This issue is complex beyond reasonable belief. It is infested with so much legal mischief that I cannot sort it out with logical thought. Wikipedia provides a picture of this political minefield of legal opinion by purveyors of conflicting truth. Caution: You can get lost in there. https://en.wikipedia.org/wiki/Natural-born-citizen_clause
Political power, political membership, the flaws of human nature and ambiguity are the basis of the issue. I propose these questions for our consideration:
- What does the Constitution actually say?
- Why did the founders write it the way they did?
- What should be there to make the document fully understood?
- Who has the authority to resolve the ambiguity?
- Do their words make any sense?
- Are their words relevant to the issue at hand?
You may want to keep these proposed questions in mind as you wade through this presentation.
How Many Ways Can One Be a Citizen?
As my mother would say, “Honey, let me tell you. You can become a citizen by birth, by inheritance, or by law. However, some citizenships are more special than others. The ultimate citizenship is “natural born citizen.” Its meaning is what the fuss is all about.”
- If at least one of your parents has significant ancestral genes from the Native Americans, you are “native born.” This means you have what is called a “head right” to tribal assets and have an opportunity to hunt, fish and live according to one or another “Indian treaty.” Tribal nations are nations within our nation bound by treaty. Are they natural born U.S. citizens or naturalized citizens? Well, honey, it is complicated.
- If you were born within the United States, you are a natural citizen of the United States, but not necessarily “natural born” depending on whom you ask.
- If one or more of your parents was a citizen of another nation at the time of your birth, and that parent’s national laws assert that you are a natural citizen of that nation, you also are a “dual citizen” of that parent’s nation and the United States. As such, you are required to have two passports: one from each nation if you cross any borders. Once either nation considers you eligible to choose your nation of allegiance, you can renounce your allegiance to that nation if you wish. Some nations require you to choose when you reach their version of adulthood or you lose your birthright.
- If you marry a person who has citizenship rights in a given nation, and that person’s nation recognizes citizenship for married spouses, you acquire citizenship in your marital partner’s nation. In other words, you are a naturalized citizen by marriage in one nation and citizen of another nation by birth.
- If you legally immigrate to the United States and complete the citizenship process, you become a naturalized U.S. citizen by law, not birth.
- If a citizen of a nation other than your birth legally adopts you, and that nation’s laws grant citizenship to adopted minors of foreign birth, you gain dual citizenship in the nation where you were born, and the nation of your adopting parent. The birth nation does not consider your adopting parent’s action as a renouncement of your birth-citizenship. You and you alone, can renounce your citizenship right. (Just do not do it in both places or you will be an alien in both places.)
- If you are born in a nation that has a monarchy (constitutional or otherwise), you are a subject, not a citizen of that country. If one or more parents have titles of nobility, you may also have a right of inheritance.
- If you are born within the United States or one of its territories (includes foreign-leased military bases and U.S. Consulates), you have U.S. citizenship by birth, but not necessarily dual citizenship.
- If you are born in the United States and both parents were U.S. citizens at the time of your birth, common law considers you a “natural born” citizen. Some say that your parents must be born in the United States and be U.S. citizens at the time of your birth (supernatural born?) but I do not wish to go there.
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For all other combinations of parental citizenship . . . it’s complicated. Not all nations have identical laws about this subject. Even common law is not totally “common.” The potential combinations are endless.
My father said, “Son, truth is a slippery concept.” My science professor said, “What I am going to teach you is workable truth. It is not absolutely true, but true enough for you to use for the material of this course. Never consider workable truth as absolute truth. It will stifle your ability to advance your learning experience.” My Cornell law professor said, “The law is not now and never was logical. It is a compromise agreed to by individuals that is equally unfair to all.” I wonder if I chose an impossible mission.
The Definition Problem
The U.S. Constitution said that the President of the United States must be natural born with an exemption granted only to people who are long-since dead. However, the Constitution never defined what “natural born” means. So-called political experts claim that the Supreme Court of the United States (SCOTUS) never proclaimed an official interpretation about its meaning. These experts also claim that SCOTUS also never challenged any given meaning as unconstitutional. My own research about the facts hints otherwise.
The 12th Amendment added the natural born requirement to the Vice President. The 14th Amendment added the right of women suffrage, and denied member States from denying or restricting citizen rights. Neither amendment added clarity to the “natural born” definition issue. Supreme Court decisions include off-topic opinions (dicta) about citizenship that conflict with each other. One of them included a glaring error that the Supreme Court never corrected. The decision referenced a 1790 law that the U.S. Congress repealed and replaced in 1795 because of a grievous constitutional error.
Two other legal concepts (also not in the Constitution) muddy the legal waters more so. “Lachaise” means “You slept on your rights.” “Implied consent” proclaims that you consented because you did not object in a timely manner. “Dictum” means “This statement is an off-topic opinion included within a court decision about a legal matter before the Court that does not necessarily support the Court’s decision.” There goes another load of mud into the water.
According to our U.S. Code (known also as federal law) common-law precedence trumps legislated law. Federal law trumps State law if, and only if, the law is within the domain of the U.S. Legislature’s authority as enumerated within the Constitution. Our Constitution says that the administrative branch cannot make law, just ratify or veto what the legislative branch makes. It also says that only SCOTUS can interpret the Constitution and only a confederation of member States can amend the Constitution. That implies that the legislative branch and Administrative branch have no say in the definition of “natural born.” However, the Constitution grants the legislative branch the right to establish the rules for citizenship by naturalization. As you already know, they made a mess of that process and continue to make things worse.
Yet the administrative branch makes law and interprets its meaning by the way it chooses to implement whatever it wishes through executive order and regulation. The legislative branch writes law and opinions that define what the term “natural born” means and even changes their mind back and forth. Federal judges step on the Constitution with their “living constitution” concept of judiciary. I believe others call it “legislating from the bench.” Sports fans call it “pitching from first base to a left-handed batter.”
Those Inconvenient Facts and Opinions
Vattel (a Frenchman) wrote “The Law of Nations” before the founders penned the Constitution. Vattel’s legal work became the foundation for International law, not just British law. However, major nations that included France, Britain and its Commonwealth accepted it as valid international law. Its most respected authority on the meaning of its contents was Blackstone. Vattel’s document (generally recognized by many nations as political truth) defined the term “natural born” as a person born in the country of citizen parents. This would count as precedent.
The founders requested and received copies of Vattel’s document during their constitutional convention. Therefore, the founders knew Vattel’s legal definition of “natural born.” The Articles of Confederation explained their reasoning behind their “natural born” requirement for the office of President. They feared and wished to prevent foreign influence dominating the highest powers of U.S. Government. They were especially fearful of an imposter from another nation assuming the most powerful office in the United States. The 12th Amendment extended the “natural born” requirement to the office of Vice President. They even stipulated in the Constitution that members of the U.S. Congress must be at least naturalized citizens with minimum age and residency requirements.
The Naturalization Act of 1790 defined a birth outside the United States or its territories as “natural born” if by citizen parents. It was repealed in 1795 because it was judged a Constitutional breach making the law null and void at outset. It used the term “natural born” to define someone who was eligible for naturalization. The shockingly messed up law resulted in some people assuming that you HAD TO BE foreign born to be President. John Jay, the Chief Justice (until June 1795, when he had won a governorship) was involved in guiding the replacement of the bad law. There was no suit at law so it was not “declared” unconstitutional by the Supreme Court. Yet the Supreme Court decision in Minor v. Happersett in 1875 referenced the 1790 law in a landmark case about birthrights. Oops!
The following cases WERE Supreme Court of the United States (SCOTUS) Decisions.
The Venus, 12 U.S. 8 Cranch 253 253 (1814) relates to the War of 1812. A citizenship is revoked if a citizen chooses to remain domiciled in a nation that is at a state of war with the United States.
Shanks v. Dupont, 28 U.S. 3 Pet. 242 242 (1830) This Supreme Court decision was about a claim of a female U.S. citizen’s British-born children to half of the assets of James Island off the S. Carolina coast. The British captured the island in February 1780, and Charleston in May. America won the war of 1812, so the island reverted back to a U.S. territory. Ann Scott was born in South Carolina before the American Revolution, and her father adhered to the American cause, remained and was at his death a citizen of South Carolina. Ann Scott acquired her American citizenship rights through her father. Her citizenship was elevated to “natural born” citizenship through her mother. Ann married a British Officer while the island was occupied by the British army, moved to England and remained there for life. Her British-born children were granted half-ownership of the island property through inheritance because they were dual-citizens.
Are you confused yet?
Barry v. Mercein (1847), 46 U.S. 103, 46 U.S. 103 was the clearest.
A British man and an American woman had a child. The birth took place in the USA. The father went back to England, and then wanted his son with him. The mother refused, so the father sued. The US Supreme Court said that the child was his, and he could take the child back to England. Why? That child was not an American citizen. [Citizenship of a minor follows the father, not the mother? Looks that way.]
The Naturalization Law that Never Happened
Liberal pundits claim that the U.S. Senate in 1862 defined “natural born” as a birth in the United States or its territories by its citizen mother. The dad’s citizenship didn’t matter. This statute should have been challenged by SCOTUS. It was not challenged because no one brought a case before the Court. However, this statute was the grounds for Obama’s claim to be eligible for President. My research shows that this law never happened. It was based upon a correspondence between the Attorney General and a member of the U.S. Senate. Even if it was a law passed by the U.S. Legislature and ratified by the President, neither the President nor Congress had the constitutional authority to interpret or amend the Constitution. Their authority was limited to naturalized citizenship. Oops!
Minor v. Happersett , 88 U.S. 162 (1875) was the only SCOTUS decision that used the term (unconstitutionally) in its unanimous decision. As mentioned above, it referenced a naturalization law that was repealed and replaced in 1795 for a grievous breach of the Constitution.
Mrs. Virginia Minor was a native born, free, white citizen of the United States, and of the State of Missouri. She was a legal adult, wishing to vote at the general election held in November, 1872. She applied to Happersett, the registrar, to register her as a lawful voter. He refused because she was a woman, not a “male citizen of the United States.” She sued him in one of the inferior State courts of Missouri for willfully refusing to place her name upon the list of registered voters, thereby depriving her right to vote.
The Missouri court Found for Happersett for the following reasons, so she appealed. SCOTUS reversed the decision because the Constitution did not discriminate citizenship rights by gender. The provisions of the constitution and laws of the State of Missouri which confine the right of suffrage and registration therefor to men, are in violation of the Constitution of the United States, and therefore void. The 14th Amendment settled the suffrage issue by defining citizen rights. It had nothing to do with citizenship entitlement.
United States v. Wong Kim Ark, 169 U.S. 649 (1898) settled the “anchor baby” issue.
Wong Kim Ark was born in San Francisco around 1871 to Chinese parents legally domiciled and resident there at the time. The U.S. denied his re-entry to the United States after a trip abroad. Denial of re-entry cited the Chinese Exclusion Act, a law that restricted Chinese immigration that prohibited immigrants from China from becoming naturalized U.S. citizens. The Court ruled that a child born in the United States of Chinese citizens, who had at the time a permanent domicile and residence in the United States and who were carrying on business there other than for the Chinese government, automatically became a US citizen.] This decision established an important precedent in its interpretation of the Citizenship Clause of the 14th Amendment.
It is not a crime for an ineligible candidate to run for President. A political party can nominate an ineligible candidate for President. A Presidential candidate can appoint an ineligible Vice President without committing a crime. The electors of the Electoral College decide who wins and may disqualify an ineligible President or Vice President in the process. However, the Electoral College decision does not trump (no pun intended) the Constitution. When an ineligible candidate assumes the Office of President or Vice President, that person becomes liable and vulnerable to a civil lawsuit and/or immediate impeachment proceeding by the U.S. Legislature. If either plaintiffs can prove fraud, that person also is liable for criminal action.
The unanimous decision of Minor v. Happersett contained the only known definitive text about the distinction between “citizen by birth and nothing more” and “natural born citizen.” Are we the people required to use a logically flawed unanimous decision that SCOTUS never corrected? Are we the people allowed to use common sense to use only the part that makes sense? Will it take a Constitutional Amendment to fix the problem? Will we have to endure the political mischief of a prolonged lawsuit that could disrupt a Presidential election process? I believe it is too close to call.
A person is eligible for President when the citizen never did anything to renounce U.S. citizenship or retain a dual-citizenship prior to their candidacy to the office of President AND:
- They were born within the United States or its territories, which include U.S. Embassies in foreign countries or U.S. military bases.
- Their mother was a U.S. citizen at the time of the child’s birth and was born in the United States.
- Their mother was a naturalized citizen at the time of the child’s birth.
- Their natural father was a U.S. citizen at the time of the child’s birth and was born in the United States.
- The natural father was a naturalized citizen at the time of the child’s birth.
- The child was born outside the United States.
- This looks like a trick question.
- 1 and 2 above.
- 1 and 3 above.
- 1 and 4 above.
- 1 and 4 or 5 above.
- 6 and 2 or 3 above.
- 6 and 4 or 5 above.
- None of the above.
Which of the above choices define “natural birth”?
Who is eligible for President?
If the Electoral College elects an ineligible President or Vice President, and the U.S. Senate certifies the election, is it constitutionally void? If so, who has the authority to void the election?
The opinions expressed in this commentary are solely those of the author and are not not necessarily either shared or endorsed by iPatriot.com.