Natural Born Citizen

by Harold Gielow, ©2023

(May 3, 2023) — Rumor is that the Kennedy campaign is considering Tulsi Gabbard as a VP. Mrs. Gabbard is a very attractive choice with one exception – she is constitutionally unqualified.

The natural born citizen clause of the Constitution has been ignored for some time. It has been nullified by precedent, yet it has never been altered by amendment, the only way the Constitution can legally be changed.

To be clear, there has never been a Supreme Court decision specifically dealing with this clause. In fact, Clarence Thomas joked before Congress that the court was avoiding the issue. In the interim, every permutation of its possible interpretation has been tested. Born in Canada to a US citizen mother; Ted Cruz. Born in Hawaii to a Kenyan citizen father; Obama. Born in South Carolina to Indian citizen parents; Nikki Haley. Born in California to an Indian citizen mother and a Jamaican citizen father; Kamala Harris. Born in the unincorporated territory of American Samoa to US citizen parents; Tulsi Gabbard. To highlight the extremities of this debate, Newsweek ran a cover claiming that prince Archie could one day run for US President because, as his mother was a US citizen at his birth, he is a US citizen at birth, which many equate to being a natural born citizen.

I do not expect to win any accolades for highlighting this issue. To the contrary, most who do are ridiculed; however, there is more than substantial evidence that the meaning of this phrase is very restrictive and contrary to the many contemporary interpretations. The following is offered to highlight the original meaning of this phrase, or at least disputes as to its meanings. The Kennedy campaign should consider this issue, especially since it seeks to be viewed as upholders of the law.

Natural Born Citizen
Definition given on the floor of Congress, Representative John Bingham, father of the Fourteenth Amendment to the Constitution.
Reference – (Cong. Globe, 39th, 1st Sess., 1291 (1866))

“I find no fault with the introductory clause, 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; but, sir, I may be allowed to say further, that I deny that the Congress of the United States ever had the power or color of power to say that any man born within the jurisdiction of the United States, not owing a foreign allegiance, is not and shall not be a citizen of the United States.”

Chief Justice Marshall’s dissent in the Venus case of 1814 had a quote from Vattel on the subject:

“The whole system of decisions applicable to this subject, rests on the law of nations as its base. It is, therefore, of some importance to enquire how far the writers on that law consider the subjects of one power residing within the territory of another, as retaining their original character, or partaking of the character of the nation in which they reside.

Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says, ‘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. The natives, or indigenes, are those born in the country, of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.”’

https://www.courtlistener.com/opinion/85070/the-venus-rae-master/

The unanimous opinion in Minor v Happersett of 1875 written by Chief Justice Morrison Waite defined natural born citizen as follows:

“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.”

https://www.courtlistener.com/opinion/88998/minor-v-happersett/?q=minor+v+happersett

In US v Wong Kim Ark of 1898 written by Associate Justice Horace Gray, Chief Justice Fuller’s dissent had this to say:

“Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that ‘natural-born citizen’ applied to everybody born within the geographical tract known as the United States, irrespective of circumstances; and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency,…”

https://www.courtlistener.com/opinion/94842/united-states-v-wong-kim-ark/?q=us+v+wong+kim+ark&type=o&order_by=score+desc&stat_Precedential=on

In Luria v. United States, 231 U.S. 9 (1913), the Supreme Court said: “Citizenship is membership in a political society, and implies a duty of allegiance on the part of the member and a duty of protection on the part of the society. These are reciprocal obligations, one being a compensation for the other. Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the Presidency. Minor v. Happersett, 21 Wall. 162, 88 U. S. 165; Elk v. Wilkins, 112 U. S. 94, 112 U. S. 101; Osborn v. Bank of United States, 9 Wheat. 738, 22 U. S. 827.”

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.” – “NATURAL-BORN CITIZEN OF THE UNITED STATES: ELIGIBILITY FOR THE OFFICE OF PRESIDENT” (Albany Law Journal Vol. 66 (1904-1905))

In 1873, the US Attorney General ruled the word “jurisdiction” under the Fourteenth Amendment to mean “the absolute and complete jurisdiction. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the US but only to a limited extent. Political and military rights do not pertain to them.”

Sen. Lyman Trumbull noted during the drafting of the 14th Amendment that it was the Amendment’s goal to “make citizens of everybody born in the US who owe allegiance to the US,” and if “the negro or white man belonged to a foreign government he would not be a citizen.”

“The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.” – Sen. Trumbull

Slaughter-House Cases, 83 U.S. 36, 21 L.Ed. 394, 16 Wall. 36 (1872) (in explaining the meaning of the Fourteenth Amendment clause, “subject to the jurisdiction thereof,” said that the clause “was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States;”

https://www.courtlistener.com/opinion/88661/slaughter-house-cases/

“From the premises already established, it may be farther inferred, that citizenship, by inheritance, be∣longs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmit∣ted it to their offspring.”

A DISSERTATION ON THE MANNER OF ACQUIRING THE CHARACTER AND PRIVILEGES OF A CITIZEN OF THE UNITED STATES.
PRINTED IN THE YEAR MDCCLXXXIX. by David Ramsay, 1745-1815

https://quod.lib.umich.edu/e/evans/N17114.0001.001?rgn=main;view=fulltext

A contemporary Supreme Court citation of Vattel citing his expertise, his current applicability, and his credibility with the founders.
5-4 decision of the U.S. Supreme Court in Franchise Tax Board of California v. Hyatt,  __ U.S. __, 139 S. Ct. 1485 (2019).
“According to the founding era’s foremost expert on the law of nations, “[i]t does not … belong to any foreign power to take cognizance of the administration of [another] sovereign, to set himself up for a judge of his conduct, and to oblige him to alter it.” 2 E. de Vattel, The Law of Nations § 55, p. 155 (J. Chitty ed. 1883).”