The phrase natural-born citizen has created confusion and controversy. But President Barack H. Obama and his friends know what it means. And after trying to make being a natural-born citizen no longer necessary for a candidate for President, those same friends now want to hide both the meaning and their concern.
What is a natural-born citizen?
Emmerich de Vattel's Law of Nations. This work defined what a natural-born citizen is.
Emmerich de Vattel, in The Law of Nations, defined a natural-born citizen in this way (Book I, Chapter XIX, Section 212):
The natives, or natural-born citizens, are those born in the country, of parents who are citizens.
Vattel went on to say why: No country can last other than by the children of citizens. So the only inherently automatic citizenship is through one’s father. In addition, a natural-born citizen must be born in-country.
This definition has United States Supreme Court precedent:
- The Venus, 12 U.S. 8 Cranch 253 253 (1814), a War-of-1812 case defining natural-born citizenship.
- Barry v. Mercein (1847), 46 U.S. 103, 46 U.S. 103 (How.)(Footnote 4). Cited here.
- Perkins v. Elg, 307 U.S. 325 (1939), a case that defines dual citizenship, renunciation, and expatriation.
The Barry case is 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, 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.
The plaintiff in error being of legeance to the crown of England, his child, though born in the United States during its father’s temporary residence therein,-twenty-two months and twenty days,-notwithstanding its mother be an American citizen, is not a citizen of the United States. It is incapacitated by its infancy from making any present election, follows the legeance of its father, partus sequitur patrem, and is a British subject. The father being domiciled and resident within the dominions of her Britannic Majesty [Queen Victoria], such is also the proper and rightful domicil of his wife and child, and he has a legal right to remove them thither. The child being detained from the father, its natural guardian and protector, without authority of law, the writ of habeas corpus ad subjiciendum is his appropriate legal remedy for its restoration to him from its present illegal detention and restraint; Constitution United States, art. 3, 2; Judiciary Act, 1789, 11; Inglis v. Trustees Sail. Snug Harb., 3 Pet., 99; 7 Anne, cap. 5; 4 Geo. 3, cap. 21; Warrender v. Warrender, 2 Cl. & F., 523; Story Confl. L., 30, 36, 43, 74, 160; Shelf. Marriage, Ferg., 397, 398.
(See also Novel eligibility challenge in NJ anti-HCR suit and Obama renounced citizenship and eligibility, say NJ anti-HCR plaintiffs.)
Has that definition been in dispute?
Yes. First, President Chester A. Arthur got elected (as Vice-President) without being a natural-born citizen. He was born in-country (in Vermont), but his father was a British subject, not an American citizen. Arthur lied to the press about this. No one challenged him on this in court. (See Hinman AP, How a British Subject Became President of the United States. See also here.)
Second, many Congress members have tried to revoke the need to be a natural-born citizen from the Constitution. Article II, Section 1, Clause 5 reads:
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.
In addition, Amendment 12 says that no person, who may not run for President, may run for Vice-President either.
J. B. Williams, on June 8, 2011, listed all the attempts to amend the Constitution to remove the need to be a natural-born citizen for Presidential election:
In 1975, Rep. Jonathon B. Bingham (D-NY) introduced HJR 33, to say that a non-natural-born citizen could still be President. Bingham tried again in 1977 with HJR 38.
Then, beginning in 2003, several Members of the House and Senate (of both major parties) tried seven times in twenty-two months to remove or change the natural-born citizen rule. (Pastor Carl Gallups described these also, in a nine-minute video documentary. See below and also here.) Among these tries: Senator Don Nickles (R-OK) introduced S-2128 in 2004. In it he defined natural-born citizen merely as one born in-country. This measure ignored the need to have a citizen father. Other measures tried to change the Constitution to say only that a Presidential candidate had to be a citizen for 35 years, or even as little time as 20 years.
The Herlihy essay
Then in 2006, Sarah P. Herlihy, an editor of the Kent Law School Law Review and now an associate in the Chicago offices of Kirkland and Ellis, wrote a scathing critique of the natural-born citizen rule. (See also here.) Her 26-page essay (see below) begins:
The natural born citizen requirement in Article II of the United States Constitution has been called the “stupidest provision” in the Constitution, “undecidedly un-American,” “blatantly discriminatory,” and the “Constitution’s worst provision.”
Limiting presidential eligibility to natural born citizens discriminates against naturalized citizens, is outdated and undemocratic, and incorrectly assumes that birthplace is a proxy for loyalty.
That last could be a subtle try to make people forget the citizen father part of the rule.
The Kent Law Review removed the article from their site. But someone uploaded it to Scribd.com. (Your editor by now has a copy, and will certainly re-upload it if someone takes this copy down.)
Herlihy mentioned now-former Governor Arnold Schwarzenegger (R-CA). He could never satisfy the natural-born citizen rule. But Kirkland and Ellis have some interesting associations, according to Mitchell Langbert. Maybe she was really making a case for then-Senator Barack H. Obama (D-IL).
- Partner Bruce I. Ettelson served on the finance committees of both Senator Obama and his then-senior colleague, Senator Richard Durbin (D-IL).
- Partner Jack S. Levin, in 2002, received an honor from the Illinois Venture Capital Association. The presenter: Senator Barack H. Obama.
The last try
The last time anyone tried to change the natural-born citizen rule was in 2008, when Senator Claire McCaskill (D-MO) tried to attach a rider saying that the phrase natural-born citizen would include anyone born to a member of the active or reserve armed services while on active duty. The obvious winner from this measure was John McCain, the son of an admiral. He was born in the Panama Canal Zone, not in the USA proper. Vattel never mentioned in his treatise whether a territory subject to the jurisdiction of a country could be the same as “on that country’s soil” even if the territory did not fall within the country’s boundaries.
What does this mean?
Senator Nickles’ SB 2128 (2004) is the best clue thus far that everyone who cares to know, knows that being born in-country is not enough to make a natural-born citizen. One has to have a citizen father, too. It also means that Members of Congress, of both parties, have tried to water down or remove the natural-born citizen rule for more than thirty-five years.
We also have an attempt at a learned treatise saying that:
- Being a natural-born citizen means simply being born in-country, and
- Even that rule is unfair, and just anybody ought to be eligible to the office of President of the United States.
Incredibly, the Herlihy essay cites globalization as a good reason to “open up” Presidential eligibility to more people. (But your editor will confidently predict that Herlihy and Obama would exclude one group of prospective candidates: Jewish candidates born outside the United States, and especially any born in Israel.)
This also explains why Obama stalled on releasing a long-form birth certificate. And when he did finally release one on request, expert after expert has stepped forward saying that it is not only a fraud but an amateurish one. It is as if Obama wants people to concentrate on the site of his birth and forget that his father was a British subject.
Contrary to Herlihy’s complaint, birthplace is only one “proxy for loyalty.” The other is parentage. And the natural-born citizen rule is a good rule. It will help stop the United States from dissolving into fifty (fifty-seven?) provinces of a planned United Federation of Man.
Featured image: the Constitution of the United States. Photo: National Archives.