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When Did the Definition of “natural born Citizen” Change?

  
 

BUT CAN CONGRESS LEGISLATE A CONSTITUTIONAL CLAUSE?

by Glen Gilliland

What was the Founders' meaning of the term "natural born Citizen"?

(Apr. 10, 2011) — When I was a young boy in Mr. Hanson’s fifth grade civics class in the mid-60s, we learned that the definition of “natural born Citizen” was exclusively a person born on US soil of parents who are US citizens.

That has been the accepted definition of “natural born Citizen” for most of our history, except between the years 1790-1795, and 1971 to the present.

The first Congress passed the Naturalization Act of 1790:

And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States…

That act was repealed with the uniform rule of the Naturalization Act of 1795 and new language in Section 3:

and the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States: Provided, That the right of citizenship shall not descend to persons, whose fathers have never been resident of the United States:

Section 4. And be it further enacted, That the Act intitled, “An act to establish an uniform rule of naturalization,” passed the twenty-sixth day of March, one thousand seven hundred and ninety, be, and the same is hereby repealed.

I assume Congress realized they had made a mistake enacting the first naturalization act, because  “natural born Citizen” is a constitutional clause, and the only way Congress can change the definition is by Constitutional Amendment.

The founders (John Jay) obtained the definition of “natural born Citizen” from The Law of Nations (Vattel):

The natives, or natural-born citizens, are those born in the country, of parents who are citizens… (Vattel in Book 1, Sec 212)

The Founders’ intent was to prevent foreign influence on the office of President.

The Law of Nations (Vattel) is recognized as part of US domestic law (page 37 footnotes).  Yet internet sites such as www.usconstitution.net list title 8 § 1401. Nationals and citizens as being “natural born citizens.”

Cornell Law states of §1401. Nationals and citizens:

The following shall be nationals and citizens of the United States at birth:

(a) a person born in the United States, and subject to the jurisdiction thereof;

(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;

(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;

(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;

(e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;

(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person

(A) honorably serving with the Armed Forces of the United States, or

(B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and

(h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States.

Some people have pointed to the 14th Amendment for the change. I didn’t see it in the 14th Amendment, but I am just a retired plumber, not a constitutional lawyer.

This contradiction in the law has been the subject of some very intense debate in the political circles I frequent. When did the definition of “natural born Citizen” change? So I began searching on the internet for an answer.

The only other way the definition could have been changed is by USSC interpretation. I began reading USSC decisions, starting with the The Venus, 1 (1814), Shanks v. Dupont, (1830), Minor v. Happersett , (1875), United States v. Wong Kim Ark, (1898), Perkins v. Elg,(1939), and many more, approximately 80 USSC citizenship decisions (most pointing to Vattel for definition of “natural born Citizen,” none for any other definition).

Then I came across Tuan Anh Nguyen v. INS (no.99-2071) in the oral arguments at about 23 minutes they discuss “natural born Citizen,” with Souter asking the question and the attorney claiming she hadn’t done the research but commentators saying that citizens born outside the US are NBC, and Scalia asking if being born on the soil wasn’t also the requirement; Ginsberg saying her grandson born in France could be an NBC, but they came to the conclusion that it is an unsettled controversy.

That exchange led me to Rogers v. Bellei, 401 U.S. 815 (1971)

Here is the point in time which changed the definition of “natural born Citizen.”

In the decision in section IV, the statutes culminating in 301 merit review.  They list seven statutes to review to apply to the case, beginning with the the 1790 Naturalization Act which was repealed in 1795:

And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States…

The language the Supreme Court used to apply to the case also appears in the 1795 statute:

That the right of citizenship shall not descend to persons, whose fathers have never been resident of the United States:

Thus the U.S. Supreme Court set a new precedent for the definition of “natural born Citizen in Rogers v. Bellei, 401 U.S. 815 (1971), Section IV.

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Publicado por Corazon7 @ 9:23
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