Originally Posted Wednesday, May 19, 2010

A U.S. Constitution Article II “natural born Citizen” Is Not the Same As

an English Common Law “natural born subject”

I have already written an essay explaining that the Founders and Framers relied upon
natural law, the law of nations, and Emer de Vattel, Sec. 212, for their Article II
definition of a “natural born Citizen” and not upon the English common law. That essay
is entitled, 'The Law of Nations or Principles of Natural Law' as U.S. Federal Common
Law Not English Common Law Define What an Article II Natural Born Citizen Is . This
essay will address the related specific question of whether the Framers gave to the
“natural born Citizen” clause the same meaning that the English common law gave to a
“natural born subject.”

Article II, Section 1, Clause 5 of the Constitution of the United States provides in the
pertinent part: “No person except a natural born Citizen, or a Citizen of the United States,
at the time of the Adoption of this Constitution shall be eligible to the Office of President
. . .” The Constitution itself does not define the clause “natural born Citizen.” For that we
must look elsewhere.

We know one of the key founders of our nation, Thomas Jefferson used the term "natural
born Citizen" in his writings in 1777. Also, see this essay by John Greschak for a detailed
investigation of the use of the term "natural born Citizen" in the English language in
colonial and earlier times. And, as mentioned in my prior essay, Emer de Vattel (1714-
1767) did provide a definition of that term in Vol.1, Chapter 19, Section 212, of his legal
treatise, The Law of Nations or Principles of Natural Law as follows:

"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
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."

For the definition of a “natural born subject”, William Blackstone (1723-1780),

frequently cited for English Common Law, defined a “natural born subject” as follows:

“The first and most obvious division of the people is into aliens and natural-born
subjects. Natural-born subjects are such as are born within the dominions of the crown of
England, that is, within the ligeance, or as it is generally called, the allegiance of the king;
and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the
subject to the king, in return for that protection which the king affords the subject. The
thing itself, or substantial part of it, is founded in reason and the nature of government;
the name and the form are derived to us from our Gothic ancestors.
***
The children of aliens, born here in England, are, generally speaking, natural-born
subjects, and entitled to all the privileges of such. In which the constitution of France
differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it
is an alien.” William Blackstone, Commentaries 1:354, 357--58, 361—62.

As we can see, for children born within the King’s dominions and allegiance, they were
considered “natural born subjects” without any consideration for the citizenship of their
parents. On the question of what the Framers meant when they inserted the “natural born
Citizen” clause in Article II, putative President Obama supporters argue that the Framers
simply used the “natural born Citizen” clause in place of the English common law
“natural born subject” clause. Hence, they argue that the clauses mean the same exact
thing. In practical terms, they therefore argue that in the mind of the Framers mere birth
on United States soil without any reference to the citizenship of the child’s parents (with
exceptions for children of diplomats and of invading soldiers) made one a “natural born
Citizen.” In support of their argument, they cite language in United States v. Wong Kim
Ark, 169 U.S. 649 (1898). The quote is:

“‘And if, at common law, all human beings born within the ligeance of the king, and
under the king's obedience, were natural-born subjects, and not aliens, I do not perceive
why this doctrine does not apply to these United States in all cases in which there is no
express constitutional or statute declaration to the contrary.' ‘Subject' and 'citizen' are, in
a degree, convertible terms as applied to natives; and though the term 'citizen' seems to be
appropriate to republican freemen, yet we are, equally with the inhabitants of all other
countries, 'subjects,' for we are equally bound by allegiance and subjection to the
government and law of the land.' Id. 258, note.” United States v. Wong Kim Ark, 169
U.S. 649, 664-65 (1898). (quoting Chancellor Kent’s Commentaries). I submit that both
Wong Kim Ark and Obama’s supporters are wrong in concluding that a “natural born
Citizen” is the same thing as an English common law “natural born subject.”

The Framers did not use the definition of an English common law “natural born subject”
to define a “natural born Citizen.” The text of the Constitution itself reveals that there is a
difference between a “citizen” and a “subject.” The historical context in which the
Framers wrote the Constitution would not have motivated them to rely on the English
common law to define who would be eligible to be President and Commander in Chief of
the Military of the new nation. The way the English common law defined a “natural born
subject” and the Constitution itself reveal that for the Framers these two clauses did not
have the same meaning. Additionally, there is direct evidence from the Founding period
that shows that the Founders and Framers did not give the same meaning to the two
clauses.
Let us start with the text of the Constitution to see if it distinguishes between a “citizen”
and a “subject” and if it does let us consider the meaning of the terms during the
Founding era and what any contemporaneous court decisions said regarding the terms.
"The language of the Constitution recognizes a distinction between "citizens" and
"subjects." For example, Article III, section 2 differentiates "citizens" of the several states
from "citizens" or "subjects" of foreign states. In the framing era, these terms reflected
two distinct theories of the relationship between individual members of a political
community and the state. In feudal or monarchical constitutional theory, individuals were
the subjects of a monarch or sovereign, but the republican constitutional theory of the
revolutionary and post-revolutionary period conceived of the individual as a citizen and
assigned sovereignty to the people. The distinction between citizens and subjects is
reflected in Chief Justice John Jay’s opinion in Chisholm v. Georgia, [2 U.S. (2 Dall.)
419 (1793) the first great constitutional case decided after the ratification of the
Constitution of 1789: [T]he sovereignty of the nation is in the people of the nation, and
the residuary sovereignty of each State in the people of each State . . . .[A]t the
Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of
the country, but they are sovereigns without subjects (unless the African slaves among us
may be so called) and have none to govern but themselves; the citizens of America are
equal as fellow citizens, and as joint tenants in the sovereignty. . . . Sovereignty is the
right to govern; a nation or State-sovereign is the person or persons in whom that resides.
In Europe the sovereignty is generally ascribed to the Prince; here it rests with the people;
there, the sovereign actually administers the Government; here, never in a single instance;
our Governors are the agents of the people, and at most stand in the same relation to their
sovereign, in which regents in Europe stand to their sovereigns. [Id. 471-72 (Jay, C.J.)].

Jay’s articulation of the opposition between subjects and citizen confirmed by Justice
James Wilson’s opinion in Chisholm. Wilson noted that with the exception of Article III,
the Constitution refers to “citizens” and “persons,” and not subjects: “[t]he term, subject,
occurs, indeed, once in the instrument; but to mark the contrast strongly, the epithet
‘foreign’ is prefixed.'” Lawrence B. Solum, Originalism and the Natural Born Citizen
Clause, Michigan L.Rev. 9-10 (working draft created on April 18, 2010) (footnotes
omitted). "Justice Wilson explained that “[i]n one sense, the term sovereign has for its
correlative, subject, In [sic] this sense, the term can receive no application; for it has no
object in the Constitution of the United States. Under that Constitution there are citizens,
but no subjects. ‘Citizen of the United States.’ ‘Citizens of another State.’ ‘Citizens of
different States.’ ‘A State or citizen thereof.’” (footnotes omitted). Id. at 456 (Wilson, J.).
Additionally, Article III, Sec. 2 refers to “foreign States, Citizens or Subjects.”

Solum continues in his essay: "Both Jay and Wilson’s opinions suggest that usage in the
founding era reflected a significant conceptual distinction between the words “subject”
and “citizen”—a distinction that was strongly associated with the ideas about the nature
of sovereignty. The term “citizen” reflects the notion that individual citizens are
sovereign in a republic, whereas the term “subject” reflects feudal and monarchical
conceptual of the monarch as sovereign and the individual as the subject, owing a duty of
allegiance and duty to the monarch. This conceptual distinction may be relevant to the
original understanding of the phrase “natural born citizen” which was used instead of
“natural born subject,” the phrase that served as a term of art in English legal usage. The
notion of a natural born subject may reflect a feudal understanding of political obligation:
those born in the kingdom owed a natural duty of allegiance to their king and were his
natural subjects. Given a republic theory of popular sovereignty, citizens are sovereign
and the notion of a “natural born subject” would be anathema. This leaves a gap in the
theory of citizenship—a gap that the Constitution fills with the concept of a natural born
citizen.” Id. at 10-11.

In his earlier version of this essay, Solum stated: “Anyone born on American soil whose
parents are citizens of the United States is a "natural born citizen." In this updated
version, Solum explains that some readers misread what he wrote. Now he concludes that
“[b]ased on my reading of the historical sources, there is no credible case that a person
born on American soil with one American parent was clearly not a “natural born citizen.”
I agree with Solum’s previous statement but disagree with his current one. See my essay
entitled, The Natural Born Citizen Clause of Our U.S. Constitution Requires that Both of
the Child’s Parents Be U.S. Citizens At the Time of Birth for my reasons. Additionally,
Solum does not cite what those “historical sources” are. What is also strange is that while
the debate over Obama’s “natural born Citizen” status is currently raging, Solum, while
now taking a position which benefits Obama does not even acknowledge that the issue
exists. His essay is all about analyzing the eligibility of John McCain who was born in
Panama to two United States citizen parents who were in military service which
circumstances present a more defensible case per Vattel Sec. 217 than that of Obama
whose place of birth has not been confirmed and who was born in 1961 to only one
United States citizen parent (18 years old at the time of his birth).

In order to understand what the Framers meant by terms they inserted in the Constitution,
we have to consider the historical context in which they wrote. They had recently won a
revolution with Great Britain and now had the task of constituting a new nation,
including identifying who the original citizens were and who the future citizens were
going to be. The definition of “natural born subject” as found in the English common law
simply did not work for the Framers. Great Britain was a monarchy and the new nation
was a Constitutional Republic with a representative government. Great Britain did not
have a President to be democratically elected by the people but the new nation did. Great
Britain was not concerned with foreign influence making its way into the hereditary
monarchy but the Framers were concerned about the Office of President being attacked
from within and without with foreign influence infecting not only the voters but also the
political leaders themselves. The Framers understood that citizenship and allegiance went
together. Vattel’s born-in-country-to-two-U.S.-citizen-parents formula was the best way
for them to assure that only a person with undivided allegiance and loyalty to the United
States would be eligible to be President and Commander in Chief of the Military. This
test was not tied to the physical territory alone, which the Framers understood and which
Lord Coke explained did not assure anyone’s natural allegiance when he said “liegance,
and faith and truth, which are her members and parts, are qualities of the mind and soul
of man, and cannot be circumscribed within the predicament of ubi.” (p. 76). Calvin’s
Case (1608) (7 Coke, 1, 6 James I.) Coke believed that liegance was a function of natural
law which he maintained was part of the common law of England. Daniel J. Hulsebosch,
"The Ancient Constitution and the Expanding Empire: Sir Edward Coke's British
Jurisprudence," Law and History Review Fall 2003 (18 May 2010). The Founders
learned from Vattel that under the law of nature, the condition of a child follows the
condition of his parents and not the place of his birth. Emer de Vattel, The Law of
Nations; or, Principles of the Law of Nature, Applied to the Conduct and Affairs of
Nations and Sovereigns, Sections 212-215 (1758 French) (1759 first English translation).
Hence, their test combined both the soil with the allegiance of the child’s parents into the
child at the time of birth. For the Founders, this was the best way to assure sole and
absolute allegiance in the new-born child. Charles Pinckney, who was the first delegate at
the Constitutional Convention to raise the issue of presidential qualifications, in a
statement made in the U.S. Senate in 1800, said that the "natural born citizen clause" was
designed "to insure ... attachment to the country." The Records of the Federal Convention
of 1787 (Farrand's Records), CCLXXXVIII, Charles Pinckney in the United States
Senate, March 28, 1800, p. 387. http://lcweb2.loc.gov/cgi-
bin/query/D?hlaw:10:./temp/%7Eammem_jwJ2 . These citizenship concepts provided the
basis for their definitions of the original citizens and the citizens of future generations.

The English common law did not distinguish between a “natural born subject” and a
naturalized subject. "The English common law provided that an alien naturalized is “to
all intents and purposes a natural born subject.” Co. Litt. 129 (quoted and cited in United
States v. Rhodes, 27 F.Cass. 785, 790 (1866).). Under English common law, once a
person became naturalized, he or she was deemed to be a “natural born subject.” Hence,
under English common law a naturalized citizen was considered a “natural born subject.”
Hence, giving the “natural born Citizen” clause the same meaning as a “natural born
subject” would have allowed a naturalized citizen to be eligible to be President of the
new Republic. But Article II, Section 1, Clause 5 mandates that only a “natural born
Citizen” is eligible to be President. The clause is written as “No person except . . . shall
be eligible . . .” which means that one must be a “natural born Citizen” in order to be
eligible to be President, with no exceptions. The way we have interpreted the “natural
born Citizen” clause since the beginning of the Republic, a naturalized citizen is not
eligible to be President. But assuming the “natural born Citizen” clause had the same
meaning as a “natural born subject,” with the Constitution as written it would not have
conveyed in any manner that a naturalized citizen was not eligible to be President. No
where do we find in the Constitution any direct statement that a naturalized citizen is not
eligible to be President. To reach this conclusion, we have always relied upon the
“natural born Citizen” clause itself which we have compared with the fact that the
Framers prescribed in Article I that naturalized citizens were eligible to be Senators
(“nine Years a Citizen of the United States”) and Representatives (seven Years a Citizen
of the United States”) . The manner in which the Framers provided that Senators and
Representatives needed to be “Citizen of the United States” for only a certain amount of
years shows that the naturalized citizen class was included within “Citizens of the United
States” and not within “natural born Citizens.” This shows that naturalized citizens were
not part of “natural born Citizens.”

Hence, equating the meaning of a “natural born Citizen” to a “natural born subject”
would have allowed naturalized persons to be President, a result that we have rejected
from the beginning of the Constitutional Republic. Such a meaning would have created
an exception to the “natural born Citizen” clause which would have eviscerated the
clause itself. Additionally, since Congress has the power under Article I, Section 8,
Clause 4 to make uniform the naturalization laws, such a meaning would have given
Congress the power to decide who could be President by simply changing the
naturalization requirements. The Framers, fearing that Congress would allow foreign
influence to creep into the office of President if it were given the power to select the
President, did not give Congress such power.

A letter that John Jay wrote to then-General Washington (transcription can be viewed
here) also provides evidence that the Framers did not equate a “natural born Citizen” with
a “natural born subject.” We have seen that if a “natural born Citizen” meant the same
thing as a “natural born subject,” a naturalized citizen would have been eligible to be
President of the new Republic. Giving the two clauses the same meaning would have
produced a clear contradiction and a condition which the Framers rejected. We know that
the Founders considered a naturalized citizen to be only a “citizen of the United States”
(able to be President under Article II’s grandfather clause and Senator or Representative
under Article I) and not a “natural born Citizen,” which status was required of a would-be
President for births after 1787. How the English common law converted naturalized
persons into "natural born subject" retroactively to the time of birth can explain why John
Jay underlined the word "born" when recommending to General Washington in his
famous letter of July 25, 1787 that it was both “wise and seasonable” for the purpose of
providing a “strong check” against foreign influence invading the new national
government that the Constitution “declare expressly that the Command in chief of the
American army shall not be given to, nor devolve on, any but a natural born citizen”
(underlining the word “born”). Jay’s underlining of the word “born” is evidence that he
rejected a naturalized citizen as being eligible for that office. This is further evidence that
the Founders rejected the meaning of a “natural born subject” which was not necessarily
tied to the time of actual birth. Not being a “natural born Citizen,” the Founders did not
permit naturalized citizens to be President. The Framers, after 1787 (when the
grandfather clause expired and Article II required a child to be a “natural born Citizen”
and not only a “Citizen of the United States”) did not allow naturalized citizens to be
President, for they would have been included in the class of “Citizens of the United
States” and not in the class of “natural born Citizens.” This rejection of a naturalized
citizen as equivalent to a "natural born Citizen" was consistent with the law of nations.
Emer de Vattel, The Law of Nations; or, Principles of the Law of Nature, Applied to the
Conduct and Affairs of Nations and Sovereigns, Sections 212-214 (1758 French) (1759
first English translation). The Fourteenth Amendment citizenship clause as originally
intended (not the way that it has come to be interpreted by giving “subject to the
jurisdiction thereof” a territorial meaning rather than an allegiance and political one) also
made the same recognition.

Further evidence that the Founders and Framers did not consider the two clauses as
meaning the same thing can be found in the writings of David Ramsay, who published A
Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen
(1789). David Ramsay (April 2, 1749 to May 8, 1815) was an American physician and
historian from South Carolina and a delegate from that state to the Continental Congress
in 1782-1783 and 1785-1786. He was one of the American Revolution’s first major
historians. Ramsay “was a major intellectual figure in the early republic, known and
respected in America and abroad for his medical and historical writings, especially for
The History of the American Revolution (1789)…” Arthur H. Shaffer, Between Two
Worlds: David Ramsay and the Politics of Slavery, J.S.Hist., Vol. L, No. 2 (May 1984).
In his 1789 essay, while not using the phrase “natural born Citizen,” Ramsay described
the original citizens that existed during the Founding and what it meant to acquire
citizenship by birthright after the Founding. The Constitution itself shows that the
Framers called the original citizens “Citizens of the United States” and those that
followed them “natural born Citizens.” He said concerning the children born after the
declaration of independence, “[c]itizenship is the inheritance of the children of those who
have taken part in the late revolution; but this is confined exclusively to the children of
those who were themselves citizens….” Id. at 6. He added that “citizenship by
inheritance belongs to none but the children of those Americans, who, having survived
the declaration of independence, acquired that adventitious character in their own right,
and transmitted it to their offspring….” Id. at 7. He continued that citizenship “as a
natural right, belongs to none but those who have been born of citizens since the 4th of
July, 1776….” Id. at 6. Here, Ramsay referred to “natural right,” which ties into the
Framers’ use of the clause “natural born Citizen.” By focusing on citizenship that occurs
by “natural right,” Ramsay distinguished citizenship that occurs naturally versus
citizenship that occurs by operation of law. But Ramsay also explained that there is an
“immense” difference between a British “subject” and a United States “citizen,” with the
former being “under the power of another” and the latter being “a unit of mass of free
people, who, collectively, posses sovereignty.” He informed that “Republics, both ancient
and modern, have been jealous of the rights of citizenship.” He then explained that the
“original citizens” of the United States were those who were parties to the Declaration of
Independence and thereby adhered to the revolutionary cause. It is evident from his
writing that in defining a “citizen of the United States” and a “natural born Citizen,”
Ramsay did not look to English common law but rather to natural law, the law of nations,
and Vattel, Sec. 212. Ramsay’s dissertation presents valuable evidence of how the
Founding generation defined the original citizens and the future generation of citizens
which the Framers called “natural born Citizens.” It is valuable because it is evidence of
the public meaning of these terms at the time they were framed and ratified, if not among
the general population then at least among those learned in the law. For further
information on David Ramsay and the “natural born Citizen” clause, see my essay
entitled, Founder and Historian David Ramsay Defines a Natural Born Citizen in 1789.

A “natural born subject” under English common law if born within the domain and
allegiance of the King did not need any connection to citizen parents. But Jefferson in
1799 wrote the citizenship laws of Virginia which provided as follows:

"A Bill Declaring Who Shall Be Deemed Citizens of This Commonwealth: May 1779

Papers 2:476--78
Be it enacted by the General Assembly, that all white persons born within the territory of
this commonwealth and all who have resided therein two years next before the passing of
this act, and all who shall hereafter migrate into the same; and shall before any court of
record give satisfactory proof by their own oath or affirmation, that they intend to reside
therein, and moreover shall give assurance of fidelity to the commonwealth; and all
infants wheresoever born, whose father, if living, or otherwise, whose mother was, a
citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise
their mother becoming a citizen, or who migrate hither without father or mother, shall be
deemed citizens of this commonwealth, until they relinquish that character in manner as
herein after expressed: And all others not being citizens of any the United States of
America, shall be deemed aliens…. And in order to preserve to the citizens of this
commonwealth, that natural right, which all men have of relinquishing the country, in
which birth, or other accident may have thrown them, and, seeking subsistance and
happiness wheresoever they may be able, or may hope to find them: And to declare
unequivocably what circumstances shall be deemed evidence of an intention in any
citizen to exercise that right, it is enacted and declared, that whensoever any citizen of
this commonwealth, shall by word of mouth …openly declare to the same court, that he
relinquishes the character of a citizen,…such person shall be considered as having
exercised his natural right of expatriating himself, and shall be deemed no citizen of this
commonwealth from the time of his departure. The free white inhabitants of every of the
states, parties to the American confederation, paupers, vagabonds and fugitives from
justice excepted, shall be intitled to all rights, privileges, and immunities of free citizens
in this commonwealth, and shall have free egress, and regress, to and from the same, and
shall enjoy therein, all the privileges of trade, and commerce, subject to the same duties,
impositions and restrictions as the citizens of this commonwealth…. " http://press-
pubs.uchicago.edu/founders/documents/a4_2_1s4.html. His citizenship law of 1783 was
similar to his 1779.

As we can see from his law, Jefferson provided different criteria for two different classes
of citizens. For the first class, who were adults and already in existence, he provided one
requirement (jus soli would be sufficient). He grandfathered these adults to be the first
citizens. But for those who were infants and to be born in the future, he provided a
different requirement. For this latter group, only jus sanguinis tied to both parents would
be sufficient to make them citizens. It is important to understand the historical context in
which Jefferson wrote his citizenship law because the Framers wrote within the same
historical context when they drafted the grandfather clause in Article II, Section 1, Clause
5. This historical context was one of a new state rising from revolution. It is the historical
context of the “infant state” (Jefferson in the 1783 citizenship laws) which is the genesis
for the Framers distinction in Article II and other sections of the Constitution between a
“Citizen of the United States” and a “natural born Citizen,” a distinction that our United
States Supreme Court carried forward throughout American history. It is only because
Jefferson and the other Founders were creating citizenship for a new state having just
emerged from revolution that they had the need to first identify who were the first
citizens and who were going to be the future citizens. The Framers also grandfathered the
first citizens as did Jefferson. They called these persons “citizens of the United States.”
These would have been the adults already in being at the time that the Constitution was
adopted in 1787. These were adults who were either born or naturalized in the colonies or
states or simply inhabiting there and adhered to the Revolution. But the Framers provided
that for those persons who were infants after 1787, they would have to be “natural born
Citizens” in order to be eligible to be President. The historical evidence, United States
Supreme Court cases, and Congressional Acts show that this second generation citizens,
like Jefferson’s second generation citizens, would come into being as “natural born
Citizens” but only if they descended from persons already citizens of the United States.

English statutes also considered children born abroad to parents who were “natural born
subjects” to be themselves “natural born subjects.” Again, Blackstone explained that by
some modern English statutes: “[A]ll children, born out of the king's ligeance, whose
fathers were natural-born subjects, are now natural-born subjects themselves, to all
intents and purposes, without any exception; unless their said fathers were attainted, or
banished beyond sea, for high treason; or were then in the service of a prince at enmity
with Great Britain.” As can be seen, these statutes granted “natural born subject” status to
such children regardless of, with the exceptions noted, in which type of service the
parents were engaged. Jefferson wrote for citizenship in Virginia and so in his 1779 law
he did not require that the child be born in the State. The Framers wrote for national
citizenship and they did require birth in the United States to be considered an Article II
“natural born Citizen.” Note that the Naturalization Act of 1790 (Act of March 26, 1790,
ch. 3, Sec. 1, 1 Stat. 103, 103-04 (1790)), itself a naturalization act passed by the First
Congress under its naturalization powers of Article I, Section 8, Clause 4, only provided
that “children of citizens of the United States” born “out of the limits of the United
States” were “considered as natural-born citizens . . . .” By passing this law and using this
language, the First Congress, which included twenty members who had been delegates to
the Constitutional Convention eight of whom were members of the Committee of Eleven
that drafted the “natural born Citizen” clause, told us that these children were not in fact
“natural born Citizens” but rather only made such through Congress’s naturalization
powers. The Constitution only gave Congress the power to make uniform the
naturalization laws which did not include the power to define a “natural born Citizen.”
These children were only given the rights of “natural born Citizens” and were not
actually “natural born Citizens.” The Third Congress confirmed that these children born
abroad to United States citizen parents did not have actual Article II “natural born
Citizen” status (to be distinguished from such status being granted by a naturalization act
of Congress) when in 1795 it changed their status from being “natural born citizens” to
“citizens of the United States.” If these children were Article II “natural born Citizens,”
Congress would not have had the power to take away through any statute their
constitutional “natural born” status. Unlike the Fourteenth Amendment which contains
the jurisdiction and the necessary and proper clauses, Article II does not provide
Congress with any way to define a “natural born Citizen.” It should be noted that a valid
constitutional argument can be made that a child born abroad to United States citizen
parents who are serving the armies of the state or even in some other government service
are Article II “natural born Citizens,” for they “are reputed born in the country.” Vattel,
Sec. 217. Children born abroad under such circumstances will most likely not attach their
allegiance to the foreign country in which they may be born and rather through their
relationship with their United States citizen mother and father become loyal only to the
United States.

A “natural born subject” under English common law could never renounce his or her
allegiance. Mannie Brown explained the “old common-law doctrine Nemo potest exuere
patriam by quoting Lord Coke in Calvin’s Case: “Ligeance is a true and faithful
obedience of the subject due to his Sovereign. This ligeance and obedience is an incident
inseparable to every subject; for as soon as he is born he oweth by birth-right ligeance
and obedience to his Sovereign.” Mannie Brown, Expatriation of Infants, University of
Toronto Press 97 (1939). But as we have seen above, in his 1799 citizenship law
Jefferson wrote that a person could exercise his “natural right of expatriating himself”
“whensoever” he saw fit to do so. Jefferson included in his law a right in a person to
relinquish his citizenship in a manner prescribed by law. This right was known as the
right to expatriate which was not only alien to English common law but forbidden by it.
Jefferson’s idea that a person could renounce allegiance to the country of his or her birth
was so accepted by early Congresses and society that Congress codified this right by
passing the Naturalization Act of 1795 (1 Stat. 414, c. 20), which provided persons
naturalizing in the United States to absolutely renounce and abjure all allegiance to any
foreign prince or state and to support the Constitution. Over the years, there continued a
debate in the courts whether an American citizen could expatriate himself or herself. The
matter was finally settled in 1868, when Congress passed the Expatriation Act of 1868
and Representative Woodward of Pennsylvania proclaimed that by doing so Congress
had driven feudalism from our shores.

Jefferson’s views on a person having a right to expatriate reveal that he looked to natural
law and the law of nations and Vattel rather than the English common law on questions
of citizenship. In a letter dated June 12, 1817, to Dr. John Manners, Jefferson made his
views on whether the English common law applied to such questions well known:

"To Doctor John Manners.

Monticello, June 12, 1817.

SIR

Your favor of May 20th has been received some time since, but the increasing inertness
of age renders me slow in obeying the calls of the writing table, and less equal than I
have been to its labors.

My opinion on the right of Expatriation has been, so long ago as the year 1776, consigned
to record in the act of the Virginia code, drawn by myself, recognizing the right
expressly, and prescribing the mode of exercising it. The evidence of this natural right,
like that of our right to life, liberty, the use of our faculties, the pursuit of happiness, is
not left to the feeble and sophistical investigations of reason, but is impressed on the
sense of every man. We do not claim these under the charters of kings or legislators, but
under the King of kings. If he has made it a law in the nature of man to pursue his own
happiness, he has left him free in the choice of place as well as mode; and we may safely
call on the whole body of English jurists to produce the map on which Nature has traced,
for each individual, the geographical line which she forbids him to cross in pursuit of
happiness. It certainly does not exist in his mind. Where, then, is it? I believe, too, I
might safely affirm, that there is not another nation, civilized or savage, which has ever
denied this natural right. I doubt if there is another which refuses its exercise. I know it is
allowed in some of the most respectable countries of continental Europe, nor have I ever
heard of one in which it was not. How it is among our savage neighbors, who have no
law but that of Nature, we all know. . . . "
http://yamaguchy.netfirms.com/7897401/jefferson/1817.html. We can see how Jefferson
was clear in stating the right to expatriate, like the right to life, liberty, and to pursue
happiness, was a natural right that came from God and not from the English common
law. He also explained that the English common law was adopted by the states and was
applied by them on local issues. But when it came to the national government, he stated
that no such law was adopted. Hence, the right to expatriate could have come only from
natural law rather than the English common law. As Jefferson applied natural law to the
question of expatriation, he would have also applied it to defining a “natural born
Citizen.” These historical writings show that Jefferson surely would not have considered
a “natural born Citizen” to have the same meaning as an English common law “natural
born subject.”

All this leads us to the inescapable conclusion that the Founders and Framers did not give
the “natural born Citizen” clause the same meaning that the English common law gave to
a “natural born subject.” For further information explaining that the Framers did not rely
upon English common law but rather natural law, the law of nations, and Vattel to define
a “natural born Citizen,” see my essay entitled, 'The Law of Nations or Principles of
Natural Law' as U.S. Federal Common Law Not English Common Law Define What an
Article II Natural Born Citizen Is.

Mario Apuzzo, Esq.

May 19, 2010
http://puzo1.blogspot.com/
####

P.S. For more on natural born Citizenship to constitutional standards, see my essay:
Obama - Maybe a Citizen of the United States but Not a "natural born Citizen"
Posted by Puzo1 at 10:40 AM
Labels: Charles Kerchner, constitutional eligibility president, David Ramsay, Jefferson,
kerchner v obama, Mario Apuzzo, natural born citizen, Natural Law, The Law of
Nations, Vattel