In Part 1 of this article, we looked at the available historical clues up to the writing of our Constitution, for the meaning of “natural born citizen.”
In this part, we’ll see what people understood “natural born citizen” to mean in early America — roughly from the time the Constitution was written until 1825. This was about the lifetime of most of the Founders and Framers.
Our sources of information include:
- Early foreign-language translations of the Constitution (1787 to about 1820)
- David Ramsay’s treatise on citizenship (1789)
- The 1797 Translation of Vattel’s Law of Nations
- The Naturalization Acts of 1790, 1795, 1802, and 1855
- America’s first legal text, by Zephaniah Swift (1795)
- Constitutional commentary and law text by early American legal expert St. George Tucker (1803)
- The James McClure citizenship case (1811)
- US Supreme Court: The Venus (1814)
- My own search of quotes regarding Presidential eligibility from within the lifetimes of those who wrote our Constitution. (late 1700s to about 1820)
- And A View of the Constitution of the United States, by US District Attorney William Rawle (1825)
Early foreign-language translations of the Constitution (1787 to about 1820)
What did those who made early foreign-language translations of our Constitution, and commentaries about it, understand the Presidential eligibility clause to mean? In my search, I focused on French and Spanish, as those are the languages after English that I know best. Following are the examples I found:
“Personne, à moins d’être citoyen-né, ou d’avoir été citoyen des États-Unis, au moment…” (1788)
“Nobody, without being a born citizen, or having been a citizen of the United States at the time…” (1788)
This quote alone would seem to be virtually authoritative. It was written and published the year after the Constitution itself, by Phillip (Filippo) Mazzei, Thomas Jefferson’s next-door neighbor at Monticello, and close personal friend!
Thomas Jefferson was in Paris at the time of the Constitutional Convention. But as one of our most important Founding Fathers — About.com ranks him in the top three, with George Washington and John Adams and above even “Father of the Constitution” James Madison — and soon to be President himself, Jefferson would most certainly have known what the Founders and Framers meant by “natural born citizen.”
Phillip Mazzei’s book was published in Paris in 1788, while his close friend Jefferson was in that city. In fact, Jefferson had been there for 4 years. As well as working on his book, Mazzei had been traveling and promoting American ideals. Jefferson would have been a key American contact in Paris, then the largest and most important city in continental Europe. And it appears that if Mazzei had had any doubt as to what a phrase in the Constitution meant, Jefferson would have been near at hand to provide an answer.
And Mazzei tells us, one year after the Constitution was written, that “natural born citzen” means a “born citizen;” that is, someone who was born a citizen.
“Nul, excepté un naturel né Citoyen, ou un Citoyen des Etats-Unis,à l’époque del’adoption de cette Constitution, ne sera éligible à l’office de Président.” (1792)
Our second quote appears to go for a more literal rendering —
“No one except a ‘natural,’ born a citizen…” (or possibly, “No one except a ‘natural-born citizen’) (1792)
This translation was done by a friend of another Founder, who was present at the Constitutional Convention — Ben Franklin. And it uses the word “naturel,” which was also used by Vattel.
But as we’ve seen in Part 1, that word is and always has been ambiguous in its meaning. Yes, it can mean that a person is indigenous — that his family and ancestors came from the place where he lives. BUT — it can just as well simply mean that a person was born in or grew up in a place. “Native” seems to be a good English equivalent.
And in clarifying what he meant by the term, Franklin’s friend did not write, “born in the US of citizen parents.” He wrote, “born a citizen.”
“Nul ne sera éligible a l’office de président, s’il n’est pas né citoyen des États-Unis…” (1799)
“No one shall be eligible to the office of President, if he is not born a citizen of the United States…” (1799)
The same. “Born a citizen.”
“Aucun individu, autre qu’un citoyen né dans les États-Unis…” (1826)
“No individual, other than a citizen born in the United States…” (1826)
This translation is especially interesting, as it comes from Auguste Levasseur, who was Private Secretary to the Marquis de Lafayette during an extended voyage and visits in America. The Marquis, you will recall, was mentioned in Part 1. And because of the extreme closeness of this translation to our greatest Founding Fathers, it is also virtually authoritative.
In 1824 and 1825, Lafayette visited the United States, calling particularly on four of our most prominent Founding Fathers: James Madison, John Adams, Thomas Jefferson, and James Monroe. All four of these men had been or actively were, in the case of Monroe, Presidents of the United States!
The Marquis had also served under, and was a friend of, our first President, George Washington — and he also visited with John Adams’ son John Quincy Adams, who would soon be President as well.
Madison was the “Father of the Constitution,” and Washington had presided over the Convention in which it was written.
Here we have a man who had been specially named as a “natural born citizen” of the State of Maryland — so he would have a compelling personal reason to understand exactly what the term meant. He is personal friends with the first six Presidents of the United States — including Washington and Monroe. At the time the book is written, the Marquis is friends with five men who have already themselves been President, and one who soon will be.
And he tells us — through the detailed record of his Personal Secretary for his American journey — what “natural born citizen” means.
It means “a citizen born in the United States.”
“Le président doit être citoyen né des États-Unis…” (1826)
“The President must be a born citizen [or born a citizen] of the United States… (1826)”
“Nul, s’il n’est citoyen natif…” (1829)
“No one, unless he is a native citizen…” [The leading French dictionary defines "natif" as "possessed from birth; innate; natural."] (1829)
And one final French translation:
“Nul ne peut être Président, a moins qu’il ne soit né dans les États-Unis…” (1837)
“No one can be President, unless he is born in the United States…”(1837)
Maybe it’s just French? What do early Spanish translations say?
“Ninguna persona, escepto un natural nacido ciudadano…” (1821)
“No person except a natural, a born citizen…” or “No one except a natural born citizen…” (1821)
“El presidente es elejido entre todos los ciuidadanos nacidos en los Estados Unidos, de edad de treinta y cinco años…” (1825)
“The President is elected from among all citizens born in the United States, of the age of thirty-five years…” (1825)
“No podrá ser presidente nadie que no haya nacido ciudadano delos Estados-Unidos, ó lo sea al tiempo de adoptarse esta constitucion…” (1837)
“No one can be President who has not been born a citizen of the United States, or who is one at the time of the adoption of this Constitution…” (1837)
“El presidente debe ser ciudadano nacio en los Estados-Unidos…” (1848)
“The President must be a citizen born in the United States… (1848)”
Finally, in order to get three languages, I went and found one in Italian as well:
“Non potrà essere eletto al posto di Presidente se non quegli, che sarà nativo degli Stati-Uniti, o naturalizzato al tempo, che si adotti questa Constituzione…” (1790)
This one was published in 1790 — just 3 years after the Constitution was written — and so it once again provides a very contemporary understanding of the meaning of the qualification.
“No one may be elected to the post of President except a native of the United States, or who is naturalized at the time of the adoption of this Constitution…” (1790)
An Italian dictionary defines “nativo” (in Italian) as “having to do with place of birth; natural; having been born in a place.”
Two of twelve translations or commentaries attempt to produce a literal rendering of “natural born citizen.” One states that the President must be a “native citizen,” with “native” defined as “innate, natural, or possessed from birth.” One says “native of the United States,” with native defined as “having to do with place of birth; natural; having been born in a place.”
All of the remaining translations state that a person must be born a citizen, or born in the United States, in order to be eligible. And the two most authoritative translations state clearly that it means a “born citizen,” or a “citizen born in the United States.”
Not one of the twelve states or implies that citizen parents are required.
David Ramsay’s treatise on citizenship (1789)Mario Apuzzo and the birthers have claimed that a 1789 treatise by Revolutionary War historian, American patriot and early American politician David Ramsay supports their claim that it takes two citizen parents to be a natural born citizen.
Ramsay does state his opinion that citizen parents are required in order to be an American citizen. However:
- his treatise makes no reference to the status of children born on US soil of immigrant parents;
- it was a marketing piece written to lobby Congress for his sore-loser campaign to have William Loughton Smith (who beat Ramsay in an election for the House of Representatives) declared ineligible;
- the point about citizen parents is directly supportive of his personal sore-loser goal; and
- his campaign — and his views on citizenship — were resoundingly (thirty-six to one!!) repudiated by our leaders in the House of Representatives, led by none other than James Madison, the “Father of the Constitution,” who clearly declared that when it comes to the allegiance that makes for citizenship, “in general place is the most certain criterion; it is what applies in the United States.”
For all of these reasons, David Ramsay’s treatise clearly did not represent the views of the Founding Fathers, and cannot establish any guide at all as to what they considered the phrase “natural born citizen” to mean. It does, however, provide an illuminating quote from Madison: “In general place… is what applies in the United States.”
Smith himself — some will note — quoted Vattel in his defense. The fact is, he had both of the kinds of ties that were mentioned by James Madison — jus soli (the law of the soil) and jus sanguinis (the law of blood).
Historically, in England, jus soli was the primary rule. But there were also laws that stated that a person born overseas of English subject parents was also to be regarded as just as much a natural born subject as those born on English soil.
The 1797 Translation of Vattel’s “Law of Nations”
Earlier, we saw that there is no known historical record that the Founding Fathers or Framers of the Constitution were referring to Vattel’s concept of citizenship in their use of the term “natural born citizen.” We also saw that no writer on the Law of Nations appears to have ever used the phrase, and that the first time anybody seems to have translated Vattel’s word “indigènes” to mean “natural born citizens” was in 1797, 10 years after the eligibility clause was writen.
Confronted with this reality, Mario Apuzzo made the claim that the translator of the 1797 edition of Vattel’s book translated “indigènes” as “natural born citizens” because he understood the mindset of the American Founding Fathers, and understood that when they used the phrase “natural born citizen” in the Constitution, they were referring to Vattel’s concept of citizenship.
The claim is unsupported by any evidence at all. In fact, when you consider what we actually know about the 1797 translation, it goes beyond being simply invalid. In fact, it would not be inaccurate to describe the claim as “ridiculous.”
This is because the 1797 edition was translated by an anonymous Englishman in London — and published in that city as well. The 1797 edition therefore had nothing to do with the United States at all.
The Naturalization Acts of 1790, 1795, 1802, and 1855
Mario Apuzzo has made the claim that these Naturalization Acts “abrogated” American rules on the citizenship status of children born on US soil to non-citizen parents.
However, a law doesn’t “abrogate” (or nullify) a matter which it does not address.
If Congress passes a law providing a tax break for Americans residing overseas, that doesn’t affect the tax rates of Americans who live in America.
Likewise, these laws — which addressed the citizenship status of foreigners who wanted to become naturalized US citizens and of children born to US citizens abroad — did not address the citizenship status of any person born in the United States.
There are, however, a couple of aspects of these laws that complicate the “natural born citizen” issue at least somewhat.
First, our First Congress in 1790 passed a law providing that persons born abroad to US citizens were to be “considered as natural born citizens.” This flies somewhat in the fact of the claim that it requires two citizen parents plus birth on US soil to be a natural born citizen.
Secondly, there was a change from 1790 to 1795 that is worth noting: The 1795 Congress changed the wording from “considered as natural born citizens” to “considered as citizens of the United States.”
In the past I’ve stated that there are only “natural born” and “naturalized” citizens. And that still appears to be true for all persons born on US soil. However, it seems to me that the 1795 Congress — or at least the House committee that drafted the new law, as there seems to have been no debate at all about the change on either the House or Senate floor — must have intended to withdraw Presidential eligibility for children born abroad of US citizen parents.
What does this mean for such persons today? Obviously, it introduces more doubt regarding the eligibility of such persons than would otherwise be the case. Still, most scholars seem to believe that “natural born citizen” is equivalent to “citizen at birth,” and that such persons are eligible. This was the opinion, for example, of Laurence Tribe and Ted Olson in 2008, when considering the case of John McCain.
In our litigious society, it seems inevitable that if and when such a person is elected, the issue will be settled by the Supreme Court. I think (as do many other people) that the Court would rule in favor of the candidate. One possible argument in favor of such a ruling might well be that even if the 1795 Congress had intended to withdraw natural born citizenship from those born overseas, the intention of subsequent Congresses in passing the naturalization laws that apply today was not to withhold such natural born citizenship. And I think that would be a very plausible argument to make. It certainly seems that more recent courts and Congresses have understood such persons to be eligible.
But we don’t know for certain how a future Supreme Court would rule. Some more discussion on this matter is available here.
One further comment on those born Americans overseas: In a worst-case scenario, if the Supreme Court were to rule that Congress had withdrawn natural-born citizenship status in 1795 from the children born abroad of U.S. citizens and had never rescinded that withdrawal, the outrage of the electorate who elected the candidate would almost certainly demand a remedy, and a remedy seems apparent. Similar to what the Congress did for John McCain in 2008, it seems to me that our legislators could simply pass a law retroactively establishing that all persons so born are to be considered as natural born citizens for all legal purposes.
Since any Supreme Court ruling based on the 1795 change in law would imply that Congress has the power to define whether foreign-born Americans were to be counted among our natural-born citizens, such a law would likely pass the approval of the Supreme Court. And since the Presidential eligibility clause states that no person who is not a natural born citizen is eligible to the Office of President — and instead of stating that no person can be elected, or chosen, to serve in that Office, it seems to me that a person so elected could then legally assume the Office to which he or she had been elected.
Of course, I am not a lawyer; your mileage may vary, etc.
Meanwhile, neither the 1795 change nor any other provisions in the 1790, 1795, 1802 and 1855 Naturalization Acts have any bearing on the status of those born on US soil, for the simple reason that they don’t address their status. On the contrary, when the 1790 provision recognized children born overseas to US citizen parents as “natural born” citizens, it made clear that — in that instance, at least — both qualifications were not required for “natural born citizen” status.
More discussion of this (including the text of those Acts) is available here.
America’s first legal text, by Zephaniah Swift (1795)
In 1795 and 1796, Zephaniah Swift published the first home-grown legal text of our new country. It was subscribed to by a “Who’s Who” of American leaders, including 3 Presidents and half the US Supreme Court.
In that text, Swift wrote (among other relevant things): “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.”
A full article discusses Mr. Swift and his legal treatise.
Mario Apuzzo has objected that Swift was writing only in regard to state citizenship, and a citizen of a state is not necessarily a citizen of the United States. That may be. However, we will see in Part 3 that by 1844, we have a judicial ruling which found, after a long and careful analysis, that the laws in all thirteen of the original states were similar, and they all operated on the same principle.
So while Swift’s evidence may not be conclusive, it still appears to be a good indication of how the Founding generation handled citizenship through the new country, and of what they understood “natural born” to mean.
The Constitutional commentary and law text by early American legal expert St. George Tucker (1803)
Swift is not the only early American legal expert to speak on the issue. St. George Tucker, arguably the most important legal expert in the early United States, provides evidence as well.
Mario Apuzzo chooses quotes from Tucker which touch peripherally on the issue, and which do not specifically mention children born on US soil of non-citizen parents at all. He then uses those in an attempt to “force” Tucker to support his position — while ignoring and/or denying those things that Tucker had to say that were more directly relevant.
In Tucker’s edition of Blackstone’s Commentaries, Tucker footnotes a passage that states, “The children of aliens, born here in England, are generally speaking, natural-born subjects, and entitled to all the privileges of such,” by noting that all of the important citizenship laws for the Commonwealth of Virginia and the United States are in agreement.
Apuzzo claimed first that the footnote only means that the American laws agree with each other. When the obvious falsehood of this meaning was pointed out, he then claimed that the footnote actually refers to the sentence following the one it footnotes, and not the sentence that it is a footnote to.
A full article and discussion of St. George Tucker’s relevant comments is here.
The James McClure citizenship case (1811)
I mention this because it has been claimed as important historical evidence. Mario Apuzzo even calls it a “smoking gun.”
In 1811, a man named James McClure was arrested and held by France as an “English prisoner” (they were at odds with the English at the time). McClure had been born in South Carolina of a naturalized father, but then moved to England at age 10 and was now about 26 years old. Because of these facts, some American authorities were divided on whether he was an American citizen.
In October of that year, someone using the pseudonym of “Publius” wrote a letter to a newspaper, expressing a (tentative) opinion that McClure was not a US citizen.
Leo Donofrio claimed that “Publius” was President James Madison, and that the letter therefore represented the law in the United States. Donofrio has since retired from the scene, but Mario Apuzzo has taken up his mantra.
The claim is without merit, because
a) there’s no good reason to believe that “Publius” was President Madison reusing the famous, decades-old pseudonym he had used with Alexander Hamilton and John Jay in writing the Federalist (1787-1788),
b) there are a few hundred thousand other people it could have been, and
c) the Madison Administration shortly thereafter came to McClure’s rescue, declaring him to the French to be an American citizen.
Mr. Apuzzo has also claimed (falsely) that “The James Madison Administration found that James McClure was a naturalized “Citizen of the United States” under the Naturalization Act of 1802.”
But nothing in the letter from the Madison administration said that James McClure was a naturalized citizen. On the contrary, specific mention was made of the fact that McClure was born in Charleston, South Carolina. No mention was made of the citizenship status of his father.
The McClure case therefore provides no evidence to support the claim, and in fact provides some evidence against it.
US Supreme Court: The Venus (1814)In 2009, John Charlton of “The Post & Email” claimed that this Supreme Court case defined the meaning of “natural born citizen.” This particular case cited the passage from Vattel that birthers claim supports the two-citizen-parent theory.
Shortly after war was declared in the War of 1812, a ship called the Venus was captured by an American privateer. It turned out that the ship was jointly owned by James Lenox and William Maitland, and was registered in America. However, while Lenox and Maitland were both American citizens — Maitland was originally British but had naturalized as an American — Mr. Maitland was at that time living in England.
The main question in the case of The Venus, however, was not citizenship. Not much distinction was made of the fact that Maitland was a naturalized citizen, or even that he had originally been from Britain. The real question was this: To what degree is an American citizen currently residing in a foreign country participating as an American, and to what degree is he participating as a member of the country where he is living?
The claim that the case of The Venus supports the idea that it takes two citizen parents to make a natural born citizen suffers from several problems.
First, Vattel was not cited in the majority opinion, but in Justice Marshall’s dissent. This immediately weakens the argument considerably.
Secondly, Marshall did not cite the passage from Vattel in order even to make a point about citizenship, per se, but about the degree to which resident aliens resemble citizens of the country where they are residing. Here is the preface to Marshall’s Vattel quote:
The whole system of decisions applicable to this subject rests on the law of nations as its base. It is therefore of some importance to inquire how far the writers on that law consider the subjects of one power residing within the territory of another, as retaining their original character or partaking of the character of the nation in which they reside.
Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says…
After quoting Vattel, he continues:
A domicile, then, in the sense in which this term is used by Vattel, requires not only actual residence in a foreign country, but “an intention of always staying there.” Actual residence without this intention amounts to no more than “simple habitation.”
Third (and most critically) Marshall did not even quote the translation of Vattel which uses the phrase “natural born citizens,” but one which says, in English, “natives or indigenes.”
For all of these reasons, the case of The Venus gives no support to the idea that it takes two citizen parents to make a natural born citizen.
My own search of quotes regarding Presidential eligibility from within the lifetimes of those who wrote our Constitution. (late 1700s to about 1820)
I did a series of Google Books Advanced Searches for evidence of what people understood the meaning of “natural born citizen” to be, up to the year 1820.
The search uncovered quotes such as “The President is Commander-in-Chief of the army and navy, and of the militia when in active service… He must be a native born citizen, not under thirty-five years of age….”
The search found no quotes to imply that anyone ever believed that Presidential candidates, born on US soil, had to have citizen parents as well.
A View of the Constitution of the United States, by US District Attorney William Rawle (1825)William Rawle was United States District Attorney for Pennsylvania, and author of A View of the Constitution of the United States of America, published in 1825 (2nd Edition 1829).
In that work, he said:
…he who was subsequently born a citizen of a state, became at the moment of his birth a citizen of the United States. 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.
Mario Apuzzo claims that Rawle “provides no source from the Founding era which supports his definition of a “natural born Citizen.” Basically, he just provides his unsupported personal opinion.”
But William Rawle, who was a personal friend of Benjamin Franklin, was appointed the United States District Attorney for the State of Pennsylvania just 4 years after the Constituton was written — only 3 years after it was ratified.
And Pennsylvania was certainly one of the largest and most important of only 13 or 14 States of the United States of America (depending on whether Vermont had yet joined), having also the second largest city in the country, Philadelphia, which was only slightly smaller than New York City.
As a leading legal authority and a close personal friend of one of our core Founders and Framers — Franklin, along with Washington, Madison and Hamilton, was at the Constitutional Convention — Rawle is an authoritative Founding-Era source.
Rawle’s quote above was later referenced approvingly by Judge Sandford in the important New York State case Lynch v Clarke (1844), which in turn was referenced by the US Supreme Court in the key citizenship case United States v Wong Kim Ark.
To Be Continued in Part Three
In the early United States, during the lifetime of the Founding Generation, we have found no historical support for the idea that people understood “natural born citizen” to mean anything other than “born a citizen” or “born in the United States.”
In Part Three, we’ll look at what people understood of the term during the Antebellum period following that generation, as the poisonous pill of slavery that the Founders had swallowed in order to bring a new nation together slowly ate at America’s insides, and helped drag us down the inexorable path to civil war.