Are you a “natural born” citizen?

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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.

Cross-posted at OpenCongress. Photo (used under a Creative Commons license) by Justin Sloan.

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