The usual Birther suspects have surfaced recently to push their nonsense theories about who is and is not a natural born citizen. The latest flurry of articles and comments seems to be related to the beginning of the 2020 presidential election campaign and especially candidate Kamala Harris. (Tulsi Gabbard is targeted by some of the same Birthers as being ineligible to serve but for different reasons.1 ).
Ms. Harris, who was elected in 2016 to represent California as junior Senator, was born in Oakland, California, on 20 October 1964. Her father was a Jamaican and her mother was from India. I have not seen a definitive date for naturalization for either of her parents it is probable they were not yet citizens at the time of Ms. Harris’s birth.
Since Harris was born on American soil and under the jurisdiction of the United States she is a natural born citizen. She meets the other presidential eligibility requirements too since she is over 35 years of age and has been a resident of the US since moving back to the country in 1992 after attending high school in Montreal, Quebec Canada.
Now some of the Birthers would disagree on the first item. Sometime late in 2008 an attorney from New Jersey named Leo Donofrio filed a lawsuit in New Jersey State court against then Secretary of State Nina Wells asking the court to stay the election. He claimed that neither Barack Obama nor John McCain were eligible, Obama because even though he was born in Hawaii his father was a British subject and McCain because he was born on a military base in Panama and not US soil. Previous lawsuits filed by Birthers like Phil Berg were based on claims that Obama was born in Kenya and not Hawaii.
Donofrio’s emergency application was denied and his appeal to the New Jersey Supreme Court was denied on October 31. He filed an application for stay pending writ for certiorari on November 3 to Justice Souter of the US Supreme Court. It was denied on November 6th and eventually denied by the full court on December 8, 2008.
As far as I can tell Donofrio is the first person to dredge up this definition of natural born citizen. He cited a Supreme Court case on women’s suffrage, Minor v Happesett from 1875 where the court in dicta said:
Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides that
“No person except a natural-born citizen or a citizen of the United States at the time of the adoption of the Constitution shall be eligible to the office of President, and that Congress shall have power “to establish a uniform rule of naturalization.”
Thus, new citizens may be born or they may be created by naturalization.
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. [Emphasis added] It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words “all children” are certainly as comprehensive, when used in this connection, as “all persons,” and if females are included in the last, they must be in the first. That they are included in the last is not denied. In fact, the whole argument of the plaintiffs proceeds upon that idea.
The holding in this case was that the rights and privileges guaranteed under the 14th Amendment to all citizens did not include the right to vote. The Court left in place a Missouri law that prevented women from voting. The opinion did not in obiter dicta define the term natural born citizen and as a matter of fact Justice Waite writing for the Court specifically said the Court was avoiding doing that. (See the emphasized portion.)
Other Birthers began adopting this misinterpretation of Minor v Happersett and the two citizen parent theory as it came to be known. Later a majority of the Birthers took up the theory and began citing Minor as defining precedent.
Attorney Mario Apuzzo from New Jersey, who had no experience in this area of the law, started a blog on the subject of natural born citizenship and filed a lawsuit in federal court around the time of President Obama’s first Inaugural on January 20, 2009 on behalf of Charles Kerchner. He was attempting to stay the Inauguration. Even though Apuzzo now mentions Minor v Happersett in almost every comment on his blog and many other places he didn’t even cite Minor in his first big case, Kerchner v Obama.
When I challenged Apuzzo on this fact in an earlier article on this blog he left a comment in which he lied and gave the excuse that attorneys don’t cite precedent cases in complaints. Of course he had cited more than 17 other cases in his complaint in Kerchner. Apuzzo is ubiquitous on comment streams on articles on natural born citizen. He has probably written a million words on the subject. The problem with Apuzzo is that when he gets cornered him on the Kerchner case he lies and claims victory. John Woodman came to the same conclusion: that Apuzzo is not just a fervent supportor of a position but an outright liar.
After Donofrio’s failed case was filed other Birther’s filed hundreds of challenges against President Obama in 2009 and during the 2012 election cycle trying to either remove him from office or keep him off ballots based on the flawed theory that he was not a natural born citizen.
All of these cases were dismissed on lack of standing, lack of jurisdiction, or failure to state a claim. In decisions where judges bothered to opine on whether Obama was a natural born citizen they said he was, that Minor did not define the meaning of the term, and that the USA v Wong Kim Ark (1898) case was the deciding case on who was a natural born citizen. (In that case the court by a majority decided that a California resident born on US soil to two Chinese parents was a citizen at birth and could not be deported. The court reasoned that the 14th Amendment had merely affirmed what had been in place under common law before its adoption, that the definition of natural born citizen had been inherited from the English term “natural born subject” and that anyone born on US soil and under its jurisdiction was a citizen at birth.)
Rather than repeat the points made in many, many articles that have been written on this subject I will briefly state the false claims made on Birther blogs, specifically Mario Apuzzo’s blog and the Post & Email blog and provide links to several good resources on the subject of who is a natural born citizen.
Here are some of the false claims that Birthers make on the subject of definition of the term natural born citizen:
Birther False Claims About the Meaning of NBC
- Claim: Minor v Happersett defined that natural born citizens must be born of two US citizen parents. No, the Court said these people were natives or natural born citizens but did not limit the term to mean only those people. The court said specifically that those born in the US to alien parents might also be natural born citizens but that it was not an issue in that case.
- Claim: The founders read Emer de Vattel and he defined a natural born citizen as the child of two citizen parents. No, de Vattel was a Swiss philosopher who wrote treatises on law in French. His most famous work was Le droit des gens (The Law of Nations). It was published in French in 1757 and first translated into English in 1760. His comments on citizenship were from the European perspective and those nations operated under the doctrine of jus sanguinis (Latin: “right of blood”). (See the expanded discussion on de Vattel below.)
- Claim: “Fourteenth Amendment Citizens” are citizens of the USA but are not natural born citizens. Wrong. This is an argument that Birthers like Apuzzo put forth frequently. The Supreme Court has always recognized only two types of citizens2, natural born and naturalized. When the Constitution was adopted it assumed that there were natural born citizens but did not provide any definition as to who these were. In Article I it gave Congress the the power to pass laws regulating who could become a naturalized citizen. The rules for who were natural born citizens of the states and the USA were inherited from English common law since all the original 13 colonies operated under English common law and their residents were natural born subjects unless they had become subjects through immigration and naturalization. This lack of a Constitutional definition caused some issues. Children of white Europeans born in the US were considered to be citizens. However, in 1857 a Supreme Court dominated by justices from pro-slavery states ruled that a black slave, Dred Scott was not and could never be a citizen even though he was born on US soil. The racist Court went even further and overturned the Missouri Compromise of 1821 by ruling that no state could abolish slavery. Many historians believe this case led directly to the Civil War, split the Democratic Party, and led to the election of the anti-slavery Republican Abraham Lincoln in 1860.
- Claim: The term “Law of Nations” used in Article I of the Constitution comes from de Vattel’s treatise, The Law of Nations, and meant that the founders adopted Vattel’s views on citizenship. This is not only wrong but preposterous. In Article I, Section 8 the Constitution lists the powers reserved for Congress including the power “To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations”. The “law of nations” was a concept of orderly conduct among nations that dated back to Roman times. Had the founders had any individual writer on the subject it mind it would have certainly have been William Blackstone whose Commentaries contained the principles of the law of nations. Every found would have read and been familiar with Blackstone’s work. Regardless, the law of nations has nothing to do with how the nation determined who were its citizens.
- Claim: By the time of the writing of the Constitution the US had developed a common law definition of “natural born citizen” that was different than the English definition for “natural born subject”. Again wrong. For there to have been a change in the common law definition of “natural born” would have required at least one case or piece of legislation to have changed the definition between the time of independence in 1776 and 1787. However, none have been found. John Woodman challenged attorney Mario Apuzzo to provide such evidence and he could not. Further evidence that the common law meaning of the term did not change was that the term “natural born subject” continued to appear years after the adoption of the Constitution in naturalization acts in Massachusetts, as in “all the rights and privileges as a natural born subject” being granted to a naturalized citizen. And finally if Birthers like Mario Apuzzo are correct there should be lots of records prior to the ratification of the 14th Amendment of children born to alien parents on US soil naturalizing later in life. However, such records do not exist.
- Claim: Dual citizenship at birth implies divided loyalty. Wrong. Citizenship at birth does not equate with allegiance. Birthers like to use this fallacy when they bring up John Jay’s letter to George Washington written on July 25, 1787. Jay said ” Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government, and to declare expressly that the Command in chief of the american army shall not be given to, nor devolved on, any but a natural born Citizen. ” Birthers use this letter to assert that Jay meant that the president could not have divided loyalty and could not therefore have ever been a citizen of another country. There are several things wrong with this. First Jay was referring to “Command in chief of the American army”. The concept of a president who was also a civilian commander in chief had not even been finalized and was not until weeks later in September 1787. Jay and Washington both would have recognized the equivalence of “natural born subject” with “natural born citizen”. Yes, Jay through Washington may have had some influence on the Convention’s adoption of the natural born citizen requirement but there is simply no evidence Jay would have precluded the child of aliens born on US soil. There is no evidence that just because anyone is born with dual citizenship that they have divided loyalties.
de Vattel’s The Law of Nations
Leo Donofrio may have been the first Birther to discover the writings of Emer de Vattel. He wrote about de Vattel on his blog as early as late 2008. As I mentioned earlier Vattel published Le droit des gens (The Law of Nations) in French in 1758. de Vattel’s treatise was about natural law. The first English translation appeared in 1760. This is the English edition that would have been available to the authors of the US Constitution. On citizenship de Vattel wrote:
[§212] The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or indigenes, are those born in the country of parents who are citizens. Society not being able to subsist,and perpetuate itself, but by the children of citizens; those children naturally follow the condition of their fathers, and succeed to all their rights….The country of the fathers is then that of the children; and these become true citizens,merely by their tacit consent….I say, that in order to be of the country, it is necessary that a person be born of a father who is a citizen; for if he is born there of a stranger, it will be only the place of his birth, and not his country.
Another English translation was published in London in 1797. That edition replaced indigenes with “natural born citizen: “The natives, or natural-born citizens, are those born in the country, of parents who are citizens”. This is the translation that Birthers always quote even though it was published 10 years after the Constitution was written. When challenged on this fact Birthers claim that the 1797 London translation was influenced by the American use of natural born citizen in the Constitution. While this makes for a fine story there is exactly no evidence that it is true and there are tons of evidence that the term natural born citizen was the equivalent of the English natural born subject.
There are at least a couple of other issues with the Birther interpretation of Vattel. First Vattel himself admitted that other countries like England had different laws on citizenship. Vattel added that in England “being born in the country naturalizes the children of a foreigner.”
Then there is the question of whether Vattel meant that parents had to be citizens for their child to be a natural born citizen. Vattel wrote ” of parents who are citizens”. Unfortunately this phrase is imprecise in English. It is pretty clear Vattel was referring to the father(s) here. He wrote that “It is asked, whether the children born of citizens in a foreign country, are citizens? The laws have decided this question in several countries, and it is necessary to follow their regulations. By the law of nature alone, 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 . . . .” (again from the 1760 translation).
A French attorney posting under the name Lupin at a number of blogs wrote this about de Vattels Law of Nations”
I have frequently posted under the name of “Lupin” on Dr. Conspiracy’s blog. I am a French attorney with 30+ years’ experience, currently semi-retired and living in the South of France; amongst other things, I have edited translations of Vattel into English.
First, when tackling this issue, one has to decide (a) whether the term “natural-born citizen” is a correct translation of Vattel’s term “indigene” and “naturel”; and (b) whether Vattel has any relevance at all to the issue at hand.
Both of these propositions seem highly debatable to me, but not being an expert on U.S. law, this is not my place to comment.
When reading Vattel’s article on citizenship, often quoted by Mr Apuzzo, one must keep in mind the following:
(a) the terms “parents” actually means blood relatives, not just parents; this is easily verifiable: ask any Frenchman if the sentence “j’ai des parents en Amerique” means “my parents are in America” or “I have family in America” — he will answer the latter.
(b) the term “parents” is used by Vattel as a group plural, ie: either parent, not both; as in “only children whose parents are club members may use the pool”; there is no ambiguity here.
(c) further on, Vattel mentions the father, but only as an illustration of his “jus sanguinis” approach to citizenship as stated above; he does not exclude the mother or indeed any relatives on either side; as a matter of fact, the mother is specifically included/added in a footnote the second edition;
(d) finally, Vattel mentions that other countries like England favor a “jus soli” method, and claims no universality.
So, if one were were to apply Vattel’s theory to the hypothetical case of a young Obama born in Switzerland at the time of Vattel’s writings from a visiting English student and a Swiss woman, it would be unambiguously clear that the child would be considered by the Swiss authorities to be a Swiss “indigene” from his mother’s side of the family.
Had his father hypothetically taken the child back to England to be raised there, he might ALSO be eligible to become a British citizen because of his father, but that would in no way impact his “quality” as a Swiss “indigene” in Switzerland.
Lupin’s comment on John Woodman’s blog.
As I have often pointed out, there is nothing in Vattel (even if he were deemed relevant) that bolsters the birthers’ agenda — quite the contrary.
Michael Ramsey analyzed the influence of de Vattel on the meaning of natural born citizen as used in the US Constitution in his paper that I cite in the Resources section below:
“The weight of the evidence, however, points strongly in the other direction. First, any connection between Vattel and the Eligibility Clause is pure speculation. Apparently no one at the time made the connection, or at least there is no surviving record if they did. To be sure, some individuals might have done so. But it seems clear—as clear as we can be about these matters—that no widespread public connection was drawn.
Second, there is evidence that the founding generation, at least in some instances, used “natural born citizen” and “natural born subject” inter-changeably. For example, Massachusetts continued the English practice of legislative acts naturalizing particular named individuals. These acts recited that the naturalized individuals would have all the rights of (in some cases) “natural born subjects” of the state97and (in others) “natural born citizens.”98As far as the historical record reflects, no difference was intended; the phrases appear to be used interchangeably to convey the same meaning. In particular, the state Acts referred to “natural born subjects” during the Confederation period immediately before and during the drafting and ratifying process, suggesting that revolutionary Americans did not change their terminology from citizen to subject in the wake of the Revolution
Similarly, Zephaniah Swift’s treatise on Connecticut law, published in 1795, repeatedly used the phrase “natural born subject” in connection with post-independence inhabitants of Connecticut. Swift began his discussion by saying that “[t]he people are considered as aliens, born in some foreign country, as inhabitants of some neighboring state of the union, or natural born subjects, born within the state.”99Later he added that the children of aliens, “born in this state, are considered as natural born subjects, and have the same rights with the rest of the citizens.”100As a result, there is little reason, on this ground, to think Vattel is a better source of the clause’s meaning than English law: Americans did not broadly reject the word “subject” and instead used it interchangeably with “citizen.”Third, post-ratification evidence indicates that the Framers were using an English-law influenced definition of citizenship, not a Vattel-influenced definition. As described above, an early post-ratification discussion of citizenship was Madison’s comment in the Smith controversy (in which there was some question whether Representative Smith was a citizen and thus eligible to Congress). Madison wrote, “It is an established maxim that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general, place is the most certain criterion; it is what applies in the United States….”
Birthers have elevated de Vattel to the status of sainthood but the reality is that there is just no evidence that authors of the Constitution used anything other than the English term “natural born subject” as a synonym for “natural born citizen”. There is certainly no evidence that they ditched the meaning they had known for the term natural born for all their lives and embraced a meaning that Birthers wrongly ascribe to de Vattel.
The following is a list of resources I have found useful on the definition of “natural born citizen” as used in the US Constitution:
Jack Maskell, an attorney for the Congressional Research Service, wrote three reports on presidential eligibility. The Congressional Research Service (CRS) is a non=partisan division of the Library of Congress that provides legal and policy research on various subjects for members of the House and Senate of both parties. These reports are normally confidential but can be made public by the Congressional members who requested the research.
The first of these reports was dated April 3, 2009:
In his first report Maskell explains why Barack Obama was not obligated under federal law to produce his “long form” birth certificate or any birth certificate for that matter and that the presidential election is conducted by the states who have no such requirement either. He also covers the history of the inclusion of the natural born citizen requirement for the office of president in the Constitution and what the likely understanding of the meaning was by the authors of that section.
In November 2011 Maskell updated his report to provide a more rigorous and documented explanation of the meaning of the term “natural born citizen”.
Maskell meticulously lays out the case that the Supreme Court had ruled that terms not defined in the Constitution were to be interpreted in light of English common law and that under English common a person born to alien parents on US soil was a natural born citizen.
A third report was written in January 2016:
In this third and final update on presidential eligibility Maskell reviews all the court cases that had been filed against Barack Obama and John McCain and the outcomes. He also discusses the eligibility of persons born abroad to one or two United States citizens and whether they are eligible. This had become an issue in the 2016 election cycle with the candidacy of Texas Senator Ted Cruz. By this time some lawsuits had already been filed.
Unlike the status of person born to one or two alien parents on US soil the status of persons born US soil abroad has generated disagreement among legitimate Constitutional scholars at least as far back as 1968 when George Romney, who was born to Mormon US citizen parents in Mexico, was running for the Republican nomination for president.
A blogger posted the results of a Google Book search of books that define the term “natural born citizen. BOOKS ON GOOGLE BOOKS THAT DEFINE “NATURAL BORN CITIZEN Notably, not a single one of these hundreds of books defines a natural born citizen as only one who was born of two citizen parents. Birthers have claimed in blog posts that they recall reading such a statement in their Civics books but to date not a single book has been produced.
An attorney named “Tes” on her “What’s Your Evidence” blog posted a compendium of Supreme Court cases that mentioned the term “natural born”. The results can be found here. She also compiled a list of all cases at both the state and federal level that addressed the meaning of the term “natural born citizen”. Finally, she assembled a list of cases filed against Barack Obama and others concerning presidential eligibility and release of documents in a “Birther Scorecard” that documents the outcomes of the so called Birther cases beginning with the Phil Berg cases in 2008 through August 2015. Over 200 cases are listed and none succeeded.
A number of these cases claimed that Obama was not eligible based on the fact his father was a British subject and therefore not a natural born citizen. While none of the cases ruled directly on this claim several judges who commented on this claim noted that precedents like the Wong Kim Ark case made the Supreme Courts position clear that anyone born on US soil and subject to the jurisdiction of the United States was a natural born citizen.
From December 2008 and continuing for 8 years the go to blog for following all the Birther claims and activities was the Obama Conspiracy blog. A good place to start reading is Dr. Conspiracies article The Debunker’s Guide to Obama Conspiracy Theories, which contains a section debunking claims that President Obama was not a natural born citizen.
Another blog that I recommend is John Woodman’s Investigating the Obama Birth Mysteries. Mr. Woodman is a conservative and the author of the book Is Barack Obama’s Birth Certificate a Fraud? in which he debunked the conspiracy theories that erupted that the Obama Hawaiian long form birther certificate that was published in April 2011 was a forgery. Mr. Woodman later did some excellent research into the meaning of the term natural born citizen and the Birth claims that Obama was ineligible. A good place to start reading is this series of articles.
Finally, several excellent papers have been written on the meaning of natural born citizenship over the years:
- The Original Meaning of ‘Natural Born’ by Michael D. Ramsey, University of Pennsylvania, 2016
- On the meaning of “Natural Born Citizen” by Neal Katyal and Paul Clement, Harvard Law Review, 2015
- The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty J. A. Pryor, Yale Law Journal, 1988
- Who can be President of the United States, the Unresolved Enigma, Charles Gordon, Maryland Law Review, 1968
Readers are invited to leave comments as long as they abide by this blogs comment policy. If you have suggestions for additional resources I would be happy to add them to the article if they are from legitimate sources.
1Tulsi Gabbard was born in American Samoa to parents who were US citizens. American Samoa is considered an unincorporated US territory and children born there are not citizens at birth under the 14th amendment. They are citizens at birth only if at least one of their parents is a citizen at the time of birth (like Gabbard). Others are considered US nationals instead. US nationals from American Samoa may apply for US citizenship after 3 months residency in the United States. This means Gabbard is probably not a natural born citizen by jus soli but would fall into the category of a citizen born “abroad” to US citizen parents, e. g., Ted Cruz. Since Gabbard is a long shot for either position on the Democratic ticket I doubt that her status will become an issue.
2Some attorneys believe that a Supreme Court decision in Rogers v Bellei in 1971 created a third class of US citizens, namely those who are citizens by virtue of being born abroad to at least one US parent. From Wikipedia:
The appellee, Aldo Mario Bellei, was born in Italy to an Italian father and an American mother. He acquired U.S. citizenship by virtue of section 1993 of the Revised Statutes of 1874, which conferred citizenship upon any child born outside the United States of only one American parent (known as jus sanguinis). Bellei received several warnings from government officials that failure to fulfill the five-year residency requirement before age 28 could result in loss of his U.S. citizenship. In 1964, he received a letter informing him that his citizenship had been revoked under § 301(b) of the Immigration and Nationality Act of 1952.
Bellei challenged the constitutionality of this act. The three-judge District Court held the section unconstitutional, citing Afroyim v. Rusk, and Schneider v. Rusk.
The Supreme Court reversed the decision, ruling against Bellei.
This ruling seemed to separate that class of citizens from those born on US soil and those naturalized while living in the US. The law that was upheld in the case was repealed a few years later. Note that many scholars still consider those who are citizens at birth while born abroad to be natural born citizens. No court ruling has been issued to the contrary. Judges who dismissed cases filed against Ted Cruz in 2016 seemed to be leaning towards the conclusion that those of Cruz’s circumstances are eligible.