US v. Wong Kim Ark 169 U.S. 649 (1898)
And the Joint session of Congress led by VP. Cheney formally declared Obama eligible and elected on January 8, 2009.
The Constitution requires that the President of the United States must be a natural born citizen:
Article II, section 1, pa. 5: "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."
If "natural born citizen" is a synonym for "citizen," then there is no reason for adding the exception "or a Citizen of the United States, at the time of the Adoption of this Constitution." None at all. Being a citizen is not sufficient, unless you happened to be alive when the Constitution was adopted.
So what, then, is a "natural born citizen"? To answer that question definitively will require a full examination of the concepts and history of citizenship.
Types Of Citizenship: Jus Soli, Jus Sanguinis, Natural Born, Native Born, Naturalized
Jus soli citizenship: "Jus soli" is a Latin phrase meaning "law of the soil." Jus soli citizenship is any citizenship that inheres in a person based on the location of his or her birth.
Jus sanguinis citizenship: "Jus sanguinis" is a Latin phrase meaning "law of the blood." Jus sanguinis citizenship is any citizenship that inheres in a person based on his or her ancestry.
Native born citizenship: A native born citizen is one whose citizenship derives from the facts of his birth, and who becomes a citizen at the moment of birth. In both US and British law, those born within the sovereign territory of the country or born to parents who are citizens (subjects) of the country when the person is born are native citizens (subjects.) Native born persons are said to have "birthright citizenship." Note that one can be "native born" either by the "jus soli" principle or by the "jus sanguinis" principle.
Naturalized citizenship: A naturalized citizen is one whose citizenship is granted as a political act—by law or by the decision or act of a sovereign.
Natural born citizenship: A natural born citizen is one whose citizenship is not granted by law or by any act of a sovereign, but inheres naturally in the person from birth according to principles that don't depend on laws or decisions of a sovereign. The rest of this essay will fully justify this definition.
The Constitution of the United States did not originally explicitly define who did or did not not qualify as citizens. It originally had clauses where the general term citizen occurs, and had one clause where the specific term natural born citizen occurs (quoted above.) But the Constitution does grant Congress the power to define by law who shall be citizens:
Congress shall have power….To establish an uniform Rule of Naturalization [Article I, Section 8]
Why did the Constitution limit the power it granted Congress over matters of citizenship to naturalization? Because Citizenship acquired solely by any law passed by Congress cannot logically be anything other than naturalized citizenship—by definition of naturalization. It's logically impossible for any act of Congress to make anyone a citizen by natural law. At most, such a law would be declaratory of natural law—because a citizen by natural law is a citizen no matter what laws Congress may or may not enact.
In fact, given the Founders' understanding of natural law versus man-made law, it would have been a logical contradiction to grant Congress the power to change or define natural law on any subject, not just regarding citizenship—because natural law, by late 18th-century definition, cannot be made by a legislature or head of state. That's why Congress was granted no such powers in any domain at all. Such a power could be used, among other things. to change the meaning of words, including those in the Constitution itself. The dangers of that should be obvious.
If Congress had the power to make anyone a natural citizen, it would also necessarily have the power to strip citizenship from anyone it chose. The fact it cannot logically have any such power—and is granted no such power by the Constitution—is one of the fundamental protections against tyranny. The power to revoke even natural law citizenship by law is the power to commit any act against anyone that the sovereign power of war permits.
So why didn't the Constitution define the term natural born citizen? For the same reason it could only grant Congress the power to define naturalized citizens. For the Constitution to actually define the term "natural born citizen" would necessarily mean that that status would be granted by man-made law, and not by natural law. That's why the Constitution provides no definition, and why it must be a court that decides who is and who is not a natural born citizen by applying natural law principles—which is exactly how English common law handled questions of natural citizenship.
But the ratification of the 14th Amendment introduced into the Constitution a rule of citizenship that declared anyone who (a) was born in the United States, and (b) was subject to U.S. jurisdiction at the time of his or her birth, to be a citizen. Since the 14th Amendment is a man-made law, and is not natural law, the 14th Amendment logically cannot make anyone be a natural citizen. Nor does it create the logical contradiction of attempting to do so, since it makes no mention of natural citizenship of any kind, and does not use the term "natural born citizen."
The 14th Amendment created an implicit distinction among 14th Amendment native-born citizens, and statutory native-born citizens. A statutory native-born citizen is a person who does not qualify for birthright citizenship under the 14th Amendment, but receives U.S. citizenship, at birth, by laws enacted by Congress. For example, foreign-born children of American parents do not receive citizenship from the 14th Amendment; such children acquire U.S. citizenship, at birth, by statute.
So those born outside the United States to parents who are US citizens at the time of the person's birth are both native citizens and also naturalized citizens, since their citizenship is a) granted to them by an Act of Congress, and b) effective from the instant of their birth, based on the fact that the person's parents were US citizens at that moment.
Even those born in the United States, if they qualify as a citizen per the 14th Amendment, but do not also qualify as natural born citizens without reliance of the 14th Amendment, are naturalized citizens. Why? Because the US Constitution is a law whose formulation and adoption are political acts of man. The Constitution is the supreme law of the land, but it is not natural law. So it does not matter that the law that grants citizenship happens to be a clause of the Constitution—the grant of citizenship is nevertheless an act of naturalization, because it's a grant made by law—a political act, not one based on natural law.
Those who were not citizens up until the moment of the ratification of the 14th Amendment, but who instantly became citizens upon ratification, cannot possibly have ever been native-born citizens. They were not citizens from the moment of their birth. And their grant of citizenship was a political act effected by the passage of a law, and not based on principles of natural law. The 14th Amendment naturalizes anyone who does not also qualify as a natural born citizen. And that's true by definition of the term naturalization, as will be fully and comprehensively shown later.
Therefore, to handle all the possible classes of citizenship in the US, it is necessary to distinguish between natural law citizens, Constitutional citizens and statutory citizens, and also to distinguish between native citizens and non-native citizens:
Native (from birth) Non-native (post birth)
Natural Law Native citizen per natural law
Natural born citizen Non-native citizen per natural law
(Those who become citizens of a newly-created nation)
Constitutional Law Naturalized native citizen per Constitutional definition Naturalized non-native citizen per Constitutional definition
Statutory Law Naturalized native citizen per statutory definition Naturalized non-native citizen per statutory definition
Of course, in other countries, other classes of citizenship may exist, and classes of citizenship that exist in the US may not. For example, some countries don't have Constitutions or even legislatures, and others have monarchs who may have the power to grant citizenship (a power the US President lacks.)
We can use the term "Constitutional natural born citizen" to refer to someone who is a "natural born citizen" according to the natural-law based definition intended by those who wrote and ratified the Constitution. The term must be understood in that sense when it appears in the Constitution or in a Constitution-related document such as a Supreme Court decision.
We canl use the term "statutory natural born citizen" to refer to someone who is deemed a "natural born citizen" by Federal or State law.
These distinctions are not my invention. The U.S. Department of State Foreign Affairs Manual—7 FAM 1130 (page 9) http://www.state.gov/documents/organization/86757.pdf
...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
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 outside the United State to parents who are citizens are "citizens at birth". Therefore, using our hypothetical definition of "natural born citizen" as anyone who is a citizen at birth, all those born abroad to US-citizen parents would be statutorily defined as "natural born citizens" because their status as citizens at birth would be granted by statute. So that definition of "natural born citizen" would mean that Congress could change the meaning of "natural born citizen" by changing the rules of naturalization. It would also mean that Congress, simply by changing the naturalization rules, could also change who was or was not eligible to be President.
That cannot be what the Founders intended. Had it been, they would simply have granted Congress the power to dictate who shall or shall not be a citizen (or any sort,) and who could or could not be President. But they pointedly did not grant Congress any power to determine who would or would not naturally be citizens, nor who would be eligible to be President. The only power they granted Congress regarding citizenship was to make rules regarding naturalization of citizens (the making of citizens who would not be citizens naturally.) And they granted Congress no power to determine Presidential eligibility rules at all.
It may be—and this essay so argues—that all natural born citizens are also native born citizens. But the reverse cannot be true without not only creating logical contradictions, but without granting Congress powers that were clearly intended to be denied to them.Original Intent
On 25 July 1787, John Jay wrote a letter to George Washington, http://www.familytales.org/dbDisplay.php?id=ltr_joj4101&person=joj
recommending that the new Constitution should require that the President be a "natural born citizen". The stated purpose of this requirement for eligibility was to exclude "foreigners" from exercising Presidential powers:
“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.”
Also on 25 July 1787 (the very same day,) James Madison made the following comment to the delegates of the Constitutional Convention then in progress in Philadelphia (the topic of the debate was whether or not it would be a good idea to have Congress , State legislatures, the Governors of the States or courts—Federal or State—choose the President):
Mr. MADISON. ...Besides the general influence of that mode on the independence of the Executive, 1.  the election of the Chief Magistrate would agitate & divide the legislature so much that the public interest would materially suffer by it. Public bodies are always apt to be thrown into contentions, but into more violent ones by such occasions than by any others. 2.  the candidate would intrigue with the Legislature, would derive his appointment from the predominant faction, and be apt to render his administration subservient to its views. 3.  The Ministers of foreign powers would have and  make use of, the opportunity to mix their intrigues & influence with the Election. Limited as the powers of the Executive are, it will be an object of great moment with the great rival powers of Europe who have American possessions, to have at the head of our Governmt. a man attached to their respective politics & interests. No pains, nor perhaps expense, will be spared, to gain from the Legislature an appointmt. favorable to their wishes. Germany & Poland are witnesses of this danger. In the former, the election of the Head of the Empire, till it became in a manner hereditary, interested all Europe, and was much influenced by foreign interference. In the latter, altho' the elective Magistrate has very little real power, his election has at all times produced the most eager interference of forign princes, and has in fact at length slid entirely into foreign hands. The existing authorities in the States are the Legislative, Executive & Judiciary. The appointment of the Natl. Executive by the first, was objectionable in many points of view, some of which had been already mentioned. He would mention one which of itself would decide his opinion. The Legislatures of the States had betrayed a strong propensity to a variety of pernicious measures. One object of the Natl. Legislre. was to controul this propensity. One object of the Natl. Executive, so far as it would have a negative on the laws, was to controul the Natl. Legislature, so far as it might be infected with a similar propensity. Refer the appointmt. of the Natl. Executive to the State Legislatures, and this controuling purpose may be defeated. The Legislatures can & will act with some kind of regular plan, and will promote the appointmt. of a man who will not oppose himself to a favorite object. Should a majority of the Legislatures at the time of election have the same object, or different objects of the same kind, The Natl. Executive would be rendered subservient to them.—An appointment by the State Executives, was liable among other objections to this insuperable one, that being standing bodies, they could & would be courted, and intrigued with by the Candidates, by their partizans, and by the Ministers of foreign powers. The State Judiciarys had not  & he presumed wd. not be proposed as a proper source of appointment. The option before us then lay between an appointment by Electors chosen by the people—and an immediate appointment by the people. He thought the former mode free from many of the objections which had been urged agst. it, and greatly preferable to an appointment by the Natl. Legislature. As the electors would be chosen for the occasion, would meet at once, & proceed immediately to an appointment, there would be very little opportunity for cabal, or corruption. As a farther precaution, it might be required that they should meet at some place, distinct from the seat of Govt. and even that no person within a certain distance of the place at the time shd. be eligible. ... http://avalon.law.yale.edu/18th_century/debates_725.asp
With one exception to be noted shortly, it was only after Jay's letter to General Washington, and Madison's comment at the convention, that the Convention began to mention citizenship requirements for any Constitutional officers, even though they had begun to consider eligibility issues about a week previously. It should be noted, however, that during the early days of the Convention several very different initial drafts of proposed Constitutions were presented, all but one of which were rejected. The last one to be presented, by Alexander Hamilton, is known as the British Plan (because it was modeled closely after the British governmental architecture.) Although that proposal was totally rejected, it also happens to have been the only one whose text included any eligibility requirements for the Chief Executive. That plan required that that person be "born a citizen."
The Convention's "committee of the whole" went into recess from 27 July through 5 August. When it resumed on August 6, the "committee of detail" presented the first draft of the Constitution that included eligibility requirements for any Constitutional officers: the members of the House and Senate had to be citizens for specified periods prior to serving (thus implicitly allowing naturalized citizens to serve, a point that was actually discussed in detail in the "committee of the whole.") But the only constraint on who could be President was that he "shall not be elected a second time."
Finally, on 4 September, the Convention considered proposed changes from one of the sub-committees where the "natural born citizen" eligibility requirement for the President was introduced to the "committee of the whole." The differences between the initial language and what later became the text of the ratified Constitution are minor and of no bearing on the meaning of "natural born citizen":
(5) 'Sect. 2. No person except a natural born citizen or a Citizen of the U. S. at the time of the adoption of this Constitution shall be eligible to the office of President; nor shall any person be elected to that office, who shall be under the age of thirty five years, and who has not been in the whole, at least fourteen years a resident within the U. S.'
Based on the above evidence, we can conclude that John Jay's letter to Washington, and the comments of Madison and later others at the Convention, establish the fact that the Framers were worried about the undivided loyalty of the President, and thought that the requirement that he be a "natural born citizen" would be sufficient to prevent anyone with foreign allegiance (anyone who could be claimed as a subject or citizen of a foreign sovereign) from serving as President. But how could that be, if "natural born citizen" means what many claim it does, namely "a person born in the United States, with parents who aren't employed in any official capacity by a foreign sovereign"?
Some nations claim you as their citizen or subject based on where your were born, some based on who your parents were (father and/or mother,) and some based on both together. By requiring that the President be born at a location where the US is sovereign, any foreign "natural law" or "law of nations" claim on the President to allegiance based on his place of birth is precluded. By requiring that the President be born to parents who are solely US citizens, any foreign "natural law" or "law of nations" claim on the President to allegiance based on his parentage is precluded.
There is no denying the fact that a person born in the United States could have multiple nationalities, and owe allegiance to multiple sovereigns, since either parent could have multiple citizenships, any of which could by the law of that nation transfer to the child by the principle of jus sanguinis. Many nations claim anyone with at least one parent (sometimes it must be the father, sometimes it must be the mother, sometimes both) who is a citizen or subject of that nation as a citizen/subject also. However, if both your parents are citizens (or subjects) of the same sovereign, if neither parent has any foreign citizenship, and if you were born in that same sovereign's territory, then and only then is it impossible for any other sovereign to have a birthright claim to your allegiance under the law of nations as commonly understood.
Therefore, it should be evident that if the purpose of the requirement to be a "natural born citizen" is to prevent anyone with foreign citizenship from serving as President, it cannot achieve that end unless, by definition, the phrase "natural born citizen" excludes anyone who might have acquired foreign citizenship by means of any one of the three modalities recognized by the law of nations: 1) jus soli (born on foreign soil), 2) jus sanguinis (born to a parent with foreign citizenship), or 3) naturalization by a foreign country. John Jay's request to Washington makes no sense otherwise, since in that case his suggested eligibility requirement would not preclude what he was seeking to prevent.
It should be noted that a person can become a citizen or subject of a foreign country by naturalization after one has has been born. To be logically consistent with the intent of the Founders, those US citizens—even if born in the US to parents who were both US citizens—who have any foreign citizenship, no matter when or how acquired, should not be eligible to be President. This issue has nothing to do with race or ethnicity. It's a question of loyalty and avoidance of even the appearance of conflict of interest. Nothing more, and nothing less.
Consider again Article II, section 1, pa. 5: "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."
That clause limits who may be President to persons who meet the following requirements:
Those who are 35 years old or older, AND
Those who have been a resident of the US for 14 years or longer, AND
Those who are natural born citizens, OR
Those who were US citizens at the time the Constitution was adopted
Why did the Constitutional Convention include that last exception, allowing those who were citizens at the time the Constitution was adopted to be President?
Before answering that question, consider the case of Congressman Smith. He was born in South Carolina before the American Revolution. At the time of the Revolution, he was not yet an adult. His parents were British loyalists, and fought against the Revolution. But after the Revolution and the adoption of the Constitution in 1788, he was elected to Congress. But his right to be seated was challenged on the basis that he was not a citizen, due to the actions of his parents.
James Madison himself spoke in defense of the fact that Mr. Smith was a citizen. The reasoning he used is decisive with respect to understanding the reason for the exception in the Constitution to the "natural born citizen" requirement.
Madison essentially argued that Mr. Smith was a citizen because of where he was born, and because he was a minor when his parents sided with the British loyalists against the American Revolutionaries. He focused on that point, because he obviously felt that any adults who sided with the British loyalists would not qualify as citizens, regardless of where they were born (he explains the reason for that.) Bear in mind that the Constitution allows naturalized citizens to serve in Congress, there is no requirement that one have "birthright citizenship" (whose normative definition means either "jus soli" OR "jus sanguinis" citzenship (OR, not AND.)) But Madison nevertheless argued that Mr. Smith was a citizen from birth, by reason of his place of birth alone, and explicitly not due to his parentage, because (as Madison argues) his parents never were US citizens at all.
Madison's argument prevailed, and Mr. Smith was seated as a Congressman. The Congress accepted Madison's argument that Mr. Smith had birthright citizenship solely due to the location of his birth in South Carolina—when South Carolina was a British Colony, and not yet a State of the United States. By that same logic, most residents of the US at the time the Constitution was adopted were native citizens of the US by their place of birth alone.
Note that, according to Madison's argument, those who were citizens of any State became citizens of the US instantly, automatically and by operation of natural law and the law of nations the moment two events occurred: 1) The society in which they were citizens came under the sovereignty of the United States, and 2) they were adults who accepted, and did not reject, allegiance to the United States. However, their status as US citizens began only at that moment, and not before. By Madison's rule, anyone born on soil where the United States is currently sovereign, and who has not denounced or rejected US citizenship, is a citizen of the United States (although he didn't say what kind.). However, most people who were alive when the Constitution was adopted would have had parents who were not US citizens when they were born, because the United States did not exist until 1776 at the earliest. Whether the United States that came into existence in 1776 is the same nation as the one whose government was constituted in 1788 by the current US Constitution is an interesting question, but there is no need to answer it here.
The only persons who were indisputably born on soil in which the United States was sovereign when the current US Constitution was adopted and whose parents were US citizens at the very moment when those persons were born would, under the most lenient possible interpretation, have been no older than 12 years of age in 1788 when the US Constitution was ratified. Under the strictest interpretation, they would have been mere infants. In contrast, most of those who were citizens when the Constitution was ratified would have satisfied the requirement to have been born on US soil— because the soil on which they were born would have become US soil no later than the moment the Constitution was ratified, if not before (per Madison's rule.)
So, based on Madison's argument (which Congress accepted,) if "natural born citizen" means simply "native born" or "born a citizen" or "born on soil where the United States is currently sovereign" then any citizen of the US at the time the Constitution was adopted would satisfy the "natural born citizen" requirement, so there would have been no need for the exception, and its inclusion in the Constitution makes no sense, especially in historical context, where no small number of residents of the US were at least potentially British subjects per British law, and the undivided loyalty of many of them to the United States was under serious suspicion (as demonstrated by the case of Congressman Smith.)
But if "natural born citizen" means "born on US soil, with parents who were US citizens when their child was born," then it would in fact be true that no one older than 12 years of age (at most) could have satisfied the "natural born citizen" requirement in 1788 (when the Constitution was ratified,) in which case there is a good reason for the exception. Without that exception, and assuming a semantic for "natural born citizen" as stated, George Washington would not have been eligible, nor would most of the Presidents after him until well into the 19th century.
In addition to the debates at the Constitutional Convention, John Jay's letter to General Washington, and the text of the Constitution itself, there is also the testimony of Founder and historian David Ramsay (April 2, 1749 to May 8, 1815,) who was an American physician, patriot, and historian from South Carolina and a delegate from that state to the Continental Congress in 1782-1783 and 1785-1786. He was the Acting President of the United States in Congress Assembled. He was one of the American Revolution’s first major historians. A contemporary of Washington, Ramsay writes with the knowledge and insights one acquires only by being personally involved in the events of the Founding period.
In 1789 (the year after the Constitution was ratified,) Dr. Ramsay published an essay entitled "A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen," a very important and influential essay on defining a “natural born Citizen.” In his 1789 article, Ramsay first explained who the “original citizens” were and then defined the “natural born citizens” as the children born in the country to citizen parents. He said concerning the children born after the declaration of independence, “[c]itizenship is the inheritance of the children of those who have taken part in the late revolution; but this is confined exclusively to the children of those who were themselves citizens….” Id. at 6. He added that “citizenship by inheritance belongs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring….” Id. at 7. He continued that citizenship “as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776….” Id. at 6.
Based on Dr. Ramsay's definition of "natural born citizen," there can be no doubt why it was necessary to include the time-limited Constitutional exception that permitted those who were citizens when the Constitution was adopted to be President. Without that exception, those who would have qualified as natural born citizens, and so been Constitutionally eligible to be President, would have been no older than 12 years of age in 1788.
Given Dr. Ramsay's position of influence and especially given that he was a highly respected historian, Ramsay would have had the contacts with other influential Founders and Framers and would have known how they too defined “natural born Citizen.” Ramsay, being of the Founding generation and being intimately involved in the events of the time would have known how the Founders and Framers defined a “natural born Citizen” and he told us that definition was one where the child was born in the country of citizen parents.
Note Dr. Ramsay's phrase “as a natural right." Modernly, it seems strange to us to associate questions of citizenship with "natural rights." We consider questions of citizenship to be purely political matters, not questions of "laws of nature" such as those investigated by physicists. But that was not at all true in 18th century European culture, nor had it been the case in English common law for many hundreds of years prior. At the time, science was still in its infancy, and its stunning and then-very-recent success inspired those who lived through the initial scientific revolution to seek "natural laws" to explain and justify their hypotheses, theories, concepts and policies. And the tradition of English common law was grounded quite firmly in rendering decisions based on what was "true by nature," as opposed to what was true by political decree. That attitude was especially strong among those who founded the United States and wrote its Constitution. They were determined to throw off the chains of tradition and arbitrary authority, and to establish their society and government based on invariant, self-evident principles arrived at by reason and conformance with objective reality. They used the term "natural" in a way similar to the way we modernly use the term "scientific," in the sense of "justified by reason and the way the world works, not by tradition or arbitrary human policy" (which isn't quite the formally correct definition, but is nevertheless what most people mean when they use the term.)
That's why the political writings of the time constantly and incessantly refer to "natural law." The point was to claim that the concepts, principles, rules or laws under discussion were derived by reason and logic from objective facts, and not merely the remnants of irrational cultural traditions or political edicts. It was the Age Of Reason, and naturalness was its standard of validity and truth.
When the US Constitution was written, the "natural law" that dealt with issues such as nationality and allegiance to a sovereign was called "the law of nations." Modernly, we call this "international law." In 1788, the preeminent codification, description and explanation of "the law of nations" was a work written by Emerich de Vattel, entitled THE LAW OF NATIONS, or principles of the law of nature applied to the conduct and affairs of nations and sovereigns. The Founders were not only familiar with de Vattel's treatise, they relied on it extensively when they wrote laws and Constitutions (of their respective States, not just the Federal one.)
In Section 212 of de Vattel's treatise, he states the following:
§ 212. Of the citizens and natives.
“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. The society is supposed to desire this, in consequence of what it owes to its own preservation; and 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. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. 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.”
Note that de Vattel defines "natural born citizen" as the purest form of citizenship, requiring both jus soli ("law of the soil") citizenship and jus sanguinis ("law of the blood") citizenship—with BOTH parents being citizens.
But de Vattel wrote in French, not in English. In French, the words he used instead of the English "natural born citizens" were "les naturels, ou indigenes." Literally, "les naturels, ou indigenes" translates as "the natural ones, or original inhabitants." Note that "les naturels" does not translate as "natives." For “naturel” to mean native the word would need to be used as an adjective. In the quoted section, it is used as a noun. In fact, when de Vattel defines "natural born citizens" in the second sentence of section 212 after defining general or ordinary citizens in the first sentence, you see that he uses the word "indigenes" meaning "natives" (in the sense of "original inhabitants") along with "Les naturels" in that sentence. He used the noun "naturels" to emphasize clearly who he was defining as those who were born in the country of two citizens of the country, because if your parents were indigenes ("original inhabitants," "natives") then your status of being a member of their society, of their nation, would devolve upon you by the jus sanguinis principle of natural law—making you a natural inhabitant, citizen and member of the society. Also, when we read Vattel, we must understand that Vattel's use of the word "natives" in 1758 is not to be read with modern day various alternative usages of that word. You must read it in the full context of sentence 2 of section 212 to fully understand what Vattel was defining from natural law, i.e., natural born citizenship of a country. Please see the photograph of the original French for Chapter 19, Section 212, here in the original French if you have any doubts.
The text of de Vattel's treatise was translated into English more than once, some of those translations being published well before the American Revolution. None of those pre-Revolutionary translations rendered "les naturels, ou indigenes" into English as "natural born citizens" The first that did so was published in 1797, 10 years following the Constitutional Convention, 8 years following the adoption of the Constitution, and 8 years following the publication of Dr. Ramsay's essay on US citizenship—where "natural born citizen" is defined by the Founder/historian to have precisely the same meaning as the one de Vattel establishes for "les naturels, ou indigenes."
We can reasonably assume that the other Founders and Framers would have defined a “natural born Citizen” the same way that Ramsay did, for being a meticulous historian he would have gotten his definition from the general consensus that existed at the time.
And we can also reasonably conclude that the professional translator who rendered "les naturels, ou indigenes" into American English in 1798 for an edition of the book to be published and distributed in the United Sates as "natural born citizens" would have been fully aware of the occurrence of that phrase in the brand-new US Constitution, and that he had the same reasons as Dr. Ramsay to use the same definition of "natural born citizens" as was generally accepted among speakers of American English at the time.
Based on the facts and reasoning presented above, there can be no other sound conclusion but that "natural born citizen" must have been intended to have the same meaning as de Vattel defined for his term-of-art phrases "les naturels, ou indigenes." It cannot be coincidence that Dr. Ramsay's 1789 definition of "natural born citizen" is the same as the one de Vattel gives for his French phrase "les naturels, ou indigenes," and which a professional translator translated into English as "natural born citizen" just a few short years after the "natural born citizen" requirement was written and ratified in the new US Constitution. The fact that that semantics for the term is very consistent with the stated purpose of the "natural born citizen" requirement to prevent a person from having allegiance to a foreign sovereign provides the confirming motive and original intent.
The evidence from the historical record and from the text of the Constitution itself is clear and compelling, as regards to both semantics and intent:
The reason the Constitutional Convention required that the President (and later, by Amendment, the Vice President) be a "natural born citizen" is that they wanted to minimize the possibility that the person who would be head of State, chief executive and Commander-In-Chief of the US armed forces might be subject to conflicts of interest, legal obligations or loyalties with respect to any foreign sovereigns or foreign powers;
Whatever the Founders meant by "natural born citizen," it was more restrictive than "citizen," and so restrictive that it was necessary to add an exception to the Constitution allowing those who were citizens when the Constitution was adopted to be eligible to be President, provided they satisfied all the other constraints;
The only explicit definition of "natural born citizen" in the historical record that was provided by one of the Founders defines it as meaning a person born in the country to citizen parents. No testimony from any other Founder or delegate of the Constitutional Convention exists that claims any other definition.
However, in spite of all the foregoing evidence, there remain those unconvinced. Why is that?
The Core Of The Controversy
In 1891, Prentiss Webster (1851-1898) published A Treatise On the Law Of Citizenship In The United States. The author makes the argument that there are two schools of thought regarding the philosophical and conceptual basis for the Declaration of Independence and the United States Constitution. The controversy over the meaning of "natural born citizen" is but one aspect of this larger disagreement.
It should be noted that the 1891 publication of A Treatise On the Law Of Citizenship In The United States happened 23 years after the ratification of the 14th Amendment, and seven years before the Supreme Court decided the Wong Kim Ark case (which used the English common law definition of "natural born subject" to justify its interpretation of the phrase "subject to the jurisdiction thereof" that occurs in the first sentence of the 14th Amendment.) The difference of opinion between the two factions is starkly evident in the majority and minority opinions in that case. We will examine the Wong Kim Ark case in greater detail later.
According to one school of thought identified by Webster, the principal philosophical and conceptual foundation of the United States founding documents was English common law. According to the other school, the US founding documents were based on pan-European "natural law" theory, as exemplified by what the US Constitution refers to as the "law of nations" (which refers to a theory of international law based on natural law concepts, not to any particular publication.)
Modernly at least, the proponents of neither school are absolutists. Those who favor English common law as the principal foundational seed don't deny at least some influence of pan-European political theory based on natural law principles. And those who believe that pan-European "natural law" theory was the principal framework the Founders used to establish the governmental architecture of the United States generally agree that there were some principles, concepts and terms also borrowed from English common law. The crux of the disagreement is focused primarily on whether the terms and concepts involving citizenship are based on English common law or on the "law of nations" developed in Europe based on natural law principles.
Those who reject the idea that "natural born citizen" means "born in the country, to parents both of whom are citizens of that country" argue that the term "natural born citizen" is simply the Americanized form of the term "natural born subject" as defined in English common law. They argue that the term was Americanized by substituting the word "citizen" for "subject"—because the US has citizens, not subjects—and that no other semantic or legal change was intended.
Both those who believe that US citizenship concepts and terms derive from English common law and those who believe they are based on the pan-European "law of nations" have written many articles, books, legal briefs and court decisions based on their point of view. So it's easy to find citations in support of either thesis. Nevertheless, it is possible to determine which faction has de jure won the argument.
Was English Common Law The Foundation Or Basis For The US Constitution?
English common law was the basis for the common law of the original British colonies, and then of the original States of the Union, but was not the basis for the common law of the United States Federal government. The framers rejected the notion that the United States was under English Common Law: “The common law of England is not the common law of these States.” —George Mason, one of Virginia’s delegates to the Constitutional Convention.
James Madison wrote a letter to George Washington, shortly after the end of the Constitutional Convention (Oct 18, 1787). The letter was in defense of the work of the Constitutional Convention against criticisms by George Mason. One such criticism was that the "the common law was not secured" by the proposed Constitution—meaning that the Congress could enact statutes that would override the common law. Madison's response to that charge (text [enclosed within square brackets] has been added as clarification):
The common law is nothing more than the unwritten law, and is left by all the constitutions [of the several States] equally liable to legislative alterations. I am not sure that any notice is particularly taken of it in the Constitutions of the States. If there is, nothing more is provided than a general declaration that it shall continue along with other branches of law to be in force till legally changed. The Constitution of Virga. [Virginia] drawn up by Col Mason himself, is absolutely silent on the subject. An ordinance passed during the same Session, declared the Common law as heretofore & all Statutes of prior date to the 4 of James I. to be still the law of the land, merely to obviate pretexts that the separation from G. Britain threw us into a State of nature, and abolished all civil rights and Obligations. Since the Revolution every State has made great inroads & with great propriety in many instances on this monarchical code. The "revisal of the laws" by a Committee of wch. Col. Mason was a member, though not an acting one, abounds with such innovations. The abolition of the right of primogeniture, which I am sure Col. Mason does not disapprove, falls under this head. What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they wd. have done more, they would have brought over from G.B. a thousand heterogeneous & antirepublican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law. If they had undertaken a discrimination, they must have formed a digest of laws, instead of a Constitution.
Nevertheless, the claim began to be made not long after the Constitution was ratified that English common law was "in force" at the Federal level. The Founders strongly objected:
Of all the doctrines which have ever been broached by the federal government, the novel one, of the common law being in force & cognizable as an existing law in their courts, is to me the most formidable. All their other assumptions of un-given powers have been in the detail. The bank law, the treaty doctrine, the sedition act, alien act, the undertaking to change the state laws of evidence in the state courts by certain parts of the stamp act, &c., &c., have been solitary, unconsequential, timid things, in comparison with the audacious, barefaced and sweeping pretension to a system of law for theU S, without the adoption of their legislature, and so infinitively beyond their power to adopt. If this assumption be yielded to, the state courts may be shut up, as there will then be nothing to hinder citizens of the same state suing each other in the federal courts in every case, as on a bond for instance, because the common law obliges payment of it...
Before the revolution there existed no such nation as the U S; they then first associated as a nation, but for special purposes only. They had all their laws to make, as Virginia had on her first establishment as a nation. But they did not, as Virginia had done, proceed to adopt a whole system of laws ready made to their hand. As their association as a nation was only for special purposes, to wit, for the management of their concerns with one another & with foreign nations, and the states composing the association chose to give it powers for those purposes & no others, they could not adopt any general system, because it would have embraced objects on which this association had no right to form or declare a will. It was not the organ for declaring a national will in these cases. In the cases confided to them, they were free to declare the will of the nation, the law; but till it was declared there could be no law. So that the common law did not become, ipso facto, law on the new association; it could only become so by a positive adoption, & so far only as they were authorized to adopt. ["COMMON LAW AND THE WILL OF THE NATION" ~Thomas Jefferson, Letter To Edmund Randolph Monticello, Aug. 18, 1799; Jefferson, Thomas, 1743-1826. Letters; Electronic Text Center, University of Virginia Library]
James Madison argued forcefully against the idea that the English common law had been Constitutionally or otherwise incorporated into the Constitution or Federal law:
Did then the principle or operation of the great event which made the colonies independent states, imply or introduce the common law as a law of the Union?
The fundamental principle of the Revolution was, that the colonies were co-ordinate members with each other, and with Great Britain, of an empire, united by a common executive sovereign, but not united by any common legislative sovereign. The legislative power was maintained to be as complete in each American parliament, as in the British parliament. And the royal prerogative was in force in each colony, by virtue of its acknowledging the king for its executive magistrate, as it was in Great Britain, by virtue of a like acknowledgment there. A denial of these principles by Great Britain, and the assertion of them by America, produced the Revolution.
There was a time, indeed, when an exception to the legislative separation of the several component and coequal parts of the empire obtained a degree of acquiescence. The British parliament was allowed to regulate the trade with foreign nations, and between the different parts of the empire. This was, however, mere practice without right, and contrary to the true theory of the Constitution. The conveniency of some regulations, in both those cases, was apparent; and as there was no legislature with power over the whole, nor any constitutional pre-eminence among the legislatures of the several parts, it was natural for the legislature of that particular part which was the eldest and the largest, to assume this function, and for the others to acquiesce in it. This tacit arrangement was the less criticised, as the regulations established by the British parliament operated in favour of that part of the empire which seemed to bear the principal share of the public burdens, and were regarded as an indemnification of its advances for the other parts. As long as this regulating power was confined to the two objects of conveniency and equity, it was not complained of, nor much inquired into. But, no sooner was it perverted to the selfish views of the party assuming it, than the injured parties began to feel and to reflect; and the moment the claim to a direct and indefinite power was ingrafted on the precedent of the regulating power, the whole charm was dissolved, and every eye opened to the usurpation. The assertion by Great Britain of a power to make laws for the other members of the empire in all cases whatsoever, ended in the discovery that she had a right to make laws for them in no cases whatsoever.
Such being the ground of our Revolution, no support nor colour can be drawn from it, for the doctrine that the common law is binding on these states as one society. The doctrine, on the contrary, is evidently repugnant to the fundamental principle of the Revolution.
It is readily admitted, that particular parts of the common law may have a sanction from the Constitution, so far as they are necessarily comprehended in the technical phrases which express the powers delegated to the government; and so far also, as such other parts may be adopted by Congress as necessary and proper for carrying into execution the powers expressly delegated. But, the question does not relate to either of these portions of the common law. It relates to the common law beyond these limitations.
The only part of the Constitution which seems to have been relied on in this case is the 2d Sect. of Art. III. "The judicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority."
There are two passages in the Constitution, in which a description of the law of the United States is found. The first is contained in Art. III. sect. 2, in the words following: "This Constitution, the laws of the United States, and treaties made, or which shall be made under their authority." The second is contained in the second paragraph of Art. VI. as follows: "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." The first of these descriptions was meant as a guide to the judges of the United States; the second, as a guide to the judges in the several states. Both of them consists of an enumeration, which was evidently meant to be precise and complete. If the common law had been understood to be a law of the United States, it is not possible to assign a satisfactory reason why it was not expressed in the enumeration. [James Madison, principal author, REPORT OF 1799. VIRGINIA. HOUSE OF DELEGATES.]
That should make it abundantly clear why in Wheaton v. Peters, 33 U.S. (Pet. 8) 591 (1834), the Supreme Court held:
"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."
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)
Is "Natural Born Citizen" Equivalent To "Natural Born Subject" As Defined By English Common Law?
If so, it would have to be an exception to the clear words of the Founders and the controlling Supreme Court precedents that deny that Federal law is based on the English common law. Could that be? And what was the English common law definition of a "natural born subject," in any case?
In Britain, there are only two types of law: "common law" and Acts of Parliament. In the absence of an Act of Parliament, the common law applies. But any Act of Parliament overrides the common law. Britain has no Constitution as a separate and distinct document. In the British system there is no higher written law superior to an Act of Parliament, although core legal principles such as the rule of law are considered to be superior even to Parliament. Some laws and court rulings have attained an informal, but nevertheless quite strong, status as forming part of the British Constitution.
Every decision of any British court could potentially establish a new precedent in the common law—even decisions based solely on statutes. Conversely, Parliament could and did enact statutes that were intended to canonically declare and codify the common law as it already existed. However, it was not always clear whether that was or was not the intent (or legal effect) of a statute (or of one of its clauses or provisions.) Similarly, an Act of Parliament or court decision could evolve over time to have the weight and authority of a Constitutional provision, and so become a part of the informal British Constitution.
The legal rules regarding English (and then British) citizenship ("subjecthood") originally evolved exclusively as common law, as there were no Acts of Parliament on the topic.
The term "natural" in "natural born subject" refers to the fact that common law in theory was based on principles of what was naturally true, right or just. Of course, "in theory, there is no difference between theory and practice, but in practice, there is." So in practice, common law and natural law were not always the same. Natural law was entirely theoretical, whereas the common law was actual, enforceable law. Natural law was the ideal, but common law is what was real.
The relationship between the British concept of natural law and the body of English common law would be analogous to the the relationship between the text of the US Constitution and the decisions of the Supreme Court which interpret that text. Caveat: few analogies are perfect, and this one is no exception.
"Natural born subject" originally meant a person whose status as a subject was due to a) the application of "natural" law, and b) acquired as a direct and immediate consequence of the facts of a person's birth. So anyone whose status as a British "natural born subject" was due solely to either a) an Act of Parliament, or b) an order of the King or Queen, was therefore a "naturalized" subject. The term "naturalization" referred to the fact that the person was transferred artificially by political decision into a status which others had "by nature" without any need to rely on political edicts. So those made "natural born subjects" by statutory definition were said to be naturalized, but anyone whose status as a "natural born subject" was based on the "common law" (which was theoretically based on natural principles) was not a "naturalized" subject, but rather an actual "natural born subject." So that's the reason that the act of making someone a subject (or citizen) by either an act of the legislature or by order of the sovereign is called "naturalization" in English. "Naturalization" is simply shorthand for "defining someone as a natural born subject" by order of political authority—as opposed to using "natural law" principles theoretically based on what is true by nature (which, in practice, meant using natural law's actual realization, the common law.) Referring to that act as "naturalization" makes no sense otherwise.
Common law evolves over time. So did the English common law definition of a subject born (an "actual" natural born subject.)