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BUT CAN CONGRESS LEGISLATE A CONSTITUTIONAL CLAUSE?

by Glen Gilliland

What was the Founders' meaning of the term "natural born Citizen"?

(Apr. 10, 2011) — When I was a young boy in Mr. Hanson’s fifth grade civics class in the mid-60s, we learned that the definition of “natural born Citizen” was exclusively a person born on US soil of parents who are US citizens.

That has been the accepted definition of “natural born Citizen” for most of our history, except between the years 1790-1795, and 1971 to the present.

The first Congress passed the Naturalization Act of 1790:

And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States…

That act was repealed with the uniform rule of the Naturalization Act of 1795 and new language in Section 3:

and the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States: Provided, That the right of citizenship shall not descend to persons, whose fathers have never been resident of the United States:

Section 4. And be it further enacted, That the Act intitled, “An act to establish an uniform rule of naturalization,” passed the twenty-sixth day of March, one thousand seven hundred and ninety, be, and the same is hereby repealed.

I assume Congress realized they had made a mistake enacting the first naturalization act, because  “natural born Citizen” is a constitutional clause, and the only way Congress can change the definition is by Constitutional Amendment.

The founders (John Jay) obtained the definition of “natural born Citizen” from The Law of Nations (Vattel):

The natives, or natural-born citizens, are those born in the country, of parents who are citizens… (Vattel in Book 1, Sec 212)

The Founders’ intent was to prevent foreign influence on the office of President.

The Law of Nations (Vattel) is recognized as part of US domestic law (page 37 footnotes).  Yet internet sites such as www.usconstitution.net list title 8 § 1401. Nationals and citizens as being “natural born citizens.”

Cornell Law states of §1401. Nationals and citizens:

The following shall be nationals and citizens of the United States at birth:

(a) a person born in the United States, and subject to the jurisdiction thereof;

(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;

(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;

(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;

(e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;

(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person

(A) honorably serving with the Armed Forces of the United States, or

(B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and

(h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States.

Some people have pointed to the 14th Amendment for the change. I didn’t see it in the 14th Amendment, but I am just a retired plumber, not a constitutional lawyer.

This contradiction in the law has been the subject of some very intense debate in the political circles I frequent. When did the definition of “natural born Citizen” change? So I began searching on the internet for an answer.

The only other way the definition could have been changed is by USSC interpretation. I began reading USSC decisions, starting with the The Venus, 1 (1814), Shanks v. Dupont, (1830), Minor v. Happersett , (1875), United States v. Wong Kim Ark, (1898), Perkins v. Elg,(1939), and many more, approximately 80 USSC citizenship decisions (most pointing to Vattel for definition of “natural born Citizen,” none for any other definition).

Then I came across Tuan Anh Nguyen v. INS (no.99-2071) in the oral arguments at about 23 minutes they discuss “natural born Citizen,” with Souter asking the question and the attorney claiming she hadn’t done the research but commentators saying that citizens born outside the US are NBC, and Scalia asking if being born on the soil wasn’t also the requirement; Ginsberg saying her grandson born in France could be an NBC, but they came to the conclusion that it is an unsettled controversy.

That exchange led me to Rogers v. Bellei, 401 U.S. 815 (1971)

Here is the point in time which changed the definition of “natural born Citizen.”

In the decision in section IV, the statutes culminating in 301 merit review.  They list seven statutes to review to apply to the case, beginning with the the 1790 Naturalization Act which was repealed in 1795:

And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States…

The language the Supreme Court used to apply to the case also appears in the 1795 statute:

That the right of citizenship shall not descend to persons, whose fathers have never been resident of the United States:

Thus the U.S. Supreme Court set a new precedent for the definition of “natural born Citizen in Rogers v. Bellei, 401 U.S. 815 (1971), Section IV.

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  1. if he is an unconstitutional president because he is not a natural born, that means that anything that he sign in to law like the health care reform it would be not legal? And it can be defeat it?

  2. The definition changed when Obama released his long form certification of live birth showing that – by definition – he is not a natural born citizen. I noticed that suddenly, news anchors across the nation are now putting the words “natural born” in front of the word “citizen” when speaking of Obama because you know, if we see it on (P)MSNBC, it MUST be true (lol).

    1. If you crawl out in the territory of the United States (Are at time of birth under the jurisdiction of the United States) you are a citizen by birth= a natural born citizen. The one and only exception to this general rule is if you are born on US soil and your parents are in the U.S. working for a foriegn government. There is one other exception is one by stated rule, if you are born on an “Indian Reservation”.

  3. I was born in Venezuela… to an American citizen mother… and a Venezuelan citizen father… I was told that EVEN if I had been born in the US…. my father would have had to be a US citizen for me to be considered “natural born”…. I am a US citizen born abroad…. but not “natural born”….. if this is still the case, Mr. Obama doesn’t fit the definition either…. even IF he had been born in Chicago… I think this is what should have been pointed out all along….. because it is a fact that only one of his parents was a US citizens regardless of where he was actually born.
    Had my father been a US citizen…. I would have been a natural born citizen even though I was born in Venezuela….

    1. Correct, Obama is NOT a ‘natural born citizen’. But he has just SPIT in the face of every American citizen with release of his milti-layered FAKE birth certificate. (as it’s a displayed as a page in a book, only options would have been to scan of photograph, NEITHER OF WHICH HAPPEN IN MULTILAYER). This birth certificate was just a sloppy attempt at mimicking a real one, and people belong in jail over this too.

      Do we really have a politician strong enough to stand up to the task at hand? I wonder… They’ve waffles on us 2.5 years thus far.

      And we have many Dems, starting with Pelosi (who signed off on Obama’s eligibility) belonging is the hoosegow! And we’ve got some Repubs lacking the huevos to investigate, who need to spend some slammer time too!

  4. Some of you are having difficulty finding the precedent that changed the definition of “natural born citizen”. I am not surprised, because i had read Rogers v Bellei months ago, didnt see it, and set that case aside.

    It was only after listening to the oral arguments in Tuan Anh Nguyen v. INS, after the 3rd time, something was said in that exchange that told me the answer was in Rogers v Bellei.

    The attorney said while arguing with Scalia, that Rogers v Bellei suggested her position was correct.

    So i went back to Rogers v Bellei and studied it very closely.

    When the Supreme Court lists a law to review in a USSC decision, that law becomes the law of the land.

    The USSC in Rogers v Bellei said, and these are the key words “the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens…”

    Whether the USSC knew it or not at that time, they threw out the origional definition of “natural born Citizen” (children born on the soil of citizen parents), and replaced it with, anyone who obtains their citizenship by birth (citizens and nationals).

    1. “the children of citizens” That is plural “citizenS” Otherwise it would have been written similar to , “the children of a citizen”. It does not get any simpler than that. Two parents. Therefore, the USSC DID NOT throw out the original definition.

  5. From my debates with Obama defenders, the case they point to support their position is the 1898 US Supreme Court case of Wong Kim Ark, and this quote from that case:

    “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, and 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. 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.”

    What the Obama defenders do not know (or wish to admit) is that aliens (known as “alien friends”) in England suspended their home country allegiance and owed a temporary allegiance to the English king. They were expected to take, or at least comply with, the Oath of Allegiance, whereby they promised that, while on English soil, they would “bear faith and true allegiance” to the English king. This temporary allegiance was sufficient for their English-born children to be given subjecthood — they were called denizens and were deemed to be natural-born subjects by statute.

    In the US, aliens do not suspend their home country allegiance and they do not owe a temporary allegiance to the US. They are not expected to take any type of Oath of Allegiance until such time they become citizens (naturalization). While residing in the US, these aliens do not “bear faith and true allegiance” to the US – their faith and true allegiance remains with their home country. Hence, there is no allegiance on the part of aliens residing in the US which would allow their US-born children to be deemed natural born citizens.

  6. Is Mr Hanson still “with us”?

    My Civics Teacher taught us exactly the same thing, but sadly he “passed” and I can’t locate his family to see if they still have his possessions (e.g notes/texts etc.)

  7. Linda Melin’s comment gave rise to a whole new thought. Here is the (partial) quote:

    “….When a man & woman get married they become “One” in the eyes of the law and this includes allegiance to the society in which they have their main domicile…..

    If only a man & woman get married and become “One” in the eyes of the law, including their alleigiance to the society, can two men or two women also become “One” under the law in the same manner? I seriously doubt it !!!

  8. Correction: Treaty with Saxony (Early Germany) (1872 I believe without looking at my congressional notes), not with Prussia. Spain also did not recognize “jus soli” citizenship. Even current Mexican citizenship laws rejects “jus soli” as a basis for citizenship in Mexico. Mexico does however recognize children born to illegal aliens in the US as both US & Mexican citizens per recent changes to their laws via U.N. global citizenship intrusion.

  9. This is why the words “natural born” were removed in 1795 from the Nationality Act. With feudal law still prominent around the globe, the US Govt could not guarantee that foreign nations would not lay claim to a child born to US citizen parents on feudal soil in time of war. They had to revert back to the law of nations & exclusive allegiance under treaties with foreign nations to avoid at all costs the threat of foreign influence in the White House. Read the Treaty of Paris & the 1870 Treaty between the US & the Brits as well as the Treaty with Prussia. The treaty with the Brits says one thing(feudal law-jus soli), the treaty with Prussia says another(natural law-“jus sanguinis”). I am ready to testify before Congress on this subject. My research is complete. Children born on US soil “may be” citizens by treaty, but they do not officially become US citizens unless & until that choice is made and their foreign citizenship is renounced. Their parents having no right of citizenship can not legally speak for them in this area of the law. This is the laws of nations from time immemorial. The law of consent which a child does not personally hold until they come of legal age. Until then, they are under the jurisdiction of their parents and the jurisdiction of the parents citizenship.

  10. Re: http://www.usconstitution.net list title 8 § 1401

    I stopped using that site as a reference source because of the addition of that list. I even posted a comment about it here at P&E News at the time.

    AuntieMadder says:
    Tuesday, April 20, 2010 at 11:50 PM

    Bill, I had bookmarked that site at least a year ago and had used it as a reference many times. That list of citizens was added only recently; I noticed it there about six weeks ago. It wasn’t there when I’d last visited it before then. At that time, the “site last updated” at the bottom of the each page was a January 2010 date and my guess is that’s when it was added.

    Further, I read the “about” of the site owner and he has the education and credentials to know better. I suspect he knows it’s BS but doesn’t care because the money he received is more important to him.
    http://www.thepostemail.com/2010/04/16/kenyan-parliament-restores-march-25-2010-minutes-declaring-obama-born-in-kenya/

  11. I found this piece by Glen Gilliland to be very interesting. It appears that one of the purposes of the Naturalization Act of 1795 was to correct the Naturalization Act of 1790’s definition of natural born citizenship from US citizenship of father to US citizenship of both parents. But Rogers v. Bellei, 401 U.S. 815 (1971) shows us that by the 1970s, neither attorneys nor Supreme Court Justices seem to remember the definition.

    I hope Mario Apuzzo comments on this. What he’d have to say would be very interesting, I’m sure.

  12. I know I was taught both parents must be U.S. citizens, born here, or if at a time of war, born in other areas deemed American soil. Blame the Education Dept. for the ignorance of the citizens as well as the media.

  13. The definition of “natural born” comes from the common law of nations. Under the law of nations, all treaties and the laws of the foreign nations must be considered if a child is born on foreign soil. Therefore the fundmental rule for NBC is “exclusive allegiance to the United States” at birth. According the the US Government, to answer the question, is one born without the soil (jus soli) a natural born citizen, we must ask ourselves this question…If the US denied citizenship to a child born abroad, would that act of the US government leave the child stasteless?

    Take for example, George Romney who was born in Mexico because his refuge parents, who were mormons, were being persecuted in the US. George’s parents never changed their citizenship. They never renounced their US citizenship & took Mexican citizenship. Under the citizenship laws of Mexico at the time, George Romney was born an alien/foreigner as Mexicican law did not recognize him as a citizen by the mere fact that he was born on their soil. It was “jus sanguinis” & the law of “parens patriae” under the law of nations that governed George Romney’s status at birth. Therefore, if the US had denied citizenship to little George, he literally would have been left stateless because no foreign nation claimed him as a member/citizen of their society. His “exclusive” allegiance at birth was to the United States.

    This is the same for children born to 2 citizen parents in the military, no matter where they are born. Vattel, Bk1, sec 217: For the same reasons also, children born out of the country, in the armies of the state, or in the house of its minister at a foreign court, are reputed born in the country; for a citizen who is absent with his family, on the service of the state, but still dependent on it, and subject to its jurisdiction, cannot be considered as having quitted its territory.

    During the hearings and testimony on S.Res. 511, the revisionists brought in 2 highly respected revisionist constitutional lawyers to obfuscate the truth by using English feudal law. Feudal law is not common law. It is the law of the Sovereign King. It is statute law, not natural law. Had McCain or any of the other spinelss GOP establishment known their history, they would have refuted that resolution and stood firm on the law of their birthright. This is especially disturbing to me because of the stress it is causing our men & women in uniform who are temporarily stationed overseas. By saying that they are subject to the citizenship laws of foreign nations is ludicrious and absurd.

    Since 1920 & the right of women to vote, our country’s basic foundation, the family as “One” standing under one allegiance, has been usurped by statute law. Women already had citizenship. Voting is not a fundamental right, it is a privilege. I am a woman & I am sick of the femminist movement. There are certain things in nature that are vital to the preservation of a society/nation and that is unified allegiance of all households. When a man & woman get married they become “One” in the eyes of the law and this includes allegiance to the society in which they have thier main domicile. Supreme Court Justice James Wilson, 1791:

    [T]hat important and respectable, though small and sometimes neglected establishment, which is denominated a family…[The family is] the principle of the community; it is that seminary, on which the commonwealth, for its manners as well as its numbers, must ultimately depend. As its establishment is the source, so its happiness is the end, of every institution of government, which is wise and good

    [T]he most important consequence of marriage is, that the husband and the wife become in law only one person… Upon this principle of union, almost all the other legal consequences of marriage depend. This principle, sublime and refined, deserves to be viewed and examined on every side.

    Children are a consequence of marriage, therefore they become in the eyes of the law part of that “One” union.

    “Jus sanguinis” & the law of “parens patriae” and the effect of statelessness should children find themselves born without the soil (jus soli) of the parents is the common law of nations.

    Dual citizenship is feudal law. It is law by statute, not by nature and has no basis in the 14th Amendment. The 14th Amendment requires “exclusive allegiance” to the United States either at birth or at the time of naturalization.

    Harvard Law agrees with my assessment. The Harvard & Michigan Law Reviews used by SCOTUS are copyrighted and thus I am not able to publish the pdf’s. Those with Hein-online access will be able to access the entire documents:

    http://constitutionallyspeaking.wordpress.com/2011/04/06/natural-birthright-citizenship-birthright-of-blood-according-to-english-common-law/

    See also the official government notices published nationwide by the Buchanan Administration. These documents were the founding documents for the 1866 Civil Rights Act which later was Constitutionalized as the 14th Amendment, the 1868 Expatriation Act(also still law, it is the authority for the oath of allegiance all naturalized citizens must take) as well as the 1870 Act passed to enforece the 14th Amendment and the basis of all citizenship treaties with all foreign nations since then. Click the link for each pdf file to save a copies of them. The state legislators need these documents to enforce their new election laws pertaining to constitutional eligibility:

    http://constitutionallyspeaking.wordpress.com/2011/03/17/subject-to-the-jurisdiction-you-cant-have-it-both-ways/

    1. Wow Linda, I found your post impressive and your views shared there in total agreement with my own. The intent the natural born citizenship requirement seems clearly obvious and a good one. That being loyality to the United States of America w/o foreign influence. It speaks to our sovereignty and, actually, our very survival. Now, with the global movement at full speed, that intent is a thorn in the side of some powerful people and entities. I salute your work here. I also agree with your views on feminist movement and I too am a woman.
      Thanks!

    2. > The definition of “natural born” comes from the common law of nations. Under the law of nations, all treaties and the laws of the foreign nations must be considered if a child is born on foreign soil.

      I’m not sure I follow 100%. I was always under the impression that every country, and that country alone, decides who are its citizens.
      If, say, France enacts a law making all children with a French first name French citizens, regardless where in the world they are born and to what parents, no other country can deny or abridge that right.
      Now if two natural born US citizens name their child Francois, he would be a French citizen by that hypothetical French law and US law would have to accept that.

      So, the point where I’m not sure if I am wrong or if the concept is wrong:
      Wouldn’t that mean Francois could not become POTUS because he has French citizenship at birth? Or would it be enough that he is an NBC by US standards (born on soil, two citizen parents)? I think the latter.

      Consequently, I think there is a fine (but maybe not unimportant) difference between “two citizen parents” and “no dual citizenship at birth”. The former is what NBC is all about.
      Those of us who claim that the former implies the latter seem to overlook that difference.
      Two citizen parents (Vattel) can still mean “dual citizenship at birth”. The latter is a weaker concept because it looks at foreign laws whereas the former looks only at US law (which is the only law governing the US).

    3. It seems to me that all this talk is irrelevant.

      From what I have read, Obama’s mother, at the time of his birth, was not a legal adult and therefore not eligible to confer her citizenship upon her child. Barack’s father was a subject of Great Britain at the time.

  14. Gilliland’s key point seems to be that Rogers v. Bellei, 401 U.S. 815 (1971), Section IV sets “a new precedent for the definition of ‘natural born Citizen,’ ” but Gilliland’s quote from Rogers v. Bellei concerns NOT nbC status but plain citizenship: “That the right of citizenship shall not descend to persons, whose fathers have never been resident of the United States.”

    That quote would seem to bear directly on Obama, since his purported father was a nonresident student, but it does not seem to bear on nbC status. What makes it “a new precedent for the definition” of nbC?

  15. It doesn’t surprise me that a radical left-wing liberal like Ginsberg would believe her French born grandson could be a “natural born Citizen” of the United States…NOT!

    However, as the SCOTUS in Rogers v. Bellei noted in their Section IV summary, even after “successive liberalising” of the citizenship statutes “The Plantiff nevertheless failed to satisfy any form of the condition.”

    BORN BRIT
    NOT LEGIT

    1. Lefty grandmothers have a thing for trying to bestow citizenship on their foreign-born grandchildren. Unlike Barky’s grandmother, however, Ginsberg has that Supreme Court Justice thing going for her, giving her the power to at least try to bestow on her grandson natural born citizenship instead of plain ol’ native citizenship.

  16. “Nationals and citizens at birth’ aws in Sec,1401 does not have the same meaning as “Natural-Born Citizen” which remains as “Those born in a countryt of citizen parents”.

    Obviously,all the persons mentioned in Sec.1401 do not meet that standard and are NOT NBCs. In any event,insofar as Art. 2,Sec.1 has not been repealed, the 14th Amendmendment certainly did not act to do so.,the President is still required to have been born on US Soil AND have Parents who were BOTH American citizens at the tim of his/her birth.
    SCOTUS HAS recognized Vattel’s definition of an NBC as undisputable and has also recognized that aliens and foreigners who wish to be citizens MUST be naturalized.
    See Minor v. Happersett.,SCOTUS, (1874). Unanimous

    As you pointed out the Constitution can only be changed by the Amendment Protocol and ONLY in that manner.
    See Article 5 USConst.

    As early as 1802 in Marbury v.Madison,the Nine wise men stated that “Any law that is repugnant to the Constitution is null and void”

    In Miranda v. Arizona,SCOTUS said that:
    “Where Rights secured by the constitution are involved there can be no rulemaking or legislation which would abrogate them”.

    The Right of “We the People” to have a “Natural-Born Citizen” as the President cannot be Abrogated by legislation,,because that right is constitutionally secured.

  17. I think they all knew the real definition all along. We found that out by a senator’s statement when they were investigating Mccain. And there was a hearing in the house of reps within the last decade where a congressman stated the real defintion. And a supreme court justice blurted it out during questioning.

    They all know. They only began using a different definition when it suited them to run interference for Sotero.

    We need to “go Egypt”.