“NATURAL LAW” DEFINES “NATURAL BORN CITIZEN”
by Mario Apuzzo, Esq., blogging at Natural Born Citizen, reposted with permission
Article II, Section 1, Clause 5 provides that for those born before the adoption of the Constitution, having satisfied the 35 years age and 14 years residency requirements, being a “citizen” of the United States was sufficient to be eligible to be President. It also provides that for those born after the adoption, only a “natural born citizen” of the United States is eligible to be President. So, with presidential eligibility under Article II, for those born after the adoption of the Constitution, we are looking to define a natural born citizen, not a citizen. We can also see from this constitutional scheme that in the United States there are only “citizens” or “natural born citizens” and that all natural born citizens are citizens, but not all citizens are natural born citizens.
The Framers used the natural born citizen clause to assure that future Presidents and Commanders in Chief of the Military would be born citizens of and in allegiance with only the United States from the moment of birth and throughout their lives. They concluded that such a person would be one to least have sympathies for some foreign power or influence which could result in conflict of interests which could harm the United States and its people.
Since the Framers wrote citizen and natural born citizen into the Constitution, the next question is what do these terms mean? The historical and legal record demonstrates that they did not look to the English common law for the definitions of those terms. Indeed, Justice Noah H. Swayne, commenting on whether the English common law defined a “citizen” or a “natural born citizen,” said: “The constitution uses the words ‘citizen’ and ‘natural born citizens;’ but neither that instrument nor any act of congress has attempted to define their meaning. British jurisprudence, whence so much of our own is drawn, throws little light upon the subject . . . . Blackstone and Tomlin contain nothing upon the subject.” United States v. Rhodes, 27 F. Cas. 785, 788 (Cir. Ct. Ky 1866). Rather, that record shows that the Founders and Framers looked to natural law and the law of nations and the Enlightenment for principles which justified and motivated the American Revolution, the Declaration of Independence, and the writing of the Constitution. It was also in natural law and the law of nations that they found their definitions of citizens and natural born citizens.
As their most trusted expert on the law of nations, the Founders and Framers looked to Emer de Vattel. In his, The Law of Nations or Principles of Natural Law, Book I, Chapter XIX, Section 212 (1758) (1797), Vattel defined a citizen as: “The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. Id. at Section 212. The Framers also knew from the teachings of both the English common law and the law of nations that citizenship and allegiance can be either inherited from one’s parents (jus sanguinis) or acquired from being born in a country (jus soli). Hence, when the Framers wrote the Constitution, a citizen was any member of the United States made so by any means, which include the American Revolution, Acts of Congress, or treaty. These citizens were subject to the laws of the United States and enjoyed all the privileges, immunities, and rights of all other citizens, including the right of being protected by the United States. The early naturalization Acts of Congress reflected this understanding. As time went on and because of the immediate need to make freed slaves citizens of the United States, the Civil Rights Act of 1866 and the Fourteenth Amendment were added to the list of laws that could make citizens. As we shall see below, these laws, while capable of making one a citizen from the moment of birth or after birth, did not make one a natural born citizen.
The Framers also defined a natural born citizen under natural law and the law of nations. Again looking to Vattel upon whom they would have relied for that definition, he defined a natural born citizen as follows:
The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see, whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for if he is born there of a foreigner, it will be only the place of his birth, and not his country.”
Read the rest here.