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.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.
The U.S. Department of State Foreign Affairs Manual—7 FAM 1130 (page 9) http://www.state.gov/documents/organization/86757.pdf says:
...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 purposesIn 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.
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 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)
Then in 1898, the Supreme Court had to decide yet again whether a petitioner was or was not a US citizen. It was the first such case the Court considered following the ratification of the 14th Amendment where the first sentence of the 14th Amendment was used to hold that a person was in fact a citizen. Interestingly, the text of the decision itself falsely claims that there was a prior case that had already done the same, but that claim is provably false. That's actually a crucial point, as will be shown later.
The 1898 case involved the citizenship status of Mr. Wong Kim Ark, who was born in the United States to Chinese parents who never acquired US citizenship. His citizenship was challenged both because neither of his parents were US citizens, and also because of a law restricting Chinese immigration and prohibiting immigrants from China from becoming naturalized U.S. citizens. The court decided that Wong Kim Ark was a citizen based on the first sentence of the 14th Amendment, and that "subject to the jurisdiction of the United States" means a) physically present on United States soil, AND b) the person was born to parents who were private individuals not employed in any official capacity by a foreign sovereign.
The court's interpretation of "subject to the jurisdiction" has been strongly criticized on a number of grounds by those who argue that the intended meaning was "not subject to any foreign power."
Firstly, in delivering the majority opinion in U.S. v. Wong Kim Ark, Justice Gray admitted that he had "presumed" that, in the 14th Amendment, the word "jurisdiction" means 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).
So the Supreme Court in Wong Kim Ark did not consider evidence showing that the originally intended meaning of "jurisdiction" was sole and complete jurisdiction. 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))
Secondly, the decision violated the principle of stare decisis, because it flatly contradicted its decisions in the Slaughter-House Cases and in Elk v. Wilkins. Justice Gray tried to argue that the circumstances in the Wong Kim Ark case were sufficiently different that a different decision was justified, but his reasoning is specious and violates the Law of Non-Contradiction.
Thirdly, Justice Gray's majority opinion violates the rule that it is inadmissible to presume that any clause of the Constitution is without effect. That is easily proven by an examination of the Court's definition of "subject to the jurisdiction":
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, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall in the well known case of The Exchange and as the equivalent of the words "within the limits and under the jurisdiction of the United States," and the converse of the words "out of the limits and jurisdiction of the United States" as habitually used in the naturalization acts.
Justice Gray used the conjunction (logical operator) and to connect the two predicate clauses "within the limits…of the United States" and "under the jurisdiction of the United States." Use of the conjunction and requires that both clauses must apply as constraint predicates. He said "within the limits and subject to the jurisdiction of the United States." If "subject to the jurisdiction" means only "within the (territorial) limits," then it is redundant to say "within the (territorial) limits and subject to the jurisdiction." But if the two predicate clauses denote distinct constraints, then "subject to the jurisdiction" must mean something other than "within the (territorial) limits."
The Court also claimed that its formulation "within the limits and under the jurisdiction of the United States" was quoted from Justice Marshall's opinion in The Exchange. But no such quote appears anywhere in the text of THE EXCHANGE V. MCFADDON, 11 U. S. 116 (1812). In fact, the opinion of Justice Marshall clearly and emphatically distinguishes between being in the territory of a sovereign and being subject to the jurisdiction of a sovereign. A person or object can be subject to the jurisdiction of a sovereign even when not in that sovereign's territory, and can also fail to be subject to the jurisdiction of a sovereign even when in that sovereign's territory—and there are also gray areas, where an object or person is partially but not fully subject to the jurisdiction of the sovereign of the territory where the person or object is located. But in any case, nothing said by Justice Marshall in The Exchange pertains directly to whatever the Framers of the 14th Amendment meant by "subject to the jurisdiction," nor does that case involve questions of citizenship.
All persons are subject to U.S. legal and territorial jurisdiction while they are in the United States, although not all to the same extent. A visiting head of state, a foreign ambassador, a visiting warship, a foreign merchant on a business trip, a foreign tourist, an alien with legal US residency, a naturalized US citizen with additional foreign citizenships and a US citizen without any foreign citizenships may be all be "subject to the jurisdiction of the United States" while within the territory of the United States, but certainly not all to the same extent or degree! However, if the word "jurisdiction" in the 14th Amendment is interpreted to mean territorial and legal jurisdiction only, regardless of extent or exclusivity, then all persons born or naturalized in the United States are automatically under U.S. jurisdiction at the time of their birth or naturalization. But this would mean that the phrase, "subject to the jurisdiction thereof" is redundant and without any unique effect (remember, Marbury vs. Madison requires that every clause in the Constitution must have substantive and unique, non-redundant effect):
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. (Edward J. Erler, "From Subjects to Citizens: The Social Compact Origins of American Citizenship", in Ronald Pestritto and Thomas West, eds., The American Founding and the Social Compact, 2003., pp.191-192)
Finally, in the majority's Opinion of the Court, English common law was "in force" when the United States was founded, "continued to prevail" under the Constitution, and controlled the Constitutional meaning of "subject to the jurisdiction." According to the jus soli principle of English common law, U.S.-born children of "domiciled" (permanent legal resident) alien parents are citizens by birth.
In the minority's Dissenting Opinion, the law of nations controlled the Constitutional meaning of citizenship. According to the jus sanguinis principle promoted by European natural law theorists, a child is naturally a citizen at birth only if its parents were citizens at the time of its birth, regardless of the child's place of birth.
In the Wong Kim Ark case, the difference of opinion among the justices was rooted in their differing understandings of America's history and founding principles. The split decision in Wong Kim Ark illustrated Prentiss Webster's main point: that one's understanding of Constitutional citizenship reflects one's belief as to which philosophical system—English common law, or European political and natural law theory — guided the framers of the U.S. Constitution—at least in so far as questions of citizenship are concerned.
Until the 14th Amendment was passed and its citizenship rule was finally applied for the first time by the Court in Wong Kim Ark in order to define someone as a citizen who otherwise would not have been, it was not the case that anyone born in the US was Constitutionally a citizen. What was in fact true, and therefore what the Court must have meant when it claimed that English common law was "in force" when the United States was founded, was that Congressional statute and State law granted citizenship to people born here whose parents were not US citizens at the time of birth. However, the fact that the naturalization statutes passed by Congress excluded non-Whites until after the Wong Kim Ark decision, and the fact that the various State laws universally limited citizenship by race, generally excluding anyone but Europeans, proves that English common law regarding citizenship was absolutely not in force even in the laws of the States, let alone at the Federal level.
Yes, the grant of citizenship to some, but not all, persons born in the US to non-citizen parents has some similarity to the English common law definition of "natural born subject," but there were three major differences:
Firstly, the State laws and Congressional statutes granting citizenship asserted race-based exclusions, which English common law never did. That fact is mentioned by Justice Gray in Wong Kim Ark. For example, Title 2, Chapter 3, Section 1 of the Code of Virginia, Section 1:
All free white persons born in this state, all free white persons born in any other state of this Union, who may be or become residents of this state, all aliens being free white persons naturalized under the laws of the United States, who maybe or become residents of this state; all persons who have obtained a right to citizenship under former laws, and all children, wherever born, whose father, or if he be dead, whose mother shall be a citizen of this state, at the time of the birth of such children, shall be deemed citizens of this state.
Secondly, although the State laws didn't require that the parents be citizens, they did require that the parents must have formally renounced all foreign citizenship and allegiance in order for their US-born children to become citizens, which also was never required of "natural born subjects" under British law. That fact is also mentioned by Justice Gray in Wong Kim Ark.
Thirdly, English common law denied the status of "natural born subject" to anyone whose parents were not Christians no matter where they were born. In his Report on Calvin's Case, Lord Coke asserted that non-Christians—including Muslims and Jews—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 ..." (Henry Straus Quixano Henriques, The Jews and the English law, 2005. p.186)
So interpreting Justice Gray's opinion in Wong Kim Ark as holding that the term citizen in the 14th Amendment must have the semantics of natural born subject as defined in English common law would require excluding non-Christians from being citizens, no matter where born. That is simply an absurd proposition given United States history and tradition, and given the clear and compelling language of the First Amendment. So either Justice Gray didn't mean to define the term citizen as used in the 14th Amendment to have the same semantics as natural born subject in English common law (other than the semantic difference between citizen and subject,) or else the opinion is so shockingly wrong that it must be reversed.
Finally, if the Constitution directly granted citizenship to whomever was born here "subject to the jurisdiction" of the United States (regardless of what that means) before the passage of the 14th Amendment, then why was the Amendment passed with a tripartite clause asserting citizenship rules as its first sentence whose import was identical to pre-existing Constitutional rules of citizenship? It cannot be the case that any clause of the 14th Amendment makes no change to Constitutional law. Again: Marbury vs. Madison requires that every clause in the Constitution must have substantive and unique, non-redundant effect. We are not allowed to assume that any clause of the 14th Amendment is redundant or does not change Constitutional law in some way. Since each clause in an Amendment to the Constitution regarding citizenship must make some substantive change to the Constitutional citizenship rules that was not previously true at the level of Constitutional law, it therefore follows that each clause of the 14th Amendment that defines who is a Constitutional citizen must either be changing the Constitutional definition of citizen from some previous, but different definition—or else it must be asserting a de novo definition of a citizenship term not previously defined by the Constitution.
Of course, the 14th Amendment has more to say, and so has other effects. Nevertheless, what's the effective change to the Constitutional law made by each clause of the 14th Amendment, especially for each clause defining who shall be Constitutionally a citizen? What were the Constitutional rules regarding citizenship before the ratification of the Amendment, and what additions or changes to Constitutional law were made by each of its clauses that pertain to citizenship? What was changed by requiring that a citizen be born or naturalized "in the United States"? What was changed by requiring that such persons must also be "subject to the jurisdiction" of the United States? What would be the effect of removing the "born subject to the jurisdiction of the Unite States" clause? And what would be the effect of removing the "born in the United States" clause?
Suppose that the first sentence of the 14th Amendment said "All persons born or naturalized subject to the jurisdiction of the United States, are citizens of the United States and of the State wherein they reside." Would that still limit US citizenship only to those born on US soil? Or would it then include those born beyond the borders of the United States to parents who were United States citizens? If "subject to the jurisdiction" under that hypothetical wording includes persons born beyond the borders of the United States based on the principle of jus sanguinis, then the phrase should have the same meaning and effect when it occurs in the conjunctive clause "subject to the jurisdiction of the United States and born in the territory thereof." And inverting the order of the clauses should make no difference, since and is commutative.
One resolution to the conundrum of what Justice Gray meant when he said that English common law was "in effect" when the Constitution was adopted is to assume that he viewed the 14th Amendment as intended to raise to the level of Constitutional law the same rules of citizenship which had generally prevailed in the several States and in Congressional naturalization statutes. That is in fact what the Framers of the 14th Amendment themselves said was their intent. If so, then the only real disagreement between the majority and minority opinions in Wong Kim Ark involved solely the question of what those Congressional and State citizenship laws entailed, and the import and effect of the rules of citizenship they mandated.
But in any case, the fact remains that controlling Supreme Court precedent regarding the first sentence of the 14th Amendment carefully and judiciously avoids any holding that the definition of citizen therein specified pertains to the term "natural born citizen."
And, even if the intent of the 14th Amendment were in fact to use the English common law definition of "natural born subject" as the Constitutional definition of "citizen," the following would still be true:
As conclusively proven above, to be a natural born subject under British law based on jus soli, one not only had to be born on the soil of the realm, one's parents also had to be either citizens or aliens—and an "alien" in modern US terminology is a legal (permanent) resident (so the wrongful attempt to use the English common law semantics of natural born subject doesn't even get that right—also see below);
In strong analogy to English common law, the State laws in general (from the 18th century until even today) deny citizenship to those who, when born, had parents who were foreigners who had not been granted legal resident status, using the term "transient aliens" to distinguish them from 'resident aliens' or 'alien friends':
Political Code of the State of New York: “The citizens of the state are:1. All persons born in this state and domiciled within it, except the children of transient aliens and of alien public ministers and consuls."
California Government Code Sections 240-245 Article 1. General: "The citizens of the State are: (a) All persons born in the State and residing within it, except the children of transient aliens and of alien public ministers and consuls."
The 14th Amendment by its own text defines only the term "citizen," not the term "natural born citizen." The semantics of natural born subject includes both subject born (natural citizen) and subject made (naturalized citizen.) It would be logically incorrect to fail to incorporate the analogous distinction between natural and naturalized citizen into the semantics of the term citizen as used in the 14th Amendment, if the intent was in fact to make the word 'citizen' be analogous to the term 'natural born subject' as used in English common law.
To be a subject born, one must not only be born on the soil of the realm, one's parents must also be citizens of the realm.
The Supreme Court Defines "Natural Born Citizen"
The earlier Supreme Court decision, which was wrongly referenced in the Wong Kim Ark decision as having used the 14th Amendment to decide a person's citizenship, is known as Minor vs. Hapersett, 88 U.S. 162. That decision did in fact use the 14th Amendment as the basis for its second principal holding concerning the right to vote, but not for its first principal holding concerning whether or not the petitioner was a US citizen (court decisions can involve multiple holdings, which are the precedent-setting decisions the court makes in order to decide the legal and/or factual issues before the court in a particular case.)
In Minor, the court held that the 14th Amendment granted no one at all any right to vote, regardless of sex, age or citizenship. Previous cases had already held that there was no Federal right to vote. The second principal holding in Minor, as well as the holdings in previous cases, are the reason that the 15th, 19th, 24th and 26th Amendments were later proposed and adopted, the language of which forbids the denial of the privilege of voting based on race, previous condition of servitude, sex or age (for those 18-years of age or older.) The 19th Amendment, for example, requires that if one sex is granted the privilege to vote, the other sex must be granted that same privilege equally.
But the court in Minor determined that before it could decide the issue of whether the petitioner (who was an adult White woman) had any Federal right to vote based on the 14th Amendment, it first had to decide whether or not she was a citizen, and if so on what basis? Understanding why the court approached the issue that way is crucial: Firstly, if women as a class be not US citizens, then the second sentence of the 14th Amendment that forbids States from denying citizens any privileges of US citizens would not apply to them, since it only applies to those who are US citizens. Secondly, the court was concerned with whether or not the citizenship of women as a class depended on the 14th Amendment. In other words, the question was whether or not, in the absence of the 14th Amendment, would any women at all be citizens? That second issue mattered for two reasons:
The legal principle known as judicial restraint:
If women as a class were not citizens before the adoption of the 14th Amendment, then the Court would have to decide whether the first sentence of the 14th Amendment granted women "born in the US and subject to the jurisdiction thereof" US citizenship. But if the woman who was the petitioner in the case at hand could be held to be a US citizen even without applying the first sentence of the 14th Amendment, then the principle of judicial restraint would behoove the Court to avoid deciding whether or not the 14th Amendment grants any women US citizenship. Judicial restraint requires that courts not make precedent-setting holdings when the issues in a case do not require it.
The court has always interpreted the principle of judicial restraint as sufficient reason to use the original (unamended) text of the Constitution before relying on the text of any subsequent Amendments, if such is possible. That's especially true in the absence of any prior precedents based on a particular clause of the Constitution. They seek to avoid making a "first instance" interpretation of any clause when there are other precedents that can be used instead (where it can be shown that no reasonable meaning of the unused clause could possibly change the outcome.) In this case, since the 14th Amendment definitely did not deprive anyone of citizenship, there was no reason to rely on its first sentence to determine citizenship, if it could be determined that the petitioner was a citizen based on the original text of the Constitution.
The court reasoned that, if women can be citizens without applying the 14th Amendment, then the 14th Amendment cannot fairly be interpreted as granting them any rights or privileges of citizenship that they have not always possessed, even before the ratification of that Amendment. In fact, this is the crucial point the court relied on in order to reach its second principal holding (that the 14th Amendment did not grant anyone the right to vote)!
In the words of the court in Minor:
It is clear, therefore, we think, that the Constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted. This makes it proper to inquire whether suffrage was coextensive with the citizenship of the States at the time of its adoption. If it was, then it may with force be argued that suffrage was one of the rights which belonged to citizenship, and in the enjoyment of which every citizen must be protected. But if it was not, the contrary may with propriety be assumed. [pp. 171, 172]
The Court in Minor held that the petitioner was in fact a US citizen, and had been such from birth, before the ratification of the 14th Amendment. The reasoning the Court used to reach that holding is actually central to the question of the Supreme Court's definition of "natural born citizen," and so that reasoning (and the Court's definition of "natural born citizen") needs to be examined in more detail.
But before we do, let us first consider another issue: Is what this essay asserts to be a holding in Minor—that the petitioner was a US citizen based on the original (unamended) text of the Constitution (and in fact had been such since birth, before the ratification of the 14th Amendment)—actually a precedent-setting holding? Or was it, as has been claimed elsewhere, merely dictum, and therefore not binding US Supreme Court precedent?
To answer that question, we first refer to the most recent Supreme Court precedent regarding the principles to be used to distinguish between dicta and holdings that establish binding precedents, which can be found in a case decided in 1996 known as Ogilvie Et Al., Minors v. United States, 519 U.S. 79 (1996). Justice Breyer's majority opinion in that case stated that when the Court discusses a certain “…reason as an ‘independent’ ground in support of our decision”, then that reasoning is not simply dictum:
“Although we gave other reasons for our holding in Schleier as well, we explicitly labeled this reason an ‘independent’ ground in support of our decision, id., at 334. We cannot accept petitioners’ claim that it was simply a dictum.”
The holding in Minor that the appellant, Mrs. Minor, did not have any Federal right to vote was based on the following facts, all of which must be true for the primary holding to be valid:
The 14th Amendment added no new rights to US citizens, other than the right to prevent the States from violating those rights, whatever they happened to be. This finding was based on the text of the 14th Amendment.
All women born under the same essential circumstances as Mrs. Minor had always been citizens of the United States, even before the ratification of the 14th Amendment. This finding was based on the court's interpretation of what the Constitution says about citizenship.
Women were almost universally denied the right to vote. Other citizens also are commonly denied the right to vote, including minors and felons. This was a finding of fact.
The chain of reasoning was that a) if voting were a right that any and all citizens have, then it should be apparent that all those recognized as citizens are granted suffrage; b) women generally had not been granted suffrage, either because they were not citizens prior to the ratification of the 14th Amendment or because not all citizens have the right to vote—so the question presented by the case can be decided by determining whether women were citizens even before the ratification of the 14th Amendment; c) women whose circumstances of birth are the same as those of Mrs. Minor are citizens, and have always been citizens even before the ratification of the 14th Amendment; d) therefore, voting is not a right of all citizens, since women have always been citizens and yet denied the right to vote (as are others who are citizens.)
Per Ogilvie, if the Court uses any finding or decision as "independent grounds" for any of its precedential holdings, then these findings or decisions are also precedential holdings—and that rule is transitive: any finding or decision used as "independent grounds" for a later holding is itself a holding, recursively back to ever earlier findings and decisions. That makes it undeniable that the court's definition in Minor of the term 'natural born citizen' is in fact a precedential holding.
The syllabus of the Minor case lists the following as one of the holdings:
2. In that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment to the Constitution as since.
The fact that that decision is listed in the syllabus of the case is evidence that the Court considered its decision on the citizenship question to be a precedent-setting holding, and not a dictum.
FInally, there are other Supreme Court cases that cite the definition given in Minor as controlling precedent regarding the meaning of 'natural born citizen.' One such is EX PARTE LOCKWOOD, 154 U.S. 116 (1894):
In Minor v. Happersett, 21 Wall. 162, this court held that the word 'citizen' is often used to convey the idea of membership in a nation, and, in that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment of the constitution as since; but that the right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the fourteenth amendment, and that amendment did not add to these privileges and immunities. Hence, that a provision in a state constitution which confined the right of voting to male citizens of the United States was no violation of the federal constitution.
Wong Kim Ark also cites the holding in Minor regarding the definition of natural born citizen…and does so favorably, not using any language that could possibly be construed as intended to change or overturn the definition of natural born citizen as given in Minor.
So the citizenship holding in Minor is binding US Supreme Court precedent, beyond any possibility of denial. Although the second principal holding regarding the right to vote was later mooted by the 19th Amendment, the first principal holding regarding the basis for establishing US citizenship without any reliance on the 14th Amendment or any other law (e.g. a Congressional naturalization statute) still stands as binding Supreme Court precedent which has never been overturned nor obviated by subsequent Amendments to the Constitution.
In Minor, the Supreme Court held that the petitioner was and had been from birth a citizen by providing its official interpretation of the phrase "natural born citizen," specifically referencing the qualifications to be US President from Article II section 1, and then applying the definition of "natural born citizen" to the petitioner and coming to the conclusion that she satisfied all the conditions to be a "natural born citizen."
Here's the text:
Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides [n6] that "no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President," [n7] and that Congress shall have power "to establish a uniform rule of naturalization." Thus new citizens may be born or they may be created by naturalization.
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. …
The Court concluded that, since the term "natural born citizen" was used in the Constitution as one of the qualifications to be President, that anyone who qualified as a "natural born citizen" necessarily was named by the Constitution as a citizen. So the Court proceeded to research the meaning of "natural born citizen" to see whether it could rule the petitioner to be a citizen based on the definition of that term. Pursuant to its research, it then defined "natural born citizens" as "all children born in a country of parents who were its citizens."
Note that the Court in Minor states in its definition that "natural born citizens" are distinct from "aliens or foreigners." That's actually a very important semantic distinction. To see why, it is necessary to understand the 18th-century common law meanings of the words alien and foreigner:
According to Black's Law Dictionary, the word "foreigner" can be used in a municipal context and in an international context. In a municipal context, anyone who is not a member of a community is a "foreigner" in that community. In an international context, anyone owing allegiance to a foreign state or sovereign is a "foreigner":
FOREIGNER. In old English law, this term, when used with reference to a particular city, designated any person who was not an inhabitant of that city. According to later usage, it denotes a person who is not a citizen or subject of the state or country of which mention is made, or any one owing allegiance to a foreign state or sovereign. (Henry Campbell Black, A Dictionary of Law, First Edition, 1891, p.506)
In 2009, the Berkeley Journal of International Law published a comprehensive historical analysis of the words "foreigner" and "alien", as used in English and American legal writings during the late eighteenth century. Research by Anderson Berry found that the word "foreigner", when used in an international context, has a general meaning and a specific meaning. In the general sense, anyone who was born in a foreign country or is a citizen or subject of a foreign country is a "foreigner". But in the specific sense, "foreigner" is used in contradistinction to "alien".
...the overwhelming majority of sources available to the drafters of the judicial bill [of 1789] define an "alien" as an individual who: 1) is foreign-born, and 2) resides in a sovereign's territory other than the one where he was born. A "foreigner" is defined as an individual who: 1) is foreign-born, or more specifically, is a foreign citizen or subject, or 2) is a foreign-born individual residing extraterritorially [outside the sovereign's territory]. (Berry, pp.337-8)
"Aliens" are persons who relocate permanently to one country, while they are still citizens or subjects of some other country. Presumably, aliens intend to renounce their allegiance to their country of origin and become naturalized citizens of the country of their new permanent residence. In contrast, "foreigners" are temporary visitors who retain citizenship and permanent residence in their home country and intend to someday return to their home country.
In the general sense, the eighteenth-century meaning of "foreigner" was not limited to persons born in a foreign country. If you are a citizen or subject of a foreign country, you are a "foreigner," regardless of your residence or place of birth.
So someone who is a citizen of the United States could also be a foreigner, if he or she retains or acquires foreign citizenship. Even if born in the US, a US citizen could be or become a foreigner simply by also having or later acquiring foreign citizenship. A US citizen—even from birth—could also have foreign citizenship from birth—either by having been born outside the US, or by having even one parent who is an alien or foreigner. So the fact that the Supreme Court has defined "natural born citizens" as distinct from "aliens or foreigners" excludes anyone from qualifying as a "natural born citizen" who has foreign parentage (because of the jus sanguinis principle of natural law, which by definition of natural law applies regardless of the laws of any country,) anyone who has foreign citizenship, or anyone who was not born in the United States.
Starting with the very next sentence following the first quote from the case given above, the Court then continues to discuss the fact that yet other persons could be citizens who don't qualify as "natural born citizens." To understand the message the Court intends to convey, it is important to remember that the issue on which the court was focusing was whether or nor the petitioner was a citizen regardless of the first sentence of the 14th Amendment. The definition of "natural born citizen" was relevant solely because a) Article II, section 1 establishes "natural born citizen" as the strictest class of citizenship, and b) anyone who qualifies as a "natural born citizen" necessarily qualifies as a citizen:
… 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 [regarding citizenship, but not regarding "natural born citizenship"], but never as to the first [because anyone who qualifies as a "natural born citizen" is a citizen beyond dispute]. 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. The words "all children" are certainly as comprehensive, when used in this connection, as "all persons," and if females are included in the last they must be in the first. That they are included in the last is not denied. In fact the whole argument of the plaintiffs proceeds upon that idea.
The Court notes in passing that those born in the United States, regardless of the citizenship status of their parents, may nevertheless qualify as citizens. The fact it uses the word "citizens" in that clause instead of using the phrase "natural born citizens" categorically falsifies any claim that the Court intended to convey the idea that anyone born of non-citizen parents might possibly be "natural born citizens." The doubt the Court was expressing concerned whether or not such persons might even be citizens at all.
The Minor Court provided no name for the class of citizens "born within the jurisdiction without reference to the citizenship of their parents," but did refer to them using the general term "citizens." Based on the legal principle of interpretation known as generalia specialibus non derogant ("the general does not detract from the specific,") the use of the general term "citizen" must not be conflated with the use of the specific term "natural born citizen," unless the text makes it explicit that such was intended.
The text in Minor not only states no such thing, it in fact states precisely the opposite. In addition to defining "natural born citizen," the opinion also separately defines the term "citizen," giving a different definition:
The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association…
For convenience it has been found necessary to give a name to this membership. The object is to designate by a title the person and the relation he bears to the nation. For this purpose the words ‘subject,’ ‘inhabitant,’ and ‘citizen’ have been used, and the choice between them is sometimes made to depend upon the form of the government. Citizen is now more commonly employed, however, and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the States upon their separation from Great Britain, and was afterwards adopted in the Articles of Confederation and in the Constitution of the United States. When used in this sense it is understood as conveying the idea of membership of a nation, and nothing more. [pg. 166]
It cannot be the case that any court that provides one definition for "citizen" but a different definition for "natural born citizen" intended to use those terms interchangeably. Nor can the fact be challenged that the Minor decision defines the term citizen as 'member of a nation, and nothing more,' but defines natural born citizen as 'born in the US, to parents who were US citizens—distinguished from aliens and foreigners.' The two definitions are not the same at all. One is general. The other is specific. Per generalia specialibus non derogant, the general must not detract from the specific.
In the above quoted paragraphs from the Minor opinion, the Court explicitly distinguishes two classes of native-born citizenship:
Citizenship given to "children born in a country of parents who were its citizens…distinguished from aliens or foreigners"—"never" any "doubt" about the citizenship of this class;
Citizenship (possibly) given to "children born within the jurisdiction without reference to the citizenship of their parents"—who, since they are a distinct class from the first, must have at least one parent who was not a citizen; "as to this class there have been doubts"
There is also obviously (at least) yet a third class: Persons naturalized after birth, who cannot be "native born."
The Minor Court's opinion doesn't explicitly say whether the second class—those who are native-born but have at least one parent who was not a citizen—are naturalized citizens. There are and were laws that define such persons as citizens—for example, the 14th Amendment. But unless such persons are citizens by natural law, and not just by Constitutional or statutory law, they cannot be natural-born by definition.
But in any case, the Minor decision categorically excludes anyone who can be considered an alien or foreigner from being a natural born citizen. And, as shown above, anyone not born in the US, or anyone who has foreign citizenship, is either an alien, a foreigner, or both. And so are their children, because the natural law citizenship principle of jus sanguinis endows any such children with whatever citizenship either one of their parents has—unless the parent has renounced and relinquished any and all foreign citizenships, as all those who become naturalized US citizens are required to do. So that excludes anyone with an alien or foreign parent, where such parent has not become naturalized as a US citizen before the child's birth, from being a "natural born citizen" of the United States.
Of course, the Court's discussion regarding the doubtful status as citizens of those born in the US to non-citizen parents is dicta, because it was not used as grounds for any of their holdings in the case. They actually state that "doubts" regarding the citizenship of those without two citizen parents have no relevance to the case before them—thereby explicitly labeling their discussion of any hypothetical class of citizens beyond the class "born in the US of citizen parents" as dicta.
After defining natural born citizen and mentioning the unresolved issue of those born in the country with at least one non-citizen parent, the court continues by comparing the facts of the petitioner's birth against the definition of "natural born citizen" that it determined to be Constitutionally and historically correct, and concludes that, since the petitioner was born in the US to parents who were US citizens at the time of her birth, she was in fact a "natural born citizen"—and so also necessarily a citizen—of the United States.
Since the petitioner was born in the US, and since both her parents were US citizens when she was born, there was no need to consider whether any alternative definitions or theories of citizenship could be used to assign citizenship. The Court saw no need to concern itself with citizenship acquired by naturalization, nor with any other classes or types of citizenship based on any other theories, "natural law" and/or English common law definitions or other Constitutional clauses, such as the first sentence of the 14th Amendment. Therefore, they exercised proper judicial restraint and left those questions undecided.
Since the citizenship issue in Minor was decided by defining "natural born citizen" based on the text of Article II, section 1, but the citizenship issue in Wong Kim Ark was decided based on the first sentence of the 14th Amendment, the two decisions do not conflict with each other. Therefore, Wong Kim Ark does not supersede Minor.
It is worth noting that, had the petitioner in Wong Kim Ark been a "natural born citizen," failure to simply use the precedent established in Minor to rule that Wong Kim Ark was a citizen would have been a failure to abide by judicial restraint. The fact that the Wong Kim Ark Court, unlike the Minor Court, decided that it was necessary to decide the citizenship issue using the first sentence of the 14th Amendment, instead of using the "natural born citizen" clause, demonstrates that a person who satisfies the 14th Amendment's qualifications for citizenship does not necessarily qualify as a "natural born citizen." The only reason to make a "first instance" interpretation of the first sentence of the 14th Amendment would be because the question could not be settled using any existing precedent, such as the one in Minor.
The settled law of the land is that the US President must be a natural born citizen, and that to be a natural born citizen, you must have been born in the United States to parents both of whom were US citizens when you were born.
