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Are You a "Natural Born" Citizen?

July 27, 2009 - by Avelino Maestas

Neil Abercrombie by Justin Sloan

While the struggle to pass health-care reform legislation continues as the biggest story in Congress right now, that other “news” story just won’t seem to die:

Dem Rep. Neil Abercrombie of Hawaii is going to introduce a resolution on the House floor today that seems designed to put House GOPers who are flirting with birtherism in a jam.

The measure Abercrombie will introduce commemorates the 50th anniversary of Hawaii’s statehood. But here’s the rub, his spokesman tells me: It describes Hawaii as Barack Obama’s birthplace.

There’s been a lot of discussion on OpenCongress of late regarding natural born citizens, and whether President Barack Obama meets the criteria. But a few months ago, another piece of legislation also ruffled some feathers: the Birthright Citizenship Act of 2009 (H.R. 1868). Our summary of the legislation says, “This bill would eliminate birthright citizenship for children born to undocumented immigrants in the United States. Current U.S. law automatically recognizes any person born on American soil as a natural born citizen.”

This description was challenged by several readers, who argued there are very specific circumstances required for “natural born” classification. Mario Apuzzo wrote a lenghty post on the subject:

There is a critical difference between a “natural born Citizen” and a “citizen.” The Constitution itself does not tell us what a “natural born Citizen” is. Hence, we simply cannot just apply the term to a given situation. Rather, we have to construe from the Constitution itself and other extrinsic sources such as historical events, constitutional debates, congressional debates, case law, statutes, and any other relevant information what the Framers meant by the term. The Constitution uses both “natural born Citizen” and “Citizen of the United States.” It uses “Citizen of the United States” in Article II’s grandfather clause, giving such a citizen the right to be President, but only if born prior to the adoption of the Constitution. It even says that a President must be a “natural born Citizen” (implying from birth) and a Senator or Representative need only be a “Citizen of the United States” for 9 and 7 years, respectively (a fortiori showing that he/she could be a naturalized citizen). Basic rules of constitutional construction tell that the terms are not interchangeable. These rules also tell us that in construing the Constitution, special meaning must be given to the words “natural born.” We must give meaning to the Framer’s use of the words “natural born.”’

The Supreme Court ruled back in 1897 that citizens born on American soil, including those born to foreigners, are indeed citizens. The United States vs. Wong Kim Ark opinion contains a number of choice quotes regarding citizenship, pulling from English and French common law (and, it appears, contradicting the “international law” or “Law of Nations” mentioned by Apuzzo). Much of the language uses the terminology “natural born” or “native born.” For starters:

“It was contended by one of the learned counsel for the United States that the rule of the Roman law, by which the citizenship of the child followed that of the parent, was the true rule of international law, as now recognized in most civilized countries, and had superseded the rule of the common law, depending on birth within the realm, originally founded on feudal considerations.”

“But at the time of the adoption of the Constitution of the United States in 1789, and long before, it would seem to have been the rule in Europe generally, as it certainly was in France, that, as said by Pothier, ‘citizens, true and native-born citizens, are those who are born within the extent of the dominion of France,’ and ‘mere birth within the realm gives the rights of a native-born citizen, independently of the origin of the father or mother, and of their domicil.’”

And then there’s this citation in the opinion, from an English case on citizenship:

“By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.”

The court also strived to clarify how citizenship applied to persons born abroad to an American parent:

“These opinions go to show that, since the adoption of the Fourteenth Amendment, the executive branch of the Government, the one charged with the duty of protecting American citizens abroad against unjust treatment by other nations, has taken the same view of the act of Congress of 1855, declaring children born abroad of American citizens to be themselves citizens…

Finally, the court stated the Fourteenth Amendment was intended to clarify, once and for all, the citizenship question in the United States, and ruled thus:

The Fourteenth Amendment of the Constitution … contemplates two sources of citizenship, and two only: birth and naturalization.

Of course, the issue still hasn’t been “settled,” more than 100 years after that decision was reached.

Photo (used under a Creative Commons license) by Justin Sloan.

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  • msjkulig 07/28/2009 9:37pm

    When Will The “Birthers” Be Happy?

  • Anonymous 07/29/2009 4:48pm

    Obama is going to say he qualifies as a US born citizen under Hawaii’s 2 year born there law if you get the birth certificate done in the two year ‘adoption.’ He is also going to say he never misled the public.

  • msjkulig 07/30/2009 10:28am

    Their crux of the “Birther” argument emphasizes “allegiance” to the United States, more so than “Citizenship,” as there are a multitude of circumstances in which citizenship can be conferred but only one way someone can be a "Natural Born Citizen.

    Many “Birthers” believe Obama is a “Citizen.” They do not believe, however, that he is a “Natural Born Citizen” as defined by Article II of the Constitution which states,“No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution (aka grandfather clause) shall be eligible to the Office of President;”

    Please should have an open mind. What’s the problem with discussing this issue? Why just dismiss it?

    Here is a great article that will help you understand the concerns of the “Birthers.” Please read it before dismissing them as tin-foil hat wearing nut jobs.

  • lxtkn1989 07/30/2009 11:58am

    A few things to note:
    -President Obama’s mother is originally from Kansas (I assume we can all agree she is a natural born citizen)
    -President Obama was born in Hawaii (A US State) in 1961 (2 Years after it was fully admitted to the Union)

    There are two accepted methods of being a “Natural Born Citizen” Jus Sanguinis and Jus Solis, Sanguinis states that the child of even one US citizen is a citizen at birth. Jus Solis states that any child born on US Soil is a US citizen at birth. President Obama meets both requirements, and is therefore undoubtably a Natural Born Citizen of the United States of America.

  • Anonymous 07/30/2009 9:27pm

    Actually the issue isn’t only his citizenship at birth. The PUMAs are not that easily fooled. The “birthers” is just one small slice of the issue that requires transparency be restored to the vetting process. Since when can anyone refuse to provide credentials when applying for a job, especially if the job is a 4 or 8 year guaranteed contract assignment as the POTUS? Wouldn’t you think that role would require a more thorough vetting process than say an EMT, or a pee wee football team? People seeking the most basic security clearance have greater hurdles.

  • Moderated Comment

  • Anonymous 07/31/2009 7:52am

    The question of Obama’s “natural born citizen” criterion was presented during the presidential campaign,most media outlets devoted more time to John McCain’s qualifications under this article, having been born to a military family serving in Panama. Obama’s past is somewhat opaque in this regard, those who have asked for clearity are demonized as “birthers” or right-wing extremists with a racial overtone. In my humble opinion, this question could be resolved by releasing the legal documentation. Is that to much for “We the People” to ask for?

  • Anonymous 07/31/2009 6:55pm

    This will dispell the arguements…hopefullt.

    Go To:
    CHAP. XIX.

    Obama falls under:
    § 212. Citizens and natives.
    § 215. Children of citizens born in a foreign country.

    John McCain falls under:
    § 217. Children born in the armies of the state.

    In § 212. Citizens and natives, it states “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” Both parents must be citizens…

    Then, in § 215. Children of citizens born in a foreign country, it states “…children follow the condition of their fathers, and enter into all their rights( § 212); the place of birth produces no change in this particular, and cannot, of itself, furnish any reason for taking from a child what nature has given him.” Whatever citizenship the father holds, so do the children.

  • Anonymous 08/24/2009 9:08pm

    The Congress of the United States settled this issue by a Bill earlier this month in which Obama is by law a natural citizen of the United States born in Hawaii. Is this true?

  • Anonymous 09/04/2009 5:25pm

    Here is an article at the American Chronicle entitled “Natural (Native) Born Citizen Defined!” that deals with this issue . Very good.

  • Anonymous 09/04/2009 5:27pm

    Here is an article at the American Chronicle entitled “Natural (Native) Born Citizen Defined!” that deals with this issue . Very good.

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  • online_doctor 01/05/2012 2:48am

    This issue will continue to be fought for years to come. Because the courts are still trying to follow an Amendment made hundreds of years ago, there will always be contention for the various terms used. Various parties would want the definition of citizen to go their way because of self interest. I wonder how it will turn out.
    Dr Fox – legal health politics work

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