by Reginald Carl Jackman
Our U.S. Constitution refers to “natural born citizen” and “citizens of the United States”. Judge Malihi reiterated an Indiana Court decision stating that these two citizenship classes were equivalent. He was wrong!
The Framers, who wrote our Constitution (1787), said that a legitimate presidential candidate would have to be a “natural born citizen”, but they did not define that phrase. Vattel in his “The Law of Nations” provided a definition: Natural born citizens “are those born in the country of parents who are citizens.” He continued with “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.”
The Framers had also authorized Congress to establish a uniform rule of naturalization. So in 1790 Congress passed a Naturalization Act specifying that “the children of citizens of the United States that may be born beyond sea, or out of the limits of the United States, shall be considered as “natural born citizens”. This clarified the definition of a “natural born citizen” as a child born to citizen parents without regard to place of birth.
Those who had supported our War of Independence were original citizens. And afterwards, to that number was added additional first citizens as recognized non-uniformly by the individual states. All these were “citizens of the United States”, but not “natural born citizens”. The children of these citizens were “natural born citizens”.
Again Congress used its naturalization authority to include a citizenship clause in The Civil Rights Act of 1866. The Act declared that people born in the United States and not subject to any foreign power are entitled to be citizens. This provision was then reedited and upgraded into the 14th Amendment (1868). Thus, the Amendment created two avenues of naturalization: (1) children by birth when parents were subject to U.S. jurisdiction; and (2) adults by a naturalization process after having submitted to U.S. jurisdiction. These new 14th Amendment citizens were ordinary citizens, “citizens of the United States”, like our earlier first citizens before them. These new citizens did not have the status of “natural born citizens”, although their children would be “natural born citizens”.
Judge Malihi of Georgia in making his decision about Obama’s eligibility to the presidency based his decision on the results of a previous Indiana decision which in turn was predicated on the Wong Kim Ark case.
In Wong Kim Ark, a Chinese U.S. resident family gave birth to a child, and it was critically to be determined whether that child should be considered as a U.S. citizen. The court correctly decided he was a citizen. But in the process, the court made one error and a faux pas. By stare decisis (aka. scary decease-ed) these indiscretions led to a fatal error in the Indiana case and subsequently in Judge Malihi’s case.
The Wong Kim Ark error was that it gave primary credence to “English common law” rather than the “Law of Nations common law”. Regarding citizenship, the difference is that the English law bases citizenship on place of birth (jus soli, of the soil), whereas the Law of Nations law bases citizenship on family (jus sanguinis, of the blood). We have a mix: jus soli with regard to 14th Amendment birth naturalizations; but jus sanguinis with regard to natural born citizenship. This did not go unnoticed by the dissenters. “The dissenters argued that the history of U.S. citizenship law had broken with English common law tradition after independence—citing as an example the embracing in the U.S. of the right of expatriation (giving up of one’s native citizenship) and the rejection of the contrary British doctrine of perpetual allegiance.” (Wikipedia) In the War of 1812, America seamen were issued Semen’s Protection Certificates in order to try to protect them from British impressment because of suggested birth on British soil. This error did not affect the Wong outcome, but it was a wrong think that would carry forward.
The Wong Kim Ark faux pas was a good and technically correct statement in majority summary, but one which was stupidly misinterpreted by the Indiana court: “Every citizen or subject of another country, while domiciled here, … if he hath issue here, that issue is a ‘natural-born subject’; and his child … If born in the country, is as much a citizen as the natural-born child of a citizen.” (Note: The British “natural-born subject” is not the same as our “natural born citizen”.) The Indiana court equated the ordinary citizen, a child born in the country, to a “natural born citizen”. But the summary states only that the quality of the child’s citizenship is every bit as good as that of the “natural born citizen”. It does not say that the child is a “natural born citizen”.
Thus we see how the Indiana court incorrectly came to the conclusion that “children born within the United States are natural born citizens, regardless of the citizenship of their parents.” And since Judge Malihi followed the Indiana court, he made the same mistake.
The presidential “natural born citizen” is not at all the same as a 14th Amendment “citizen of the United States”. Any person whose parents are not U.S. citizens does not qualify as a “natural born citizen”, and hence, is not eligible to the office of the presidency of the United States.
Our U.S. Constitution refers to “natural born citizen” and “citizens of the United States”. Judge Malihi reiterated an Indiana Court decision stating that these two citizenship classes were equivalent. He was wrong!
The Framers, who wrote our Constitution (1787), said that a legitimate presidential candidate would have to be a “natural born citizen”, but they did not define that phrase. Vattel in his “The Law of Nations” provided a definition: Natural born citizens “are those born in the country of parents who are citizens.” He continued with “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.”
The Framers had also authorized Congress to establish a uniform rule of naturalization. So in 1790 Congress passed a Naturalization Act specifying that “the children of citizens of the United States that may be born beyond sea, or out of the limits of the United States, shall be considered as “natural born citizens”. This clarified the definition of a “natural born citizen” as a child born to citizen parents without regard to place of birth.
Those who had supported our War of Independence were original citizens. And afterwards, to that number was added additional first citizens as recognized non-uniformly by the individual states. All these were “citizens of the United States”, but not “natural born citizens”. The children of these citizens were “natural born citizens”.
Again Congress used its naturalization authority to include a citizenship clause in The Civil Rights Act of 1866. The Act declared that people born in the United States and not subject to any foreign power are entitled to be citizens. This provision was then reedited and upgraded into the 14th Amendment (1868). Thus, the Amendment created two avenues of naturalization: (1) children by birth when parents were subject to U.S. jurisdiction; and (2) adults by a naturalization process after having submitted to U.S. jurisdiction. These new 14th Amendment citizens were ordinary citizens, “citizens of the United States”, like our earlier first citizens before them. These new citizens did not have the status of “natural born citizens”, although their children would be “natural born citizens”.
Judge Malihi of Georgia in making his decision about Obama’s eligibility to the presidency based his decision on the results of a previous Indiana decision which in turn was predicated on the Wong Kim Ark case.
In Wong Kim Ark, a Chinese U.S. resident family gave birth to a child, and it was critically to be determined whether that child should be considered as a U.S. citizen. The court correctly decided he was a citizen. But in the process, the court made one error and a faux pas. By stare decisis (aka. scary decease-ed) these indiscretions led to a fatal error in the Indiana case and subsequently in Judge Malihi’s case.
The Wong Kim Ark error was that it gave primary credence to “English common law” rather than the “Law of Nations common law”. Regarding citizenship, the difference is that the English law bases citizenship on place of birth (jus soli, of the soil), whereas the Law of Nations law bases citizenship on family (jus sanguinis, of the blood). We have a mix: jus soli with regard to 14th Amendment birth naturalizations; but jus sanguinis with regard to natural born citizenship. This did not go unnoticed by the dissenters. “The dissenters argued that the history of U.S. citizenship law had broken with English common law tradition after independence—citing as an example the embracing in the U.S. of the right of expatriation (giving up of one’s native citizenship) and the rejection of the contrary British doctrine of perpetual allegiance.” (Wikipedia) In the War of 1812, America seamen were issued Semen’s Protection Certificates in order to try to protect them from British impressment because of suggested birth on British soil. This error did not affect the Wong outcome, but it was a wrong think that would carry forward.
The Wong Kim Ark faux pas was a good and technically correct statement in majority summary, but one which was stupidly misinterpreted by the Indiana court: “Every citizen or subject of another country, while domiciled here, … if he hath issue here, that issue is a ‘natural-born subject’; and his child … If born in the country, is as much a citizen as the natural-born child of a citizen.” (Note: The British “natural-born subject” is not the same as our “natural born citizen”.) The Indiana court equated the ordinary citizen, a child born in the country, to a “natural born citizen”. But the summary states only that the quality of the child’s citizenship is every bit as good as that of the “natural born citizen”. It does not say that the child is a “natural born citizen”.
Thus we see how the Indiana court incorrectly came to the conclusion that “children born within the United States are natural born citizens, regardless of the citizenship of their parents.” And since Judge Malihi followed the Indiana court, he made the same mistake.
The presidential “natural born citizen” is not at all the same as a 14th Amendment “citizen of the United States”. Any person whose parents are not U.S. citizens does not qualify as a “natural born citizen”, and hence, is not eligible to the office of the presidency of the United States.
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