In the 2008 election both major parties nominated candidates
whose eligibility is dubious. For Barack Obama the question was
whether he was born in Hawaii, which is U.S. soil. For John McCain
the question was whether the Panama Canal Zone, where he was born,
was U.S. soil. It is not, and being born of parents both of whom
were U.S. citizens did not make him a "natural-born" citizen,
although a statute was later adopted naturalizing such persons at
The U.S. Constitution provides as follows:
Article II Section 1 Clause 5:
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; neither shall any
Person be eligible to that Office who shall not have attained to
the Age of thirty five Years, and been fourteen Years a Resident
within the United States.
Amendment XIV Section 1:
All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and
of the State wherein they reside.
The main authority for the original meaning of "natural born" is
William Blackstone, in his Commentaries on
the Laws of England, Volume II, edited
by St. George Tucker, a Founder, published in 1803, especially
As to the qualifications of members to sit at this
board: any natural born subject of England is capable of being a
member of the privy council; taking the proper oaths for security
of the government, and the test for security of the church. But,
in order to prevent any persons under foreign attachments from
insinuating themselves into this important trust, as happened in
the reign of king William in many instances, it is enacted by the
act of settlement,l that no person born out of the dominions of
the crown of England, unless born of English parents, even though
naturalized by parliament, shall be capable of being of the privy
... the king has also the prerogative of conferring
privileges 53 upon private persons. Such as granting place or
precedence to any of his subjects, as shall seem good to his royal
wisdom:g or such as converting aliens,54 or persons born out of
the king's dominions, into denizens; whereby some very
considerable privileges of natural-born subjects are conferred
upon them. Such also is the prerogative of erecting
corporations;55 whereby a number of private persons are united and
knit together, and enjoy many liberties, powers, and immunities in
their politic capacity, which they were utterly incapable of in
their natural. Of aliens, denizens, natural-born, and naturalized
subjects, I shall speak more largely in a subsequent chapter;
The first and most obvious division of the people is
into aliens and natural-born subjects. Natural-born subjects are
such as are born within the dominions of the crown of England;
... the prince is always under a constant tie to protect
his natural-born subjects, at all times and in all countries, for
this reason their allegiance due to him is equally universal and
permanent. But, on the other hand, as the prince affords his
protection to an alien, only during his residence in this realm,
the allegiance of an alien is confined (in point of time) to the
duration of such his residence, and (in point of locality) to the
dominions of the British empire.
Thus allegiance, then, both express and implied, is the
duty of all the king's subjects, under the distinctions here laid
down, of local and temporary, or universal and perpetual. Their
rights are also distinguishable by the same criterions of time and
locality; natural-born subjects having a great variety of rights,
which they acquire by being born within the king's ligeance, and
can never forfeit by any distance of place or time, but only by
their own misbehaviour:
The children of aliens, born here in England, are
generally speaking, natural-born subjects, and entitled to all the
privileges of such.10 In which the constitution of France differs
from ours; for there, by their jus albinatus, if a child
be born of foreign parents, it is an alien.c
St. George Tucker, the editor, says this in a footnote:
Persons naturalized according to these acts, are
entitled to all the rights of natural born citizens, except,
first, that they cannot be elected as representatives in congress
until seven years, thereafter. Secondly, nor can they be elected
senators of the United States, until nine years thereafter.
Thirdly, they are forever incapable of being chosen to the office
of president of the United States. Persons naturalized before the
adoption of the constitution, it is presumed, have all the
capacities of natural born citizens. See C. U. S. Art. 1, 2.
Blackstone uses the term "subject" rather than "citizen", so are
citizens the same as subjects for this purpose? We have from Ainslie
v. Martin, 9 Mass. 454, 456, 457 (1813):
And if, at common law, all human beings born within the
ligeance of the King, and under the King's obedience, were
natural-born subjects, and not aliens, I do not perceive why this
doctrine does not apply to these United States, in all cases in
which there is no express constitutional or statute declaration to
the contrary. . . . Subject and citizen are, in a degree,
convertible terms as applied to natives, and though the term
citizen seems to be appropriate to republican freemen, yet we are,
equally with the inhabitants of all other countries, subjects, for
we are equally bound by allegiance and subjection to the
government and law of the land.
Before Blackstone, the leading authority for the meaning of
constitutional language is Edward Coke, who explains in Calvin's
Case, 7 Coke Report 1a, 77 ER 377 (1608), that a
child born on the soil of England to a foreign national visiting
the country who is not an invader is a "natural born subject" of
[A foreign national]... so long as he was within the
King's protection; which [though] but momentary and uncertain, is
yet strong enough to make a [natural bond] he hath issue here,
that issue is a natural born subject; ... There be regularly ...
three incidents to a subject born. 1. That the parents be under
the actual obedience of the King. 2. That the place of his birth
be within the King's dominion. And, 3. The time of his birth is
chiefly to be considered; for he cannot be a subject born of one
kingdom that was born under the ligeance of a King of another
kingdom, albeit afterwards one kingdom descend to the King of the
other. ... many times ligeance or obedience without any place
within the King's dominions may make a subject born, but any place
within the King's dominions may make a subject born, but any place
within the King's dominions without obedience can never produce a
natural subject. And therefore if any of the King's ambassadors in
foreign nations, have children there of their wives, being English
women, by the common laws of England they are natural-born
subjects, and yet they are born out-of the King's dominions. But
if enemies should come into any of the King's dominions, and
surprise any castle or fort, and possess the same by hostility,
and have issue there, that issue is no subject to the King, though
he be born within his dominions, for that he was not born under
the King's ligeance or obedience. But the time of his birth is of
the essence of a subject born; for he cannot be a subject to the
King of England, unless at the time of his birth he was under the
ligeance and obedience of the King.
The subject of whether jus soli or jus sanguinis
applies to the United States came up in a debate in the U.S. House
of Representatives, May
22, 1789, when James Madison said:
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
That was not on the point of presidential eligibility, but it
does show which rule applies.
Drawing from Max Farand's Records of the Federal Convention
of 1787, historian George Bancroft characterized the debate
on qualifications for the Presidency in his History of the
Formation of the Constitution of the United States (1884)
(Volume 1 Page 346):
One question on the qualifications of the president was
among the last to be decided. On the twenty-second of August the
committee of detail, fixing the requisite age of the president at
thirty-five, on their own motion and for the first time required
that the president should be a citizen of the United States, and
should have been an inhabitant of them for twenty-one years. The
idea then arose that no number of years could properly prepare a
foreigner for the office of president; but as men of other lands
had spilled their blood in the cause of the United States, and had
assisted at every stage of the formation of their institutions,
the committee of states who were charged with all unfinished
business proposed, on the fourth of September, that 'no person
except a natural-born citizen, or a citizen of the United States
at the the of the adoption of this constitution, should be
eligible to the office of president,' and for the foreign-born
proposed a reduction of the requisite years of residence to
fourteen. On the seventh of September, the modification, with the
restriction as to the age of the president, was unanimously
The questions centered on how persons became citizens, and how
long they had been citizens, but the subject of parentage was
Act of 1790 stated "children of citizens of the United
States, that may be born beyond the sea, or out of the limits of
the United States, shall be considered as natural-born citizens.",
but "considered as" does not change the definition of the term or
the fact of the physical circumstances of birth, nor can
conferring a privilege by statute change an eligibility
requirenent in the Constitution. They made a mistake, using sloppy
language, and corrected it in the next act on the subject. It is
also irrelevant. It is a naturalization act, and a statute cannot
change the meaning of a term in the Constitution. For that one has
to go back to the usage of the term before 1787, and that means
usage by Coke and Blackstone, especially Coke, in Calvin's
Case. That case controls the meaning for the Founders, who
regularly referred to those authors when they were unclear on
legal terms of art. The early Congresses often made constitutional
errors. Then as now they did not always think everything through.
For that matter, the Framers made some mistakes in the
Constitution, but we are stuck with those mistakes unless or until
we amend it. That error was corrected by repeal with the Naturalization
Act of 1795.
Sometimes miscited is Emmerich de Vattel, in his work Les
Droit des Gens (Law of Nations), taking out of
context the words from Book I:
... The natives, or natural-born citizens, are those born in the
country, of parents who are citizens.
But he was writing of the rule of jus sanguinis that
was municipal law (not the law of nations) for countries on the
European Continent. A little further down, he explains:
... there are states, as, for instance, England, where the single
circumstance of being born in the country naturalizes the children
of a foreigner.
The rule of jus
soli goes back to at least 508 BC in Athens, when
it was used to establish citizenship in districts called demes.
The Romans mainly used jus sanguinis to organize the
empire into national groups each with its own legal system
(although they had to introduce the office of praetor
peregrinus to adjudicate disputes between members of
different groups). However, the Edict
of Caracalla in 212 AD made jus soli the rule for
the entire Empire. The rule was carried to France and England
under Roman domination, and the Normans adopted it and spread it
to Scotland, Wales, and Cornwall.
However, jus sanguinis prevailed in many Eastern and
Central European countries at the time Vattel wrote, and spread to
other countries on the European continent. It displaced jus
soli in Britain
in 1983 and in France
in 1993, mainly in response to immigration of persons of different
On July 25, 1787, John Jay wrote to George Washington, presiding
officer of the Convention:
Permit me to hint whether it would not be wise and
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 devolve on, any but a natural born
There is no proof that deliberations took place at the convention
on the subject of the letter. While the Committee on Detail
originally proposed that the President must be merely a citizen as
well as a resident for 21 years, the Committee of Eleven changed
"citizen" to "natural born citizen" without explanation. The
Convention accepted the change without further debate.
Sometimes miscited on this subject is the Supreme Court case, The
Venus, 12 U.S. 8 Cranch 253 253 (1814), which commented
in dictum on various views of citizenship and the rights
of citizens in a case in which the issue was whether a ship or
cargo belonging to a U.S. citizen may be seized as a prize if it
was bound to a nation with which the U.S. was at war, even if the
U.S. citizen did not know it was at the time, but the holding was
not on the issue of what constitutes citizenship, much less
natural born citizenship.
In his 1826 Commentaries
on American Law, James Kent said:
Natives are all persons born within the jurisdiction and
allegiance of the United States. This is the rule of the common
law, without any regard or reference to the political condition or
allegiance of their parents, with the exception of the children of
ambassadors, who are in theory born within the allegiance of the
foreign power they represent.
In an 1829 treatise, A View of the
Constitution of the United States of America, William
Rawle (1759-1836), formerly the U.S. Attorney for Pennsylvania
The citizens of each state constituted the citizens of
the United States when the Constitution was adopted. ... [He] who
was subsequently born the 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. .... Under our Constitution the question is settled by
its express language, and when we are informed that ... 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.
The issue was examined by the U.S. Supreme Court in the
dissenting opinion of J. Curtis (which should be read in
combination with the dissenting opinion of J. McLean for a better
understanding of the issues in the case) in Dred
Scott v. Sandford, 60 U. S. 576 (1856):
The first section of the second article of the
Constitution uses the language, "a natural-born citizen." It thus
assumes that citizenship may be acquired by birth. Undoubtedly,
this language of the Constitution was used in reference to that
principle of public law, well understood in this country at the
time of the adoption of the Constitution, which referred
citizenship to the place of birth. At the Declaration of
Independence, and ever since, the received general doctrine has
been in conformity with the common law that free persons born
within either of the colonies were subjects of the King that by
the Declaration of Independence, and the consequent acquisition of
sovereignty by the several States, all such persons ceased to be
subjects, and became citizens of the several States, except so far
as some of them were disfranchised by the legislative power of the
States, or availed themselves, seasonably, of the right to adhere
to the British Crown in the civil contest, and thus to continue
The issue was examined by the U.S. Supreme Court in United
States v. Wong Kim Ark, 169 U.S. 649 (1898):
It thus clearly appears that, by the law of England for
the last three centuries, beginning before the settlement of this
country and continuing to the present day, aliens, while residing
in the dominions possessed by the Crown of England, were within
the allegiance, the obedience, the faith or loyalty, the
protection, the power, the jurisdiction of the English Sovereign,
and therefore every child born in England of alien parents was a
natural-born subject unless the child of an ambassador or other
diplomatic agent of a foreign State or of an alien enemy in
hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon
this continent down to the time of the Declaration of
Independence, and in the United States afterwards, and continued
to prevail under the Constitution as originally established.
Justice Gray explained in that case:
A person born out of the jurisdiction of the United
States can only become a citizen by being naturalized, either by
treaty, as in the case of the annexation of foreign territory, or
by authority of Congress, exercised either by declaring certain
classes of persons to be citizens, as in the enactments conferring
citizenship upon foreign-born children of citizens, or by enabling
foreigners individually to become citizens by proceedings in the
judicial tribunals, as in the ordinary provisions of the
It was also touched upon in Luria
v. United States, 231 U.S. 9 (1913):
Under our Constitution, a naturalized citizen stands on
an equal footing with the native citizen in all respects save that
of eligibility to the Presidency.
The closest the U.S. Supreme Court has come to addressing
eligibility to be president was in Perkins
v. Elg, 307 U.S. 325 (1939):
There is no law of the United States under which his
father or any other person can deprive him of his birthright. He
can return to America at the age of twenty-one, and in due time,
if the people elect, he can become President of the United
States... [citing to Steinkauler's Case, which was an
opinion given by Edwards Pierrepont, who was Attorney General for
Ulysses S. Grant].
However, some who argue against Obama's eligibility bring up the
issue of the citizenship of his parents, saying that even if he
were natural born on U.S. soil, he would not be a citizen because
he would not be "subject to the jurisdiction" of the United
States, as provided in the Fourteenth Amendment. At the time of
adoption of that amendment, that would have excluded the children
of unassimilated indigenes (American Indians, or Amerinds),
foreign diplomats, and foreign invaders, but not peaceable foreign
visitors who enter legally, discussed in the opinion in Ankeny
v. Governor, which although not a precedent, provides
an excellent compilation of the arguments pertaining to this
topic. Amerinds have since all been brought within the
jurisdiction of the United States. There is no claim that either
of Barack Obama's parents was a foreign diplomat or invader at the
time of his birth.
The phrase of art "subject to the jurisdiction" did not exclude
any "citizen of a foreign nation", unless acting at the direction
or instigation of that foreign nation, making one a state actor.
Consent to enter by an immigration official makes the entrant
"subject to the jurisdiction" of the United States. This was
emphasized in the case of Diaz-Salazar
v. I.N.S., 700 F.2d 1156, 1160 (7th Cir. 1983)
(noting in its recitation of the facts that despite the fact
father was not a citizen of the United States, he had children who
were "natural-born citizens of the United States"), cert. denied
462 U.S. 1132, 103 S. Ct. 3112 (1983). However, those who enter
without official consent are presumptively "invaders" for this
purpose, and their children would not be natural-born citizens if
the fact of unlawful entry can be established.
Some mis-cite the opinion in Minor
v. Happersett, but it only states, in dictum, that
natural birth and U.S. citizen parentage would be sufficient
to establish U.S. citizenship at birth, not that U.S. citizenship
parentage was necessary for the child to be a U.S.
Justice Swayne was on the Court that decided Minor v.
Happersett; as was Justice Field, who in 1884 wrote the
Circuit Court opinion In re Look Tin Sing 21 F. 905.
Look Tin Sing claimed the right to enter the United States "as a
natural born citizen of the United States." The Court ruled in his
favor, and Justice Field referred to Sanford's opinion in Lynch
v. Clarke, saying, "After an exhaustive examination of the
law the Vice-Chancellor said that he entertained no doubt that
every person born within the dominions and allegiance of the
United States, whatever the situation of his parents, was a
natural born citizen; and added, that this was the general
understanding of the legal profession, and the universal
impression of the public mind. In illustration of this general
understanding he mentions the fact, that when at an election an
inquiry is made whether the person offering to vote is a citizen
or an alien, if he answers that he is a native of this country the
answer is received as conclusive that he is a citizen; that no one
inquires further; no one asks whether his parents were citizens or
foreigners; it is enough that he was born here whatever was the
status of his parents."
Most of the confusion over the eligibility of John McCain seems
to stem from the mistaken notion that "citizen at birth" has the
same meaning as "natural born citizen". The meaning is not the
same. A naturalization statute can make a person a citizen at
birth, but that does not make him "natural born".
TITLE 8 > CHAPTER 12 > SUBCHAPTER III > Part I
> § 1401
§ 1401. Nationals and citizens of United States at birth
The following shall be nationals and citizens of the United States
(a) a person born in the United States, and subject to the
(b) a person born in the United States to a member of an Indian,
Eskimo, Aleutian, or other aboriginal tribe: Provided, That the
granting of citizenship under this subsection shall not in any
manner impair or otherwise affect the right of such person to
tribal or other property;
These first two correspond to "natural born". The rest are all
"naturalized by statute". The Code lumps both into the same
section, which is not uncommon. Don't look to the U.S. Code for
subtle distinctions. It is not, in general, the law. It is
evidence of the law. The Code is derived from the statutes by an
office in the House of Representatives, the Office of the Law Revision
Counsel, established for that purpose. They don't include
all the statutes, and don't always get it right.
8 U.S.C. §1101(a)(23) naturalization defined
(a)(23) The term ''naturalization'' means the conferring of
nationality [NOT "citizenship" or "U.S. citizenship", but
"nationality", which means "U.S. national"] of a state upon a
person after birth, by any means whatsoever.
The qualifier "after birth" doesn't mean by an official act done
after birth. It means from the moment of birth, or in other words,
not before birth. A fetus is not naturalized by statute. Most
statutes conferring nationality/citizenship at birth were passed
before most of the individuals to whom they apply were born. Some,
however, were retroactive. An example of that was the statute that
made McCain a U.S. citizen at birth, passed after his birth. But
that is naturalization, not natural birth.
The issue was indirectly addressed by the Supreme Court in Rogers
v. Bellei, 401 U.S. 815 (1971), in whch we find:
Apart from the passing reference to the "natural born
Citizen" in the Constitution's Art. II, 1, cl. 5, we have, in the
Civil Rights Act of April 9,1866, 14 Stat. 27, the first statutory
recognition and concomitant formal definition of the citizenship
status of the native born: "[A]ll persons born in the United
States and not subject to any foreign power, excluding Indians not
taxed, are hereby declared to be citizens of the United States . .
.This, of course, found immediate expression in the Fourteenth
Amendment, adopted in 1868, with expansion to "[a]ll persons born
or naturalized in the United States . . . .Thus, at long last,
there emerged an express constitutional definition of citizenship.
But it was one restricted to the combination of three factors,
each and all significant: birth in the United States,
naturalization in the United States, and subjection to the
jurisdiction of the United States. The definition obviously did
not apply to any acquisition of citizenship by being born abroad
of an American parent. That type, and any other not covered by the
Fourteenth Amendment, was necessarily left to proper congressional
One might think that while all citizens at birth may not be
natural born citizens, all natural born citizens are also citizens
at birth. However, it is possible for someone to be natural born
without being a citizen at birth, or even being a citizen. Being a
child of foreign diplomats or invaders is one way, but it is also
possible that someone might be natural born on territory not
incorporated into the United States at the time. For example,
natural born citizens of Puerto Rico are not natural born citizens
of the United States, eligible to be president, while it remains a
protectorate or dependency. However, citizens of Puerto Rico have
been naturalized by statute to be citizens of the United States at
birth. Now if Puerto Rico were admitted as a state, its natural
born citizens would then become natural born citizens of the
United States, eligible to be president, if otherwise qualified.
If it later seceded (with the consent of Congress) its natural
born citizens would cease to be natural born citizens of the U.S.
Natural born citizenship could also be lost by someone who was
natural born on a territory initially claimed by the United States
as part of its incorporated territory, but later ceded to the
other nation that claims it. The boundary between the U.S. and
Mexico was adjusted as the result of shifts in the path of the Rio
Grande River, ceding some territory to Mexico that had some people
living on it, who were given a choice whether to become U.S.
citizens. There are also some disputed territories between the
U.S. and Canada, although there may not be any people born or
living on them. Other territories disputed between the U.S. and
some other nation are not considered incorporated by the United
States, but protectorates or dependencies.
There is nothing about the concept of "naturalization" that
requires some "process", other than the enactment of a declaratory
statute. A statute can make a person a citizen at birth of
territory that does not include the location where one is born.
That is the naturalization process. But it is not "natural birth",
which depends only on the location of birth on a particular spot
on the Earth. Whatever anyone might later want to call that spot
or the territory surrounding it, the child is natural born to that
spot. He is not naturalized to that spot. He may be naturalized to
another spot, or territory that does not include that spot. That
is a change of status, and it is called "naturalization".
The concept of citizenship is derived from denizenship, which
requires a spot but not a government.
Eligibility for office
The burden of proof is on the claimant to office. The presumption
must be ineligibility unless it is proved otherwise.
That direction of presumption is not, by the way, the same as for
citizenship for individuals already on U.S. soil, for whom the
burden is on someone seeking to deport them. On the other hand,
one seeking to vote, or to re-enter the U.S. from outside, has the
burden to prove citizenship, although it has historically been
sufficient to do this by a notary who knows the individual. There
is no constitutional authority to require anyone to present any
particular form of identification, especially one issued by the
government, that one is not constitutionally required to have, and
there is no constitutional authority to require anyone to even
have a name, much less any particular form of identification.
Names are applied to us by other people. No one owns his name. All
anyone can say is that "some people call me xyz". But other people
can call anyone anything they please. That includes government
authorities. And there is no authority to require anyone to know
or say what other people call him. Not that government actors
don't try anyway.
How Maskell got it wrong
Often cited in support for the proposition that "citizen at
birth" is synonymous with "natural born" is the 2011 report by
Jack Maskell of the Congressional Research Service, Qualifications
for President and the "Natural Born" Citizenship Eligibility
Requirement. He seizes on a quote from Blackstone:
[A]ll children, born out of the king's ligeance, whose
fathers were natural-born subjects, are now natural born subjects
themselves, to all intents and purposes, without any exception;
unless their said fathers were attainted, or banished beyond sea,
for high treason; or were then in the service of a prince at
enmity with Great Britain.
The qualifier "to all intents and purposes" is important, because
to confer by statute rights and privileges of a status is not the
same as redefining that status. A statute could confer the
priviliges of a man on a woman but that would not make her a man,
or redefine "man" or "woman".
A more complete quote from Blackstone is:
And this maxim of the law proceeded upon a general
principle, that every man owes natural allegiance where he is
born, and cannot owe two such allegiances, or serve two masters,
at once. Yet the children of the king's embassadors born abroad
were always held to be natural subjects: z for as the father,
though in a foreign country, owes not even a local allegiance to
the prince to whom he is sent: so with regard to the son also, he
was held (by a kind of postliminium) to be born under the king of
England's allegiance, represented by his father, the embassador.
To encourage also foreign commerce, it was enacted by statute 25
Edw. III. st. 2, that all children born abroad, provided both
their parents were at the time of his birth in allegiance to the
king, and the mother had passed the seas by her husband's consent,
might inherit as if born in England: and accordingly it hath been
so adjudged in behalf of merchants.a But by several more modern
statutes b these restrictions are still farther taken off: so that
all children, born out of the king's leigance, whose fathers (or
grandfathers by the father's side) were natural-born subjects, are
now deemed to be natural-born subjects themselves, to all intents
and purposes; unless their said ancestors were attainted, or
banished beyond sea, for high treason; or were at the birth of
such children in the service of a prince at enmity with Great
Britain .... .
With this expanded context we can see that Blackstone was
discussing the offspring of ambassadors, not private citizens, as
closer examination of the statutes will reveal. What the statutes
did was confer rights and privileges on individuals as though they
were natural born. They did not expand the definition of what is
"natural born", or change the historical fact of the physical
circumstances of their birth. U.S. statutes today may confer the
rights and privileges of the natural born on someone, but that
does not make them natural born, nor can the privileges extend to
eligibility for public office that specifies the candidate be
On one point he gets it profoundly wrong: "...the legal
presumption is always of eligibility, and thus the initial burden
of proof is always upon those who challenge a candidate's
eligibility, and not on a candidate to "prove" eligibility". That
contradicts the ancient principle of quo warranto
whereby an official always has the burden of proof of his
authority or claim to hold office. That duty is not confined to
those who already hold office, but extends to those who seek it.
Maskell's report is just a legal brief contrived to support the
eligibility of John McCain and Barack Obama, two powerful men that
no CRS report could, politically, be expected to disqualify.
Some English statutes
Sometimes cited is a 1708 English statute that provides
the children of all natural-born subjects, born out of
the ligeance of Her Majesty [Queen Anne], her heirs and successors
whose fathers were or shall be natural-born subjects of the Crown
of England, or of Great Britain, at the time of the birth of such
children respectively ... ¦shall be deemed, adjudged and taken to
be natural-born subjects of this kingdom, to all intents,
constructions and purposes whatsoever.
But "deemed, adjudged and taken to be" natural-born subjects does
not redefine what is a natual born subject. It only confers the
privileges of a natural born subject. It is the meaning of the
term that applies to eligibility to office, not a legislative act
that grants privileges of such.
Some other instances of usage of "natural born" before
1625, Hugo Grotius, Law of War and Peace.
- XII. To the above catalogue of those exempted from sharing
in the calamities of war, may be added merchants, not only
those residing for a time in the enemy's country, but even his
natural-born, and regular subjects: artisans too, and all
others are included; whose subsistence depends upon
cultivating the arts of peace.
5 July 1641, English Parliament, Act for the
Abolition of the Court of High Commission.
- An Act
restoring to the Crown the ancient jurisdiction over the State
ecclesiastical and spiritual,' [to] such person or persons
being natural born subjects to Her Highness, her heirs or
successors, as Her Majesty, her heirs or successors, should
think meetto exercise, use, occupy and execute under Her
Highness, her heirs and successors, all manner of
jurisdictions, privileges, and preeminence in any wise
touching or concerning any spiritual or ecclesiastical
jurisdiction within these her realms of England and Ireland,
or any other Her Highness's dominions and countries, ...
17 Car. I. cap. 11. Statutes of the Realm, v. 112
1720, Valentine, Appeal Brief in Matson v.
Thomas, quoting the Charters of the Colony of Massachusetts.
- That all and every of the Subjects of us our Heirs and
Successors, which shall go to and inhabit within our said
Province or Territory, and every of their Children which shall
happen to be born there, &c. shall have and enjoy all
Liberties and Immunities of Free and Natural born Subjects,
within any of the Dominions of us, &c. to all Intents,
Constructions and Purposes whatsoever, as if they and every of
them were born within our Realm of England;
1748, David Hume, "On the Original Contract".
- The truest tacit consent of this kind that is ever
observed, is when a foreigner settles in any country, and is
beforehand acquainted with the prince, and government, and
laws, to which he must submit: yet is his allegiance, though
more voluntary, much less expected or depended on, than that
of a natural born subject. On the contrary, his native prince
still asserts a claim to him.
30 May 1765, Virginia Resolves on the Stamp
- Resolved, That by the two royal charters
granted by King James the First, the colonists aforesaid are
declared entitled to all privileges of faithful, liege, and
natural born subjects, to all intents and purposes, as if they
had been abiding and born within the realm of England.
19 Oct. 1765, Declaration of Rights of the
Stamp Act Congress.
- 2d. That His Majesty's liege
subjects in these colonies are entitled to all the inherent
rights and privileges of his natural born subjects within the
kingdom of Great Britain.
1773, Sheffield Declaration.
That Americans in general, (and his Majestyβs subjects the
inhabitants of this province in particular, by their charter)
are intitled to all the liberties, privileges and immunities
of natural born British subjects
14 Oct. 1774, Declaration and Resolves on
Colonial rights of the First Continental Congress.
N.C.D. 2. That our ancestors, who first settled these
colonies, were, at the time of their emigration from the
mother-country, entitled to all the rights, liberties, and
immunities of free and natural-born subjects, within the realm
June 1776, Thomas Jefferson, Draft
Constitution for Virginia.
All persons who by their own oath or affirmation, or by other
testimony shall give satisfactory proof to any court of record
in this colony that they propose to reside in the same 
years at the least and who shall subscribe the fundamental
laws, shall be considered as residents and entitled to all the
rights of persons natural born.
28 Sep. 1776, Constitution of Pennsylvania,
- SECT. 42. Every foreigner of good character who comes to
settle in this state, having first taken an oath or
affirmation of allegiance to the same, may purchase, or by
other just means acquire, hold, and transfer land or other
real estate; and after one year's residence, shall be deemed a
free denizen thereof, and entitled to all the rights of a
natural born subject of this state, except that he shall not
be capable of being elected a representative until after two
... And after:
1803, St. George Tucker, his Note D to his
edition of Blackstone's Commentaries, quoting a letter of
George Nicholas, Esq. on the Alien and Sedition laws.
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. The first, by their birth-right,
became entitled to all the privileges of citizens; the second,
were entitled to none, but such as were held out and given by
the laws of the respective states prior to their emigration.
In the states of Kentucky and Virginia, the privileges of
alien friends depended upon the constitution of each state,
the acts of their respective legislatures, and the common law;
by these they were considered, according to the time of their
residence, and their having complied with certain requisitions
pointed out by these laws, either as denizens, or naturalized
citizens. As denizens, they were placed in a kind of middle
state between aliens and natural born citizens; by
naturalization, they were put exactly in the same condition
that they would have been, if they had been born within the
state, except so far as was specially excepted by the laws of
1831, Peter S. Du Ponceau, Brief View of
the Constitution of the United States.
may be obtained in the state courts, as well as in those of
federal jurisdiction; but it can only be done in execution of
a Jaw of congress. There are states where aliens cannot hold
real property, which often makes it necessary for them to be
naturalized, as by that means they become entitled to all the
privileges and rights of natural born citizens, except that
they cannot be elected to the offices of president and
1856, John Bouvier, Law Dictionary,
- NATURALIZED CITIZEN. One who, being born
an alien, has lawfully become a citizen of the United States
Under the constitution and laws. ...
2. He has all the rights of a natural born citizen, except
that of being eligible as president or vice-president of the
United States. In foreign countries he has a right to be
treated as such, and will be so considered even in tlie
country of his birth, at least for most purposes. 1 Bos. &
P. 430. See Citizen; Domicil; Inhabitant.
1883, Joseph Chitty translation of Vattel, Law
of nations, Book I Note 15.
- 2(15) This
principle is in every respect recognized and acted upon by our
municipal law. It is in respect of, and as a due return for,
the protection every natural born subject is entitled to, and
actually does, by law, receive from the instant of his birth
that all the obligations of allegiance attach upon him, and
from which he cannot by any act of his own emancipate himself.
This is the principle upon which is founded the rule "Nemo
potest exuere patriam," Calvin's case. 7 Coke 25. Co Lit. 129,
a; and see an interesting application of that rule in
Macdonald's case, Forster's Crown Law 59. C.
1891, Prentiss Webster, Treatise on the Law of
- By the common law of England, the rule
was established that every person born within the dominion of
the crown, no matter whether of English or of foreign
parentage, and in the latter case, whether the parents were
settled or merely temporarily sojourning in the country, was
an English subject. ...
... it was for reason of the principle of the feudists, as
found in the jus soli; by birth on an inanimate piece of land,
was created a relation to that land which was immutable. Not
alone was the rule applicable to those children whose parents
were held in an immutable relation to the piece of land on
which they were born, but also, to the children of parents who
were or who were not held in an immutable relation to a piece
of land in some other country than England.
This rule was hedged in by another rule: "Nemo exure potest
patriam," which was designed to enforce the rule of the
feudists, that man was an immovable and belonged to the piece
of inanimate land on which he was born, there to remain and
abide, subject to his lord, the king.
of U.S. Citizenship by a Child Born Abroad, U.S. State
Act, made all citizens of Puerto Rico U.S. citizens,
although Puerto Rico is not U.S. soil, so its citizens are not
"natural born" for eligibility to serve as U.S. president.
and Nationality Act Title 3 Chapter 1, made child of one
U.S. citizen a U.S. citizen. Naturalization statute, creating
citizens at birth, but not defining "natural born" citizenship.
Immigration and Naturalism Act, Sec. 301(g).
Provides for children born abroad to U.S. citizen parents to be
naturalized U.S. citizens at birth.
Your Government and You Lesson Answer Key,
Handbook from U.S. Citizenship and Immigration Services (USCIS).
"... to be president or vice president, you must be born in the
Natural-born-citizen clause, Wikipedia.
Case, 1608, Wikipedia.
Judicial. The first approach that most people try,
concerned that someone not eligible might become president, is
to sue in some court. But one would soon discover the limits on
the power of courts to grant certain kinds of relief.
- It wouldn't work to sue for injunction to keep the
ineligible candidate off the ballot, because the names that
appears on ballots are not the actual candidates in that
election, but the members of slates of electors pledged to
vote for one of the names on the ballot, or perhaps not. The
slate could be the Mickey Mouse slate, pledged to no one. The
name is just a label, not necessarily that of an eligible
individual. The eligibility qualifications of someone they
might vote for is not the eligibility qualifications of the
electors. It might be possible to challenge some individual
elector candidates under state law, but that is unrelated to
the eligibility of the one to whom the elector candidate might
- It wouldn't work to sue for an injunction against voters who
might vote for an elector pledged to an ineligible individual.
The courts have no power to tell voters who to vote for, or
not vote for.
It would be unlikely to work to sue the secretaries of state
of all or most states, in as many separate lawsuits, in their
capacity as the counters of the electoral votes cast by the
electors in each state, forbidding him to count votes of an
ineligible individual. But a court would be loath to try to
tell such an official how to do his job, and the window for an
injunction would be only a few hours, before which the case
would be dismissed as not ripe, and after which
dismissed as moot. And while state law might make the
secretary of state the primary official responsible for
counting and reporting, there is nothing in the U.S.
Constitution that prevents him from just turning the job over
to the electors themselves, or to some citizen selected at
random, none of whom would be subject to the personal
jurisdiction of the court. A court would have no jurisdiction
to tell electors not to vote for ineligible individuals.
Electors may vote for anyone they please, eligible or not.
They have no enforceable public duty to vote only for eligible
- It would not work to try to sue members of Congress for
injunction to compel them not to count the electoral votes for
ineligible individuals, because courts don't have the
jurisdiction to tell members of Congress how to vote or what
- It would not vote to sue to forbid anyone from leading an
ineligible candidate in taking the presidential oath office,
or witnessing it, because the candidate can take the oath by
himself, in a public setting that would make witnesses of
millions of people.
It would not work to sue, perhaps on a writ of quo warranto, to remove
him from office, because under the Constitution removal can
only be done by Congress following impeachment. No judicial
court has jurisdiction to do that.
- It might help to sue for declaratory relief, in which the
judge would give his opinion on whether the individual is
eligible, but he would have no power to order anyone to do or
not do anything. The opinion might persuade some voters not to
vote for an ineligible individual, but there are
probably not very many voters who would change their choices
based on the opinion of some judge they don't know.
- Conclusion: Enough votes by voters will trump any
constitutional restrictions on eligibility. That is also why
ineligible candidates can ignore their lack of eligibility and
Political. If no relief is available in the courts,
this is what we are left with.
- Don't vote for ineligible candidates, and persuade enough
others not to vote for them. If the contest is close, that
might provide the margin of defeat, and persuade the political
class to back another candidate that has a better chance to
- Defeat in the next election the officials who counted
electoral votes for ineligible individuals. If enough elected
officials feel threatened with defeat, they might not count
the ineligible electoral votes, again, enough to provide the
margin of victory by eligible opponents.
Refuse to cooperate with any official actions taken by
ineligible officials. This is nullification.
Might need to be backed by mass demonstrations to get enough
people to do the same.
- Launch a revolution, or at least cause so much disruption
that the political class may yield to avoid civil disorder,
but you would have difficulty winning enough public support on
an issue like this. (However, it is happening in Burundi as of
2015 on the intent of the president to run for an
unconstitutional third term.)
To be "natural born" is to be born on a spot of soil
somewhere, and that also makes one a citizen, of jus soli
countries like the United States, if that soil is part of the dominion
of that country, which in U.S. law is referred to as
"incorporated" territory, as distinct from a protectorate,
leasehold, or other merely "administered" territory.
- However, natural born citizenship may be denied to one if
In some countries other than the United States, one or both
parents is not "subject to the allegiance" of some
other country, such as being citizens of that foreign country;
For the United States, one or both parents is not "subject
to the jurisdiction" of the United States, which they
are if they are merely foreign citizens who legally entered
the country, even if they later became illegal by overstaying
their visas, but not if
- One or both is a foreign agent of some other country, such
as a diplomat or a monarch, but it is possible for a
U.S. citizen to serve as ambassador from, or be a monarch
of, a foreign nation, without his U.S. natural born children
losing their U.S. citizenship,
- One or both are is an invader, that is, someone who
has entered without consent of authorities , but U.S.
citizens can be invaders, as well as foreign citizens, or
- They are unassimilated indigenes (members of "domestic
nations" such as "Indians not taxed", but there no longer
- In the United States, the citizenship of one or both parents
of one natural born to U.S. soil has no effect on whether he is
a U.S. citizen, but their activities or agent status may,
regardless of citizenship.
- U.S. soil for the purpose of citizenship means "incorporated
territory". That is, territory that is not a protectorate like
Puerto Rico or Guam, or a leasehold like the Panama Canal Zone
or Guantanamo. That does not include U.S. military bases or the
grounds of foreign embassies abroad, but it does include U.S.
territorial waters, or the space within U.S. flag vessels on or
over international waters or Antarctica. A person born in
Arizona, Hawaii, or Alaska before those territories became
states would be eligible to serve as president, because it is
"incorporation" and not statehood that makes a territory U.S.
- "Citizen at birth" is not "natural born citizenship". Those
are entirely different concepts. Many people are made citizens
at birth by statute. That is what the statute did that
retroactively made John McCain a U.S. citizen at birth, or the
statute that makes persons born in Puerto Rico U.S. citizens at
birth, or some provisions of 8 USC 1401, but those are
naturalization statutes, and one can be naturalized at birth. It
doesn't have to be done after birth, through a congressional
"private bill", or through an application process. However, such
a naturalization statute could be retroactively repealed, making
all persons it naturalized non-citizens. Natural birth on the
soil of a country cannot be repealed. It is a fact of history,
not the work of legislators.
- No Supreme Court opinion has "defined" natural born
citizenship for purposes of presidential eligibility. The cases
cited were either dictum or concerned ordinary citizenship
sufficient to vote or hold office, but not to serve as
The evidence we have of the original meaning of "natural born"
citizen (although they used the synonymous term "subject") come
from the commentaries of William Blackstone based on a judicial
decision, Calvin's Case, of Edward Coke. Vattel is not a
correct source against this point, because in the paragraph
usually cited he was writing as a Swiss about the rule used in
Switzerland and some other countries on the European Continent,
jus sanguinis, but as he writes two paragraphs later,
the different rule is used in Britain and its colonies, jus
- The burden of proof of eligibility is on the candidate, not on
one challenging eligibility, and he must be presumed to be
ineligible unless or until he can produce the proof.
- The image of the document that has been offered by Obama is
clearly fraudulent, no matter who may attest otherwise, because
the original image can be viewed in the tool used to produce it,
Adobe Illustrator, which shows the separated edit layers that
reveal the history of how it was composed using pieces of image
from different sources.
Research Service (CRS) is not a reliable scholarly source.
They are like Wikipedia, a place to start but not authoritative.
The author of the paper supporting the eligibility of McCain and
Obama was working for the CRS, which produces a lot of what
historians call "law office history", heavily influenced by the
interests of members of Congress.
- Although one could seek a declaratory judgment from a court,
there is no point at which one can get injunctive relief, except
in each state at the point presidential electors cast their
votes. The only point at which eligibility can be effectively
challenged politically is at the point Congress counts the
electoral votes, but no court has jurisdiction to tell Congress
how to do that. At that point it is up to the members of
Congress to voluntarily comply with the Constitution. It does
not work to try to exclude an ineligible candidate from the
ballot because people are not voting for the candidate, they are
voting for electors, and it is only the eligibility of the
electors that matters at that point, not the person they are
pledged to vote for as electors.
of alleged Obama Certificate of Live Birth, taken from
the White House website on 04/27/2011, which is an obvious
Fraudulent Certificate of Live Birth. Analysis and
discussion of the image posted.
Obama: Original Long Form Birth Certificate. Analysis
by Mara Zebest, 06/29/2011.
upon layer: Opening Obama's birth certificate in Adobe
Illustrator, by Michael Bates on April 27, 2011.
pursuant to 18 U.S.C. §3332 to inform the grand jury of
whether President Barack Obama may have violated Federal
criminal law, by Montgomery Blair Sibley, 01/12/2012.
Proof Obama's Long Form Birth Certificate is fake,
video by Jeff Duff, 04/28/2011.
House Posts PDF of Certificate of Live Birth.
Obama's 4/27/11 "Long Form Certificate of Birth" is
Forged!, video, 04/27/2011.
Obama birth certificate is a fraud, U.K. Guardian,
03/01/2012. Arizona sheriff's six-month investigation ends
with Arpaio vowing to find whoever 'forged' Barack Obama's
- Born in the Panbama Canal Zone on August 29, 1936, which
was a leasehold, not incorporated U.S. soil.
J. Chin, reported in an article
in the New York Times, July 11, 2008, focused on a 1937 law
that conferred citizenship on children of American parents
born in the Canal Zone after 1904, which made John McCain a
citizen just before his first birthday. But the law came too
late, Professor Chin argued, to make Mr. McCain a
natural-born citizen. However, Chin made the error that
citizenship at birth was the same as being natural born.
Lawrence B. Solum wrote an article
examining the legal history of the issue without coming to a
firm conclusion. Michigan Law Review, Vol. 107.
of the U.S. Senate declaring, erroneously, that McCain is a
"natural-born citizen", proving only that the U.S. Senate is
incompetent or corrupt.
Rafael Edward "Ted" Cruz
- Born December 22, 1970, in Calgary, Alberta, Canada, of a
father who was a citizen of Cuba, and a mother who was a
citizen of the U.S.
- Sen. Cruz is not eligible to be president, and could only be
made eligible in two ways. One would be for at least the small
parcel of land in Calgary on which he was born to be ceded to
the U.S. and made incorporated territory for the duration of a
term as president. It could not just be U.S. soil at the
moment he might be inaugurated, but it could remain Canadian
soil until that moment, and then be ceded back when his
successor is inaugurated. The second would be for the province
of Alberta to secede from Canada and be admitted as a state of
the U.S. before the term of presidency would begin. The spot
doesn't have to be U.S. soil as of the date of birth, only for
the duration of the term in office.