“Natural-born subject” is a term of art in English common law, and can be traced back at least to the time of Edward III (14th century).
For example, Blackstone’s Commentaries includes the line “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 within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject. The thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors.”
A “natural-born” subject/citizen held that status by the law of nature. The king or parliament could make other people subjects by statute or decree, but Nature itself decreed those born in the king’s domain were subjects owing allegiance to the king. “Natural-born subject” was one of the criteria for serving in the English Parliament or Privy Council in the 18th century.
**Diceman **posted a very informative wiki link in post #33. It’s worth reading the whole thing to understand where the law and interpretation really is versus where people on both sides of the debate seem to think it is.
People far more expert & better informed than any of us have been working this issue for over 200 years now. It’s only mostly resolved.
“Within the ligeance” sounds suspiciously like citizen by parentage. A noble inheriting his father’s title did not did not escape allegiance just because daddy was ambassador to France or vacationing in Acre on the crusades with family when he was born.
I assume the proviso is in the constitution in anticipation of a situation like Emperor Maximilian of Mexico or George I of England - the Europeans were in a habit of dumping some foreign twerp into the supreme leadership who had no connection to the country except maybe a very distant blood relationship or a strong army.
A statute was passed during the reign of Edward III that made the foreign-born children of TWO English parents also subjects of the English king; not until the late 1700s were the foreign-born children of an English father and a foreign mother themselves English (and it would be the 20th century before an English mother alone could transmit citizenship). If Daddy was vacationing in Acre, the kids might not be English. “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.”–Blackstone (This would, of course, depend on Acre being in Christian hands at the time; the sons of an English Crusader father owed no allegiance to an infidel.)
Different rules applied to an ambassador’s children. As Blackstone noted, an ambassador “though in a foreign country, owes not even a local allegiance to the prince to whom he is sent,” so the kids acquired Daddy’s citizenship.
That’s exactly what the Founding Fathers were anticipating. That sort of crap happened all the time in Europe back then, and they didn’t want some foreign nobleman or other such bigwig moving to the US and basically trying to get himself elected king.
Both his parents were citizens, therefore he was a citizen at birth. The “loophole” never applied to him in the first place.
The Obama version was slightly more interesting in that, since only one of his parents was a citizen, if he had been born outside the US there would have been a requirement that his US citizen parent had lived in the US for a term of years after their (16th, 18th?) birthday, which his mother wasn’t old enough to have managed. But that didn’t apply since he was born in the US.
Both Marco Rubio and Bobby Jindal have had their eligability challenged because, altho they were born in the US, their parents were not US citizens at the time.
It’s pretty obvious that we’re dealing with people saying the law is unclear because they have a vested interest in muddying the waters (cough Trump cough).
That’s what US law says now, but that’s not what US law said on the day that John McCain was born. The law was changed two years later, and made retroactive. He is a citizen by circumstance of birth, but he was not a citizen on the day he was born.
Debatable whether it was intended to exclude fringe cases: the law at the time said: any child born to an American parent “out of the limits and jurisdiction of the United States.” He was out of the limits, but NOT jurisdiction. So was that intended as an AND or an EITHER/AND?
For that matter, did it even apply if both parents were citizens? Judicial rulings say nope. (warning: pdf) see the last line of the 2nd paragraph.
Of course, the status of women tended to be irrelevant in the “Good Old Days” except a few countries where women could inherit if you used up all the men. Thus, the law of course dealt with the status of the father, since that’s all that mattered. After all, the last thing any king wanted was some half-breed from a greasy foreigner claiming an important position in his realm. They were a great deal more xenophobic back then. Presumably a child born to a foreign mother and raised in a foreign land was a foreigner for all practical purposes.
But what made a wife an English citizen? After all, trading young noblewomen back and forth across the channel (or on the continent back when England still owned parts of France) was pretty common, I assume. I assume the rule of law was a bit more fluid in those days, basically citizenship was like pornography - “I don’t know how to define it, but I know it when I see it.”
This is wrong. See my previous post. The loophole depended on the peculiar status of the Panama Canal Zone, which was under US jurisdiction but not part of US territory. It didn’t matter whether both or just one of his parents were citizens.
In any case, the second part alleging that the Canal Zone was sovereign US territory is ridiculous, because birth in the Zone did not confer US citizenship by itself. Many children were born in the Zone to Panamanians and foreign nationals and there was no question that they were not US citizens.
edit: it’s the 2-citizen-parents that makes the whole argument moot.
edit2: it probably is a judicial opinion, rather than a ruling, I admit. I agree that the territorial status of the Canal Zone was not sufficient in itself.
That’s not a judicial ruling, but a legal opinion.
I don’t see anything in there saying that birth to two citizen parents has any particular significance. Please quote the part that you think indicates this.
While I recognize that Lawrence Tribe is a constitutional scholar, his reasoning in on the second point in that opinion is clearly wrong. I certainly wouldn’t regard that as definitive.
Basically: both parents were citizens, so:
If he was born in France, he’s a citizen.
Even if he was born on Mars, he’s a citizen.
But because of not meeting BOTH qualifications of “out of the limits and jurisdiction of the United States.” per the law, people ignore the citizenship-by-parentage in favor of a political circle-jerk. The actual intent of the law was to confer citizenship upon the children of US citizens who were born out of the country.
If neither of his parents were a citizen, then being born in the Panama Canal Zone would have been insufficient to confer citizenship.
If only one of his parents was a citizen, he’d have been in the same limbo as Obama, had Obama not been born in the US. (Yes, Obama was born in the US.)
But since both his parents were citizens, the location of his birth is completely meaningless.
But there certainly are countries whose citizenship legislation provides for a class of people who are entitled to be come citizens, but who don’t actually become citizens unless or until something is done to exercise that entitlement. And, regardless of what US nationality law may say about this at the moment, in principle there’s no reason that I can see why the US Congress couldn’t enact a nationality law which identified a class of persons entitled to US citizenship.
The Constitutional provision about this has to work with all conceivable citizenship legislation, or else it has to limit the kinds of citizenship legislation that Congress can enact. The wording suggested by coremelt did seem to contemplate the possibility of a citizenship law which conferred entitlement to citizenship, as distinct from conferring citizenship.
Lets say you are born in Thailand to a US father and a Thai mother (who meet the other requirements for passing down citizenship). My understanding is that you are entitled to US citizenship from birth but you won’t be granted that citizenship until the birth is registered at the US embassy. In some cases people might not initially be registered but decide at 18 they want US citizenship and apply for it then. Similarly I am a dual Australian / UK citizen and entitled to be one since birth but I only applied for and got my UK passport when I was almost 30.
Seems it would be a lot simpler for the US to make a constitutional amendment and do away with the whole “natural born citizen” and instead just say “US citizen for the last XX years with no other citizenship”. That would solve the issue neatly and seems to work out fine for most other countries.