I. REQUIREMENTS TO BE PRESIDENT OF THE UNITED STATES
The United States Constitution was Ratified in 1788. The United States Constitution defines the requirements for a person to be eligible, to serve as the President of the United States. Article II, Section 1, clause 5 of the United States Constitution states that “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”.
One must be a Natural Born Citizen to be the President or Vice President, of the United States of America. There is no difference in the Rights held by a Citizen versus a Natural Born Citizen in the United States, other than that one who is not a Natural Born Citizen cannot be either the President or Vice President of the United States. A Citizen can be a Senator, a Congressperson, a member of the US Supreme Court, or any other forms of Office, but unless that Citizen is a Natural Born Citizen, he cannot be President or Vice President of the United States.
The Founders of the Constitution, and those by whom they were influenced, understood the necessity that the President of the new Nation have its unquestioned allegiance. The new Republic was breaking from the chains of British imperialism, and did not want the Executive Leader of the Nation having allegiance or sympathy towards either England, or other foreign Sovereigns.
The US Constitution requires that the President be at least 35 years old, and a Resident within the United States for 14 years prior to his election. This combined, with the Natural Born Citizen requirement, was formulated primarily to encourage a Presidency held by a person who has first allegiance to the United States, and the United States Constitution. The age and residency requirement was crafted to encourage a President with significant experience, and one who is known to the Electorate.
Only the President takes an Oath to Preserve, Protect and Defend the US Constitution. Officers for all other Offices take an Oath simply to Support the US Constitution. The President, according to the formulation of the Founders of the United States Constitution, must be the ultimate protector and defender of the US Constitution.
II. DEFINING WHO IS A NATURAL BORN CITIZEN
A Natural Born Citizen is a person whose Citizenship is beyond dispute, and not subject to conflicting claims, nor granted by Statute or any Act of a Sovereign, but occurs naturally in the person according to principles that do not rely on the Laws of Decisions of the Sovereign. A Natural Born Citizen is a Citizen by no Act of Law, or Legislation, such as Naturalization. Congress can only Naturalize but cannot determine who is a Natural Born Citizen.
The proper method to determine who qualifies to be a Natural Born Citizen, pursuant to the Constitution of the United States, is to examine first the plain words of the Constitution. But Article II of the Constitution only states that the President must be a Natural Born Citizen. It does not define who is a Natural Born Citizen.
If the plain words of the Constitution do not supply an answer, then appropriate legal analysis is to examine the Intent of the Framers and Signors of the US Constitution, as to the meaning of the words, Natural Born Citizen. The Intent can be determined by examining the testimony and writings of the Founders, along with evidence of any legal or philosophical influences on the same Founders or Signors. In addition, one must examine legal cases, especially US Supreme Court Cases that have addressed the issue, along with Congressional records and efforts, regarding the same.
A. EMMERICH DE VATTEL AND THE LAW OF NATIONS
Emmerich de Vattel’s Law of Nations was originally published in 1758, in the French Language. In 1797, an English version of the Law of Nations was published. Most of the persons who were influential in creating the United States Constitution probably read both the French and English versions of the Law of Nations.
Arguably, Emmerich de Vattel’s most important work was The Law of Nations, a Treatise propounding Natural Law. Natural Law and the Law Of Nations is based upon reason and immutable laws. English Common Law primarily only applied to the States. Emmerich de Vattel and the Founders and Framers of the United States Constitution, when using the term Natural Law, meant that such Laws are guided by reason and objective facts, and not by tradition or arbitrary human policy. Natural Law is based upon science, reason, and how things are naturally.
Emmerich de Vattel, those that influenced him, such as Gottfried Wilhelm Leibniz, and those influenced by him, such as Thomas Paine, were products of the Age of Reason, which was also known as The Enlightenment, of the 1700s. Such proponents believed that the primary thrust should be the discovery of Reason, Science, and Respect for Humanity.
Under Emmerich de Vattel’s Law of Nations, Citizenship is determined by the father, the mother and the nation. Section 212 of Law Of Nations, defines Natural Born Citizen:
“The Citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they participate equally in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are Citizens”.
A primary concern among Emmerich de Vattel, and the Framers of the United States Constitution, was that the President be completely free of foreign influences. Emmerich de Vattel wrote:
“The Constitution and the laws of a State are rarely attacked from the front. It is against gradual attacks that a nation must stand guard”.
For Emmerich de Vattel, it was of paramount importance that the President be a person whose primary allegiance is to the Sovereign nation. The independence of the nation, and the President, from foreign influence, according to Emmerich de Vattel’s formulation, was key to its proper performance. Emmerich de Vattel maintained that “each sovereign State claims, and actually possesses an absolute independence on all the others”. He continues, “Nations are free and independent of each other, in the same manner as men are naturally free and independent”. Emmerich de Vattel argued as it is important that each Sovereign maintain its independence, “No foreign power has a right to interfere in the internal affairs of other States” (with rare exceptions).
The arguments of Emmerich de Vattel and similar thinkers, placed the independence of Sovereign nations and its principle leaders, as primary importance in the successful maintenance of each nation. The basis for Emmerich de Vattel’s views on the sovereignty of nations are inextricably linked to his views on who constitutes a Natural Born Citizen. According to Emmerich de Vattel, both principles must be upheld in order for the establishment and continued survival of a free and independent State.
Emmerich de Vattels’ 1758 Law of Nations was on George Washington’s desk on the first day of his presidency. Law of Nations was also used and quoted from extensively by the Founders and Framers of the United States Constitution, including Benjamin Franklin.
Law of Nations was cited more frequently than other Treatises on International Law in early American Court Cases, and historically was the primary textbook used by American Universities on matters of Natural Law, and Natural Rights.
B. US CONSTITUTION FOUNDERS’ CONCEPT OF NATURAL BORN CITIZEN
John Jay was an important Founder of the Constitution, and the first Chief Justice of the United States Supreme Court. On July 25, 1787, John Jay wrote a letter to George Washington, stating that the new Constitution should require that the President be a Natural Born Citizen. The reason behind the Natural Born Citizen requirement was to prevent “foreigners” from obtaining Presidential powers:
“Permit me to hint whether or not 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”.
The John Jay letter underscores that both John Jay and George Washington had clear understandings of who may be a Natural Born Citizen, as the word is given without definition.
On the same day as John Jay’s letter, James Madison addressed the delegate members of the Constitutional Convention, and stressed the importance that the Presidency be free of foreign influences, or “foreign princes”.
After John Jay’s letter and Madison’s comments, the delegates to the Convention began to discuss the Citizen requirements for Constitutional Officers. The one proposal that was completely rejected by the delegates was that submitted by Alexander Hamilton, which was known as the British Plan, as it followed the model used by the British Government.
In the first draft of the US Constitution submitted by Alexander Hamilton, a person was merely required to be born a Citizen in order to be eligible for the Presidency. However, in August, 1787, the Constitutional Convention changed the requirement from “born a Citizen” to “natural born citizen”. The purpose for the change was to exclude foreigners from the Presidency. For example, a British man and woman can have a child born in the United States. That child would be born a Citizen of the United States and also a Subject of Britain.
Even Alexander Hamilton, whose views conflicted with the majority proponents of Natural Law in the creation of the United States Constitution, declared in the Gazette of the United States, on June 29,1793 that:
“The second article of the Constitution of the United States, section first, establishes this general proposition that the Executive Power shall be vested in a President of the United States of America” and that “The executive is charged with the execution of all laws, the law of nations, as well as municipal law, by which the former are recognized and adopted”.
Furthermore, Alexander Hamilton arguement for the Defense in the matter of Rutgers v Waddington (1784) relied primarily on Emmerich de Vattel, and quoted largely from the Law of Nations. The deciding Judge, James Duane, held that the Law of Nations would be the guiding Treatise of the new Republic, and that Statutes generated under the color of English Common Law must be interpreted based upon its consistency with the Law of Nations, and Natural Law.
The testimony of David Ramsay, a Convention Delegate and Historian, at the Convention, was also important. Dr. Ramsay published an Essay in 1789, the same year that the US Constitution was ratified, entitled, “A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen”. Dr Ramsay defined Natural Born Citizens as “the children born in the country to citizen parents”.
Natural Born Citizenship requires that the person be born in the United States or where the United States is Sovereign, and to two Citizen parents of the United States. Such a requirement precludes any challenge to the allegiance of such person, based upon any natural law, or law of nations. No other Sovereign can make a birthright claim to that person’s allegiance under the law of nations as it was commonly understood.
It is clear from the writings and testimonies of the Convention Delegates and Framers of the United States Constitution, and the formulations of Emmerich de Vatel, of whom the Founders heavily relied, that a Natural Born Citizen is a Person born in the United States, or where the United States is Sovereign, and secondly, must be born of two United States Citizens.
C. NATURAL LAW VERSUS ENGLISH COMMON LAW
There is no doubt that the Founders of the US Constitution defined Natural Born Citizen according to principles of Natural Law and not Common Law. The United States was founded as a Constitutional Republic, and not a Monarchy, which is the foundation from which British Common Law emerged.
The National Government was established chiefly through Natural Law. Common Law was utilized primarily by the States to establish order. The States were free to use English Common Law in the construction of the Laws that applied locally, to its Residents. English Common Law was widely influential in the States determination of such questions as what constitutes Murder, Self-Defense, Burglary, Assault and Battery, and other similar matters.
William Blackstone, one of the most prominent proponents of English Common Law, argued that the “Natural born subjects are such are born within the dominions of the crown of England”. This concept was widely disavowed by the Founders of the United States Constitution. However, uninformed parties will often cite Blackstone as the chief determiner of who constitutes a Natural Born Citizen.
American Thinker Article of January 10, 2016, “Yes Ted Cruz Is A Natural Citizen” cites Georgetown Professor Randy Barnett .
Randy Barnett, described as a Carmack Waterhouse Professor of Legal Theory at Georgetown University School of Law , writes in National Review, that Natural Born Citizen is based upon the concept derived from Britain of natural born subjects:
“The term “natural born citizen” had no existence or independent original meaning prior to the moment it was included in the Constitution the United States was founded. It was adapted by the framers (of the Constitution) from the well-known British concept of the “natural born subject” of the sovereign monarch. England had numerous and changing legal rules governing exactly who was and was not a “natural born subject”, which can be used to muddy the waters. But one consistently applied rule is particularly germane: The offspring of the King were natural born subjects of the King, regardless of where they were born, whether on English territory or not”.
This formulation is completely untrue. The Founders of the US Constitution appeared to have a clear understanding of who was a Natural Born Citizen, at the time of the creation of the Constitution. The United States Constitution was formulated based upon Natural Law, not Common Law, and upon the concept that persons within its territories may be Citizens but not Subjects. This statement is supported in the words of the United States Constitution, and numerous Wars that the Colonies and States fought against the British Monarchy. The War of 1812 was specifically fought against the British over the issue of whether the British concept of Natural Born Subjects applied to US Citizens.
Shortly after the Constitutional Convention of October 18,1787, James Madison wrote a letter to George Washington:
“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”.
In Wheaton v Peters (1834), the US 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”.
D. 14th AMENDMENT TO THE UNITED STATES CONSTITUTION
The 14th Amendment to the United States Constitution was Ratified on July 9, 1868. One of the primary purposes of the 14th Amendment was to establish the former slaves, as Citizens of the United States.
The 14th Amendment to the United States Constitution grants Native Born Citizenship to the Persons born within the United States and Subject to the United States Jurisdiction at the time of his or her birth. The 14th Amendment confers Citizenship on the Native Born, but does not grant those simply born in the United States, the status of a Natural Born Citizen.
The 14th Amendment says nothing about Natural Born Citizens, or who is eligible to serve as President.
Persons born outside the United States to US Citizens are not Native Born Citizens, who derive their Citizenship from the 14th Amendment, or Natural Born Citizens but Naturalized Citizens, having acquired their Citizenship through Statute.
The 14th Amendment defines whom are Citizens of the United States, based upon being born in the United States, and subject to its Jurisdiction. The 14th Amendment is sometimes confused as determining who is a Natural Born Citizen. But any reasonable reader would know this to be false. The 14th Amendment only defines a particular class of Citizens, namely those born upon United States soil, and subject to its jurisdiction, and does not determine who is a Natural Born Citizen.
Incidentally, the 14th Amendment does not necessarily confer Citizenship on all persons born in the United States, but on those born in country, subject to the jurisdiction of the United States. If a person enters the United States illegally, and bears a child, neither party is necessarily within the jurisdiction of the United States.
John Bingham, who was the main framer of the 14th Amendment, understood that Natural Born Citizen to be defined as a person born in the United States to parents, not owing any allegiance to a foreign Sovereign or power. In 1862, Bingham stated in the Congressional Globe:
“All other lands, who…become naturalized, are adopted citizens of the United States; all other persons born within the Republic, of parents owing allegiance to no other sovereignty, are natural-born citizens”.
In 1866, Bingham stated in the Congressional Globe:
“I find no fault with the introductory clause of the 1866 Civil Rights Act, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen”.
Finally, Bingham stated in the Congressional Globe in 1872, in reference to a controversy regarding the Citizenship of a Dr. Houard:
“As to the question of (Dr. Houard’s) citizenship I am willing to resolve all doubts in favor of a citizen of the United States. That Dr. Houard is a natural born citizen of the United States there is not room for a shadow of a doubt. He was born of naturalized parents within the jurisdiction of the United States, and by the express words of the Constitution, as amended to-day, he is declared to all the world a citizen of the United States by birth”.
In 1898, the US Supreme Court heard the Case of US v. Wong Kim Ark. Wong is often declared by some as establishing a precedent that those born on United States soil, irrespective of the Citizenship of the parents, are themselves, Citizens. This assertion is false.
The Decision in Wong holds that a requirement for Citizenship is that persons born on United States soil of parents that are permanently domiciled in the United States. The parents in Wong were legal and permanent Residents of the United States. Upon the holding in Wong, “anchor babies” are not US Citizens.
The Wong Decision did not determine what Citizens are Natural Born Citizens. However, the Court reiterated the Decision in Minor v. Hapersett that Natural Born Citizens are those born in the United States to parents, both of whom are Citizens.
E. UNITED STATES SUPREME COURT AND OTHER COURT CASES
The United States Supreme Court in Minor vs. Hapersett (1875), defined Natural Born Citizen correctly, but made their analysis based upon the Common Law, which is incorrect:
“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 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”, and that Congress shall have the 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 made elsewhere to ascertain that. At common law, with 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”.
In the Supreme Court Case of Scott v Sanford (1856) the Court referred to definition provided in the 1797 Law of Nations as “unexceptionable”, which according to the terminology used at the time, meant, beyond dispute.
Every time that the Supreme Court has used the term Natural Born Citizen, it has only been in reference to a person born in the United States, to two United States Citizen Parents. In Perkins v Elg (1939) the Court determined that Miss Elg was a Natural Born Citizen. Elg was born in the United States, her father was a Naturalized Citizen, and her mother was a United States Citizen, by virtue of marriage.
In Kwock Jan Fat v White (1920), the Court referred to the Plaintiff as a Natural Born Citizen. He was also born in the United States, to a mother who was Naturalized by marriage, and a father who was Native Born.
In US v Wong Kim Ark (1898) Justice Gray referred to an Article by Horace Binney that for a person to be a Natural Born Citizen, he must be born in the United States to two parents who are Citizens of the United States.
It is the understanding of this Author that there exists no Federal Court Case that determined that a Natural Born Citizen is anything other than a person born in the United States or its Territories, and additionally born to two parents, each of whom are United States Citizens.
F. UNITED STATES CONGRESSIONAL LEGISLATION
On the issue of who qualifies as a Natural Born Citizen, Congressional contributions and actions are important but not controlling. Congress has the power to determine issues of Naturalization, and who may become a United States Citizen. Only the proper interpretation of the United States Constitution can determine who is a Natural Born Citizen.
The First Congress in 1790 passed the 1790 Immigration Act, which stated that all persons born outside the United States to two United States Citizen Parents, are Natural Born Citizens.
The 1795 Immigration Act Repealed the 1790 Immigration Act, and removed the words Natural Born. Therefore, the 1795 Act, signed by George Washington, declared that all persons born outside the United States to two Citizens are themselves, Citizens, and not Natural Born Citizens.
The 1795 Immigration Act cannot operate as a definition of Natural Born Citizen, because Congress cannot make that determination. However, the 1795 Act was important in ascertaining the meaning of Natural Born Citizen, because its enactment and signing was only a few years after the creation of the United States Constitution.