Natural born citizen: what does that mean?
Article II, Section 1, Paragraph 5 of the Constitution of the United States reads in part:
No person, except a natural born citizen,…shall be eligible to the office of President.
The word natural is even more important than the word born. Natural born citizen is a concept from natural law.
“Natural law” is more than a buzz phrase. It is as real as law itself. Natural law is law that follows from the nature of nation-states. It is the source of all the inherent powers of, and limits on, nation-states.
One of the most “natural” of natural laws concerns citizenship. In Minor v. Happersett, 88 U.S. 162 (1875), the Supreme Court observed that the Constitution never defined natural born citizen directly:
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. Some authorities
go further and include as citizens children born within the jurisdiction
without reference to the citizenship of their parents. As to this class
there have been doubts, but never as to the first. For the purposes of
this case it is not necessary to solve these doubts. It is sufficient
for everything we have now to consider that all children born of citizen
parents within the jurisdiction are themselves citizens.
In short, the Court said that anyone born in-country to two citizen parents is also a citizen. No one needs to define that. To say that such a person were not a citizen, would make zero sense. This is the power of natural law. Furthermore: what natural law grants to a person, nothing can deny.
Note also that the Minor court cited “doubts” existing in 1875, even after the Fourteenth Amendment, whether any person born in the territory is a citizen, no matter what the status of his parents. US v. Wong Kim Ark, 169 U.S. 649 (1898), would settle that. But that settlement goes beyond natural law to positive law.
Natural law v. positive law
Positive law is the law that legislatures, or Constitutional Convention delegates, make. Positive law also includes case law,
or the “law” that judges “make.” The problem: what positive law grants,
positive law can revoke. Congresses and States can amend Constitutions.
Congress can repeal laws. Supreme and other appellate courts can
reverse lower courts and even reverse precedent.
Amendment XIV defines a citizen of the United States thus:
All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside.
US v. Wong Kim Ark held:
As appears upon the face of the amendment, as well as
from the history of the times, this was not intended to impose any new
restrictions upon citizenship, or to prevent any persons from becoming
citizens by the fact of birth within the United States, who would
thereby have become citizens according to the law existing before its
adoption. It is declaratory in form, and enabling and extending in
effect. Its main purpose doubtless was, as has been often recognized by
this court, to establish the citizenship of free negroes, which had been
denied in the opinion delivered by Chief Justice Taney in Dred Scott v. Sandford, (1857) 19 How. 393;
and to put it beyond doubt that all blacks, as well as whites, born or
naturalized within the jurisdiction of the United States, are citizens
of the United States. The Slaughterhouse Cases, (1873) 16 Wall. 36, 73; Strauder v. West Virginia, (1879) 100 U.S. 303, 306; Ex parte Virginia, (1879) 100 U.S. 339, 345; Neal v. Delaware, (1880) 103 U.S. 370, 386; Elk v. Wilkins, (1884) 112 U.S. 94, 101.
But the opening words, “All persons born,” are general, not to say
universal, restricted only by place and jurisdiction, and not by color
or race — as was clearly recognized in all the opinions delivered in The Slaughterhouse Cases, above cited.
And thus the court said that a member of any race, once born in the United States to persons lawfully resident therein, is a citizen.
But the Wong court clearly did not change the meaning of natural born citizen. It even cited the Minor case, and Chief Justice Waite’s per curiam (i.e. unanimous) opinion. And the Wong court never said that the Minor court was in error.
Nor could it have so held. The Fourteenth Amendment defines, as positive law, who has the “privileges and immunities” of citizenship. But it cannot change the natural law definition of a natural born citizen. Nor did Wong Kim Ark ever ask
the Court to do this. Wong Kim Ark was not trying to run for President
of the United States. He was trying to stay in-country in the face of
the Chinese Exclusion Acts.
Confusing the issue
Recently, Bret Baier of the Fox News Channel confused what a natural born citizen is. He cited 8 USC Section 1401. That law says who is an American national and citizen at birth,
and names eight different ways to be one. Paragraph (a) of that law
merely restates the Fourteenth Amendment. The other paragraphs grant
citizenship to persons born abroad to citizen parents (jus sanguinis), persons born into native tribes (Beringians, Inuit, Aleut, etc.), and so on.
As Professor Herb Titus further explained, citizen at birth and natural born citizen are not the same.
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