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ARE NATURAL LAW AND THE UNITY THEORY COMPATIBLE AND COMPLEMENTARY?
(Apr. 12, 2011) — Jedi Pauly separates the “Unity Theory” from the “Natural Law Theory.” He also says that the “Natural Law Theory” “is not so well known.” He also adds that we need only look to the allegiance and citizenship of the father and not even consider the mother’s when defining a “natural born Citizen.” Finally, he argues that birth in the country is irrelevant when defining a “natural born Citizen.”
I have argued from early on that in order to be a “natural born Citizen,” one must have Sole Allegiance and Unity of Citizenship (unity of jus sanguinis and jus soli) and that such a requirement has its basis in the natural law and the law of nations definition of a “natural born Citizen” which is a child born in the country (or equivalent like a military installation for families serving in the armies of the state) to a U.S. citizen father and mother. I have also argued that the Founders and Framers looked to natural law and the law of nations for their definition of a “natural born Citizen’ and not to the English common law definition of a “natural born subject.” This definition became part of American common law. Hence, the two are not separate theories but rather all part of natural law and the law of nations.
Additionally, many of us already subscribe to natural law and the law of nations and not the English common law as the source of the rules of decision for defining a “natural born Citizen.”
I have also argued that during the Founding and framing of the Constitution, the concept of the wife’s citizenship merging into that of the husband prevailed. Hence, anyone then like Jefferson and earlier like Vattel, when referring to the citizenship of the “father” in essence was referring to the citizenship of the father and mother. So under unity of husband and wife, it was expected that the child’s parents would have only one allegiance and citizenship which they would then pass on to their children. I have also explained that this changed with the Cable Act of 1922, which created in women their own means of acquiring citizenship.
He also says that the definition of a “natural born Citizen” does not require birth in the U.S. How could he make such an argument when Vattel says that the positive law of nations are binding in this regard. Vattel, The Law of Nations, Section 215 (“their regulations must be followed”). The Constitution in Article I, Section 8, Clause 4 gives Congress the power to naturalize and nothing more. The First Congress in the Naturalization Act of 1790 said that a child born abroad to U.S. citizen parents would be “considered as” a “natural born citizen.” This only means that Congress naturalized these children to be as, not that Congress declared them to be, “natural born citizens.” The Third Congress in the Naturalization Act of 1795 took out “natural born citizen” and replaced it with “citizen of the United States.” Hence, the First and Third Congresses both told us that not only is there a distinction between a “citizen” and a “natural born Citizen,” but also that place of birth does matter in the “natural born Citizen” equation.
Further proof of how important place of birth has been in our history is the Naturalization Act of 1802 which repealed all former naturalization acts. This act provided: “The children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject by the Government of the United States, may have become citizens of any one of the said States under the laws thereof, being under the age of twenty-one years at the time of their parents being so naturalized or admitted to the rights of citizenship, shall, of dwelling in the United States, be considered as citizens of the United States; and the children of persons who now are, or have been citizens of the United States shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States: Provided, that the right of citizenship shall not descend to persons whose fathers have never resided within the United States.” Act of April 14, 1802, c. 28, § 4; 2 Stat. 155. Wong Kim Ark explained that this act did not extend citizenship to foreign-born children of any person who became a citizen since its enactment. Id. at 673.
Congress changed this law by the statute of February 10, 1855, c. 71, that provided that “persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered and are hereby declared to be citizens of the United States: Provided, however, that the rights of citizenship shall not descend to persons whose fathers never resided in the United States.” 10 Stat. 604; Rev. Stat. § 1993. Wong Kim Ark, at 674. “It thus clearly appears that, during the half century intervening between 1802 and 1855, there was no legislation whatever for the citizenship of children born abroad, during that period, of American parents who had not become citizens of the United States before the act of 1802; and that the act of 1855, like every other act of Congress upon the subject, has, by express proviso, restricted the right of citizenship, thereby conferred upon foreign-born children of American citizens, to those children themselves, unless they became residents of the United States.” Id.
Even the Fourteenth Amendment declares children to be “citizens of the United States” at birth provided they are born in the U.S. and “subject to the jurisdiction thereof.” There is no mention of being born out of the U.S. in that amendment as it may enable one to be declared a “citizen of the United States” at birth. Of course, we know that Congress can create U.S. citizens “at birth” through its naturalization powers and it has declared children born abroad to one or two U.S. citizen parents to be “citizens of the United States” “at birth.” That does not mean that those children are “natural born Citizens.” Rather, those children are “naturalized born” “citizens of the United States,” not “natural born” Citizens of the United States.” After all, the Founders and Framers said “natural born” and not just “born,” and the word “natural” must be given meaning.
It has been my position and I have written on it in my blog that John McCain is a “natural born Citizen” because he was born abroad to a U.S. citizen father and mother who were serving in the armies of the state. See Vattel, Section 217. Furthermore, Panama, having earlier amended its Constitution, followed jus sanguinis when he was born.
Hence, I disagree with Jedi Pauly on these four points.