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by paraleaglenm, ©2011, blogging at paraleaglenm

(Oct. 20, 2011) — The Transition from Jus Soli

For over a century, the American colonies were limited to children born on their soil being natural born subjects under the British monarch. From ancient times (prior to the Magna Carta), jus soli was the permanent allegiance of a child born under the protection, ‘within ligeance,’ of the King.

However, with the Magna Carta, permanent allegiance was disavowed, and in 1350 the right of alien ‘denizen’ fathers to preserve their alien allegiance in their children was provided by law.

The 1772 British Nationality Act declared children born of British subjects outside the ‘ligeance’ of the crown be natural born subjects;[1] and that is the law that we must apply (as would the framers) to Obama’s birth circumstances. In other words, the British deemed ‘citizenship by descent’ as superior to ‘otherwise than by descent,’ i.e., jus soli.

In fact, the 1790 Uniform Naturalization Act, et seq 1855, defined minor children of aliens as U.S. citizens only upon naturalization of the father.

Natural Born Citizen in U.S. Law

The term of art Natural Born Citizen appears in the constitution once, as applied to elements of qualifications of eligibility of a presidential candidate. Similarly, the term of art appeared decisively in an 1875 Supreme Court holding, defining it ‘without doubt’ as children born of two U.S. citizens.[2]

Unfortunately, the term of art ‘natural born citizen’ has become ‘idiomatic’ with a meaning diluted by judicial error as merely born in the United States. Thomas Jefferson and James Madison warned of such error:

“On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.” –Thomas Jefferson  to William Johnson, 1823

In a letter to Henry Lee on June 25, 1824, James Madison wrote:

“. . . I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution.”

Madison continued, acknowledging the “changes to which the words and phrases of all living languages are constantly subject”, he stated:

“What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.”

Born, or Naturalized?

Under U.S. law, a citizen at birth may be solely of U.S. citizenship, i.e., a natural born citizen, or a 14th Amendment citizen at birth as interpreted by Wong Kim Ark, 169 U.S. 649 (1869). The first is a citizen ‘born.’ The second is ‘naturalized’ because even with Ark’s 14th Amendment, the alien nationality of one or both parents must be removed by application of the Aliens and Nationality Act, as revised after 1855.

Nevertheless, Wong Kim Ark did not, nor could not, revise Article II’s natural born citizen clause, nor the common knowledge of the framers as to what constituted a natural born citizen, or what law created a British natural born subject if born on U.S. soil.

Therefore, there is no valid interpretation of law that makes Barack Hussein Obama, II a natural born citizen as intended by the U.S. Constitution, Article II, Sec. I, Clause 5.

[1] “That all Persons born, or who hereafter shall be born, out of the Ligeance of the Crown of England, or of Great Britain, whose Fathers were or shall be, by virtue of a Statute made in the Fourth Year of King George the Second, to explain a Clause in an Act made in the Seventh Year of the Reign of Her Majesty Queen Anne, for naturalizing Foreign Protestants, which relates to the natural-born Subjects of the Crown of England, or of Great Britain, intitled to all the Rights and Privileges of natural-born Subjects of the Crown of England or of Great Britain, shall and may be adjudged and taken to be, and are hereby declared and enacted to be, natural-born Subjects of the Crown of Great Britain, to all Intents, Constructions, and Purposes whatsoever, as if he and they had been and were born in this Kingdom . . .” British Nationality Act, 1772, 1772 (13 Geo. 3) C A P. XXI

[2] “This is apparent from the Constitution itself, for it provides that “no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,” and that Congress shall have power “to establish a uniform rule of naturalization.”

“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.” Minor vs. Happersett, 88 U.S. 162 (1875)

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  1. It is a misunderstanding and misapplication of the word “natural” to ascribe place-of-birth to its meaning. In the Natural realm reproduction does not depend on place of birth, but only on two things, which are; two parents of the same species. It’s the same in the political realm. A natural citizen only needs two things; namely, two parents of the same citizenship.
    In governance, there’s no guarantee that the officers responsible for differentiating between different types of citizens will understand that natural principle, and so the Congress has included in immigration statutes language to alert the State Department to the fact that Americans born abroad are (“natural born” [1790 Act]) citizens via birth to citizens, and are not to be viewed as aliens due to foreign birth. They are not granted citizenship via US statute, rather their automatic citizenship is stated as a fact that must be recognized by immigration authorities. They are not citizens by any other means than natural law and statutory law is written to insure that their natural citizenship is recognized. If it were certain that everyone in the State Department would always get it right, then the statute would not need to have been written. But confusion and ignorance are unavoidable in the people who administer the regulatory power of the nation. Therefore for unusual circumstances (birth abroad), codifying natural law eliminates confusion and misunderstanding. Consequently, they could be described as both natural citizens and statutory citizens since the statues do not explain the principle by which they are recognized as citizens. It’s left as an unanswered question, a question answered only by the principle of natural law.

  2. “Under U.S. law, a citizen at birth may be solely of U.S. citizenship, i.e., a natural born citizen, or a 14th Amendment citizen at birth as interpreted by Wong Kim Ark, …”.

    A natural born citizen does not attain his citizenship at birth by any US law. He attains it solely by the laws of nature. No human law is needed to establish the US citizenship of a child born in the US to US citizen parents. The US citizenship at birth of such a child is self-evident to all. Such a child is born with exclusive allegiance to the US, with no foreign country being able to lay any legitimate claim to his citizenship or allegiance.

    Naturalized citizens at birth include not only those born in the US to alien parents (per the Wong Kim Ark interpretation of the 14th amendment), but also children born outside of the US to US citizen parents (naturalized at birth according to US statutes).

    Hence, one is either a citizen at birth by the laws of nature (a natural born citizen – born in the country to citizen parents), or one is a naturalized citizen at birth or as an adult according to the laws of man.