Promoted from diaries.

No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President…

–Article II, Section 1 of the United States Constitution

This is a passage that has weighed heavily upon us in recent years. There are those among us, known commonly as “Birthers” who dispute the eligibility of various politicians to be President or Vice-President of the United States. The most popular target of the Birthers is Barack Obama, of course, but of late, Birthers have been training their sights on the cases of Marco Rubio, Nikki Haley, Bobby Jindal, Ted Cruz, and probably others.

Leaving aside the birth certificate issue, which is unique to Obama’s case (and for the record, I do believe he was born in Hawaii), the main sticking point for the Birthers is that all four of the politicians have at least one parent who was not born in America (indeed, Obama is the only one who had a parent who was an American citizen at the time of his birth, his mother). They are fond of quoting the line from Book I, Chapter XIX of Emmerich de Vattel’s The Law of Nations: “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.”

While they are not wrong in that the Founders were fond of the book, there’s one problem with trying to apply this interpretation to our Constitution: the United States’ legal history.

I am planning this to be a mutli-part series. Part II will deal with the interpretation of this clause in the latter half of the 19th century, with particular emphasis placed on the 14th Amendment and later court cases. Part III, meanwhile, will deal with how the clause has been dealt with in the 20th century and in our day. So, let’s jump right in.

Hit the jump for more.

I believe it’s best to start with Alexander Hamilton’s draft of the Constitution. By his plan, the particular section relating to a President’s eligibility would have said:

No person shall be eligible to the office of President of the United States unless he be now a citizen of one of the States or hereafter be born a citizen of the United States.

–Article IX, Section 1 of Hamilton’s plan

This means that, under Hamilton’s plan, and he was certainly important in the drafting of the Constitution (and as the Federalist Papers show, one of its biggest defenders), a President need only be born in the United States, with no “natural born” affixed to the term “citizen”. There is no real explanation that I can find as to why the Committee of Eleven changed the phrase to its present form, but it was. Making it even worse, the Constitution itself does not define the term “natural born citizen”. A quote from James Madison, popularly acknowledged as the “author” of the Constitution, provides a clue as to what our Founders meant. In one of his papers, dated the 22 May, 1789, he wrote the following (emphasis mine):

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; it will therefore be unnecessary to investigate any other.

Having mentioned this, I think it would be best to now examine what early legal minds had to say on the subject. We’ll start with Zephaniah Swift. He was a member of the Connecticut House of Representatives, serving as its Speaker in 1792, as well as clerk for four sessions. From 1793 to 1797, he served in the Federal Congress as well as a Pro-Administration representative in his first term and as a Federalist in his second. The Connecticut Judicial Branch in its biography of him says:

Judge Swift has been praised as one of the greatest early American jurists by Wesley W. Horton in his book, The Connecticut State Constitution. Swift studied at Yale before entering the practice of law, and represented the town of Windham in the General Assembly of Connecticut. He was elected to the U.S. Congress where he served from 1787 to 1793. A brief paragraph in the Biographical Directory of the United States Congress states he “also engaged in literary pursuits.”

More specifically, Swift wrote the first legal treatise published in America. This work, A System of the Law of the State of Connecticut, published in 1795, presents Swift’s observations on government, the constitution of the state, and differences between English and American common law. In 1810, Swift published the first treatise on the law of evidence.

So, this is a man who served with our Founding Fathers in the United States Congress. What does he have to say about the issue? In his legal treatise, he wrote:

“It is an established maxim, received by all political writers, that every person owes a natural allegiance to the government of that country in which he is born. Allegiance is defined to be a tie, that binds the subject to the state, and in consequence of his obedience, he is entitled to protection…

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.”

Meanwhile, in 1803, St. George Tucker, a lawyer, a professor at the College of William and Mary, judge on Virginia’s high court, and U.S. district judge for Virginia, wrote this in 1803 in his work on Blackstone’s Commentaries on English law:

That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence…

A very respectable political writer makes the following pertinent remarks upon this subject. “Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it.

Moving forward in time some, we find the works of James Kent. This is a man whose reputation in American law is such that one man, William Curtiss, wrote a book in 1900 called James Kent: The Father of American Jurisprudence, about him. Also of interest to us conservatives is a book written on him in 2000 called James Kent: A Study in Conservatism 1763-1847 by John Theodore Horton. Kent’s most remembered work is his Commentaries on American Law, written between 1826 and 1830. This was a four volume magnum opus dealing with state, federal, and international law, as well as the law of personal property and rights. In Lecture XIII, which was on the Presidency, from Volume One, Part II, he states the following of the President’s qualifications (emphasis mine):

2. Qualifications. — The Constitution requires (a) that the President shall be a natural born citizen, or a citizen of the United States at the time of the adoption of the Constitution, and that he shall have attained to the age of thirty-five years, and shall have been fourteen years a resident within the United States. Considering the greatness of the trust, and that this department is the ultimately efficient executive power in government, these restrictions will not appear altogether useless or unimportant. As the President is required to be a native citizen of the United States, ambitious foreigners cannot intrigue for the office, and the qualification of birth cuts off all those inducements from abroad to corruption, negotiation, and war, which have frequently and fatally harassed the elective monarchies of Germany and Poland, as well as the pontificate at Rome.

In Lecture XXV from Part IV of Volume II, Kent explains just who qualifies as a native (though it should be obvious):

1. Of Natives. —Natives are all persons born within the jurisdiction and allegiance of the United States.

Concurrent with Kent’s work, we find William Rawle in agreement with him. According the the University of Pennsylvania’s website on him (he served as a trustee of the university), Rawle was:

William Rawle quickly gained a reputation as an able attorney, eventually serving as chancellor of the Philadelphia Bar from 1822 until his death. As a Federalist he served a term in the Assembly, but found that politics were not to his liking. After his 1791 appointment by George Washington as U.S. District Attorney for Pennsylvania, Rawle handled the prosecutions stemming from the whiskey riots in the western part of Pennsylvania. He stepped down from this office in 1799.

In 1829, he wrote A View of the Constitution. In this work, he addresses what the term “natural born citizen” means on page 86:

Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity…Under our Constitution the question is settled by its express language, and when we are informed that, excepting those who were citizens, (however the capacity was acquired,) at the time the Constitution was adopted, no person is eligible to the office of president unless he is a natural born citizen, the principle that the place of birth creates the relative quality is established as to us.

In 1840, Associate Justice of the United States Supreme Court Joseph Story, one of the most well-respected men to even serve on that body, wrote his own Constitutional handbook titled A Familiar Exposition of the Constitution of the United States. On page 167, he addresses Article II, Section 1 of the U.S. Constitution. After citing it in §269, he addresses the meaning of the citizenship requirement in § 271, saying:

It is not too much to say, that no one, but a native citizen, ought ordinarily to be intrusted [sic] with an office so vital to the safety and liberties of the people.

Having seen what early legal minds had to say on the subject, and there are many more examples that could have been provided here beyond these five men, I think it’s time to turn to what the courts have said on the matter. Before he wrote his handbook, Justice Story, in 1830, offered the following opinion in the Supreme Court case Inglis v. The Trustees of Sailor’s Snug Harbor. From page 637 of the United States Supreme Court reports, Volumes 26-29, he says:

Now, allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the ligeance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth derive protection from, and, consequently, owe obedience or allegiance to, the sovereign, as such, de facto.

And he continues on page 640:

That the father and mother of the demandant were British born subjects is admitted. If he was born before the 4th of July, 1776, it is as clear that he was born a British subject. If he was born after the 4th of July, 1776, and before the 15th of September, 1776 [when the British again occupied New York, where Inglis was born], he was born an American citizen, whether his parents were at the time of his birth British subjects or American citizens. Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto are subjects by birth.

The New York Court of Chancery case Lynch v. Clarke (and Lynch) (Bernard Lynch v. John Clarke and Julia Lynch) from 1844 is one of the most prescient and important cases dealing with the matter, and it is the most important case for this study before the passage of the Fourteenth Amendment. The official report of the case describes on pages 587-88 the circumstances behind the case and of Julia’s birth:

Her parents were British subjects, domicilled [sic] in Ireland. They came to this country in 1815, remained till the summer of 1819, and then returned to Ireland. Julia was born in the city of New-York, in the spring of 1819. Her parents took her with them on their return, and she remained in Ireland till after the death of Thomas Lynch [her uncle who lived in New York]. During the sojourn of her father here, Thomas hired a farm for him and paid the rent. Her father occupied the farm for a time, but it is proved that he was not contented here. One witness testified that Patrick Lynch (Julia’s father) always wished to return to Ireland…It does not appear that he ever declared his intention to become a citizen under the act of Congress; or ever expressed any intention to reside here permanently. Some years after he returned to Ireland, he came here on a visit, without bringing his wife or any of his family; remained for six short months; and then returned to Ireland, where he and his wife continued to reside until their death.

As the report notes elsewhere, Thomas Lynch died intestate. Bernard Lynch was, like Patrick, a brother of Thomas. He had emigrated to the United States in 1834, and he was naturalized a citizen in 1839. “The legislature of this state, in 1841, passed an act entitling him to the real estate of Thomas,” the report says on page 586, “saving, however, the claims of the heirs of Thomas, and the existing rights of Julia Lynch.” In 1839, the state had passed a similar law in her favor, with the only thing in saving her from inheriting the estate being the heirs of Thomas at law.  The case filed by Bernard before the court was that Julia had never been naturalized, and if she was entitled to any of Thomas Lynch’s estate at all, it would be no more than one-fourth. Furthermore, the case recognized Mr. Clarke’s claim to be the exclusive owner of Thomas’ land.

However, Mr. Clarke spoke out in Julia’s favor. Says the report on page 587:

Mr. Clarke…stated that the purchases at Saratoga were all made in his own name, and at his risk, and for his sole benefit. That [Thomas] Lynch had from the outset, refused to participate in the adventure, and for many years decried it. That a considerable part of the purchase money was paid out of the funds of the firm, but that the money was loaned to him by the firm, with the concurrence of Lynch, and he had repaid it all to the firm and to Lynch’s administrator. He also alleged that Julia Lynch was a citizen of the United States, and inherited all the real estate of Thomas Lynch.

Julia Lynch…insisted that she was a native born citizen, and as such inherited all the real estate whereof Thomas Lynch was seised [sic], or to which he was equitably entitled. She moreover claimed that by the act of the legislature in her favor, she was entitled to the whole property to the exclusion of the complainant [Bernard Lynch].

So, was Julia Lynch a citizen? That was the question before the court. The peculiar nature of the case meant that she must either have been a natural born citizen because she was born to her parents, though they were aliens, on U.S. soil, or that she was not a citizen at all because her parents were aliens regardless of the place of her birth and that she had never made any attempt to be naturalized.

To make a long story short, the court ruled in her favor. Over the course of the case, the Vice-Chancellor Lewis Sandford of the court noted the following (the Vice-Chancellor’s opinion begins on page 637 of the report I have been citing, and I will cite the relevant page numbers at the end of each quote):

First. It is insisted by the defendants that the rule of the common law is to govern this case on the point of alienage.

It is an indisputable proposition, that by the rule of the common law of England, applied to these facts, Julia Lynch was a natural born citizen of the United States.

–pp.638-639

Second. Such being the rule of common law in absence of express legislation, the difficult question is presented for decision; is the common law in this respect, the law of this state, or of the United States?

–pg. 639

Third. The next inquiry is therefore, what is the national law of the United States on this subject?

…At the formation of our present national government, the common law prevailed as a system of jurisprudence, in all the thirteen states which then constituted the nation…Both the former, and the present constitutions of this state declared, in effect, that the common law was the basis of the law in this state. (Constitution of 1777, Art. 35; Constitution of 1821, Art. 7 § 13.)

…It is indifferent whether we say that we inherited the common law or the principles of the common law. There is no doubt but that in all the thirteen colonies, it was the common origin of our jurisprudence.

–pp. 646-647

The Constitution of the United States, like those of all the original states (and in fact, of all the new states now forming the Union, with the exception of Louisiana,) presupposed the existence and the authority of the common law. The principles of that law were the basis of our institutions.

–pg. 652

What we have established thus far in the ruling is the following:

• Under the common law of England, Julia Lynch would be considered a natural born citizen of the United States.
• The common law of England formed the basis of the law of New York, and both of the Constitutions the state had used up until 1844 made this evident.
• In this respect, New York was not essentially different from any of the other thirteen colonies.
• The United States Constitution and our national institutions were formed on the basis of the common law.

The only standard which then existed [when the Constitution was written], of a natural born citizen, was the rule of common law, and no different standard has been adopted since. Suppose a person should be elected president who was native born, but of alien parents; could there be any reasonable doubt that he was eligible under the Constitution? I think not. The position would be decisive in his favor, that by the rule of the common law, in force when the Constitution was adopted, he is a citizen.

–pg. 656

To find an authority in Vattel, we must be sure to find the proposition which is intended by the author to meet the case. Hence the error of the complainant’s counsel. They cite Sec. 212, which is a definition in the limited and strictest sense of ” natives and citizens,” the smallest possible circle of that class. He does not define all who compose the citizens of a country, but when we read Sec. 215, we have the identical authority for the question at issue in this discussion ; which is, in the language of the author, ” whether children born of citizens in a foreign country, are citizens.” ” The laws have decided this question in several countries, and their regulations must be followed.” ” By the law of nature, children follow the condition of the father; the place of birth produces no change in this particalar.” “But civil and political laws may, for particular reasons, ordain otherwise.” Now this is the authority, and the civil and political laws of England and the United States have decided that such children are citizens, and owe allegiance to the government. ” These regulations must be followed,” says Mr. Vattel; for that is the public law in those countries, and that is his reason. The Supreme Court of the U. S. held the doctrine as thus laid down by Vattel in Dawson’s Lessees v. Godfrey,(4 Cranch, 321.) And see Rutherforth’s Institutes, ch. 2, p. 41.

Mr. Vattel says it is by the law of nature that ” children follow the condition of their father;” but he decides this question by positive law, such as any particular country may ordain.

–pg. 613

Vattel was quoted as an authority against the rule for which we contend. Yet if his own explanation of his own terms is used, it may be an authority in our favor; he prefaces this chapter by stating that he had previously defined the term native country, and refers to §122, where he says, ” when we speak in general of the duty to our country, the term is to be understood as meaning the state of which a man is an actual member.” Patrick Lynch was an actual member of this state at the time of his daughter’s birth.

Our state convention on 16th July, 1776, (see 20 Johns. R.  315, 326, which was referred to by the complainent’s counsel, with approbation,) shows its views of national law; it declares ” that all persons abiding within the state, and deriving protection from its laws, owe allegiance to its laws, and are members of the state,” and then distinguishes those passing through merely, or visiting, or making a temporary stay.

–pp. 622-623