Friday, January 2, 2009


Our U.S. Supreme Court in Minor v. Happersett, 88 U.S. 162 (1875) held that women, while being citizens of the U.S., do not have the right to vote under the Constitution.  Of course, we know that this law was later repudiated.  In discussing who are citizens of the United States and whether women may be such citizens, the Court explains that we did not need the Fourteenth Amendment to create U.S. citizens. It explains that before the adoption of the Fourteenth Amendment, the Constitution itself did not prescribe what a citizen was. While the Court does not cite The Law of Nations, the Court goes into concepts which can be found in that treatise.  The concepts of "nation," "political community," "association of persons for the promotion of their general welfare," and "member of the nation formed by the association" are all concepts that are found in E. de Vattel’s, The Law of Nations (1758).  The Court then says that each person so associated with the community was a member of that community and owed that community his allegiance. The Court says that citizens were then those persons who "associated themselves together to form the nation" and who were later admitted as members of that nation.  The Court then explains that an individual's wanting to ban together with others to form the new nation was actually that person's allegiance to the new nation.  The Court continues that it was the individual's giving of this allegiance to the cause of creating the new nation that made that individual a citizen of that nation. The Court explains that for his allegiance, the person received the protection of the nation (calling these reciprocal obligations). Finally, the Court comments that any person who participated and helped in politically separating the new nation from Great Britain and in the military cause against that nation became a citizen at the time the Constitution was adopted. The Court explains that anyone who was part of these people at the time of the drafting of the Constitution were the "original citizens" of the U.S. 

The Court then says that citizenship would not be limited to only this original category, for the Constitution at Article II provided for allowing more citizens to be created by birth and in the clause giving Congress the power to establish uniform rules of naturalization by naturalization.  The Court then tells us that the Constitution does not define what a "natural born Citizen" is.  The Court then said the following in explaining what a  "natural born Citizen" is:  

At common law, with the nomenclature of which the framers of the constitution were familiar, it was never doubted that all children born in a country, of parents who were its citizens, became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens."  Minor v. Happersett (1874) 21 Wall. 162, 166-168.  

This test was affirmed in United States v. Wong Kim Ark, 169 U. S. 649, 18 S.Ct. 456, 42 L.Ed. 890 (1898).  

Article II of the Constitution provides that "[n]o 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 . . . ."  From the Minor decision, we learn who the Framers placed in the second category as being eligible to be President.  These were the "original citizens," those who were members of and who gave their allegiance to the revolutionary cause that produced the new nation.  The Framers grandfathered these individuals to be eligible to be President.  There cannot be any doubt that even children who were born on U.S. soil fell into this category simply because they were the first generation of citizens.  It is interesting to note that Jane Randolph Jefferson (1720-1776), President Thomas Jefferson’s mother, was born in the Tower Hamlets of Shadwell, a maritime neighborhood of London, England, and came to Virginia when she was young.  With the passing of time, no one would be able to benefit from the grandfather clause and then would have to be "natural born Citizens" to be eligible to be President.  We learn that "all children born in the country of parents who were its citizens. . . " make up the “natural born Citizen” category.  The Court says that there have never been any doubts as to the status of these children.  As to children born in the U.S. to parents who were not U.S. citizens at the time of their birth, there have been doubts. In other words, "natural born Citizen" under this formulation requires two generations of U.S. citizens, one generation in the parents and the other in the child himself/herself who also must be born on U.S. soil. It is important to understand that we are focusing on what is a "natural born Citizen" under Article II which  specifies the requirements to be President and not on what a "Citizen" is under the 14th Amendment or under some Congressional Act which does not relate to Article II natural born Citizenship.   

Obama, while having his mother's U.S. citizenship generation, is missing that of his  father's, for his father was a British subject/citizen at the time of his birth.  He therefore cannot be a "natural born Citizen," even if he was born in Hawaii.  

(c) Mario Apuzzo, Esq. 
January 2, 2009