ramsey (1656), Collingwood v. Pace (1661-1664), and Craw v. Ramsey (1669-1670) -- clarified the difference between subjecthood by natural law and subjecthood by naturalization. The Court explained that naturalization, whether by England or by a foreign country, is a fiction of law which has no effect except in countries which choose to "go along" with that fiction:

The law clearly held that naturalization equated an alien and a natural-born subject. Yet as Chief Justice Vaugham noted, native Irishmen were natural


of 97

English subjects, although aliens naturalized in Ireland were not.

"The reason is, that naturalization is but a fiction of law, and can have effect but upon those consenting to that fiction: therefore it hath the like effect that a man's birth hath, where the lawmakers have power, but not in other places where they have not. Naturalizing in Ireland gives the same effect in Ireland as being born there, so in Scotland as being born there, but not in England, which consents not to the fiction of Ireland or Scotland, nor to any but her own."

A legal fiction could not in any absolute sense make an alien a natural-born subject, for this would mean that he would have "two natural princes, one where he was born and the other where naturalized." The idea was absurd as the supposition that a man could have "two natural fathers, or two natural mothers." (Kettner, pp.41-42)

According to Chief Justice Vaugham, an English natural-born subject in fact was someone who, at birth, owed natural allegiance to the English king only and did not, at birth, owe allegiance to any other sovereign. The notion of a "true" natural-born subject having more than one allegiance at birth was "absurd". If a child was born in a foreign country and was thus, by natural law, a natural-born subject of a foreign king, the child was not an English natural-born subject in fact and could never become an English natural-born subject except by the fiction of man-made law.

Natural Ligeance: During the sixteenth century Elizabethan succession debates, natural ligeance was depicted as an exclusive bond "swallowing up all others":

All promises bind the parties. But the author of 'Certaine errours...' sees that there is an important difference in their binding power. The author explains that

one tenaunt maie be of divers Lordes fees and homage.

In other words, the bond of fidelity created by homage does not prevent the parties from engaging themselves in other similar bonds of fidelity with third parties. But,

legiaunce... is the bonde of faith swallowinge up all others, and the greatest among creatures, religion to the Creator reserved, due by the lawe of god and nacions from the subject to the prince... [A] tenure or oath of homage ableth not an aliann to be a subject of the legiaunce of England nor to be a person capable of inheritance like an English mann.

According to the Protestant author, nationality is a question of this 'bonde of faith swallowinge up all others.' Even if Mary Stuart was the chief homager of the king of England and, therefore, could rely on the bond of trust created by the homage, that would not make her any less alien. The contractual bond of trust (fidelitatis connexio) is 'instituted' by the parties in accordance with the (positive) law of the kingdom. It arises and disappears as a result of the parties' own doing. The bond of legiaunce, on the other hand, transcends the parties' own will or action. It is


of 97

'ordained' by the 'lawe of god and nacions'. ... Our author concludes his argument with the following remark: 'One God, one king, one legiaunce'. This is the most revealing explanation of the meaning of allegiance understood by sixteenth century lawyers. (Kim, pp.172-3)

Although homage was non-exclusive, natural ligeance was exclusive to one and only one sovereign. In his Report on Calvin's Case, Lord Coke wrote that natural ligeance was "absolute" and "pure":

There is found in the law four kinds of ligeances: the first is, ligeantia naturalis, absoluta, pura, et indefinita [natural, absolute, pure and unlimited allegiance], and this originally is due by nature and birthright, and is called alta ligeantia [high allegiance] and he that oweth this is called subditus natus [subject born].(Coke)

According to William Blackstone, if you were born in a particular country, you acquired at birth an obligation of "natural allegiance" to that country's ruler (provided that your parents, at the time of your birth, were under the actual "obedience" of said ruler). Natural allegiance is intrinsically exclusive: it is owed to one, and only one, sovereign. If you have obligations of allegiance to more than one monarch, it is the result of human intervention, not natural law:

Indeed the natural-born subject of one prince, to whom he owes allegiance, may be entangled by subjecting himself absolutely to another; but it is his own act that brings him into these straits and difficulties, of owing service to two masters ... And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. (Blackstone)

Subjecthood by descent: Every child was either a natural-born subject at birth, or an alien at birth. You were a "true" natural-born subject if you acquired your subjecthood, at birth, by natural law. According to the natural law of Calvin's Case, you were a "true" natural-born subject (i.e., a "subject born") if you were born within the king's realm, of parents who were the king's subjects or friends at the time of your birth. Your parents' obedience affected your subjecthood at birth, but their nationality did not. Nationality was not passed, by descent, from parents to their children.

By the Common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled, or merely temporarily sojourning, in the country, was an English subject; save only the children of foreign ambassadors ... or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality. (Cockburn, p.7, boldface emphasis added)

From England's perspective, "nationality by descent" (the jus sanguinis principle) was a man-made law by which a country "naturalized", at birth, children born outside of its jurisdiction. Such naturalization was a fiction of law which had no effect except in countries consenting to that fiction.


of 97

• Foreign-born children of English parents: By natural law, foreign-born children of English civilain fathers were foreign subjects at birth. They owed natural allegiance to the foreign king in whose territory they were born. England enacted laws which, in effect, "naturalized" these (alien) children as soon as they were born. Since England consented to the fiction of its own naturalization laws, England "deemed and adjudged" these foreign-born children to be English natural-born subjects.

• English-born children of foreign parents: By natural law, children born in England, of "alien friend" parents, were English natural-born subjects. In some cases, "alien friend" parents were subjects of a foreign government which had adopted the jus sanguinis principle. The government had enacted laws which "naturalized" the children of its subjects, when such children were born outside of its jurisdiction. These foreign naturalization laws were a fiction that England did not "go along" with.

As far as England was concerned, "true" natural-born subjects owed, at birth, allegiance to the English king only. Any foreign allegiance that an English-born child might have received, at birth, from its (alien) parents was a fiction of law which had no effect in England.

Ambassadors: By international convention, ambassadors enjoyed diplomatic immunity. When an Englishman was sent as an ambassador to a foreign country, he did not owe any allegiance -- not even "local" allegiance -- to the foreign king. Thus, the Englishman's children, even if born in that foreign country, were not foreign subjects. Such children were regarded as "natural" subjects of the English king.

Yet the children of the king's ambassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent (Blackstone)

Could it be that the children of the English king's ambassadors were deemed to be "natural" subjects of the English king, not because of the children's place of birth, but because such children owed allegiance to the English king only and did not owe any allegiance to any other sovereign?

Summary: During the eighteenth century, in England and the English colonies in America, the term "natural-born subject" was used in two ways. Sometimes, it referred to anyone who possessed the rights and obligations of natural-born subjecthood, regardless of how those rights and obligations were acquired. "Natural-born," in this sense, did not imply any particular place of birth and did not imply exclusive allegiance at birth. A statutory natural born subject, for example, was typically born in a foreign country and, at birth, owed allegiance to two different sovereigns. Likewise, adults who acquired English natural-born subjecthood by naturalization were almost always foreign-born and, at birth, owed allegiance to a foreign king. Yet naturalized subjects were sometimes referred to as "natural-born subjects".

At other times, the term "natural-born subject" referred specifically to persons who received their subjecthood, at birth, by natural law. These persons were "true" natural-born subjects. Except in special cases [36], they were born on English soil. In all cases, they owed, at birth, allegiance to the English king only. Thus, it appears that, in the context of natural law, the term "natural born" carried a connotation of birth within a particular place and exclusive allegiance, at birth, to the sovereign of that place.


of 97

18. What was Vattel's "Law of Nations"?

In 1749, German philosopher Christian Wolff (1679-1754) published a book titled Jus Gentium, which in Latin means "Law of Nations". An English language translation of Jus Gentium is available today, but no such translation existed in 1787, when the U.S. Constitution was adopted.

Wolff's writings were largely unknown in the English colonies in America. But in Europe,

Christian Wolff was perhaps the most influential writer on international law of the eighteenth century. (American Journal of International Law)

Wolff's Concepts: In Jus Gentium, Wolff defined the following concepts:

• Domicile: Everyone, except a vagabond, has a fixed dwelling place, or home, where he or she intends to live permanently. Such a dwelling place, or residence, is called one's domicile.

• Expatriation: Everyone has a right to change her or his domicile. You may abandon your current domicile with the intent of never returning, and establish a new domicile for yourself in a different country.

• Permanent citizen: Domicile and citizenship are intertwined. As a general rule, you are a permanent citizen of the country in which your domicile is located.

• Temporary citizen: If you leave your domicile for the purpose of visiting a foreign country temporarily, and you intend to eventually return to your domicile, your domicile (thus your permanent citizenship) does not change. While you are residing or living in a foreign country temporarily, you are a temporary citizen of that country, but you remain a permanent citizen of the country of your domicile. Your temporary citizenship in a foreign country terminates as soon as you leave that foreign country.

• Acquired domicile: If you permanently leave your domicile and established a new domicile elsewhere, your new domicile is called an acquired domicile. An acquired domicile is a domicile that you have established for yourself by your own choice.

• Natural domicile: Your natural domicile is your first, or original, domicile. It is defined as your father's domicile at the time of your birth, regardless of your actual place of birth.

• Native country: Your native country is the country in which your natural domicile is located. Your legal rights at birth, including your citizenship at birth, stem from your native country, not your actual place of birth.

Here are a few excerpts from a modern-day English translation of Wolff's Jus Gentium:

Domicile is defined to be a fixed dwelling in some place with intention of remaining there permanently. (Wolff, p.76) A vagabond is defined as one who has no domicile anywhere. And so vagabonds live now in one place, and now in another place, nevertheless have no intention of remaining anywhere permanently. (Wolff, p.76) Natural domicile is defined as that which any one acquires by birth, in the place where his father has domicile. That is called acquired domicile which any one has


of 97

established for himself of his own will. Therefore anyone is supposed to retain his natural domicile as long as he has established none for himself by his own will, or has not abandoned it. (Wolff, p.76) Native country is defined as a place, namely a land or city, in which one's parents have domicile, when he is born... When any one is born in his native country, a thing which usually happens, place of birth is synonymous with native country ... but if anyone is born on a journey or in a foreign land, where his parents are living on account of some business, his native country differs from his place of birth. (Wolff, p.77) It is not without reason that the native land is discussed in the law of nations, since on it depends certain rights, which men do not enjoy unless they have this native land. (Wolff, p.77)

...since the place of birth confers no right, of itself it deserves no attention at all in the law of nations... (Wolff, p.77)

Vattel's Influence: In 1758, four years after Wolff's death, Swiss philosopher Emmerich de Vattel (1714-1767), published Droit des Gens, which also means "Law of Nations". It was written in French and was based largely on Wolff's work. An English language translation of Droit des Gens was published in 1759.

Despite its critics, Droit des Gens was immensely popular, especially in America [23].

The extraordinary thing about the enthusiastic acceptance of Vattel's work was that neither Vattel the man, nor the work itself, seemed worthy of it. That is, Vattel was very much an epigone and in no way the intellectual equal of men like Wolff and Liebnitz whose influence, in this field at least, he surpassed. In addition, it is the consensus of scholars that the intrinsic value of Vattel's work was not at all proportionate to the success achieved by it. (Ruddy, p.177)

According to C. Van Vollenhoven, an outspoken critic of Vattel:

the most disheartening fact of all is that Vattel was enormously successful. The man, who as a thinker and a worker, could not hold a candle to Grotius, was so favored by fortune that the second stage of the Law of Nations (1770-1914 speaking roughly again) may be safely called after him. (Vollenhoven, as quoted in Ruddy, p.178)

Likewise, in 1913, Professor Fenwick remarked:

A century ago not even the name Grotius was more potent in its influence upon questions relating to international law than that of Vattel. Vattel's treatise on the law of nations was quoted by judicial tribunals, in speeches before legislative assemblies, and in the decrees and correspondence of executive officials. It was the manual of the student, the preference work of the statesman and the text from which political philosophers drew inspiration. Publicists considered it sufficient to cite the authority of Vattel to justify and give conclusiveness and


of 97

force to statements as to the proper conduct of a state in international relations. (Charles G. Fenwick, "The Authority of Vattel", VII American Political Science Review (Baltimore, 1914), p.395, as quoted in Ruddy, p.178)

According to John Basset Moore, Vattel was

...more widely read and quoted than any other writer on the law of nations. (Moore, as quoted in Ruddy, p.178)

Vattel's widespread acceptance and influence is reflected in the number of translations and editions of his work:

There were between 1758 and 1834 twenty French editions of Droit des Gens. There were between 1759 and 1834 ten translations of his work in England, and from 1796 until 1872 eighteen translations, or reprints of translations, published in the United States. Between 1820 and 1836 there were six translations of Vattel into Spanish, one into German in 1760, and one into Italian in 1805. These facts are put into greater perspective if one considers that Grotius, who had been reprinted or translated fifty times between 1625-1758, went through only one more edition (1773) and one more translation (1853) during the hundred years after Vattel's publication. (Ruddy, pp.178-179)

In U.S. courts, Vattel was cited more frequently than all of his predecessors combined. The following chart represents the results of Professor Dickinson's survey of American legal cases from 1789 through 1820:

Citations in Pleadings

Court Citations

Court Quotations

Grotius 16 11 2

Pufendorf 9 4 8

Bynkershoek 25 16 2

Vattel 92 38 22

American cases 1789-1820 (Source: Ruddy, p.179)

Vattel's work appeared prominently in American colleges and universities:

James Wilsons' lectures on jurisprudence in 1790, which gave "the first American presentation of the principles of the law of nature and of nations" followed Vattel very closely. In addition, when Jefferson inaugurated the study of the Law of


of 97

Nature and of Nations at William and Mary College in 1779, the text from then until 1841 was Vattel's. Vattel was also the text at Dartmouth College from 1796-1828. (Ruddy, p.179-180)

Vattel's Theory: According to Vattel, "citizenship" is a collection of rights and obligations that a state confers on qualifying individuals. The most important qualification criteria is residence. You cannot become a member or citizen of a state unless you are a perpetual inhabitant of the state, or have established a "fixed residence" or "settlement" within that state. The status -- whether "citizen" or "perpetual resident" -- of a child, at birth, is the status of its father at the time of its birth.

Here are excerpts from an English translation of Vattel's Law of Nations:

Inhabitants: The inhabitants, as distinguished from citizens, are foreigners, who are permitted to settle and stay in the country. Bound to the society by their residence, they are subject to the laws of the state while they reside in it; and they are obliged to defend it, because it grants them protection, though they do not participate in all the rights of citizens. They enjoy only the advantages which the law or custom gives them. (Vattel, § 213)

Perpetual Inhabitants: The perpetual inhabitants are those who have received the right of perpetual residence. These are a kind of citizens of an inferior order, and are united to the society without participating in all its advantages. Their children follow the condition of their fathers; and, as the state has given to these the right of perpetual residence, their right passes to their posterity. (Vattel, § 213)

Settlement: Settlement is a fixed residence in any place, with an intention of always staying there. A man does not, then, establish his settlement in any place, unless he makes sufficiently known his intention of fixing there, either tacitly or by an express declaration. However, this declaration is no reason why, if he afterwards changes his mind, he may not transfer his settlement elsewhere. In this sense, a person who stops at a place upon business, even though he stay a long time, has only a simple habitation there, but has no settlement. Thus, the envoy of a foreign prince has not his settlement at the court where he resides. (Vattel, § 218)

Original Settlement: The natural, or original settlement, is that which we acquire by birth, in the place where our father has his; and we are considered as retaining it, till we have abandoned it, in order to choose another. The acquired settlement (adscititium) is that where we settle by our own choice. (Vattel, § 218)

Vagrants: Vagrants are people who have no settlement. Consequently, those born of vagrant parents have no country, since a man's country is the place where, at the time of his birth, his parents had their settlement ... or it is the state of which his father was then a member, which comes to the same point; for, to settle for ever in a nation, is to become a member of it, at least as a perpetual inhabitant, if not with all the privileges of a citizen. (Vattel, § 219)


of 97

Country:

The term, country, seems to be pretty generally known: but as it is taken in different senses, it may not be unuseful to give it here an exact definition. It commonly signifies the State of which one is a member: in this sense we have used it in the preceding sections; and it is to be thus understood in the law of nations.

In a more confined sense, and more agreeably to its etymology, this term signifies the state, or even more particularly the town or place where our parents had their fixed residence at the moment of our birth. In this sense, it is justly said, that our country cannot be changed, and always remains the same, to whatsoever place we may afterwards remove. A man ought to preserve gratitude and affection for the state to which he is indebted for his education, and of which his parents were members when they gave him birth. But as various lawful reasons may oblige him to choose another country, -- that is, to become a member of another society; so, when we speak in general of the duty to our country, the term is to be understood as meaning the state of which a man is an actual member; since it is the latter, in preference to every other state, that he is bound to serve with his utmost efforts. (Vattel, § 122)

Citizens: The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. 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. ...it is presumed, as 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; and these become true citizens merely by their tacit consent. ... I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country. (Vattel, § 212)

Foreign birth: By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (§ 212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him;... (Vattel, § 215)

...for, naturally, it is our extraction, not the place of our birth, that gives us rights... (Vattel, § 216)

Expatriation: The children are bound by natural ties to the society in which they were born; ... ...they have a right to enter into the society of which their fathers were members. But every man is born free; and the son of a citizen, when come to the years of discretion, may examine whether it be convenient for him to join the society for which he was destined by his birth. If he does not find it advantageous to remain in it, he is at liberty to quit it, on making it a compensation for what it has done in his favour, and preserving, as far as his new engagements will allow him, the sentiments of love and


of 97

gratitude he owes it. A man's obligations to his natural country may, however, change, lessen, or entirely vanish, according as he shall have quitted it lawfully, and with good reason, in order to choose another, or has been banished from it deservedly or unjustly, in due form of law or by violence.

As soon as the son of a citizen attains the age of manhood, and acts as a citizen, he tacitly assumes that character; his obligations, like those of others who expressly and formally enter into engagements with society, become stronger and more extensive: but the case is very different with respect to him of whom we have been speaking. ... A citizen may therefore quit the state of which he is a member, provided it be not in such a conjuncture when he cannot abandon it without doing it a visible injury. ... Every man has a right to quit his country, in order to settle in any other, when by that step he does not endanger the welfare of his country. But a good citizen will never determine on such a step without necessity, or without very strong reasons. It is taking a dishonourable advantage of our liberty, to quit our associates upon slight pretences, after having derived considerable advantages from them; and this is the case of every citizen, with respect to his country. (Vattel, § 220)

Summary: During the eighteenth century, several European authors had published their theories regarding natural law and the law of nations. The work of one such theorist, Emmerich de Vattel, was popular in the English colonies in America, especially after they gained their independence from Great Britain.

According to Vattel's Law of Nations, you are a permanent member or citizen of the country in which you maintain your primary permanent legal residence. Since each person has, at most, only one primary permanent legal residence, permanent citizenship is intrinsically exclusive. You can be a permanent citizen of one country (the country of your primary permanent legal residence) and a temporary citizen of another country (the country you are visiting temporarily), but you cannot be a permanent citizen of two countries simultaneously.

A child acquires, at birth, the permanent legal residence, hence the permanent citizenship, of its father (the jus sanguinis principle). In other words, a child, at birth, receives citizenship by descent from its father, regardless of the child's actual place of birth. When a child's birthplace coincides with the country of its parents' permanent citizenship, the child is more than just a "citizen" at birth -- the child is also a "native" of its parents' country.

Every citizen has the right of expatriation, i.e., the right to terminate his existing citizenship and become a naturalized citizen of another country. An individual is expected to expatriate himself from the country of his current citizenship, in compliance with the laws of that country, before establishing permanent residence and citizenship elsewhere.

19. Why is there disagreement over the meaning of "natural born citizen"?

When the thirteen colonies gained their independence and became the original thirteen States, some of them retained aspects of English common law, including the jus soli principle and the doctrine of perpetual allegiance. But Vattel's immense popularity among our nation's Founding Fathers gives rise to this question: To what extent was Vattel's ideas regarding "citizenship" -- specifically, the jus sanguinis principle and the right of expatriation -- influential at the Federal level? In other words, did Vattel's concept of "citizen", rather than


of 97

the English concept of "subject", guide the original meaning of "natural born citizen" in the Federal Constitution? Different authorities give different answers to these questions.

According to Prentiss Webster (1851-1898), differences of opinion regarding citizenship are largely due to differences of opinion regarding our nation's founding principles. His book, A Treatise On the Law Of Citizenship In The United States, was published in 1891, well after the 14th Amendment was ratified (1868) but well before the Supreme Court ruled in U.S. v. Wong Kim Ark (1898).

Webster cites expatriation as an example of a citizenship-related controversy. In Ainslie vs. Martin (1812), the Massachusetts Supreme Court ruled that U.S. citizens do not have a right to terminate their U.S. citizenship and become naturalized citizens of another country:

This claim of the commonwealth to the allegiance of all persons born within its territory may subject some persons, who, adhering to their former sovereign, and residing within his dominions, are recognized by him as his subjects, to great inconvenience, especially in time of war, when the opposing sovereigns claim their allegiance. But the inconvenience cannot alter the law of the land. Their situation is not different in law, whatever may be their equitable claims, from the situation of these citizens of the commonwealth who may be naturalized in the dominion of a foreign prince. The duties of these persons arising from their allegiance to the country of their birth remain unchanged and unimpaired by their foreign naturalization. For by the common law no subject can expatriate himself. (Ainslie vs. Martin (1812), as quoted in Webster, p, 78)

But, in Murray vs. McCarthy (1811), a Virginia court affirmed the right of U.S. citizens to expatriate themselves from the United States, provided that they do so according to law:

It is believed that the right of emigration or expatriation is one of those inherent rights, of which, when men enter into a state of society, they cannot by any compact deprive or divest their posterity. But although municipal laws cannot take away or destroy this right, they may regulate the manner and prescribe the evidence of its exercise, and in the absence of the regulations juris positivi, the right must be exercised according to the principles of law. (Murray vs. McCarthy (1811), as quoted in Webster, p, 79)

The Massachusetts court denied the right of expatriation, but the Virginia court did not. According to Webster, these differing opinions regarding citizenship are due to differing opinions regarding American history:

By what processes of reasoning these two opinions so diametrically opposed were reached is to be explained by this: that in the first, the common law was believed to be the guide to the declaration of independence and the constitution of the United States, while in the second the reason is from the principles as laid down by the founders of the government and based on the natural law of man.

In the first, it is denied that the government of the United States is conventional as between man and man. In the second, it is admitted that the government has no other existence than in compact entered into, by and between those who


of 97

organized it. ... The first recognized the English common law as the guide to the American form of government, while the second recognized the government to be founded on the natural law of man. (Webster, p. 79)

As a general rule, those who believe that English common law guided the forming of the U.S. government, tend to also believe that English common law guided the Founding Father's understanding of citizenship. Likewise, those who believe that western European political and natural law theorists, such as Vattel, influenced the Declaration of Independence and U.S. Constitution, tend to also believe that those same theorists influenced the early American meaning of "citizen".

Under English common law, any child born on English soil (except the child of a foreign ambassador or alien enemy) was a natural-born subject, and English natural-born subjects owed perpetual allegiance to the king. Therefore, if you believe that English common law guided the formation of the U.S. government, you are likely to also believe that U.S. citizenship was based on the jus soli principle, and that U.S. citizens did not have the right of expatriation.

On the other hand, European political and natural law theorists, such as Vattel, taught that children, at birth, acquire citizenship by descent from their fathers, and that expatriation is a basic human right. Thus, if you believe that European theorists influenced the Founding Fathers as they wrote the Declaration of Independence and the U.S. Constitution, you are likely to also believe that the Founding Fathers' understanding of citizenship included the jus sanguinis principle and the right of expatriation.

The differences between English common law and European political theory are summarized in the table below:

English Common Law European Political Theory

Form of government:

Monarchy Republic

Members of the nation or state were called:

Subjects Citizens

Most important right of membership was:

The right to inherit, hold and bequeath property.

The right to vote.

Who is sovereign?

The king is sovereign. He governs the people, who are his subjects.

The people (citizens) are sovereign. They govern themselves, through their elected representatives.


of 97

Government's authority comes from:

The law of subjection. The consent of the people.

Natural law theory regarding birthright nationality:

Calvin's Case (1608) Vattel's Law of Nations (1758)

What is allegiance?

Allegiance is an unequal relationship between a king and his subjects. The king is superior, and his subjects are inferior. The king rules and protects his subjects, and his subjects are obligated to serve and obey the king.

Allegiance is an equal relationship among citizens, who share sovereignty equally among themselves. Citizens owe their service, loyalty and obedience to each other. Citizens participate in and contribute to the government's decision making process, and submit to the will of the majority.

The nature of allegiance is:

Perpetual. Allegiance between a subject and his king is a permanent bond which cannot be terminated, except with the king's permission. At birth, natural-born subjects are obligated, for the rest of their lives, to serve and obey the king.

Volitional. Allegiance is a compact that people choose to enter into. They remain in this compact only as long as they so choose.

How is nationality acquired at birth?

Place of birth (the jus soli principle). Children are, at birth, subjects of the king in whose territory they were born, regardless of their parents' nationality.

Paternal citizenship (the jus sanguinis principle). Children acquire, at birth, the citizenship of their fathers, regardless of where the children were born.

Do members have the right of expatriation?

No. The English common law doctrine of "perpetual allegiance" denies the right of expatriation. A natural-born subject acquires, at birth, a permanent lifelong obligation to serve and obey the king. This obligation cannot be discharged without the king's permission.

Yes. In time of peace, citizens have a right to "quit" their country and become citizens of some other country, provided that such action does not cause harm or injury.

Comparison between English Common Law and European Political Theory


of 97

John Jay's notion of "popular sovereignty" reflects European political theory more than English common law:

[T]he sovereignty of the nation is in the people of the nation, and the residuary sovereignty of each State in the people of each State. ...

[A]t the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects (unless the African slaves among us may be so called) and have none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty. ...

Sovereignty is the right to govern; a nation or State-sovereign is the person or persons in whom that resides. In Europe the sovereignty is generally ascribed to the Prince; here it rests with the people; there, the sovereign actually administers the Government; here, never in a single instance; our Governors are the agents of the people, and at most stand in the same relation to their sovereign, in which regents in Europe stand to their sovereigns. (Chief Justice John Jay, Chisholm v. Georgia, 1793)

According to a recent article in the Michigan Law Review, the English concept of "subject" was not the same as the Republican concept of "citizen":

Both Jay and Wilson's opinions suggest that usage in the founding era reflected a significant conceptual distinction between the words "subject" and "citizen" -- a distinction that was strongly associated with the ideas about the nature of sovereignty. The term "citizen" reflects the notion that individual citizens are sovereign in a republic, whereas the term "subject" reflects feudal and monarchical conceptual of the monarch as sovereign and the individual as the subject, owing a duty of allegiance and duty to the monarch. This conceptual distinction may be relevant to the original understanding of the phrase "natural born citizen" which was used instead of "natural born subject," the phrase that served as a term of art in English legal usage. The notion of a natural born subject may reflect a feudal understanding of political obligation: those born in the kingdom owed a natural duty of allegiance to their king and were his natural subjects. Given a republic theory of popular sovereignty, citizens are sovereign and the notion of a "natural born subject" would be anathema. (Solum, p.10)

Thomas Jefferson rejected the English common law notion of perpetual allegiance, and affirmed each individual's right of expatriation:

That our citizens are certainly free to divest themselves of that character, by emigration and other acts manifesting their intention and may then become the subjects of another power and be free to do whatever the subjects of that power do. (Thomas Jefferson, as quoted by Webster, p.76)

According to Webster, there was general consensus that, if English common law had been adopted at all, it would have been adopted in whole. Since the Founders had rejected many important components of English common law, it seems unlikely that other components of


of 97

English common law, such as the jus soli principle, had much influence over the Founders' understanding of citizenship:

It has never been maintained, even by the most ardent advocates of English rule in the United States, that the rule was adopted in the United States only in part. These advocates have maintained, if adopted at all, that it was adopted as a whole. If adopted as a whole, in what manner do they reconcile the exercise of the right of expatriation, on the part of citizens of the United States...? (Webster, p.95)

According to Webster's thesis, the philosophical system that controlled the original meaning of "natural born citizen" is probably the same system that guided the Founding Fathers as they wrote the Declaration of Independence and the U.S. Constitution.

If the Framers of the Constitution were guided by English common law, the original meaning of "natural born citizen" was likely based on English common law as well; in which case, the original meaning of "natural born citizen" probably incorporated the jus soli principle. This would mean that anyone born in the United States (except the child of an ambassador or alien enemy) is a natural born citizen.

On the other hand, if the Founding Fathers were guided by European political and natural law theorists, such as Vattel, the original meaning of "natural born citizen" probably incorporated the jus sanguinis principle; in which case, you cannot be a U.S. natural born citizen unless your father was a U.S citizen at the time of your birth.

In Webster's opinion, our nation's founding principles came from European theorists such as Vattel, not from English common law; and the Federal concept of citizenship came from the same source. In England, "allegiance" was a perpetual relationship between a subject and a sovereign person (the king). In the United States, "allegiance" is a volitional relationship between a citizen and his fellow citizens. Since the U.S. did not follow the English concept of "allegiance", it seems unlikely that the U.S. followed very many other English concepts pertaining to citizenship:

To repeat what has already been set forth as the rule prior to 1836, it must be affirmed that neither jus soli nor allegiance in the English sense and meaning had any thing whatsoever to do with the acquisition of citizenship in the United States.

In Enland these rules went to the form of government. In the United States the government was organized on principles of contract as between men, in direct antagonism to the English form of government.

The use of the term "allegiance" has no technical place in the jurisprudence of the United States in its feudal meaning.

Technically it should be said that the citizen has taken an oath to support the constitution and the laws of the United States. This is done by every citizen either expressly or implied before he enjoys the full rights of citizenship.


of 97

In taking an oath, no personal relation is entered into with the government of the United States. It is a relation wich is created by a citizen with his fellow citizens. By it he affirms and agrees to the continuation of the contract on which his government is founded. It is an expression of truthful intent to abide by and obey the laws which the citizens enact for themselves, from amoung themselves. (Webster, p.94)

20. When we put the pieces together, what do we get?

Presented here is one theory which attempts to explain how the phrase "natural born citizen" might have originated.

In many cases, the term "natural-born subject" referred to people who became English subjects by naturalization or by statutes enacted by Parliament. As a general rule, these subjects were not born on English soil and did not, at birth, owe exclusive allegiance to the English king. Often, these subjects were born in foreign countries. At birth, they had dual allegiance, or no allegiance at all to England. They became natural-born subjects, not by natural law, but by the operation of man-made law.

"True" natural-born subjects were persons who acquired English subjecthood by natural law rather than by man-made law. Except in special cases, they were born on English soil, and at birth, owed natural allegiance to the English king. Natural allegiance was always exclusive. One could not acquire, at birth, natural allegiance to more than one sovereign.

In some cases, foreign governments enacted laws which, by jus sanguinis, "naturalized" English-born children as soon as they were born, thereby imposing foreign nationality and allegiance upon them at birth. These foreign naturalization laws were fictions of law and had no effect in England. (See Question 17). At birth, all "true" natural-born subject owed natural allegiance to the English king only and did not owe allegiance to any foreign sovereign.

The two most prominent characteristics of "natural law" natural-born subjects were:

• They were born within the king's realm; and • They acquired, at birth, natural allegiance to the English king exclusively.

In the context of English natural law, the term "natural born" carried a connotation of birth within a territory and exclusive allegiance, at birth, to the sovereign of that territory.

English natural-law subjecthood was tied to the place of one's birth. Citizenship, on the other hand, was not. In English urban citizenship (see Section 4.5) and in the writings of political theorists such as Vattel, children acquired citizenship, at birth, by descent from their fathers. (See Question 18).

If we combine "natural born" (in the English "natural law" sense) with the eighteenth century English and European notions of "citizen", it would appear that the "natural born citizen" of a society is someone who was born within the society and was, at birth, a citizen of that society exclusively, by descent from his father.

21. What's the "beef" with President Obama's birth certificate?


of 97

President Obama has published, on the internet, a digital photograph of a computer-generated Certification of Life Birth (or COLB), also known as a "short-form birth certificate". In the photograph, the certificate number has been electronically "blacked out". There are indications that the photograph might have been altered in other ways as well (Polarik).

At the time of this writing, the President has not published a copy of his original 1961 typewritten Certificate of Live Birth (or "long-form birth certificate") containing the names and signatures of people who witnessed his birth or independently confirmed his birth information. (See Sample Hawaiian long-form birth certificate, 1963, with personal information redacted).

The Department of Hawaiian Home Lands website explains the difference between a birth Certificate and a birth Certification:

The Department of Hawaiian Home Lands accepts both Certificates of Live Birth (original birth certificate) and Certifications of Live Birth because they are official government records documenting an individual's birth. The Certificate of Live Birth generally has more information which is useful for genealogical purposes as compared to the Certification of Live Birth which is a computer-generated printout that provides specific details of a person's birth.(Applying for Hawaiian Home Lands)

In Hawaii, the contents of an original long-form birth certificate are private and confidential information, protected by State law. The Aloha State will not release a copy of an original birth certificate without proper authorization or permission. So far, President Obama has not given his permission for the release of his original long-form birth certificate.

If you were born in Hawaii and you ask for a copy of your Hawaiian birth certificate for a routine everyday purpose such as applying for a drivers license or passport, the Hawaii Department of Health will send you a computer generated short-form Certification of Live Birth, which shows only minimal information -- your name, date of birth, place of birth, name and race of each of your parents, and so forth. A short-form Certification of Live Birth can be used, instead of an original long-form birth certificate, for most everyday purposes. The Department of Health will not send you a copy of your original long-form birth certificate, unless you specifically asked for it.

A short-form Certification of Live Birth shows an individual's birth information but does not show the source of that information. In Hawaii, the identity of the source of one's birth information -- whether it be a hospital, a doctor, or a parent's or relative's affidavit -- is private and confidential. The name of the source is found only on an original long-form birth certificate, and is not found on a short-form Certification of Live Birth.

Barack Obama's published short-form Certification of Live Birth (assuming it is authentic) tells us two things:

• The State of Hawaii has, in its files, the President's birth records; and • The President's birth records say he was born in Hawaii.

But a Certification of Live Birth does not answer these questions:


of 97

• Where did the information, contained in Obama's birth records, originally come from? Did it come from a hospital? Doctor? Midwife? Or did it come from a family member?

• If the information came from a family member, to what extent, if any, was this information confirmed by someone other than a family member?

Until these questions are answered, we cannot say whether Obama's birth information, including his place of birth, was independently verified.

22. Didn't the State of Hawaii recently verify that President Obama was born in Hawaii?

On October 31, 2008, Dr. Chiyome Fukino, Director of Health for the State of Hawaii, released this public statement regarding (then Senator) Barack Obama's birth certificate:

There have been numerous requests for Sen. Barack Hussein Obama's official birth certificate. State law (Hawai'i Revised Statutes 338-18) prohibits the release of a certified birth certificate to persons who do not have a tangible interest in the vital record.

Therefore, I as Director of Health for the State of Hawai'i, along with the Registrar of Vital Statistics who has statutory authority to oversee and maintain these type of vital records, have personally seen and verified that the Hawai'i State Department of Health has Sen. Obama's original birth certificate on record in accordance with state policies and procedures.

No state official, including Governor Linda Lingle, has ever instructed that this vital record be handled in a manner different from any other vital record in the possession of the State of Hawai'i. (Statement by Dr. Chiyome Fukino, October 31, 2008).

On July 27, 2009, Dr. Chiyome Fukino issued a second statement:

I, Dr. Chiyome Fukino, Director of the Hawai'i State Department of Health, have seen the original vital records maintained on file by the Hawai'i State Department of Health verifying Barack Hussein Obama was born in Hawai'i and is a natural-born American citizen. I have nothing further to add to this statement or my original statement issued in October 2008 over eight months ago. (Statement by Dr. Chiyome Fukino, July 27, 2009)

Based on these two statements, we can safely assume that President Obama's original birth records, which are on file in Hawaii, say that he was born in Hawaii.

Under the laws that were in effect in Hawaii when Barack Obama was born, the State of Hawaii would not have knowingly issued an original Hawaiian birth certificate to anyone born outside of Hawaii. Act 96 of Laws of the Territory of Hawaii was adopted in 1911. Under this Act, Hawaiian birth certificates were issued only to individuals who were believed to be born in Hawaii:

The Secretary of Hawaii may, whenever satisfied that any person was born within


of 97

the Hawaiian Islands, cause to be issued to such person a certificate showing such fact. (pp 127-128, Laws of the Territory of Hawaii)

A subsequent law, enacted in 1955, reaffirmed the fact that Hawaiian birth certificates were given only to individuals who were believed to be born in Hawaii. But the 1955 law allowed Hawaii to issue a birth certificate to a child whose actual place of birth was not independently confirmed by a non-family member.

In 1961, if a person was born in Hawaii but not attended by a physician or midwife, then all that was required was that one of the parents send in a birth certificate to be filed. The birth certificate could be filed by mail. There appears to have been no requirement for the parent to actually physically appear before "the local registrar of the district." It would have been very easy for a relative to forge an absent parent's signature to a form and mail it in. In addition, if a claim was made that "neither parent of the newborn child whose birth is unattended as above provided is able to prepare a birth certificate, the local registrar shall secure the necessary information from any person having knowledge of the birth and prepare and file the certificate." (Section 57-8&9)

I asked the Dept of Health what they currently ask for (in 2008) to back up a parent's claim that a child was born in Hawaii. I was told that all they required was a proof of residence in Hawaii (e.g. a driver's license [We know from interviews with her friends on Mercer Island in Washington State that Ann Dunham had acquired a driver's license by the summer of 1961 at the age of 17] or telephone bill) and pre-natal (statement or report that a woman was pregnant) and post-natal (statement or report that a new-born baby has been examined) certification by a physician. On further enquiry, the employee that I spoke to informed me that the pre-natal and post-natal certifications had probably not been in force in the '60s. Even if they had been, there is and was no requirement for a physician or midwife to witness, state or report that the baby was born in Hawaii. (Western Journalism, Investigator's June 10 Report)

If a birth certificate is based solely on a parent's or relative's uncorroborated statement, and such a birth certificate is presented as evidence to a court or agency, the court or agency must determine, for itself, the birth certificate's probative value:

In 1961, if a person was born in Hawaii but not attended by a physician or mid wife, then, up to the first birthday of the child, an adult could, upon testimony, file a "Delayed Certificate", which required endorsement on the Delayed Certificate of a summary statement of the evidence submitted in support of the acceptance for delayed filing, which evidence must be kept in a special permanent file. The statute provided that the probative value of the Delayed Certificate must be determined by the judicial or administrative body or official before whom the certificate is offered as evidence. (See Section 57-18, 19 & 20 of the Territorial Public Health Statistics Act in the 1955 Revised Laws of Hawaii which was in effect in 1961). (Hawaii Birth Records Law)

At the time of this writing, we are not aware of any law that was in effect in Hawaii in 1961, which allowed the Hawaii Department of Health to knowingly issue Hawaiian birth certificates to babies born outside of Hawaii. Hawaiian Statute 338-17.8, Certificates for


of 97

children born out of State, allowed Hawaiian birth certificates to be issued to foreign-born children of Hawaii-resident parents. But Statute 338-17.8 was not enacted until 1982, well after Barack Obama was born.

During the early '60s, whenever a birth was registered in Hawaii, the Department of Vital Statistics automatically generated a birth announcement and sent it to the local newspapers for publication. Obama's birth announcement appeared in both:

• The Honolulu Advertiser, August 13, 1961, page B-6, and • The Honolulu Star Bulletin, August 14, 1961.

This birth announcement indicates that Obama's birth was registered in Hawaii in August of 1961.

Nevertheless, a question remains. When Barack Obama's birth was registered in Hawaii, who or what was the source of Obama's birth information? Was it a hospital? A doctor? A midwife? Or was it based solely on a parent's or relative's statement?

If Obama's birth registration was based solely on a parent's or relative's statement, and such statement was not independently corroborated by someone other than an immediate family member, we must do some further research before we can say anything for sure, one way or the other, about the circumstances of the President's birth.

23. Doesn't the mere existence of Barack Obama's Hawaiian birth registration prove that he was born in Hawaii?

Barack Obama's birth registration, by its mere existence, indicates that the State of Hawaii believed (or at least did not disbelieve) that he was born in Hawaii. His birth registration would prove that he was born in Hawaii only if his birth in Hawaii was witnessed or confirmed by someone other than an immediate family member. For example:

• If Barack Obama was born in a hospital in Hawaii, his birth certificate would indicate that a hospital had confirmed his birth in that hospital. Such confirmation would show, beyond reasonable doubt, that President Obama was born in Hawaii.

• If Barack Obama was born at home, his birth certificate would show the name of the professional (presumably, a doctor, midwife or paramedic) who assisted with the delivery. The professional's name and signature would confirm, and thus remove any reasonable doubt, that Obama's birth took place in Hawaii.

• If Barack Obama was born at home and his birth was not attended by a doctor or midwife, his birth certificate would show the name of the doctor who examined the baby shortly after its birth. The name and signature of the doctor who did the postnatal examination would confirm that Obama was born in Hawaii.

But consider this hypothetical scenario: Suppose Stanley Ann Obama (President Obama's mother) had been a resident of Hawaii since June 1960. Suppose that, in November or December 1960, upon learning of her pregnancy, she received prenatal care from a local doctor in Hawaii. Suppose that, on Tuesday August 8, 1961, Madelyn Dunham (Stanley Ann's mother, also President Obama's maternal grandmother) walked into the Hawaii Department of Health office, and registered the "unattended" birth of her teenage daughter's son. (A birth


of 97

is "unattended" if it did not take place in a hospital, and was not attended by a doctor or midwife). Supposed Madelyn told a health department worker that her daughter, Stanley Ann, had given birth, at home, on Friday evening, August 4, 1961. Suppose Madelyn also said that only she and Stanley Ann were present during the delivery.

Suppose Madelyn was able to provide the Department of Health with the following documentation:

• Madelyn's written statement saying that Barack Obama II was born in Hawaii • Proof that she (Madelyn) had been a resident of Hawaii for more than a year • Proof that her daughter (Stanley Ann) had been a Hawaii resident for more than a year • Proof that Stanley Ann had received prenatal care while in Hawaii • Proof that the baby's mother (Stanley Ann) and father (Barack Obama Sr.) were

married at the time of the baby's birth • An acknowledgment by Barack Obama Sr. that he was the biological father of the child

Given the above information, the Hawaii Department of Health -- under the laws in effect in 1961 -- might have issued a Hawaiian birth certificate to Barack Obama II, even though no one outside of his immediate family had actually witnessed or confirmed his birth in Hawaii. (Western Journalism, June 10 Report).

If the above scenario had actually occurred, it is possible that Barack Obama might have been born outside of Hawaii, and Madelyn Dunham merely registered Barack Obama's birth in Hawaii, as an "unattended" birth [37].

In the absence of an original long-form birth certificate, such a possibility, however implausible or far fetched, cannot be entirely ruled out. Until President Obama releases an original birth certificate showing independent corroboration of his birth in Hawaii, no one can say for sure whether the President meets the first requirement of natural born citizenship -- birth within the United States.

24. Do Birthers actually believe that President Obama was born in a foreign country?

Birthers are divided over the birthplace issue. Some believe President Obama was born outside the United States. Others believe that, when the President's birth certificate is released, it will show conclusively that he was born in Hawaii.

Most Birthers, when asked, "Do you believe Barack Obama is a U.S. citizen? Do you believe he was born in Hawaii?", will generally answer:

"We don't know. While no one disputes that Obama's birth was registered in Hawaii, the source of his birth information -- whether the source was a hospital, doctor or family member -- and the credibility of that source remain unknown. Hence, there is insufficient information in the public domain to answer these questions conclusively. But we would like to get conclusive answers, wouldn't you?"

Among the various attorneys and plaintiffs who have filed lawsuits challenging the President's


of 97

eligibility and/or seeking the release of his original long-form birth certificate, there is no consensus of opinion regarding the President's actual place of birth.

• Attorney Phil Berg believes the President was born in Kenya. • Dr. Orly Taitz believes the President might have been born in Kenya, but regardless of

his place of birth, he is not a natural born citizen because of his dual citizenship at birth.

• Attorney Leo Donofrio and Attorney Mario Apuzzo believe Barack Obama was probably born in Hawaii, but it doesn't really matter. Regardless of where he was born, the President is ineligible because of his father's foreign nationality.

• One-time adjunct law professor Andy Martin believes the President was almost certainly born in Hawaii. Nevertheless, Martin argues that the President's birth certificate is an historical document and, for that reason, joins with Birthers in seeking its release.

Despite differing opinions on the birthplace question, Birthers are unanimous in calling for (a) the release of the President's original 1961 Hawaiian birth records, and (b) an open public judicial inquiry regarding the President's Constitutional eligibility.

25. If President Obama's birth certificate shows conclusively that he was born in Hawaii, would it end the eligibility controversy?

Definitely not! President Obama has stated publicly that his father was not a U.S. citizen. According to the Birthers' understanding of American history, if his father was not a U.S. citizen, President Obama cannot be a Constitutional natural born citizen, regardless of where he was born. If President Obama was born in Hawaii, he could be regarded as a statutory natural born citizen, but he would not necessarily be a Constitutional natural born citizen.

Regardless of what his birth certificate says, Obama's presidential eligibility will never be settled or resolved, until the Supreme Court decides whether the U.S.-born children of non-U.S.-citizen parents are Constitutional natural born citizens.

26. Aren't Obama eligibility challenges merely partisan attacks by Republicans against a Democratic president?

The first eligibility lawsuit against Barack Obama was filed by Phil Berg, a lifelong Democrat.

Five days before the Republican National Convention, John McCain's eligibility was challenged in court (California lawsuit questions McCain's Eligibility for Presidency).

In Donofrio v. Wells (October 2008), the plaintiff sought to remove three presidential candidates from the New Jersey ballot during the 2008 presidential election: Democratic candidate Barack Obama, Republican candidate John McCain, and Socialist Workers Party candidate Roger Calero. All three had acquired foreign citizenship at birth.

John McCain was born in the Colon Hospital, in Colon, Panama. He was not born in the Panama Canal Zone as widely believed. (See John McCain's short-form Certificate of Live Birth, and long-form birth certificate). McCain was a U.S. citizen at birth, due to the fact that his parents were U.S. citizens. He was also a Panamanian citizen at birth, due to the fact that


of 97

he was born in Panama. (Why For McCain But Not For Obama?).

Roger Calero was born in Nicaragua. At the time of his presidential candidacy, he was not a U.S. citizen.

The Republican Party has a history of accommodating presidential candidates whose Constitutional eligibility is uncertain.

• Chester Arthur -- America's first post-1787-born president whose parents were not both U.S. citizens -- was a Republican.

• George Romney ran for the Republican party nomination in 1968. He was born in Mexico.

• Barry Goldwater was born (in 1909) in Phoenix, when Arizona was still territory, not yet a state.

• Lowell Weicker entered the race for the Republican party nomination of 1980 but dropped out before voting in the primaries began. He was born in Paris, France.

• John McCain was born in Panama, not the Panama Canal Zone as is widely believed. But regardless of whether he was born in the Panama Canal Zone or in Panama itself, he was, in either case, a Panamanian citizen at birth.

• Bobby Jindal is a possible Republican presidential candidate in 2012. He was born in the United States, but at the time of his birth, his parents were not U.S. citizens. (In a Southern U.S. state, immigrants' son takes over)

Given its history of eligibility-questionable presidential candidates, the Republican Party would be accused of hypocrisy if it were to challenge President Obama's eligibility.

27. What is "Quo Warranto"?

Quo Warranto (Latin for "by what warrant?") is a judicial hearing for the purpose of determining whether an elected or appointed public official has legal authority to hold the office he or she is currently holding. (Charlton).

In a quo warranto action, the burden of proof lies with the public official whose eligibility is being challenged. The office holder is asked to substantiate her or his authority to hold public office.

Various states and the District of Columbia have enacted their own quo warranto laws. These non-Federal laws should not be confused with the Federal quo warranto statute.

Congress enacted the Federal quo warranto statute in 1902 and revised it in 1963 to is present form. This statute consists of three sections, labeled 16-3501, 16-3502 and 16-3503 respectively. All three sections can be found here:

Chapter 35, Subchapter I, Actions against Officers of the United States

Section 16-3501 states:

A quo warranto may be issued from the United States District Court for the District of Columbia in the name of the United States against a person who within


of 97

the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States, civil or military. The proceedings shall be deemed a civil action.

This section, as written, suggests:

• Ineligibility is a public wrong, but is not a crime. A Federal quo warranto is a civil action, not a criminal prosecution.

• A Federal quo warranto may be issued against any elected or appointed Federal official who occupies an office located within the District of Columbia.

• The DC District Court is the only court in which a Federal quo warranro proceeding may take place.

In theory, a quo warranto can remove a sitting president who is found to be ineligible. Attorney Mario Apuzzo has questioned this theory (Quo Warranto and the Kerchner v. Obama). Attorney Leo Donofrio insists the theory is sound and explains why (Misconceptions about Quo Warranto).

Direct Challenge: A "direct" quo warranto challenge, if successful, would remove an ineligible elected or appointed Federal official from office.

If there is a factual reason to believe that someone is holding a Federal office that she or he is not eligible to hold, any of the following may institute a "direct" Federal quo warranto challenge in the DC District Court.

• The Department of Justice (either the U.S. Attorney General or the U.S. Attorney for the District of Columbia)

• A "third person" (anyone who receives permission from both the Department of Justice and the DC District Court)

• An "interested person" (someone who has an "interest" in the office allegedly being usurped and has permission from the DC District Court).

Since the Attorney General and the U.S. Attorney for the District of Columbia are Obama appointees, the Justice Department is not likely to institute a "direct" quo warranto action against the President, and is not likely to grant permission to a "third person" wishing to pursue such an action. However, an "interested person" may petition the DC District Court directly, without the Justice Department's permission.

2008 presidential and vice presidential candidates -- including, but not necessarily limited to, Hillary Clinton, Mike Huckabee and Sarah Palin -- might qualify as "interested persons". It is plausible that any one of them could bypass the Justice Department, go directly to the DC District Court, and ask for permission to initiate a quo warranto regarding Obama's presidential eligibility.

In Newman v. United States (1915), the Supreme Court expanded the meaning of "interested person". The Court said:

The rule is the same regardless whether the office is elective or appointive. For in neither case is there any intent to permit the public office to be the subject matter


of 97

of private litigation at the instance of one who has no interest therein which differs from that of every other member of the public. The claim that this construction makes the statute nugatory cannot be sustained, for the statute, as already pointed out, gives a person who has been unlawfully ousted before his term expired a right, on proof of interest, to the issuance of the writ, and there might be cases under the civil service law in which the relator would have an interest and therefore a right to be heard. (Newman v. United States, 1915, boldface emphasis added)

The meaning of "cases under the civil service law" is not clear. It might mean that someone like Inspector general Gerald Walpin, who was fired from his civil service job by Obama, might qualify as an "interested person".

Indirect Challenge: The Supreme Court, in Andrade v. Lauer (1984), said that, if you were harmed by an official action taken by an ineligible Federal office holder, you may file an "indirect" (or "collateral") challenge against the official action, on the basis of the office holder's ineligibility.

In the Andrade case, the plaintiffs were Government employees who lost their jobs to "reduction in force" ordinances which cut whole departments from the Government budget. The plaintiffs sued alleging those who did the cutting were not Constitutionally qualified to make such decisions in that their appointments violated the appointments clause of the US Constitution.

The DC District Court held that the plaintiffs had no standing other than to bring a "direct attack" in quo warranto to remove the alleged usurper. But the DC Court of Appeals reversed and said that plaintiffs, who had suffered real injuries, could bring such an action on a case by case basis if they could prove their injuries in fact (being fired) was caused by a Government official who was not eligible to serve. (Leo Donofrio, Misconceptions about Quo Warranto, 2009)

An "indirect" challenge, if successful, would not remove an usurper from office, but it would undo the usurper's action which had caused harm or injury. An indirect challenge to an official action by the Obama administration would not remove the President from office, but would bring about a public hearing into the President's eligibility to hold office.

28. What can we do?

(1) Avoid -- and encourage others to avoid -- misrepresenting the Birther viewpoint. While they may express their opinions on the matter, Birthers are not declaring, as established or proven fact, that Barack Obama is ineligible to hold office. Most Birthers are seeking answers, not making formal accusations.

Birthers are aware of facts which give rise to doubts concerning the President's natural born citizenship. In order to resolve these doubts and "clear the air" regarding Obama's eligibility, they are asking President Obama to identify the source of his birth information (whether such source is a hospital, birthing clinic, doctor, midwife, or family member); and are also asking the U.S. Supreme Court to resolve its own 136-year-old doubts concerning the natural born citizenship of U.S.-born children of non-citizen parents.


of 97

Until Obama's birth records are released and until the Supreme Court rules on the meaning of "natural born citizen", no one can say anything for sure, one way or the other, regarding the President's place of birth and/or his eligibility to hold office.

When asked, "Is Barack Obama a U.S. citizen? Was he born in a foreign country? Is he elibible to hold office?", most Birthers will answer, "We don't know; that's what we are trying to find out."

(2) Learn the "core" facts which give rise to doubts regarding the President's eligibility. These facts include, but are not limited to, the following:

• Obama claims that he acquired, at birth, foreign nationality by descent from his father. • There exists a possibility -- however far fetch or remote it might seem -- that, when

Obama's birth was registered in Hawaii in 1961, his birth information came, not from a hospital, doctor, midwife or other independent third party, but from a family member's uncorroborated statement. Since the source of Obama's birth information has not been disclosed, we cannot entirely rule out the possibility that neither Obama nor his mother was in Hawaii when his birth was registered.

(3) Consider sending letters and emails to those who publicly comment on the Obama eligibility matter, asking them:

• Please do not mischaracterize the Obama eligibility controversy as being solely about the President's birth certificate. Include, in your discussions of Obama's eligibility, the Constitutional legal question arising from his dual nationality at birth.

• Please do not allow secondary issues, which are based largely on conjecture and specuation, to divert attention away from core issues which are based on fact.

(4) Inform your elected representatives of the facts which give rise to doubts concerning the President's eligibility to hold office. Ask your elected representatives to foster and promote a timely resolution of these doubts.

(5) Ask your U.S. senators and U.S. representatives to enact Federal legislation requiring future presidential and vice presidential candidates to establish their eligibility prior to running for office. An example of such legislation is H.R.1503, the purpose of which is:

To amend the Federal Election Campaign Act of 1971 to require the principal campaign committee of a candidate for election to the office of President to include with the committee's statement of organization a copy of the candidate's birth certificate, together with such other documentation as may be necessary to establish that the candidate meets the qualifications for eligibility to the Office of President under the Constitution. (H.R.1503)

(6) Ask your State representatives to support State legislation barring from the State ballot any presidential or vice presidential candidate who fails to conclusively establish his or her eligibility to hold office. Such legislation is pending in Arizona (Bill would require presidential candidates to prove U.S. birth) and other States (Obama's eligibility becomes war among states).


of 97

(7) If you know persons or businesses which have suffered "concrete and particularized injury" (loss of job, loss of franchise, loss of income or investment, etc.) as a direct result of an official action by President Obama, let them know they might be able to challenge the official action and obtain relief, on the basis of the President's ineligibility. Encourage them to discuss the matter with an attorney.

(8) If you have access to any of the 2008 presidential and vice presidential candidates, let them know they might have standing, as "interested persons", to petition the DC District Court for permission to begin a quo warranto regarding President Obama's eligibility. The petitioner does not need to believe that the President is ineligible; he or she only needs to believe that "clearing the air" of uncertainty surrounding the President's eligibility is in the nation's best interest. If permission is granted, the petitioner's personal involvement would end at that point, and the lawyers would take the matter from there.

(9) Stay informed. From time to time, these sites provide news, commentary and information regarding the Obama eligibility controversy, and the various eligibility lawsuits currently in progress:

• Birthers Website: http://www.birthers.org/ • Post & Mail: http://www.thepostemail.com/ • The Right Side of Life: http://www.therightsideoflife.com/ • World Net Daily: http://www.wnd.com/ • Phil Berg website: http://obamacrimes.com/ • Mario Apuzzo blog: http://puzo1.blogspot.com/ • Leo Donofrio blog: http://naturalborncitizen.wordpress.com/ • Devvy Kidd: http://www.devvy.com/ • Patriot's Heart Network: http://www.patriotsheartnetwork.net/ • Obama File: Eligibility: http://www.theobamafile.com/index_next_eligibility.html


of 97

Endnotes

[01] Article II Section 1 of the U.S. Constitution 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; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

All persons who were U.S. citizens when the Constitution was adopted (in 1787) were exempt from the "natural born citizen" requirement. They could serve as President, even though they were not natural born citizens. However, no one alive today qualifies for this exemption. If you were born after 1787, you must be a natural born citizen in order to be Constitutionally eligible to serve as President.

[02] In 2008, Professor Solum wrote: There is general agreement on the core of settled meaning. Anyone born on American soil whose parents are citizens of the United States of American [sic] is a "natural born citizen." Anyone whose citizenship is acquired after birth as a result of "naturalization" is not a "natural born citizen." But agreement on these paradigm cases does not entail that the clause has a clear meaning. (Solum, p.1)

[03] A poll by Wenzel Strategies, conducted in June, 2009, showed widespread public uncertainty regarding Barack Obama's eligibility to serve as president: ...a WorldNetDaily/Wenzel Strategies poll in June showed that 49% -- essentially half of all American adults -- are not convinced that Obama meets the qualifications for the presidency! ... The polling data shows this is not just a Republican fetish. Even among Democrats, almost one in every four -- 23% -- said they were either troubled by these questions about Obama or that he should definitely release all records about the circumstances of his birth, including his long-form birth certificate -- if one exists -- to put this question to rest once and for all. Even among independent voters, 52% said the same thing. (Fritz Wenzel, Poll Stories of the Year 2009, December 21, 2009)

A later Poll by Public Policy Polling (August 25, 2009) found that, in Arkansas, 55 percent of respondents either did not believe that the President was born in Hawaii or were uncertain. 31 percent believed President Obama was not born in the United States, and another 24 percent said they weren't sure.

Neither poll attempted to ascertain the percentage of Americans who believe that President Obama was born in the United States but may not be eligible to serve as President because of his British/Kenyan citizenship at birth.

[04] Here is the relevant portion of the Supreme Court's opinion in Minor v. Happersett (1874): ...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. (Minor v. Happersett, 1874, emphasis added)


of 97

To be precise, the Supreme Court, Minor v. Happersett, expressed doubts concerning the citizenship, not the natural born citizenship, of U.S.-born children of non-citizen parents. However, one cannot be a natural born citizen unless one is a citizen (at least a 14th Amendment citizen) at birth. Therefore, doubt about one's citizenship at birth implies doubt about one's natural born citizenship as well.

[05] In U.S. v. Wong Kim Ark (1898), the Supreme Court mentioned, but did not resolve, the "doubts" expressed in Minor v. Happersett regarding the natural born citizenship of U.S.-born children of non-citizen parents. The Court ruled that Wong was a U.S. citizen, but did not rule he was a natural born citizen.

[06]

The Barack Obama's circumstances after his birth are not deemed relevant to his Constitutional eligibility to serve as President. Children who acquire U.S. citizenship at birth do not lose their U.S. citizenship merely because they and/or their parents subsequently acquire citizenship in another country, even if such country does not recognize dual citizenship. It has long been a recognized principle in this country that, if a child born here is taken during minority to the country of his parents' origin, where his parents resume their former allegiance, he does not thereby lose his citizenship in the United States provided that, on attaining majority he elects to retain that citizenship and to return to the United States to assume its duties. (Perkins v. Elg, 1939)

[07] Ten of the first twelve presidents of the United States were eligible to serve as president because they were citizens when the U.S. Constitution was adopted. They were exempt from the natural born citizen requirement.

[08] According to the Tenth Circuit Court of Appeals (in Craig v. United States, 2009), natural-born citizens and naturalized citizens have the same rights. The only difference between a natural-born citizen and a naturalized citizen is that only the natural-born citizen may serve as President: 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: "We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the 'natural born' citizen is eligible to be President." (Craig v. United States, 2009, p.6)

[09] These sources suggest that Barack Obama might have been born in Kenya:

• Affidavit of Reverend Kweli Shuhubia: http://www.wethepeoplefoundation.org/PROJECTS/Obama/Evidence/AFFIDAVITexhibit2.pdf

• Affidavit of Bishop Ron McRae: http://www.wethepeoplefoundation.org/PROJECTS/Obama/Evidence/AFFIDAVIT-Bishop.pdf

[10]

These sources suggest that Barack Obama might have been born in Canada:

• Stanley Ann Obama births a Canadian:


of 97

http://lamecherry.blogspot.com/2009/08/stanley-ann-obama-births-canadian.html

[11] The Senate expressed the opinion that John McCain is a natural born citizen, therefore eligible to serve as President. The Senate's opinion was based, in part, on the belief that John McCain was born on a U.S. military base in the Panama Canal Zone. Whereas John Sidney McCain, III, was born to American citizens on an American military base in the Panama Canal Zone in 1936 (Senate Resolution 511): http://www.govtrack.us/congress/billtext.xpd?bill=sr110-511

However, according to his long-form birth certificate and short-form Certificate of Live Birth, John McCain was born in the City of Colon, which is part of Panama itself. Colon was never a part of the Panama Canal Zone, and always remained under exclusive Panamanian sovereignty. Colon was never under U.S. administration. (See Question 26).

http://naturalborncitizen.files.wordpress.com/2008/12/mccains-bc.jpg

http://dallasmorningviewsblog.dallasnews.com/mccain%20birth.JPG

[12]

The Constitution includes the 14th Amendment. Thus, if "natural born citizen" is not defined in the Constitution, it is not defined in the 14th Amendment.

[13]

An article appearing in the Wall Street Journal asserted that Federal law confers natural born citizenship in some cases: Someone born overseas and after 1986, but otherwise in identical circumstances to Obama, would be a natural-born citizen thanks to a law signed by President Reagan. (James Taranto, It's Certifiable, Wall Street Journal, July 30, 2009) http://online.wsj.com/article/SB10001424052970204619004574320190095246658.html

The article presumes that anyone who acquires U.S. citizenship at birth is a natural born citizen. But this presumption remains unsubstantiated. The law that Reagan signed is 1401: Nationals and citizens of the United States at birth. Neither this law, nor any other existing Federal statute, contains the term "natural born citizen".

[14]

The ruling in Calvin's Case (1608) was still in effect in 1787, the year the U.S. Constitution was written, and remained part of English law well into the 19th century. Statutory regulation largely superceded Calvin's Case after 1844, but in certain contexts Coke's opinion was still considered authoritative (Kettner, p.7). The common law, as thus enunciated in Calvin's Case, continued in force until 1914... (Ross, p.7).

[15]

Coke's reports, and his four-volume Institutes of the Lawes of England, were well known and widely read in the American colonies: His legal texts formed the basis for the modern common law, with lawyers in both England and America learning their law from his Institutes and Reports until the end of the eighteenth century. ... Coke's reputation as one of the most influential jurists in Anglo-American history rests to a significant extent on the central role that his legal writings have had in the development of the modern common law. Of greatest importance have been his thirteen volume series of Reports, and his four volume


of 97

Institutes of the Lawes of England. Coke's Reports have been described by the legal historian Sir John Baker as "perhaps the single most influential series of named reports." (Wikipedia: Edward Coke)

[16]

The English common law "rule" is often characterized as jus soli (subjecthood determined by birthplace alone). This characterization is understandable because, as a practical matter, almost all children born within the king's dominions (territory) were, at birth, natural-born subjects. Based solely on outward effect, it might appear that jus soli was the "rule" of English common law.

But there is a difference between the outward visible effect of English common law and the underlying principle on which the common law was based. The underlying principle established by Calvin's Case (1608) and which was part of English common law when the Constitution was written, was jus ligeantia, not jus soli. One's legal status at birth (whether subject or alien) was determined by allegiance, not the place of one's birth. Most children born in the king's dominions were natural born subjects, only because most children born in the king's dominions were born within the king's allegiance. But, if your parents were not within the king's allegiance when you were born, you were not a natural-born subject, regardless of your place of birth.

Blackstone's Commentaries (1765) seem to regard birth within the dominions (territory) as synonymous with birth within the allegiance (loyalty and obedience):

The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. (Blackstone)

Our nation's Founding Fathers, after reading Lord Coke's Report, undoubtedly understood that Blackstone had oversimplified the Court's ruling in Calvin's Case. Birth within the king's dominions (territory) was not the same thing as birth within the king's allegiance (faith, loyalty and obedience). A child born within the king's dominions was not a natural-born subject unless, at the time of the child's birth, its parents were within the king's allegiance.

[17]

In 1866, Justice Swayne observed a parallel between "natural-born subject" under English common law, and "natural born citizen" in the U.S. Constitution. In both phrases, the meaning of "natural born" was tied to the word "allegiance": All 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. (Justice Swayne, United States v. Rhodes, 1866, as quoted in U.S. v. Wong Kim Ark, 1898).

There were two ways by which you could be "born in the allegiance of the king": by natural law, and by statute.

• By natural law, you were "born in the allegiance of the king" if you were born on English soil, of parents who were under the obedience or allegiance of the king at the time of your birth.

• By statute (man-made law), you were "born in the allegiance of the king" if you


of 97

were born in a foreign country, of a father who was a natural-born subject at the time of your birth.

In both cases, birth "in the allegiance of the king" conferred natural-born subjecthood. However, there was a difference between a "natural law" natural-born subject and a "statutory" natural-born subject. The allegiance, at birth, of a "natural law" natural-born subject was exclusive, whereas the allegiance, at birth, of a "statutory" natural-born subject was not. (See Question 17).

According to the natural law espoused by Calvin's Case, a natural-born subject acquired, at birth, natural allegiance to the king. Natural allegiance was exclusive. You could not, at birth, owe natural allegiance to more than one sovereign.

And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. (Blackstone)

In contrast, "statutory" natural-born subjects were typically born with dual allegiances. At birth, they owed allegiance to the English king, and they owed allegiance to the prince in whose territory they were born.

If Justice Swayne's usage of the word "allegiance" is understood in the context of natural law, the phrase "born in the allegiance of the United States" implies "born with exclusive allegiance to the United States." In other words, you were "born in the allegiance of the United States" only if (a) you were born in the United States, of parents who were under the allegiance of the United States at the time of your birth; and (b) your allegiance at birth was to the United States exclusively and not to any foreign power.

[18] In eighteenth century English cities and towns, "citizenship by birth", also called "citizenship by patrimony", was available: ...only to the legitimate and natural children of a male (or, since 1976, female) Freeman who were born after their parent's own Freedom admission. (City Freedom Archives)

You could claim English municipal "citizenship by birth" if, at the time of your birth, your father was a citizen:

It may be assumed that those who claimed the franchise by birth were the sons of well-to-do freemen (Seybolt, p.4) Freedom by patrimony was granted to sons of citizens who requested admission to freedom under the auspices of the guild to which their father belonged. (Herzog, p.178)

[19] Redemption -- the process of becoming a freeman of a city by paying a fee -- was available only to those who were already "free". The common law courts also stated that freedom could never be sold. Buying freedom by paying redemption fees was a fiction. Although presented as a purchase, in reality this transaction consisted of formally recognizing that people were already free. Indeed, people who were truly unfree could not purchase their freedom in this way. (Herzog, p.181)


of 97

[20] The conventional theory of French birthright citizenship is that:

• Prior to 1600, the jus sanguinis principle prevailed in France; • During the ancien regime [1650-1789], the jus soli principle became the primary

means of acquiring French nationality; and • After the French Revolution in 1789, jus sanguinis re-emerged as the rule in

France.

According to this theory, the jus soli principle prevailed in France when the U.S. Constitution was being written.

In 1869, Alexander Cockburn wrote:

By the law of France, anterior to the revolution, a child born on French soil, though of foreign parents, was a Frenchman, as it was termed, jure soli (Cockburn, p.14)

According to the majority opinion in U.S. v. Wong Kim Ark (1898), the jus soli principle was the "rule of Europe" prior to the French Revolution:

But at the time of the adoption of the constitution of the United States in 1789 [sic], and long before, it would seem to have been the rule in Europe generally, as it certainly was in France, that, as said by Pothier, "citizens, true and native-born citizens, are those who are born within the extent of the dominion of France," and "mere birth within the realm gives the rights of a native-born citizen, independently of the origin of the father or mother, and of their domicile"; and children born in a foreign country, of a French father who had not established his domicile there, nor given up the intention of returning, were also deemed Frenchmen ...

The general principle of citizenship by birth within French territory prevailed until after the French Revolution ... The Code Napoleon of 1807 changed the law of France, and adopted, instead of the rule of country of birth, jus soli, the rule of descent or blood, jus sanguinis, as the leading principle; but an eminent commentator has observed that the framers of that code "appear not to have wholly freed themselves from the ancient rule of France, or rather, indeed, ancient rule of Europe, -- 'De la vieille regle francaise, ou plutot meme de la vieille regle europ eenne,' -- according to which nationality had always been, in former times, determined by the place of birth." (Wong Kim Ark, 1898)

In 1972, Patrick Weil wrote that, in France prior to the French Revolution, jus soli was more important than jus sanguinis:

...throughout the ancien regime [1650-1789], the jus soli was the primary requirement for the attribution of French nationality. And although, beginning in the seventeenth century the jus sanguinis could independently be used to access French nationality, it is important not to be mistaken on this point -- birth on French soil still took precedence over birth by French parents (regardless of birthplace) as the legitimate criterion for determining French nationality.

The proof of this can be seen though an example provided by Jean-Francois Dubost: during this period, children of French parents born outside of France and residing on


of 97

French territory needed to request from the king a letter of naturalization in order to confirm their French status. Children born in France of foreign parents would not have needed to do this. (Weil, p.76)

However, Weil was careful to point out that no single principle, by itself, conferred French nationality. While the jus soli principle was of primary importance in eighteenth century France, it did not act alone. It acted in combination with other principles:

Like all other legislation involving nationality, ever since the seventeenth century, the French tradition has been based on a mixture, or a blend -- as in a painting, several colours are mixed to achieve the desired effect. In the case at hand, two of these 'colours' are always mentioned: first, the birthplace, or jus soli ... and second, family blood/ties, or jus sanguinis ...

However, two other 'colours' are often forgotten or neglected. The third is marital status... Lastly there is past, present or future residence...

The mixture of these four basic 'colours' on the different legal 'palettes' ... determines what one must do in order to be granted French nationality. (Weil, pp.75-76)

Some historians believe that the importance of jus soli, prior to the French Revolution, has been exaggerated.

According to William Blackstone (1765), children born in France, of alien parents, were aliens under French law:

The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien. (Blackstone)

Clive Parry (1954) regards the "conventional theory" as an oversimplification:

For, when the parallel history of French law is examined, it is seen that it is oversimplification to say that in France there was a period, before the extension of the kingdom to the whole country, when the Romanesque or barbaric jus sanguinius held sway, followed by a period when the jus soli alone ruled until its reign was ended by the Revolution. The supposition is a false deduction from the rule that originally no one born out of France was a subject. The antithesis of that was not, however, that anyone born in France was such. In the early sixteenth century it was further required that at least one of his parents should he French. Somewhat earlier it was probably required that both parents should be French. And even later there were such curious intermediate rules as that birth in France of parents married in France sufficed, or that, though birth in France of alien parents would exclude the droit d'aubaine if the heirs were descendants, it could not do so if they were ascendants. It was also required, at the time when both French birth and French parentage were demanded of a claimant of nationality, that he should further be a rengicole -- in effect a resident. (Parry)

Tamar Herzog (2003) likewise finds that, in eighteenth century France, birthplace was


of 97

not as important as it has been made out to be:

The idea that Frenchness depended on birth in a certain territory was initially linked to the belief that individuals loved the land where they were born. But after the French kings ascertained their sovereignty, the importance of birth diminished. Progressively, emphasis was shifted from territoriality to subjecthood and from community to the king. (Herzog, p.193)

At various times in French history, three groups of people were required to pay "alien" taxes.

• "true" foreigners • "naturalized" foreigners • persons born in France, of alien parents

Naturalized foreigners, and native-born children of foreigners, were Frenchmen by law but were not true native Frenchmen in fact. They had some of the rights of true native Frenchmen, but were nevertheless regarded as "aliens" for taxation purposes:

It was also the case in France that letters of naturalization and even birth in the territory could fail to transform foreigners into natives. On different occasions during the seventeenth century, for example, alien taxation was levied on "true" foreigners, "naturalized" foreigners, and native French who descended from foreign families. Stressing the foreignness of these individuals, many of whom were legally French, these decrees explained their taxation was justified because the presence of foreigners on French soil was profoundly illegal and because foreigners "usurped" the privileges of natives. Following this logic, in 1769, campaigns to distinguish true natives from actual (and legal) foreigners were launched. (Herzog, p.193)

Apparently, only "true" native Frenchmen -- those born in France, of at least one French parent -- were exempt from alien taxation.

[21] In Italy and elsewhere, citizenship implied subjection to authority: Other historians nevertheless affirmed that citizenship continued to be an important social and political tie in early modern Italian cities, with meaning broader than the individual privileges attached to it. Above all, citizenship implied the subjection of the individual to a sovereign power or to a municipal authority. According to this view, most early modern Italian cities attributed a great deal of importance to citizenship, and citizenship continued to be an essential prerequisite for obtaining many rights. (Herzog, p.176)

[23] "Vattel's The Law of Nations was the most influential book on the law of nations for 125 years following its publication." (Trout). Vattel's work was especially influential in America. See, for example:

• Influence of Law of Nations on the Declaration of Independence • Influence of Law of Nations on the U.S. Constitution

[24] A century prior to Vattel, "natives" or "indigenes" were defined as those born in a society,


of 97

of parents who are its citizens. In 1673, German political philosopher Samuel von Pufendorf defined "citizens" as the society's original founders and their descendants. Thus, in Pufendorf's view, natives or indigenes were those born in a society, of parents who were, or were descended from, the society's original founders. A State or Government being thus constituted, the Party on whom the Supreme Power is conferr'd, either as it is a single Person, or a Council consisting of select Persons, or of All in General, is called a Monarchy, Aristocracy, or a Free State; the rest are looked upon as Subjects or Citizens, the Word being taken in the most comprehensive Sense: Although, in Strictness of Speech, some call only those Citizens, who first met and agreed together in the forming of the said Society, or else such who succeeded in their Place, to wit, House-holders or Masters of Families.

Moreover, Citizens are either Originally so; that is, such as are born in the Place, and upon that Account claim their Privileges: Or else Adscititious; that is, such as come from Foreign Parts.

Of the first Sort, are either those who at first were present and concerned in the forming the said Society, or their Descendants, whom we call Indigenae, or Natives.

Of the other Sort are those who come from Foreign Parts in order to settle themselves there. As for those who come thither only to make a short Stay, although they are for that Time subject to the Laws of the Place; nevertheless, they are not looked upon as Citizens, but are called Strangers or Sojourners. (Pufendorf, Section XIII, boldface added)

French philosopher Denis Diderot (1713-1784) rejected Pufendorf's definition of "citizen". In Diderot's opinion, outsiders who join the society and become a part of it are as much citizens as the descendants of the society's original founders:

Diderot chose to make his point about the quality of the citizen in the state by replying to Puffendorf distinction between the descendants of those who founded the state, the only ones who could claim the status of citizen, and the others. Diderot qualified this distinction as "frivole" and asserted that all members of the community are equally noble in so far as they are citizens; the status of 'nobility,' in fact equality here, derives from sharing in the right to the position of magistrate in the community. (Veluca, p.15)

Jean Jacques Burlamaqui (1694-1748) argued that citizenship belongs, at birth, not only to the children of "the first founders of states" but also to the children of "all those who afterwards became members thereof":

If by an express covenant, the thing admits of no difficulty. But, with regard to a tacit covenant, we must observe, that the first founders of states, and all those, who afterwards became members thereof, are supposed to have stipulated, that their children and descendants should, at their coming into the world, have the right of enjoying those advantages, which are common to all the members of the state, provided nevertheless that these descendants, when they attain to the use of reason, be on their part willing to submit to the government, and to acknowledge the authority of the sovereign. (Burlamaqui, paragraph IX)


of 97

Although the meaning of "citizen" seems to have evolved over time, the meaning of "native" or "indigene" has not. For nearly a century prior to Vattel, the "native" or "indigene" of a society was someone who was born in the society, of parents who were citizens of that society.

[25] The 12th Amendment, ratified in 1804, made natural born citizenship an eligibility requirement for the Office of Vice President. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. (U.S. Constitution - Amendment 12)

Chester Arthur was elected Vice President in 1880. When President James Garfield was assassinated in 1881, Chester Arthur became the first U.S. President, born after 1787, whose parents were not both U.S. citizens at the time of his birth.

[26] Under the Constitution, the Federal government established rules by which immigrants became naturalized citizens. But prior to 1866, each State had the right to decide, for itself, the manner in which it granted citizenship to (a) children born within that State, and (b) children of citizens of that State. When a child was, at birth, a citizen of a State, under the laws of that State, such child was also a citizen of the United States. Perhaps the first most important thing to understand about national birthright is that there was no written national birthright rule applicable within the States prior to the year 1866. One will look in vain to find any national law on the subject prior to this year, or even any mention of the right to citizenship by birth under the United States Constitution.

One reason for the absence of an early written national birthright rule is that States had decided for themselves who were their citizens by virtue of being born within the limits of the State. Prior to the 14th amendment, citizens of the United States were strictly defined as the citizens of each State. (Madison(2007))

There was no national law or common law which dictated the manner in which each State should confer citizenship on people who were born within, or migrated into, its territory. Each State decided, for itself, who were its citizens.

Until 1808, each State ... could confer state citizenship upon whomever it permitted to migrate into the State. ...there was no uniformity requirement with respect to state citizenship either with respect to native-born persons, recognized as state citizens, or persons admitted to live within the geographic borders of the United States and naturalized as state citizens. (Olson, Titus and Woll, Children Born in the United States...)

[27] In 1779, Thomas Jefferson wrote a generic citizenship bill which any State could use. The bill granted citizenship to (a) a child born in the State, and (b) a foreign-born child of parents who were citizens of the State. Be it enacted by the General Assembly, that

• all white persons born within the territory of this commonwealth and all who have resided therein two years next before the passing of this act, and all who shall hereafter migrate into the same; and shall before any court of record give


of 97

satisfactory proof by their own oath or affirmation, that they intend to reside therein, and moreover shall give assurance of fidelity to the commonwealth; and

• all infants wheresoever born, whose father, if living, or otherwise, whose mother was, a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise their mother becoming a citizen, or who migrate hither without father or mother,

shall be deemed citizens of this commonwealth, until they relinquish that character in manner as herein after expressed:

And all others not being citizens of any the United States of America, shall be deemed aliens. (Thomas Jefferson, A Bill Declaring Who Shall be Deemed Citizens of This Commonwealth, 1779)

Depending on birthplace and parental citizenship, this bill would, in some cases, grant U.S. citizenship to persons who were foreign citizens or subjects at birth. At least one State -- Virginia -- adopted Jefferson's bill (Madison(2007)).

[28] There is general agreement that (a) anyone born in the U.S., of U.S.-citizen parents, is a "natural born citizen", and (b) natural born citizenship is acquired only at birth and not by naturalization. But the natural born citizenship of other classes of people -- such as the U.S.-born children of non-citizen parents -- remains in doubt. There is general agreement on the core of settled meaning [of "natural born citizen"]. Anyone born on American soil whose parents are citizens of the United States of American [sic] is a "natural born citizen." Anyone whose citizenship is acquired after birth as a result of "naturalization" is not a "natural born citizen." But agreement on these paradigm cases does not entail that the clause has a clear meaning. (Solum, p.1)

For a discussion of Dr. Solum's paper, see Why Did Lawrence B. Solum Miss A Critical Point in the Natural Born Citizen Issue?

[29] From commentary by Attorney Leo Donofrio: Chief Justice Marshall ... delivered the opinion of the Court in Marbury v. Madison. His "form without substance" quote truly made me wonder what he would say about the natural born citizen clause.

As I thought about it, Chief Justice Marshall's voice came to me right from the pages of that opinion and I realized suddenly that he did address the issue when he said:

"It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it."

This must kill the argument that being "a 14th Amendment citizen" has the same effect on Presidential eligibility as being a "natural born citizen". If being a "citizen" had the same exact effect as being a "natural born citzen" then the clause would have no effect. As stated by Chief Justice Marshall, "such a construction is inadmissible." (POINT II in Leo Donofrio, SCOTUS has no Original Jurisdiction, 2009)

[30] For commentary regarding United States v. Low Hong (1919), see Mario Apuzzo, United States v. Low Hong is no precedent on the Question of What is an Article II "Natural


of 97

Born Citizen", 2009.

[31] For commentary regarding Judge Dreyer's dicta in Ankeny v. Indiana (2009), see Leo Donofrio, Eligibility Update: Ankeny v. Daniels.

[32] These sources have raised concerns about the soundness and veracity of the U.S. v. Wong Kim Ark opinion:

• Amicus Curiae Brief in Hamdi v. Rumsfeld • From Feudalism to Consent: Rethinking Birthright Citizenship • Children Born in the United States to Aliens • Thoughts on United States Citizenship • Was U.S. vs. Wong Kim Ark Wrongly Decided?

[33] In Minor v. Happersett (1874), the Supreme Court expressed doubts regarding the citizenship (therefore, the natural born citizenship) of U.S.-born children of non-citizen parents: ...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. (Minor v. Happersett, 1874)

To date, the Supreme Court has not resolved these doubts.

[34] The King James Version of the Bible, published in 1611, was so named in honor of James Charles Stuart.

[35] Prior to 1608, the meaning of ligeance was ambiguous. In some contexts, it meant the king's territory. In other contexts, it referred to an individual's (or an individual's parents') faith, loyalty and obedience: Before ligeance was employed to refer to a tract of land, the term had already been used to refer to a certain quality of interpersonal relationship. Glanvill, for instance, used the term to explain the pre-eminent relationship between a tenant and his 'liege' lord. Also, the treaty between Henry II and William, king of Scots (the Treaty of Falaise, 1174) ... indicates that the term was used to refer to the relationship of fidelity rather than a piece of land. ... Bracton also uses the term to refer to something other than a geographical tract.

... But in the late thirteenth century, we begin to see that the territorial extent of the King's legitimate power is also called ligeance. According to fourteenth century legal terminology, out of the ligeance (hors de la ligeance) could mean 'out of England'. Likewise, within the ligeance (deinz la ligeance) often meant 'within England'. ... It appears that the term was used in an ambivalent manner by the early fourteenth century. In other words, the term carried a certain amount of ambiguity with it. (Kim, pp.137-139)

Two examples illustrate the confusing dual meaning of ligeance.


of 97

• Rex v. Philip de Beauvais (1321): Philip inherited an estate from his father. The king's representative, Geoffrey Scrope, argued that Philip's father was born outside of the king's ligeance (territory). By English law, English real estate belonging to a foreign-born individual became, upon the individual's death, the property of the king.

Serjeant Shardlow, the attorney for the defense, argued that Philip's father's parents (Philip's grandparents) were married in England, did homage to the English king, and died in the king's homage. Therefore, Philip's father was born within the king's ligeance (loyalty and obedience).

Shardlow used the dual meaning of ligeance to circumvent English inheritance laws. His strategy worked, but only temporarily. Although the judge ruled in Philip's favor, Philip eventually forfeited his inheritance to the king. (Kim, p.139).

• De Natis ultra Mare (1351): This statute, enacted by Parliament in 1351, granted inheritance rights to a child born outside of the king's ligeance (territory), as long as the child's parents, at the time of child's birth, were within the king's ligeance (loyalty and obedience):

All children heirs who will from henceforth be born out of the ligeance of the king, provided that, at the time of the birth, their fathers and mothers are, and will be, of the faith and ligeance of the King of England, [shall] have and enjoy the same benefits and advantages of having and carrying the inheritance within the said ligeance ... (Statue De natis ultra mare, 1351, as quoted by Kim, p.121)

In 1608, the English court had to resolve the ambiguities in the meaning of ligeance before it could define "natural-born subject".

[36] The foreign-born children of English non-civilian parents were "special cases". They were natural-law subjects, even though they were not born on English territory. At birth, these children owed allegiance to the English king only. English non-civilian personnel included (a) English ambassadors to a foreign country, (b) members of English royalty, and (c) English soldiers invading or occupying foreign territory.

[37] In 1961, 42 births were registered in Hawaii as "unattended births". Of these 42 births, 4 babies were white and 38 were non-white. (See page 205 in Vital Statistics of the United States, 1961, Volume 1. See also 1961 Hawaii Births).

Obama's birth annoncement, which was published in the local Honolulu newspapers, lists his parents' address as 6085 Kalanianaole Highway, which is located in Honolulu County. Honolulu County is the Aloha State's only metropolitan county. It occupies the entire island of Oahu. All other counties in the State of Hawaii are classified as "nonmetropolitan".

In 1961, unattended births of white and non-white babies occurred in both urban and rual portions of Honolulu County.


of 97

In the table below, column headings are as follows:

Total Total number of births

Hospital Births that took place in a hospital (all such births are presumed to be physican-attended)

Physican Births that did not take place in a hospital, but were attended by a physician

Midwife Births that did not take place in a hospital, but were attended by a midwife

Unattended Births that did not take place in a hospital and were not attended by a physician or midwife. The number of unattended births was calculated by subtracting the number of hospital births, physician-attended births and midwife-attended births from the total number of births.

Total Hospital Physician Midwife Unattended

White 5,418 5,406 8 0 4

Non-white 12,198 12,110 50 0 38

All 17,616 17,516 58 0 42

Hawaii 1961 Births by Attendant (Source: Page 205, Vital Statistics of the United States, 1961, Volume 1)


of 97

References

Bacon, Francis

Francis Bacon, Case of the Post-Nati of Scotland, 1608. Also, James Spedding, Works of Francis Bacon, Volume XV.

Bacon, Matthew

Matthew Bacon, A New Abridgement of the Law, 1736. (This is a 48MB PDF document.)

Bancroft George Bancroft, History of the United States, Volume V, 1866-1892.

Banks Taunya Lovell Banks, Dangerous Woman: Elizabeth Key's Freedom Suit, 2005.

Blackstone William Blackstone, Commentaries on the Laws of England, Book 1, Chapter 10, 1765-1769.

Bodin Jean Bodin, Six Books of the Commonwealth, Book 1, 1576.

Burlamaqui Jean Jacques Burlamaqui, The Principles of Politic law, Part 1, Chapter 5, 1748.

Carpenter A.H. Carpenter, Naturalization in England and the American Colonies, 2002.

Charlton John Charlton, History of Quo Warranto, 2009.

Cockburn Alexander Cockburn, Nationality, 1869.

Coke Edward Coke, Calvin's Case, 1608.

Collins George Collins, Are Persons Born within the United States Ispo Facto Citizens Thereof?, American Law Review, Sept/Oct 1884.

Dellolio Ryan Dellolio, Citizenship and Nationhood: A comparative Analysis of France and Germany, 2008.

Dowdy Dowdy, Natural Born Citizen, 1967.

Erler Edward J. Erler, "From Subjects to Citizens: The Social Compact Origins of American Citizenship", in Prstritto and Thomas West, eds., The American Founding and the Social Compact, 2003.

Greschak John Greschak, What is a Natural Born Citizen of the United States?, 2008-2009.

Henriques Henry Straus Quixano Henriques, The Jews and the English law, 2005.

Herzog Tamar Herzog, Defining Nations, 2003.

Kettner James H. Kettner, The Development of American Citizenship 1608-1870, 1978.

Kim Keechang Kim, Aliens in Medieval Law, 2000.

Knop Karen Knop, Citizenship, Public and Private, 2008.


of 97

Luu Lien Luu, Natural-Born versus Stranger-Born Subjects, 2005.

Madison (2006)

P.A. Madison, Was U.S. vs. Wong Kim Ark Wrongly Decided?, 2006.

Madison (2007)

P.A. Madison, What 'Subject to the Jurisdiction Thereof' Really Means, 2007.

Madison (2008)

P.A. Madison, Defining Natural Born Citizen, 2008.

Mayton William Mayton, Birthright Citizenship and the Civic Minimum, 2007.

Nickles Don Nickles, Natural Born Citizen Act Summary, 2004. (This is a 2-page Microsoft Word document.)

Olsen Kirstin Olsen, Daily Life in 18th-century England, 1999.

Parry Clive Parry, British Nationality Law, 1954.

Polarik Ron Polarik, Final Report, 2008.

Prak Marrten Prak, Burghers into citizens: Urban and national citizenship in the Netherlands during the revolutionary era (c.1800), 1997.

Price Polly Price, Natural Law and Birthright Citizenship in Calvin's Case, 1997.

Pufendorf Samuel von Pufendorf, The Whole Duty of Man According to the Law of Nature, Book II, Chapter VI, 1673.

Rawle William Rawle, A View of the Constitution, 1829.

Ross J.M. Ross, "English Nationality Law: Soli or Sanguinis?", in Charles Henry Alexandrowicz, ed., Studies in the history of the law of nations, Volume 2, 1972.

Ruddy F.S. Ruddy, "The Acceptance of Vattel", in Charles Henry Alexandrowicz, ed., Studies in the history of the law of nations, Volume 2, 1972.

Seybolt Robert Seybolt, The Colonial Citizen of New York City, 1918.

Solum Lawrence Solum, Originalism and the Natural Born Citizen Clause, 2008.

Spooner Lysander Spooner, The Unconstitutionality of Slavery, Part 2, Chapter XXI, 1860.

Story Joseph Story, Commentaries on the Constitution, 1833.

Trout Robert Trout, Life, Liberty and the Pursuit of Happiness, 1997.

Vattel Emerich de Vattel, Law of Nations, Book 1, 1758.

Veluca Adrian Veluca, The Idea of Citizenship: A Historical Survey, 1999.

Webster Prentiss Webster, A treatise on the law of citizenship in the United States, 1891.


of 97

Weil Patrick Weil, Nationalities and Citizenship: The Lessons of the French Experience, in David Cesarani and Mary Fulbrook, eds, Citizenship, Nationality and Migration in Europe, 1996.

Withington Phil Withington, The Politics of Commonwealth, 2005.

Wolff Joseph H. Drake's English translation (1934, ISBN 0-89941-956-9) of Christian von Wolff's Jus Gentium Methodo Scientifica Pertractatum (1749).

Wood Charles Wood, Losing Control of the Nation's Future - Part 2, 2005-2006.

Acknowledgments

Special thanks to:

• Attorney Mario Apuzzo, whose comments and corrections were immensely valuable during the initial development of this Primer.

• Attorney Leo Donofrio, whose published research is referenced in this Primer. • All who have sent comments and corrections directly via e-mail and indirectly as posts

on various forums, especially the Leo Donofrio blog and the Right Side of Life.

Nevertheless, the information and opinions in this Primer are solely those of its author and do not necessarily reflect the views of those who have offered comments and criticisms.

Disclaimer

The author of this Primer is neither a historian nor a lawyer. Nothing in this document should be construed to be, or used as, legal advice on any matter. To contact the author, please go to the contact page using a Java-applet-enabled browser.

Contact page: http://people.mags.net/tonchen/sendmail.htm

This Primer is intended to be just that -- a primer. Its purpose is to provide a brief introduction to the Obama presidential eligibility controversy from the Birthers' perspective. Readers are encouraged to use this Primer as a springboard for their own research.

Revision Log

This Primer is a substantial rewrite of an earlier version, dated June 5, 2009.

Copyright

Copyright © 2009-2010 Stephen Tonchen

27240350 stephen tonchen obama presidential eligibility

Documents

natural born citizenship

term natural born citizen

president obama

barack obama

parents citizenship

obama eligibility controversy

united states

introductory primer