“No person except a natural born citizen, or a citizen of the United States, at the time of adoption of this Constitution, shall be eligible to the office of President . . . “ U.S. Const. Art. II, Sec. 1, Cl. 4
Remember diagramming sentences? We all studied this in the 4th grade, and hopefully again when you fulfilled your English requirements in college.
In legal writing, the best teachers are lawyers who know sentence structure like an ASE certified mechanic does your car. They know the parts, their names, and how they function properly in relation to each other. It is essential to know your grammar in order to write good briefs and interpret statutes and case law.
I studied grammar several times, for Journalism and Legal Writing, plus the more complex constructions of Latin and German. But, I do not claim to be an expert. In fact, the research and refresher courses I attempted for this article reminded me why grammar is such a discipline. So, I backed off and kept it to the basics.
Breaking Down Article II into its Grammatical Parts
The subject is ‘office’ of the President. That is what the modifiers are describing.
‘No person except’ sets up the primary and subordinate adjective clauses describing who is ‘eligible’ to the ‘office,’ 1) ‘a natural born citizen,’ and; 2) ‘or a citizen of the United States.’
Note: ‘Natural Born Citizen’ and ‘Citizen’ are not appositives, but a primary and subordinate clause separated by the conjunction ‘or.’ Conjunctions set up alternatives to the main clause or subject. If ‘natural born’ and ‘citizen of the United States’ were synonyms in appostive construction, then the word ‘or’ would not be required.
‘At the time of adoption of this Constitution’ is a prepositional phrase further describing the adjective clauses . . . as are the later 35-year old and 14-year residency requirements.
‘Of the President’ describes, of course, ‘office.’
Liberal Interpretation
Liberals are true to the legal definition of their name; they interpret the law beyond its original scope and boundaries. (See Black’s Law.) In the case of Article II, they try to blur the distinctions between ‘natural born citizen’ and ‘citizen.’
If the liberals are corrrect, the sentence would set up the two adjective clauses as appositives, basically synonymous terms. A ‘citizen’ would then be equal to a ‘natural born citizen’ with no distinctions . . . in which case John Madison would have just relied on his sentence structure in Article I, Sec. 3, Cl. 3, simply describing the qualifications of a Senator as being a ‘Citizen.’
Natural Born Citizen, versus Citizen
At the time of adoption of the Constitution (remember that prepositional phrase?) there were two possible types of citizens.
1) Natural Born Citizens – These were those children of U.S. Citizens, which is, obviously, necessarily after the time of adoption, not prior.
2) Citizens – Who were the first citizens of the United States AT the time of adoption? Anyone, and their children, native to or lawfully residing in the United States, who accepted the legal authority of the Constitution and who rejected foreign allegiances. This, of course, did not include Loyalists. Their fate is described in the history of that time.
In fact, every one of our first presidents were native born in the various states of the original thirteen colonies. But, as the colonies were under the jurisdiction of England, they were by law Natural Born British subjects, born of British fathers on British controlled lands.
The Constitution, by power of its adoption, ‘naturalized’ these British subjects and they became the first U.S. citizens.
Thanks to the subordinate adjective clause, they were eligible for the office of president until the first children born naturally into that fortunate condition reached the age of 35. John Tyler, born about six months after the adoption of the Constitution, was the first natural born citizen to become president.
Barack Hussein Obama, a Natural Born British Subject
President Obama was born either in the United States, or Kenya. A court order for him to produce certified copies of his original birth certificate will determine which country.
But for now, we can apply both British and U.S. nationality law and safely say that if born in Kenya, Obama was a natural born subject of Britain. He was a U.S. citizen ONLY if you consider Stanley Ann Dunham’s marriage to an already married Obama, Sr. bigamy and therefore void ab initio, and Obama, Jr. born out of wedlock. This complicated and fraudulent marriage (perhaps done solely to prevent Obama, Sr. from being deported for statutory rape, or the appearance of statutory rape) allowed Dunham to avoid U.S. residency 5-year requirements post age fourteen through 8 U.S.C. 1409, which only required two years.
If the much publicized Hawaiian C.O.L.B. is validated to represent a genuine native birth (which will require production of Obama’s birth certificate from a certified birthing facility), then Obama is a ‘native born’ U.S. citizen under the 14th Amendment and 8 U.S.C. 1401. [Correction: This is one of my earliest blogs on the subject and as my studies continued I discovered that the 14th Amendment was misinterpreted as codified in 8 USC 1401, INA §301. The 14th Amendment’s ‘native born’ post nati citizenship was for children of freed slaves and unaffiliated Native Americans. ‘Born in the United States’ native-born citizenship was created thirty-years later in the Wong Kim Ark case, of which I discuss in detail in many following blog posts.]
Why isn’t Obama’s birth to a U.S. citizen mother on U.S. soil ‘natural born citizenship?’ . . . because, natural born citizenship is free of statutory definition, and therefore devolves from the father.
Usually, the mother is the same nationality of the father. Prior to the 1920’s, marriage automatically naturalized the wife to that of the husband. In Dunham’s situation, statute was required to ‘de-alienage’ the natural nationality from the father to that solely of the mother. At best, Obama was a dual-national at birth, which doesn’t qualify under the ‘no person except’ clause.
If born on U.S. soil, the 14th Amendment described the types of parentage allowed to qualify for citizenship at birth. But, while U.S. citizen father and mother are qualified to pass citizenship on to a U.S. born child, no amendment or statute is required. Compared to the other descriptions in the 14th Amendment, mentioning a child born to a U.S. father and mother is superfluous.
The 14th Amendment describes every combination of birth of a child on U.S. soil. While birth to a father passes the father’s nationality to the child naturally, any right of native nationality at birth from the soil, or jus solis, requires permission by the laws of that jurisdiction.
An example may be a Christian couple living in China as part of a ministry teaching from the bible. They spend a few years there and have more than two children. China has the right to deny the children rights of native birth nationality, just as the family can ignore the ‘two child’ restriction under Chinese law.
Now, a fair question is if the children born in China are ‘natural born citizens?’ I would say no. [Actually, as they would be denied Chinese nationality they would, indeed, be natural born citizens, inheriting by blood their father’s national allegiance.} They do not meet exemptions historically given to active military and diplomatic personnel. However, under the repealed 1790 Nationality Act, the children would be ‘as’ natural born citizens. By laws of the jurisdiction they were born in, they were born solely with the nationalities of the parents and no de-alienage or naturalization law is required to remove Chinese nationality. However, on return to the U.S., the children would have to be registered in the U.S. under special nationality law created for that very situation.
Afterword:
If you find the above merely interesting, perhaps you will find Justice Joseph Story’s discussion more persuasive. I just came across this yesterday.
“§ 1473. [T]he president should be a natural born citizen of the United States; or a citizen at the adoption of the constitution, and for fourteen years before his election. This permission of a naturalized citizen to become president is an exception from the great fundamental policy of all governments, to exclude foreign influence from their executive councils and duties. It was doubtless introduced (for it has now become by lapse of time merely nominal, and will soon become wholly extinct) out of respect to those distinguished revolutionary patriots, who were born in a foreign land, and yet had entitled themselves to high honours in their adopted country. A positive exclusion of them from the office would have been unjust to their merits, and painful to their sensibilities. But the general propriety of the exclusion of foreigners, in common cases, will scarcely be doubted by any sound statesman. It cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interposes a barrier against those corrupt interferences of foreign governments in executive elections, which have inflicted the most serious evils upon the elective monarchies of Europe. Germany, Poland, and even the pontificate of Rome, are sad, but instructive examples of the enduring mischiefs arising from this source. . . .”
Joseph Story, Commentaries on the Constitution (1833)
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