The term natural born citizen derives from natural law, not the positive law that men make. The American people forgot that principle, and much else about constitutional law. They must re-discover that, or they will learn what calling the Constitution “a living document” really means.
What is a natural born citizen?
Article II, Section 1, Paragraph 5 of the Constitution of the United States reads in part:
No person, except a natural born citizen,…shall be eligible to the office of President.
The word natural is even more important than the word born. Natural born citizen is a concept from natural law.
“Natural law” is more than a buzz phrase. It is as real as law itself. Natural law is law that follows from the nature of nation-states. It is the source of all the inherent powers of, and limits on, nation-states.
One of the most “natural” of natural laws concerns citizenship. In Minor v. Happersett, 88 U.S. 162 (1875), the Supreme Court observed that the Constitution never defined natural born citizen directly:
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. 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, but never as to the first. 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.
In short, the Court said that anyone born in-country to two citizen parents is also a citizen. No one needs to define that. To say that such a person were not a citizen, would make zero sense. This is the power of natural law. Furthermore: what natural law grants to a person, nothing can deny.
Note also that the Minor court cited “doubts” existing in 1875, even after the Fourteenth Amendment, whether any person born in the territory is a citizen, no matter what the status of his parents. US v. Wong Kim Ark, 169 U.S. 649 (1898), would settle that. But that settlement goes beyond natural law to positive law.
Natural law v. positive law
The US Constitution. Photo: National Archives of the United States
Positive law is the law that legislatures, or Constitutional Convention delegates, make. Positive law also includes case law, or the “law” that judges “make.” The problem: what positive law grants, positive law can revoke. Congresses and States can amend Constitutions. Congress can repeal laws. Supreme and other appellate courts can reverse lower courts and even reverse precedent.
Amendment XIV defines a citizen of the United States thus:
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.
And thus the court said that a member of any race, once born in the United States to persons lawfully resident therein, is a citizen.
But the Wong court clearly did not change the meaning of natural born citizen. It even cited the Minor case, and Chief Justice Waite’s per curiam (i.e. unanimous) opinion. And the Wong court never said that the Minor court was in error.
Nor could it have so held. The Fourteenth Amendment defines, as positive law, who has the “privileges and immunities” of citizenship. But it cannot change the natural law definition of a natural born citizen. Nor did Wong Kim Ark ever ask the Court to do this. Wong Kim Ark was not trying to run for President of the United States. He was trying to stay in-country in the face of the Chinese Exclusion Acts.
Confusing the issue
Recently, Bret Baier of the Fox News Channel confused what a natural born citizen is. He cited 8 USC Section 1401. That law says who is an American national and citizen at birth, and names eight different ways to be one. Paragraph (a) of that law merely restates the Fourteenth Amendment. The other paragraphs grant citizenship to persons born abroad to citizen parents (jus sanguinis), persons born into native tribes (Beringians, Inuit, Aleut, etc.), and so on.
As Professor Herb Titus further explained, citizen at birth and natural born citizen are not the same.
A natural born citizen, by contrast, is not dependent upon Congress passing a statute or the constitution being amended. A natural born citizen is a citizen of a specific nation by the law of nature of citizenship. The law of nature of national citizenship is written into the very nature of the universe of nation-states, and is universal as to place, uniform as to person, and fixed as to time. By definition the law governing natural born citizenship exists independent of any human power, legislative or otherwise. That is why ‘natural born citizenship’ is not defined in the Constitution. Such citizenship exists whether recognized by positive law or not. Such citizenship is God-given. To qualify one must be born to a father and a mother each of whom is a citizen of a particular state in order for the person to be ‘natural born’ citizen of that state,
The Framers had a reason to use the phrase natural born citizen to restrict who could be President. They wanted the President to have no alienage whatsoever. (See also the Article II Political Action Committee.) John Jay said it best, to George Washington:
Permit me to hint, whether it would 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 best authority to define natural born citizen is The Law of Nations by Emmerich de Vattel. And that authority, and not English common law, is the “common law” of the federal government. Any given State might use English common law. (Spanish law prevails in the American Southwest, and French law in Louisiana.) But the federal government makes its own common law, because it is a new creation.
What natural born citizen means today
The phrase natural born citizen means the same thing today that it meant when the Framers of the Constitution wrote it. That phrase implies several things that politicians in both parties need to come to grips with. It means that Barack H. Obama is not, and never was, eligible to the office of President. But it also means that Senator Marco Rubio (R-FL) may not run for Vice-President, either. His parents did not get naturalized until he was four years old.
If either of these men “skates” on this, and the phrase natural born citizen changes its meaning, then it will lose its meaning. Thomas Jefferson, reacting to the Supreme Court’s ruling in McCullough v. Maryland, said that the Constitution would be “a thing of wax” for the Supreme Court to “shape and mold.” He little thought that the Constitution might be “a thing of wax” for the Congress to “shape and mold.” Or that natural law would have no meaning any longer.