Not much information exists on why the Third Congress deleted "natural born" from the Naturalization Act of 1790 when it passed the Naturalization Act of 1795. There is virtually no information on the subject because they probably realized that the First Congress committed errors when it passed the Naturalization Act of 1790 and did not want to create a record of the errors.
It can be reasonably argued that Congress realized that under Article I, Section 8 of the Constitution, Congress is given the power to make uniform laws on naturalization and that this power did not include the power to decide who is included or excluded from being a presidential Article II "natural born Citizen." While Congress has passed throughout United States history many statutes declaring who shall be considered nationals and citizens of the United States at birth and thereby exempting such persons from having to be naturalized under naturalization laws, at no time except by way of the short-lived “natural born” phrase in Naturalization Act of 1790 did it ever declare these persons to be “natural born Citizens.” The uniform definition of "natural born Citizen" was already provided by the law of nations and was already settled. The Framers therefore saw no need nor did they give Congress the power to tinker with that definition. Believing that Congress was highly vulnerable to foreign influence and intrigue, the Framers, who wanted to keep such influence out of the presidency, did not trust Congress when it came to who would be President, and would not have given Congress the power to decide who shall be President by allowing it to define what an Article II "natural born Citizen” is.
Additionally, the 1790 act was a naturalization act. How could a naturalization act make anyone an Article II "natural born Citizen?" After all, a "natural born Citizen" was made by nature at the time of birth and could not be so made by any law of man.
Finally, allowing a child born on foreign soil to be President would have invited conflict with the foreign nation on whose soil the child was born. For example, Great Britain adhered to the concept of perpetual natural allegiance. Just imagine the Framers allowing a child born in Great Britain to two U.S. citizen parents (a perpetual natural born subject under English common law) after the adoption of the Constitution (post Article II grandfather time period) to be President and Commander in Chief of the United States. Also, “natural born Citizen” status, having a uniform definition under the laws of nations, could not be made to depend on the laws of the foreign country in which the child would be born to U.S. citizen parents. Congress realized their errors in passing the 1790 Act and corrected it in 1795.
What is important about these two naturalization acts which were passed in the early part of the founding of the Republic and which is also reflected in the Constitution itself, is that they show that the Framers of the Constitution clearly saw a distinction between a “Citizen” and a “natural born Citizen.” They show that the Framers rejected English common law which in addition to how it granted “natural born subjectship” through jus solis also made a child a “natural born subject” if born out of the King’s dominion to parents who were “natural born subjects” (jus sanguinis). Under the law of nations which the Framers adopted for the new United States, a “natural born Citizen” was a child born in the United States to a mother and father who were at the time of the child’s birth both United States citizens and a “Citizen” was any person who became a citizen by naturalization. A “Citizen” had the same civil and political rights as a “natural born Citizen” except he was not eligible to be President if born after the adoption of the Constitution. Only by becoming a citizen could a father and derivatively from him the mother give to their child the inherited right to be a “natural born Citizen.” Not including the American Indians because they belonged to a different nation and blacks because they were or their parents had been slaves, the United States was a new nation and only after its new citizens gave birth to a new generation of Americans could that new generation be called indigenous, natives or “natural born Citizens” of the United States. All those who were born British subjects before the adoption of the Constitution (which included the Founding Fathers themselves), actually became naturalized United States citizens by electing to become a United States citizen by adhering to the revolutionary cause rather than chosing to become British subjects by remaining loyal to Great Britain. They could not elect to become “natural born Citizens” because they were born British subjects.
From these early naturalization statutes, we can see that it is not sufficient to be a born “citizen” under the Fourteenth Amendment to qualify as a Presidential Article II “natural born Citizen.” While this amendment constitutionally makes those who qualify under its terms to be “citizens,” it does not nor was it ever intended to make these individuals Article II “natural born Citizens.” The framers of the Fourteenth Amendment were well aware that Article II refers to “natural born Citizen” and that Article I and Article IV refer to “Citizen.” By choosing the word “citizen,” they left intact the original meaning of “natural born Citizen” as it existed under the law of nations which the Founders adopted as the national law of the new United States.
Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg NJ 08831
Saturday, August 8, 2009
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An election for President and Commander in Chief of the Military must strive to be above reproach. Our public institutions must give the public confidence that a presidential candidate has complied with the election process that is prescribed by our Constitution and laws. It is only after a presidential candidate satisfies the rules of such a process that he/she can expect members of the public, regardless of their party affiliations, to give him/her the respect that the Office of President so much deserves.
Re: "Only by becoming a citizen could a father and derivatively from him the mother give to their child the inherited right to be a “natural born Citizen.'
ReplyDeleteNope, at the time of the revolution, Colonies considered anyone born in the colony to be natural born citizens of the colony AND natural born subjects of Britain, regardless of the number of parents who were citizens.
And that is why such prominent conservative Senators who are also lawyers as Orren Hatch and Lindsay Graham say that a Natural Born Citizen is simply one who was born in the USA:
Senator Lindsey Graham (R-SC), said:
“Every child born in the United States is a natural-born United States citizen except for the children of diplomats.” (December 11, 2008 letter to constituent)
Senator Orrin G. Hatch (R-UT), said:
“What is a natural born citizen? Clearly, someone born within the United States or one of its territories is a natural born citizen.” (Senate Judiciary Committee hearing hearing on OCTOBER 5, 2004)
Re: "All those who were born British subjects before the adoption of the Constitution (which included the Founding Fathers themselves), actually became naturalized United States citizens by electing to become a United States citizen by adhering to the revolutionary cause rather than chosing to become British subjects by remaining loyal to Great Britain.'
Not true. Since the law was that if they were born in a colony they were Natural Born citizens of the colony and Natural Born subjects of Britain, George Washington and the others were not naturalized. They all were Natural Born from the Natural Born citizen of the colony. The Declaration of Independence made them no longer subjects of Britain, but they remained citizens of the states and of the United States.
The reason for the grandfather clause in Article II, which allows even people who were not Natural Born to be elected president so long as they were born BEFORE the Constitution, was to allow someone who WAS naturalized to become president. The one person whom many people wanted to elect president and who was not born in a US colony was Alexander Hamilton. He was born on the island of Nevis, which was also a British colony--but not one of the 13 American colonies, obviously. Hamilton was naturalized by the State of New York, and was eligible to be president under the grandfather clause--but, unfortunately, there was the duel with Burr.
It seems as many Americans you ask, you get back as many interpretations.
ReplyDeleteWe are not referencing "Naturalizing", that's the process an immigrant undergoes to obtain US Citizenship. Nothing More.
"Natural Born" status can only be conferred by Two(2) US Citizen Parents (note plural) at the time of the birth of their child. Plus(+) the birth must occur on what is considered US soil.
The point I believe you are referrig to were the citizens of the Revolution Era. These were the Charter Citizens of the Country they established and were granted immediate status which give them the earned opportunity to run for POTUS.
Those that followed had to be 2nd generation citizens and of the soil. (Natural Born)
Natural Born status is conferred to ANY child born in the United States because of the location of birth. Natural Born status is conferred to EVERY child born in the USA because of the location of birth.
ReplyDeleteAs the Wall Street Journal said on July 31: "Some birthers imagine that there is a difference between being a “citizen by birth” or a “native citizen” on the one hand and a “natural born” citizen on the other. “Eccentric” is too kind a word for this notion, which is either daft or dishonest. All three terms are identical in meaning."
We agree that a naturalized citizen is not eligible to be president. The issue is whether the framers of the Constitution believed that children of foreigners born in the USA are foreign to some extent, that they are not as natural as children of US parents.
There is no evidence for this. The law at the time of the Constitution was that someone who was born in a Colony became a citizen of the colony simply by virtue of birth in the colony regardless of the number of parents. That person was called Natural Born. That is what it meant.
Moreover, as the WSJ points out, if a child of two US parents born in the USA was somehow better than a child of NO US parents born in the USA, we would always have three categories of citizens: naturalized citizens, ordinary citizens and the special supercitizens who have two US parents. There is nothing to indicate that the framers wanted this. Indeed, they held quite the contrary view: "We hold these truths to be self-evident, that all men are created equal."
You may say supposing that two illegal immigrants give birth to a child in the USA, is that child just as eligible as the child of two US citizens? And the answer is still yes, because, after all, the illegal status of the parents does not necessarily affect the child's personality. What about the child of an evil dictator who is born in the USA? Well, we do not have to vote for that person when he grows up, and if she or he is like her parents, then we certainly will not. If she is NOT like her parents, we can, and it is our right to decide.
ReplyDeleteIn the Wong Kim Ark case, the decision of the Supreme Court quotes the following approvingly:
"It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
"III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established."
Notice that it says that EVERY child born was a natural-born subject and that the same applies in the United States. In the Wong case, the defendant Wong was born of two Chinese parents who were at the time of his birth subjects of the emperor of China (before 1911 China had emperors). Yet the Supreme Court sets up a syllogism.
You recall syllogisms? One runs along these lines. ALL men are mortal; smith is a man; therefore, smith is mortal.
IF all children born in England or the USA are natural-born, and Wong was born in the USS (and he was), then Wong must be natural-born. And that makes clear what the Wall Street Journal said, that Natural Born, native-born, and born in the USA are all synonyms.
Two of the current Supreme Court justices had their fathers born in Italy. Their fathers were naturalized before they were born, but supposing they had not been. Supposing that they had been naturalized one minute or one day or one year after the future justice was born.
Do you think that would affect the loyalty of the justice? Do you think a justice who knows that it was possible that his father might have been naturalized AFTER his birth instead of before his birth (or who may have friends whose fathers were naturalized after the birth) would vote for the two-parent citizen theory?
Because of this, Governor Bobby Jindal, the Republican governor of Louisiana, who was born in the USA but neither of his parents were citizens at the time, still has hopes of becoming president. If he runs, and i like his policies, I would vote for him.
USS is a typo for USA.
ReplyDeleteWhile your comments are expansive, you say nothing on point. The topic is not Citizenship, nor is it the 14th Amendment,nor the Preamble. What the issue is about is Article II Section 1
ReplyDelete"the qualifications necessary to hold the office of the President",as mandated by the Constitution.
Re: "The topic is not citizenship."
ReplyDeleteAgreed. The topic is Natural Born Citizenship and what it MEANS. It means what it meant to John Jay, birth in the USA. That is what it meant at the time, and that is what it means now.
There is an interesting quotation (long and complicate, so I will not post it unless you want me to) that shows that Jay, John Adams and Benjamin Franklin used Natural Born Citizen as a synononym to Natural Born Subject, and as we know under British common law a Natural Born Subject was simply someone born in the realm regardless of the number of parents who were already subjects.
smrstrauss said "Natural Born status is conferred to ANY child born in the United States because of the location of birth. Natural Born status is conferred to EVERY child born in the USA because of the location of birth."
ReplyDelete+++++++++++++++++++++++++++++++++++
WRONG! Unbelievable- So by example you would agree with the premise that a German couple,visiting Disney World in Orlando and the woman happens to give birth while waiting in line for the Space Mountain ride not only can confer US citizenship, but Natural Born Citizen status. That their child would eligible at 35 yrs of age and 14 yrs a resident of the US--to be President of the United States.
That is so off the mark it defies further comment. I would also caution our readers that, such half truths and disinformation does not even qualify as drivel.
Re: German couple visiting Disneyworld.
ReplyDeleteYes, and so would such authorities as Senators Hatch and Graham, who simply said that every child born in the United States, except for the children of foreign diplomats, is a Natural Born Citizen.
Now, a question for you. If a child of a German couple visiting Disneyworld fulfills the 14-year residence and 35-year age requirement to be president and runs for president and is elected, WHO would take that away?
Not the Supreme Court. The court said in the Wong Kim Ark case that every child born in the USA is a Natural Born Citizen.
I suspect that you, and some others, may be afraid that the child is somehow a German. But what evidence is there for that? Are the two justices of the current US Supreme Court whose fathers were born in Italy somehow less Natural Born than the justices whose parents and grandparents were born in the USA?
To be sure, their fathers were naturalized before the birth. But if the fathers were naturalized AFTER the birth, would the justices be not Natural Born?
Are the two justices of the current US Supreme Court whose fathers were born in Italy somehow less Natural Born than the justices whose parents and grandparents were born in the USA?
ReplyDelete++++++++++
Absolutely.The Justices are not Natural Born citizens, they are US Citizens. The Justices you give as an example could not be the President.
++++++++++++
You keep citing Ark- that case relates to te 14th Amendment. Nothing in the 14th deals with Natural Born. The 14th addresses naturalization. The terms Natural Born and Naturlaization are no more alike than an Ape is to a Man.
You recall syllogisms? An example runs like this:
ReplyDelete1) All men are mortal
2) Smith is a man
3) Smith is mortal.
So, if the Supreme Court ruled in Wong that ALL children born in the USA are Natural Born (and it did).
And the same ruling shows that Wong was born in the USA, then the Supreme Court ruled that Wong was Natural Born.
The facts cited in the case show that Wong was born in the USA of two parents who were subjects of the emperor of China.
The ruling then says: "...by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established."
Every child born in Britain and the USA, regardless of whether their parents were aliens, is Natural Born. That is what it says.
And, earlier in the case, it was shown that Wong was born in the USA.
The court then said: "It is universally admitted, both in the English courts and in those of our own country, that all persons born within the Colonies of North America, whilst subject to the Crown of Great Britain, are natural-born British subjects."
ALL born in Britain are natural-born. And as said earlier, the same rule applied in the USA "in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established."
1) All children born in the USA are Natural Born
2) Wong was born in the USA
3) Wong is Natural Born
To be sure, he is Natural Born under the 14th Amendment, which takes away the right of states to set citizenship rules. If he was born before the 14th Amendment, he might not have been considered a Natural Born citizen in some states. But the 14th applied the rule to all states, and Wong was born in the USA, so he is Natural Born, regardless of the fact that both his parents were subjects of the Emperor of China.
As the Wall Street Journal put it: "Some birthers imagine that there is a difference between being a “citizen by birth” or a “native citizen” on the one hand and a “natural born” citizen on the other. “Eccentric” is too kind a word for this notion, which is either daft or dishonest. All three terms are identical in meaning."
All three terms are identical. Native born and Natural Born are synonyms. All children born in the USA except for the children of foreign diplomats are Natural Born.
As I said earlier, I have a long and complicated quote from John Jay, John Adams and Benjamin Franklin in which they used Natural Born Citizen as a synonym to Natural Born Subject, which further proves this point.
Re your comment that the two justices who have Italian backgrounds would not be Natural Born Citizens. If so, I doubt that they would vote for the two-parents must be citizens theory. That means that the case would lose, and that means that a court would have found, conclusively, that every child born in the USA is Natural Born.
They would have voted against it anyway, of course, since Natural Born at the time of the Revolution meant born in a colony regardless of the number of parents who were citizens.