Rich TAkes on Natural Born Citizens

I enjoyed an interesting discussion recently, revisiting Barack Obama’s birth certificate, or lack thereof. It is my studied opinion that both were poor forgeries, especially considering the defects present in both as well as the manner of presentation. The first was by author unknown on the photo sharing site photobucket, and the second was a digital pdf which is easily shown to be highly manipulated.

Whether the Obama COLBs are real or not is beside the point.

Even if real, neither establishes Natural Born status.

The Framers were concerned about foreign influences in the Office of President,

and so required that any President born after ratification of the Constitution must be a Natural Born Citizen. They didn’t define it further, as the term had a universal meaning at the time. They deliberately did not use the term “citizen”, so there is a special, super-citizenship requirement for the highest office in the land.

The place of birth is not important, the parents citizenship status at the time of birth is, and this is the only Natural Born requirement. Both parents need to be citizens is the long and short of the difference between citizen and natural born citizen.

Simply being born on native soil of the USA does not confer citizenship status. Congress has never passed a bill to such effect, although the Courts have twisted the 14th Amendment to the point that we all go along with it. A topic for a separate discussion I guess. The only true citizens have at least one parent who is a citizen, or who have been legally naturalized. Natural Born Citizens have both parents as citizens, regardless of place of birth.

This is why Chester Arthur and Barack Obama are not Natural Born. This is also why Ted Cruz and Marco Rubio are not Natural Born either, as well as why John McCain is.

I posted briefly about this at Minor v. Happersett, 88 U.S. 162, 168. in March 2012.

The following is edited from a conversation also around March of 2012. It is a good place to start your research, so please click to read more.

H/T to Jo, thanks!  

•In Scott v. Sandford (1856), Justice Daniel’s concurring opinion characterized, as unexceptionable, the viewpoint that: “natural-born citizens are those born in the country of parents who are citizens” (Scott v. Sandford, 1856)

•In Minor v. Happersett (1875), the Supreme Court defined two classes of persons. The first class consists of children born in the United States, of U.S.-citizen parents. The second class consists of all other U.S.-born children, regardless of their parents’ citizenship. The Court used the term “natural born citizen” only in reference to members of the first class. Regarding members of the second class, the Court doubted they were even citizens, let alone natural born citizens. In the Court’s opinion, natural born citizens are “distinguished from” aliens or foreigners, suggesting that a natural born citizen is someone who is not a “foreigner” (foreign citizen) at birth.

•In Kwock Jan Fat v. White (1920), the Supreme Court referred to Mr. Kwock as a natural born citizen. He was born in the United States. At the time of his birth, his father was a native-born American citizen, and his mother was a U.S. citizen by marriage.

•In Perkins v. Elg (1939), the Supreme Court referred to Marie Elizabeth Elg as a natural born citizen. She was born in the United States. When she was born, her father was a U.S. citizen by naturalization, and her mother was a U.S. citizen by marriage.

To this day, whenever a Supreme Court decision has referred to an individual as a “natural born citizen”, the individual was always born in the United States, of U.S.-citizen parents. The Supreme Court has never, in any of its majority opinions, used the term “natural born citizen” in reference to someone whose parents were not both U.S. citizens.

The United States has had 44 presidents (including Barack Obama). Of these 44 presidents, 34 were born after 1787 (the year the Constitution was adopted) and were therefore subject to the “natural born citizen” requirement. With only two exceptions, each of these 34 presidents was born in the United States, of parents who were both U.S. citizens (Citizenship Status of U.S. Presidents). The two exceptions were Chester Arthur and Barack Obama. While running for office in 1880, Chester Arthur lied to journalists about his family history (and later burned nearly all of his family records), thereby concealing the fact that he was a British subject at birth (Historical Breakthrough – Chester Arthur).

In Inglis v. Trustees (1830) and Elk v. Wilkins (1884), the Supreme Court considered the status of children who are born in the United States, of fathers who owe allegiance to a sovereignty other than the United States. In both cases, the Court ruled that such children are not even citizens, let alone natural born citizens.

In U.S. v. Wong Kim Ark (1898), the Supreme Court, reversing prior precedent, ruled that, under some circumstances, children born in the United States, of non-U.S.-citizen parents, acquire U.S. citizenship at birth. But, to this day, the Supreme Court has never ruled that such children are natural born citizens. On the contrary, our nation’s highest court has consistently used the term “natural born citizen” only in reference to persons born on U.S. soil, to U.S.-citizen parents.

January 20, 2009 was the first time in history that the U.S. knowingly inaugurated a post-1787-born president whose parents were not both U.S. citizens. Moreover, it was the first time that the U.S. knowingly inaugurated a post-1787-born president who was a foreign citizen at the time of his birth.

Since President Obama was a foreign citizen (in addition to being a U.S. citizen) at birth, his “natural born citizen” status is in doubt. This doubt is not based on the imaginings of tin-foil-hat-wearing conspiracy theorists on the lunatic fringe of society. This doubt comes from what the Supreme Court has said, as well as a variety of other historical and legal sources.


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 [p168] 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

The Wong Kim Ark ruling does not directly apply to Barack Obama’s presidential eligibility, for three reasons:

•The Supreme Court did not rule that Wong was a natural born citizen. It merely ruled that he was a citizen. Even if Barack Obama’s circumstances at birth were identical to those of Wong Kim Ark, the Court’s ruling would, at most, only confer citizenship to the President. It would not confer natural born citizenship, which is what the President needs in order to be eligible to hold office.

•The Court ruled that Wong was a citizen because, at the time of his birth, his parents had “permanent domicile and residence” in the United States and was “carrying on business” in the United States. President Obama’s father did not meet these conditions. He was not a permanent resident. He was visiting the U.S. temporarily, to obtain an American education.

•The Court mentioned that Wong’s parents were subject to the Burlingame-Seward Treaty of 1868 between China and the United States. That treaty contained an unusual provision, not found in other U.S. treaties, which granted Chinese immigrants the “inherent and inalienable right” to change their “home and allegiance”. Although permanently-resident Chinese immigrants were not permitted to become naturalized U.S. citizens, they had an “inherent and inalienable right” to become nationals of the United States; and children born in the United States, of U.S. nationals, are citizens within the originally-intended meaning of the 14th Amendment (Objectively Gray). Obama’s father was not subject to any treaty which recognized a change of “home and allegiance” other than by naturalization.

The jus soli principle: At first glance, the English common law “rule” appears to have been jus soli — subjecthood determined by birthplace alone. Nearly all children born on English soil were, at birth, natural-born subjects, regardless of whether their parents were subjects or aliens. But the underlying principle of Calvin’s Case was that the ligeance of one’s parents, not the place of one’s birth, was the primary criterion of one’s legal status at birth.

The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called “ligealty,” “obedience,” “faith,” or “power” of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem — and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because [they were] not born within the allegiance … of the King. (U.S. v. Wong Kim Ark, 1898)

The observable effect of English law was the jus soli principle. All children born on English soil (except the children of foreign diplomats and alien enemies) were deemed to be natural-born subjects.

Lord Coke … laid down the principle that any person born within the king’s dominion became the king’s subject at birth, provided that his parents were at the time under the actual obedience of the king; this proviso excluded any child born in England whose father was at the time the ambassador to England of a foreign power, and any child of an enemy alien… but apart from these two exceptions all persons born in England are subjects of the king whatever their parentage, because (apart from these exceptions) aliens living in this country are protected by the king and therefore owe him local allegiance. (Ross, p.7)

However, the underlying principle of English law was jus ligeantia (you acquired “natural-born subject” status at birth only if your parents, at the time of your birth, were within the king’s allegiance).

Timothy Cunningham’s Law Dictionary (1771) was the only law dictionary that James Madison ordered for the Continental Congress. It was one of the most popular comprehensive English dictionaries of the late eighteenth century, and was found in many personal libraries, including those of Thomas Jefferson and John Adams. It was contemporaneously used by various American Supreme Courts for clarification of legal terms. (Berry, pp.347-8).

Under the “Aliens” section of his Law Dictionary, Cunningham defined “natural-born subject” as one who is born within the king’s realm, of parents who are under the king’s “actual obedience”:

All those are natural born subjects, whose parents, at the time of their birth, were under the actual obedience of our king, and whose place of birth was within his dominions. (Cunningham, p.95, in section entitled “Aliens”)

The exact same definition of “natural-born subject” is found in Matthew Bacon’s A New Abridgment of the Law, Volume 1, published in 1736. (Bacon, Matthew, p.77).

The American Law Review (1866-1906);

Sep/Oct 1884; 18, American Periodicals Series Online.



As a wide-spread interest attaches to the discussion of the meaning and scope of the constitutional provision in respect to eligibility for the office of president of the United States, I submit some views in this relation which may be opportune.

The question is often asked: Are children of citizens of the United States born at sea or in foreign territory, other than the offspring of American ambassadors or ministers plenipotentiary, natural-born citizens of the United States, within the purview of the constitutional provision? After some consideration of the history of the times, of the relation of the provision to the subject-matter and of the acts of congress relating to citizenship, it seems clear to the undersigned that such persons are natural-born, that is, citizens by origin; and that, if otherwise qualified, they are eligible to the office of president. In respect to the citizenship of children of American parentage, wherever born, the principle of ius sanguinis seems to be the American principle; that is to say, the law of hereditary, rather than territorial allegiance, is recognized, which is modern, as distinguished from the ancient, and at one time, common-law principle of jus soli. If the provision was as sometimes inaccurately cited, namely, that the president must be “a native-born citizen,” there might be no question as to its meaning. But the framers generally used precise language; and the etymology actually employed makes the meaning definite. Its correspondent in English law, “natural-born subject,” appears in constitutional history and parliamentary enactments; and there it includes all children born out of the king’s allegiance whose fathers were natural-born subjects; and the children of such children (i. e., children whose grandfathers by the father’s side were natural-born subjects), though their mothers were aliens, are now deemed to be natural-born subjects themselves to all intents and purposes, unless their said ancestors were attainted or banished beyond sea for high treason, or were at the birth of such children in the service of a prince at enmity with Great Britain. At the time of the adoption of the Constitution, immigration was anticipated and provisions for naturalization would immediately follow the establishment of the government. Those resident in the United States at the time the Constitution was adopted were made citizens. Thereafter the president must be taken from the natural-born citizens. 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. It may be observed in passing that the current phrase “native-born citizen” is well understood; but it is pleonasm and should be discarded; and the correct designation, “ native citizen” should be substituted in all constitutional and statutory enactments, in judicial decisions and in legal discussions where accuracy and precise language are essential to intelligent discussion.

The earliest act of congress to establish a uniform rule of naturalization (March 26, 1790) contained the following clause: “And the children of citizens of the United States that may be born at sea or out of the United States, shall be considered as natural-born citizens.”

Yes, parents have to be Citizens in order for the child to be considered Natural born.


A rebuttal to a common fallacious argument from a “Mr. York”:

Mr. York would flunk law school. Any first year student knows that a general rule cannot overrule a specific rule. A reference to “citizen” in a law does not mean it also applies to “natural born citizen.” If they meant the same thing there would not be two different terms.

For the record, a number of us “birthers” have always claimed that Obama is ineligible because he did not have two U.S. citizen parents, an argument supported by the Supreme Court in MINOR v. HAPPERSETT. Additionally, references to the 14th Amendment are irrelevant, as that amendment pertains to citizenship and not once mention the term natural born citizen. And, contrary to the claims of some Obama supporters, U.S. v. Wong Kim Ark does not contradict Happersett or support Obama.

Lastly, the Obama supporters (Mr. York included, apparently) must explain the existence of the “grandfather clause” in Article II, Section 1, Clause 5 of the U.S. Constitution. That grandfather clause serves no purpose if the citizenship of the candidate’s parents is not relevant. George Washington, for example, was born in Virginia. Yet he could not be president without the “grandfather clause” in the Constitution – because he was not a natural born citizen. (He was born on U.S. soil but his parents were obviously not U.S citizens.

5 Replies to “Rich TAkes on Natural Born Citizens”

  1. Rich, the problem with the point you are making is the decisions you are referencing are Dicta which are not binding precedents:I n other words, stare decisis applies to the holding of a case, rather than to obiter dicta (“things said by the way”). As the United States Supreme Court has put it: “dicta may be followed if sufficiently persuasive but are not binding.”

    As I have said repeatedly, as it applies to presidential qualification, the definition of “natural born citizen” is an issue of first impression. No precedent has been set nor is it binding.

    Anyone who says anything to the contrary, needs to go to law school (or back).

    • The real issue is that the definition of Natural Born Citizen was never defined. The Founders thought it common knowledge at the time, and sought to write the Constitution in as brief a way as possible. Yet, by their adding a “super-citizenship” test to the office of President they acknowledged a higher standard for the office. The commonly held definition at the time was that both parents needed to be citizens for a child to be natural born. Where the child was born was not significant.

      We also have no automatic birthright citizenship in the US, yet since a single judge held otherwise in Wong Kim Ark (narrowly, as it happens), we seem to be saddled with that as well. Furthermore, the 14th has been mangled beyond all belief.

      Today we have a thriving tourist industry for foreigners to birth their children in the States as a path to citizenship, yet the 14th clearly states “”… and subject to the jurisdiction thereof”. I don’t think that any case can be made that foreign nationals, legal or otherwise, can be said to subject to the jurisdiction of the United States. The 14th was primarily written to insure that newly freed slaves would not be denied citizenship, nothing more, other than the settlement of war debts.

      Both of these issues needs to be addressed, either legislatively, or via Constitutional Amendment.

      I hope you agree, and thanks for your thoughtful reply.

  2. Rich, I agree that the issue is one that is not defined. I differ in that I believe the founders were deliberately vague. I believe they were vague because they knew that times would change. The beauty of the document to me is that it has survived so long because of this vagueness.

    There are laws which establish citizenship rules. A constitutional amendment is not required. Nor is congressional action required to define “natural born citizen.” The supreme court can define it as it applies to presidential qualification.

    The added qualifier was done for a specific purpose- to keep the British from staging an electoral coup. The founding fathers never, in their wildest dreams imagined what exists today. In fact, they would be dumbfounded that we are still using their ideals.

    I also disagree that the 14th was written only to ensure that the freed slaves would not be denied citizenship. I believe it was written to correct another flaw in the document- exemption of states from application of the principles in the bill of rights. Equal protection of the laws is a necessity that was clearly lacking from the original document.

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