Monday, January 25, 2010

The Natural-Born Citizen Clause of the Constitution

By Michael David Rawlings

The Fifth Clause of Section One, Article Two ("Natural-Born Citizen Clause") of the United States Constitution with its grandfather provision:

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.

Of the two terms universally understood at the time of the drafting of the Constitution to be associated with the construct of territorial-hereditary allegiance, had the Framers intended a more restrictive definition of inherent citizenship, they would have used the term "native born", not "natural born", and the more expansive concept of natural-born citizenship goes back centuries: defined and established by Roman Law, passed down to English and American law.1 Neither the Constitution nor statute defines the concept; the concept comes down to us defined and understood in legal tradition. Instead, the Constitution establishes the two fundamental classifications of citizenship in American law—natural-born citizenship and naturalized citizenship—by enunciating the fundamental characteristics that divide them—the moment of conferral and presidential eligibility—and statute stipulates the respective terms of acquisition that govern them.

As of the date of the Constitution's adoption, only those persons who had been born at home or abroad to American citizens under the Articles of Confederation and Perpetual Union were natural-born citizens. All other U.S. citizens under the Articles had been subjects of the British Crown at birth, so they were grandfathered into presidential eligibility, that is to say, divorced from all other prior allegiances outside the United States of America and effectively accorded the status of natural-born citizenship.2  Hence, from the day of ratification forward, all other citizens of the United States would necessarily be either citizens at birth or naturalized after birth—respectively, either eligible to hold the Office of President or not.

Natural-born citizenship has always been understood to be acquired by right of soil and/or by right of blood.3 Current law stipulates that all children born abroad of at least one parent who is a U.S. citizen are natural-born citizens at birth. Is there an additional requirement that must be satisfied in order for such children to be considered natural-born citizens? Yes. This requirement constitutes the tie that binds the blood to the soil of the nation, and the children born abroad of U.S. citizen parents who have satisfied that requirement—namely, prior U.S. residency—are automatically considered to be natural-born citizens at birth by right of blood because their citizen parents are or were residents on the soil of allegiance. There are hundreds of U.S. citizens all over the world who have never set foot on U.S. soil, but should they ever want to pass their citizenship down to their children, they would have to come home and establish U.S. residency before they got jiggy with it. Otherwise, their children would be foreign nationals who would have to be naturalized just like anyone else who had no prior claim on the soil of the nation at birth.

Once again: a native-born citizen is a natural-born citizen at birth by right of soil; a person born abroad of a U.S. citizen is a natural-born citizen by right of blood. Hence, all U.S. citizens are either citizens at birth (natural-born) or became citizens subsequent to birth (naturalized). While naturalized citizens are barred, all natural-born citizens are eligible to run for the Office of President after their 35th birthday, as long as they have at least 14 years of residency in the United States.

Yet in response to the latest rash of hysteria fomented by widespread ignorance clamoring for clarification, Congress has periodically cobbled together some non-binding redundancy or another, and tossed it out to its constituents in order to make them go away until the next time. The most recent example of this was Senate Resolution 511, that is, the "McCain Resolution".4

As these legislative monstrosities have neither established anything new, nor altered or abolished anything old, they have mostly served to further confuse the public. But the greatest impetus behind the commonly held fallacies conflating the terms native born and natural born, and the jurisdictions of the Fourteenth Amendment and official stewardships (for example, leased territories, and the premises of military installations and diplomatic facilities abroad) may be traced back to United States v. Wong Kim Ark (1898) and to the Insular Cases of the Twentieth Century when the Court had to reestablish the boundaries of the Fourteenth Amendment's jurisdiction and in some cases send Congress back to the drawing board to revise sloppy legislation, which led to a series of legislative clarifications piled on top of thusly obscured legal precedent.5

These are the illusions that have had daddies unnecessarily racing through traffic-control devices overseas lest their sons or daughters be born in the backseats of their newly restored '68 Mustangs on the way to "American soil".
1See The Origins and Interpretation of the Presidential Eligibility Clause in the U.S. Constitution: Why Did the Founding Fathers Want the President To Be a "Natural Born Citizen" and What Does this Clause Mean for Foreign-Born Adoptees?; John Yinger; RV April 6, 2000; U.S. Department of State Foreign Affairs Manuel Volume 7 - Consular Affairs, "7 FAM 1130 ACQUISITION OF U.S. CITIZENSHIP BY BIRTH ABROAD OF U.S. CITIZEN PARENT (CT:CON-317; December 8, 2009)",

2However, not all of the persons who were residing in America at the time and had been made American citizens under the Articles of Confederation were British subjects at birth. A comparatively smaller number of them would have been the subjects of other, mostly Western European powers at birth, and the vast majority of these would have been French or Dutch or Swedish: persons who immigrated to the American colonial territories of Britain during the latter half of the Eighteenth Century to join families whose roots would have gone back more than a century. But even most of these would have been British subjects before they were made American citizens under the Articles. The rest of America's population would have been composed of indentured servants, mostly from Western Europe, and immigrants of that peculiar institution, slaves imported from Africa or from the slave colonies of the Caribbean. Though counted as persons in the census, these wouldn't have been U.S. citizens under either the Articles or the Constitution until after they had completed their terms of servitude or not until after the Civil War respectively. Only free "white" persons could be accorded the status of U.S. citizenship before the ratification of the Fourteenth Amendment—well, at least indisputably. Under the states' rights (or Jeffersonian) Doctrine of First Allegiance, free persons of African descent and their offspring were citizens in some states and, therefore, theoretically, citizens of the United States prior to the Dred Scott Decision.

3However, under constitutional law, Congress must explicitly provide for the acquisition of citizenship via the law of the bloodline in statute.

4Senate Resolution 511 ATS; 110th Congress, 2nd Session; April 10, 2008;

5See Appendix A, "The Insular Cases and Unincorporated Territories", Michael David Rawlings; Was Senator John McCain a U.S. Citizen at Birth?

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