A Presidential Citizenship Eligibility Primer

~Obama Presidential Eligibility
- An Introductory Primer excerpt

Copyright (©) 2009-2012 Stephen Tonchen

Revision date: October 10, 2012

http://people.mags.net/tonchen/birthers.htm

introductory remarks by Adrien Nash:

This section (and the one that precedes it, -which details the statements of those who held to the presumption that birth within U.S. borders constituted a traditional right to U.S. citizenship, and worse, that such citizenship could be presumed to be natural citizenship) illuminate the conflict between those who understood the simple actual meaning of the English word “natural” and those who had risen to positions of authority while adhering to a baseless  certainty in a belief unbacked by logic, any universal colonial tradition, nor universal state laws, nor federal law.
The belief that the human-contrived convention of assigning national membership by the geographical location of one’s mother during delivery has no connection to Natural Law, nor Natural Rights.  The Founding Fathers were steeped in the philosophy of Natural Rights, and viewed it as the only legitimate source for guiding principles upon which to found the most unique and free nation in world history.
Those who later held to the opposite view were in fact unknowingly adhering to a philosophy that was antithetical to American values.  They were unaware of that fact because they only focused on American magnanimity toward valued immigrants, whose children they viewed as being new Americans, even if their fathers were unnaturalized foreigners.  But that position came with a history and philosophy that was evil, not in its branches, but in its root.
If one’s national membership is consigned by the government based on nativity and not nature, then one is a prisoner of a system that is opposed to the authority of “the Laws of Nature and Nature’s GOD”.  One is instead a cog in a machine what is Godless, -a machine devoid of unalienable Natural Rights given by a Creator who made man in his own image and nature, i.e., as free individuals, -not drones, possessing a free-will, and the innate unalienable right to exercise it for one’s own benefit and that of his own family and people as long as one’s action does not infringe on the rights of other to do likewise.
The cogs in the machine instead belongs to the GOVERNMENT, and all rights derive from it and therefore are not permanent, unalienable, and can be canceled at the Government’s choosing.
Such Big Government’s foremost “right” is ownership of all who enter its dominion via birth.  Such an attitude could not be applied to those who enter it via travel, because then other governments would do the same and travel therefore would cease, along with trade and all the benefits that come with it.  But those who emerge into the Big Government’s realm via birth can be claimed because they emerged on the property that belongs to Big Government and they therefore belong to it, -just like the off-spring of cattle and fowl.
If Big Government is Lord & Master of the land and all who reside within it, then they belong to it and no other government.  They are its property exclusively, -its subjects due to the place of their nativity.  It is strictly an issue of Property Rights, and they are owned by the government and not the parents.  Parental Rights do not exist in that sense.  The father is not the head of the household, -the government is.  He does not own his own children because he is not the Lord and Master of the land on which they were born.  That is the principle of Jus Soli, -the law of the soil.
Opposing that philosophy, (known as The Divine Right of Kings) is the Natural Law principle that:
     a.) Off-spring inherit their parents’ nature.
     b.) Parents of the same nature (including political nature) naturally produce off-spring with the same nature and group membership as themselves,
    c.) off-spring are solely the property of the parents that produced them.
    d.) The group into which they were born is their natural group, and they are natural members of it.
    e.) That group can be a family, a clan, a tribe, a people, or a country.  F.) They are members because they are part and parcel of their member parents, -cast from the same mold, -produced by the same nature, grown from the same DNA, whether it be biological DNA or political DNA.
Their membership is natural membership, based on Nature, and not the GPS coordinates of the location of their nativity.  Man-made contrived, conquest-determined borders have nothing to do with their natural membership.  Their national membership is natural membership, and does not require, and is not based on human choice, human law, nor dictator decision.
Whatever group their parents belong to, -they belong to also (for better or for worse) by being born a member, -not made a member by authorities.  They are beyond the will and choice of authorities.  Authorities’ only option is to accept and recognize that which is naturally determined.  They can write that acceptance into law, but they cannot change their natural membership by any legitimate law because they don’t possess the authority to abridge the Natural Rights with which the human race was endowed by its Creator.

The Founding Fathers never wrote any such law regarding the national membership of natural members of the new nation, with one small exception which sought to protect the rights of natural members born in other jurisdictions, i.e., in other nations.
In one of the first acts of the new Congress, they wrote the Nationality Act of 1790, by which they set a standard for all states to adhere to in choosing which immigrants they would grant citizenship to via naturalization.  Since the  status of Americans born abroad was not addressed in the Constitution, and since enacting a constitutional amendment to protect their rights was not convenient nor perhaps feasible, the first Congress, -including 40 authors of the Constitution, dictated that Americans born abroad were to be “considered as natural born citizens” they not only intended that they not be viewed as foreigners who needed to be naturalized, but that they were to be viewed as that which they were by birth, namely; natural born American citizens.
That protected the rights of children of American Ambassadors & diplomats, merchants, attorneys & scholars living overseas to one day be entitled to serve their country as its President.

No other law regarding the natural U.S. citizenship of Americans born to Americans  outside of U.S. borders has ever been passed except to assert the same principle but minus the political component which is not logically an element of naturalization law.  Future revisions of that Act simply omitted the inclusion of “natural born” when mandating that such children were to be recognized as U.S. citizens.  That omission was a logical choice for a naturalization statute, but the absence of “natural born” clouded the thinking of many in future years who failed to grasp the Nature Law principle that children born to Americans are Americans no matter where on Earth they are born; -that children take after the parents, -which if born within Holy Matrimony (wedlock) meant that they inherited the nature and status of the father, including his political nature, i.e., nationality.

Section 12.  Doesn’t the Julia Lynch case show that Barack Obama is a “natural born citizen”?

In 1789, two years after the Constitution was adopted, David Ramsay argued that a child naturally receives federal (United States) citizenship at birth only if the child’s parents were U.S. citizens at the time of the child’s birth. Anyone can acquire U.S. citizenship artificially either by state law or by naturalization statutes enacted by Congress. Anyone who acquires state citizenship according to state law is automatically a citizen of the United States.  But, in the absence of an applicable state or federal law, you do not receive federal (U.S.) citizenship at birth unless your parents were U.S. citizens when you were born:

[Birthright citizenship] …is confined exclusively to the children of those who were themselves citizens. … The citizenship of no man could be previous to the Declaration of Independence, and, as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776. … From the premises already established, it may be farther inferred, that citizenship, by inheritance, belongs to none but the children of those Americans, who, having survived the Declaration of Independence, acquired that adventitious character in their own right, and transmitted it to their offspring. (Ramsay)

Ramsay’s comments were made in connection with a dispute over William Smith’s eligibility to serve as a U.S. representative from South Carolina. Despite their disagreement on the eligibility issue, Smith agreed with Ramsay that you naturally receive, at birth, the citizenship of your parents, particularly your father:

Vattel says, “The country of the father is that of the children, and these become citizens merely by their tacit consent.” (William Loughton Smith, as quoted in The Documentary history of the first Federal elections, 1788-1790, Volume 1, pp.178)

In 1811, the U.S. State Department refused to recognize James McClure as a U.S. citizen (Publius Enigma). McClure was born in the United States, but his parents were not U.S. citizens at the time of his birth. He would have acquired U.S. citizenship at birth if he had been born in a state (such as Virginia) which conferred state citizenship to anyone born within its borders.
At the time, anyone who acquired state citizenship under state law was automatically a citizen of the United States [31]. But McClure was born in a state (South Carolina) which had not enacted any state citizenship laws. In the absence of state citizenship laws, federal (United States) citizenship is conferred only to persons born in the United States, of parents who are U.S. citizens:

Mr. Rodman hints, that it would have been sufficient for James McClure to have been born in the United States — he is mistaken. The law of the United States recognizes no such claim. The law of Virginia, of 1792, does — for, “all free persons born within the territory of this commonwealth,” is deemed a citizen.

The law of Virginia considers him as a son of the soil. An alien, as well as a citizen, may beget a citizen — but the U. States’ act does not go so far. A man must be naturalized to make his children such. (“Case of James McClure”, The Alexandria Herald, Vol. I, No. 37, October 7, 1811, page 2, left-most column)

In 1845, an article entitled “Massachusetts and South Carolina”, appearing in The New Englander, explained that, in the U.S. Constitution, the term “natural born citizen” means a U.S. citizen not owing allegiance, at birth, to any foreign state. According to the article, all adult U.S. citizens are presumed to owe allegiance to the United States exclusively, but a natural born citizen owes exclusive allegiance from the time of her or his birth:
The expression ‘citizen of the United States’ occurs in the clauses prescribing qualifications for Representatives, for Senators, and for President. In the latter the term ‘natural born citizen’ is used, and excludes all persons owing allegiance by birth to foreign states; in the other cases the word ‘citizen’ is used without the adjective, and excludes persons owing allegiance to foreign states, unless naturalized under our laws. (“Massachusetts and South Carolina”, The New Englander, Volume 3, 1845, p.414)

In 1859, Attorney General Jeremiah Sullivan Black clarified the distinction between a native and a naturalized citizen. All adult U.S. citizens are presumed to owe allegiance to the United States exclusively. The native is a citizen who never owed allegiance to any sovereignty other than the United States. Only a native (i.e., natural born citizen) may serve as President.

There can be no doubt that naturalization does, pro facto, place the native and adopted citizen in precisely the same relations with the Government under which they live, except so far as the express and positive law of the country has made a distinction in favor of one or the other. … Here none but a native can be President. … A Native and a Naturalized American can go forth with equal security over every sea and through every land under heaven, including the country in which the latter was born.
They are both of them American citizens, and their exclusive allegiance is due to the Government of the United States. One of them never did owe fealty elsewhere, and the other, at the time of his naturalization, solemnly and rightfully, in pursuance of public law and municipal regulations, threw off, renounced and abjured forever all allegiance to every foreign prince, potentate, State and sovereignty whatever, and especially to that sovereign whose subject he had previously been. (New York Times: Attorney General Black’s Opinion upon Expatriation and Naturalization, July 20, 1859)

In 1866, during a speech before the U.S. House of Represenatives, John Bingham (1815-1900), the father of the 14th Amendment, said that a natural born citizen is one who is born in the United States, of parents not owing allegiance to any foreign sovereignty:

[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. (Congressional Globe, 39th, 1st Sess.(1866), p.1291, center column)

In 1884, an article by George Collins, appearing in the American Law Review (1884), criticized the Lynch v. Clark ruling:

In Lynch v. Clark, the vice-chancellor held that the common-law doctrine — that the place of birth and not the nationality of the father determined the political status of the child — was applicable to the United States, constituted a part of the jurisprudence thereof, and that accordingly a person born within the United States, whose father at the time of such birth was an alien, was a citizen of the United States.

This case, aside from its fallacious and unsound reasoning, can not be upheld upon principle. It is well settled that the common law is not part of the jurisprudence of the United States. … Birth [in the United States] … does not ipso facto confer citizenship, and it is essential in order that a person be a native or natural born citizen of the United States, that his father be at the time of the birth of such person a citizen thereof, on in case he be illegitimate, that his mother be a citizen thereof at the time of such birth. (Collins)

In 1894, The Nation magazine reported an opinion by Thomas Bayard, who was U.S. Secretary of State under Grover Cleveland. In Bayard’s opinion, the U.S.-born child of alien parents was not subject to U.S. jurisdiction at the time of its birth, therefore was not a U.S. citizen at birth:

In 1885, Secretary Bayard decided that the son of a German subject, born in Ohio, was not a citizen under the statute or the Constitution, because “he was on his birth ‘subject to a foreign power,’ and ‘not subject to the jurisdiction of the United States’” (The Nation, Vol.59, No.1521, August 23, 1894, p.134, near bottom of right-most column)
In 1896, an article by Percy A. Bridgham, appearing in the Boston Daily Globe, defined native born as “born within the United States,” and natural born as “born of parents who are U.S. citizens”. In Bridgham’s opinion, one did not need to be native-born in order to be natural-born. His understanding, at the time, was that all post-1787-born Presidents were both native-born and natural-born; the United States has never had a President who was strictly natural-born (natural-born only, without also being native-born).

The fact that the Constitution says “natural” instead of native shows to my mind that the distinction was thought of and probably discussed. A natural born citizen would be one who by nature, that is by inheritance, so to speak, was a citizen, as distinguished from one who was by nativity or locality of birth a citizen….
It seems to me that if the founders of the government had meant to confine the presidency to such of its citizens as were born upon the soil of the country, they would have used the word “native,” which is a much more apt word than natural….

A comparison of the meanings of native and natural as given by Webster bears me out in my opinion of the intent of the constitution. The very first definition of natural is “fixed or determined by nature,” the nationality of a child born abroad of American parents is fixed by the nature of things and not by the locality of birth. I do not find that our courts have ever passed upon the meaning of the word natural in connection with citizenship, so we must take its ordinary meaning. (Percy A. Bridgham, People’s Lawyer, Boston Daily Globe, November 9, 1896. See also The Boston Globe: “native born” does not equal “natural born” for Presidential eligibilty)

Also in 1896, the New York Tribune published an article, questioning the eligibility of Mr. Shurmann, the Labor Party presidential candidate. Mr. Schurmann was born in the United States, of non-U.S.-citizen parents:

Is he [Mr. Shurmann], under these circumstances, “a natural-born citizen” in the sense implied by the fifth clause of Art. II. of the Constitution? Various Attorney-Generals of the United States have expressed the opinion that a child born in this country of alien parents, who have not been naturalized, is, by the fact of birth, a native-born citizen entitled to all rights and privileges as such, and the State Department has always acted on this presumption in deciding upon questions of this nature brought before it.
There is, however, no United States statute containing any provision on the subject [of natural born citizenship], nor have any judicial decisions ever been made in regard to it. It is at best an open question, and one which should have made Mr. Schurmann’s nomination under any circumstances an impossibility.
(New York Tribune 1896: Those born of non-citizen parents may not be eligible for POTUS)

In 1904, Alexander Porter Morse argued that parental citizenship is essential to natural born citizenship; one cannot be a natural born citizen unless one’s parents were citizens at the time of one’s birth:
At the time of the adoption of the Constitution, immigration was anticipated and provisions for naturalization would immediately follow the establishment of the government. Those resident in the United States at the time the Constitution was adopted were made citizens. Thereafter the president must be taken from the natural-born citizens. If it was intended that anybody who was a citizen by birth should be eligible, it would only have been necessary to say, “no person, except a native-born citizen”; but the framers thought it wise, in view of the probable influx of European immigration, to provide that the president should at least be the child of citizens owing allegiance to the United States at the time of his birth. (Morse)

In 1916, attorney Breckinridge Long argued that Republican presidential candidate Charles Evans Hughes was not eligible to serve as president. Hughes was born in the United States, but at the time of his birth, his father was not a U.S. citizen. In Long’s Legal Analysis, a U.S.-born child of a non-citizen father is not a natural born citizen of the United States:

It must be admitted that a man born on this soil, of alien parents, enjoys a dual nationality and owes a double allegiance. A child born under these conditions has a right to elect what nationality he will enjoy and to which of the two conflicting claims of governmental allegiance he will pay obedience. Now if, by any possible construction, a person at the instant of birth, and for any period of time thereafter, owes, or may owe, allegiance to any sovereign but the United States, he is not a “natural born” citizen of the United States. If his sole duty is not to the United States Government, to the exclusion of all other governments, then, he is not a “natural born” citizen of the United States. (Long)
Roots of the Dispute: There is general agreement concerning state citizenship. When the original thirteen colonies became independent states, some of them (for example, Virginia) retained the jus soli principle of English common law. In these jus soli states, any white person born within the borders of the state (other than the child of a vagrant, slave or foreign diplomat) was a citizen of that state. Anyone who became a citizen of any state was automatically a citizen of the United States [31].

However, there is disagreement as to the manner in which a person acquires federal citizenship in the absence of state citizenship. If you did not receive state citizenship at birth from any state, under what circumstances would the federal government still recognize you as a citizen of the United States? Regarding this question, there has been (and still is) a dispute between:

~authorities who believe that all persons born on U.S. soil (except the children of foreign ambassadors) are natural born citizens of the United States, regardless of their parents’ citizenship; and

~authorities who believe that one cannot be a natural born citizen of the United States unless one’s parents were U.S. citizens at the time of one’s birth.
The dispute arises, in part, from differing understandings of our nation’s founding principles. Those who believe that the Founding Fathers were guided by English common law tend to believe that the jus soli principle governs the meaning of “natural born citizen” in the Federal Constitution. Those who believe that the Founding Fathers were guided by European political theorists, such as Vattel, tend to believe that the meaning of “natural born citizen” is constrained by the jus sanguinis principle. (See Section 26: Root of “Natural Born Citizen” debate).

Follow

Get every new post delivered to your Inbox.

Join 73 other followers