Natural born citizen explained again

The Constitution, which sets forth the principle of rule of law, defines what is unconstitutional, and guarantees freedom of speech and other liberties of a Constitutional republic, and also describes the impeachment power. (How many know of the Jewish roots of this document?) Hypocrisy threatens Constitutional government. Could Israel use a constitution like this? More to the point: would a Convention of States save it, or destroy it? (Example: civil asset forfeiture violates the Constitution.) Quick fixes like Regulation Freedom Amendments weaken it. Furthermore: the Constitution provides for removing, and punishing, a judge who commits treason in his rulings. Furthermore, opponents who engage in lawfare against an elected President risk breaking the Constitution.
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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 Constitution relies on natural law to define a natural born citizen

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.

US v. Wong Kim Ark held:

As appears upon the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States, who would thereby have become citizens according to the law existing before its adoption. It is declaratory in form, and enabling and extending in effect. Its main purpose doubtless was, as has been often recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Taney in Dred Scott v. Sandford, (1857) 19 How. 393; and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States, are citizens of the United States. The Slaughterhouse Cases, (1873) 16 Wall. 36, 73; Strauder v. West Virginia, (1879) 100 U.S. 303, 306; Ex parte Virginia, (1879) 100 U.S. 339, 345; Neal v. Delaware, (1880) 103 U.S. 370, 386; Elk v. Wilkins, (1884) 112 U.S. 94, 101. But the opening words, “All persons born,” are general, not to say universal, restricted only by place and jurisdiction, and not by color or race — as was clearly recognized in all the opinions delivered in The Slaughterhouse Cases, above cited.

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.

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Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.

15 Responses to Natural born citizen explained again

  1. rpeh says:

    You have your own interpretation of “Natural Born Citizen”, but it’s wrong. Dead wrong. Here’s a judge telling it exactly like it is: “There is no arguable legal basis for the proposition that both parents of the President must have been born on U.S. soil.”

    However much you hate the idea of a black man in the white house, you’re going to have to get used to it. For another four years.

    • Terry A. Hurlbut says:

      Who said anything about the parents having been born on US soil? All the parents have to do is to be naturalized, if applicable, before the child is born. But Barack H. Obama Senior did not even do that. Not before Obama Junior was born, or at any time in his life.

      As usual, when people (even judges!) want to make an invalid argument, they twist the opposing argument around. That’s what this judge did.

      As for the race of the candidate: I’d sooner have Allen West as President. He’d be better qualified all around.

  2. JT says:

    28 related articles?
    Some might call that a little bit obsessive (although you’re still way behind WND on the obsessive scale). After all, there’s only so many ways you can bleat “He’s not my President!”

  3. Slock says:

    Birther Scorecard: Birthers Win *O* – Lose – 123 | Pending – 11 | Total – 134 | Updated April 17, 2012

    Your latest article “Natural born citizen explained again” will nit change anything.

  4. Cartwright says:

    These idiot leftist respondents must be among the fools who thought B. Hussein Obama would be good for America. Pathetic. By the way, Hussein is half black and half white. So if you can call him black, I can call him white. As for four more years, that will happen only if most of the incredibly naive fools haven’t realized the folly of their enamorment of this phony.

  5. JT says:

    Ah well, I see the Tea Party is now actively advocating treason and scrapping the democratic process. I’m guessing you agree with them?

    http://www.rightwingwatch.org/content/gop-newsletter-calls-armed-revolution-if-obama-re-elected

    It’s one thing to call the President names, or to campaign against him. But to advocate an armed insurrection against the President, because you lost a democratic election?

    I hope these people are the first sent to the FEMA execution camps.

    • Terry A. Hurlbut says:

      That editor did not say so, but he might be thinking to himself,

      Four hundred fifty million rounds of hollow-point ammunition? The UN Convention on Small Arms? Giving Mount Rushmore back to the Beringians? Compared to such things, what were the provocations that Thomas Jefferson listed in the Declaration of Independence?

      • JT says:

        What?! That makes even less sense than usual.

        So, are you with, or against these traitors?

        • Terry A. Hurlbut says:

          Interpret that however you like. Whatever I say, you’re going to twist anyway. So twist away—in the wind.

  6. Nathaniel Roubideaux says:

    Oh my.

    “… for we shall not have any coarse but armed revolution should we fail with the power of the vote in November ~ This Republic cannot survive for 4 more years underneath this political socialist ideologue.”

    This sentence is susceptible of only one interpretation – urging the violent overthrow of the United States should these people not get their political will at the polls in November in violation of the Smith Act. If he wanted to avoid sedition, he should have used the word “should” instead of “shall.”

    The Smith Act, 18 U.S.C. 2385:
    “Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government. …”

    Should anyone carry out Ponch McPhee’s wish, he would be guilty of domestic terrorism.

    The Patriot Act, 18 U.S.C. 2331:
    the term “domestic terrorism” means activities that—
    (A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;
    (B) appear to be intended—
    (i) to intimidate or coerce a civilian population;
    (ii) to influence the policy of a government by intimidation or coercion; or
    (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
    (C) occur primarily within the territorial jurisdiction of the United States.

    This is dangerous and depraved speech.

    I hope President Obama is kept safe from anyone who wouldn’t read that editorial and wince.

    • Terry A. Hurlbut says:

      Then go out and swear out a warrant for that man’s arrest.

  7. Nathaniel Roubideaux says:

    Do you think you can go swear out an arrest warrant as a citizen? In this case, it would have to be issued by an Article III judge based on an affidavit from a US Attorney stating under oath that there’s probable cause to believe the guy committed a crime. He could also be indicted by a federal grand jury. I don’t want to get involved and I’m absolutely certain the FBI already knows about his editorial. I try to stay away from people like him.

  8. […] born citizen. (Emmerich de Vattel, in The Law of Nations, said that a natural born citizen is born in-country to two citizen […]

  9. […] candidate for President or Vice-President must be a natural born citizen of the United […]

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