William Blackstone, Commentaries 1:354, 357--58, 361-62 (1765). We can see that even the English Parliament gave importance to a child having both parents be “in the allegiance of the king,” which under English common law meant the parents would have been “natural born subjects.” By having both parents be “natural born subjects,” the child would not have been born with any other conflicting allegiance other than the one that attached from the foreign soil. Parliament was willing to live with any allegiance attaching to the child from the foreign soil but not with any that may attach by descent from one of the parents, the latter one being by nature a much more stronger one. It was only later in time that the rule was made less restrictive and allowed for just the father to be a “natural born subject.”
There is historical evidence that the Founders borrowed from the Dutch much more heavily than from the British when making the new nation. During the revolutionary period Dutch law provided for citizenship by jus sanguinis. There is considerable evidence that the Framers were also influenced by the citizenship law of Holland. “The American colonists had become familiar with the rights of citizenship possessed in other countries, both from the fact that some of them resided in Holland for a time, before they came to America, and from the further fact that the New York colony was essentially Dutch in its original settlement and government.” John S. Wise, A Treatise on American Citizenship (1906). In Holland, “[c]itizenship could be acquired in several ways. Probably the most common was birth. Some towns accepted everyone as citizen who was baptized in a local church. But more commonly it was required that one’s parents were citizens too. . . .” R. Po-chia Hsia & Henk F. K. van Nierop, Calvinism and Religious Toleration in the Dutch Golden Age 161(2002). “One’s parents” would necessarily included one’s mother and father. This Dutch law is consistent with Vattel’s definition of what is a “natural born citizen.”
Apart from the heavy Dutch influence upon the Founders, when the Framers drafted the Constitution, they relied heavily upon Vattel to guide them. Citizenship was a topic that affected U.S. relations with other nations. Given that citizenship affects "the behavior of nation states with each other" (Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Founders would have looked to the law of nations to define it for the purposes of the new nation. The law of nations definition on citizenship also gave uniformity to the subject area, which the Framers wanted to achieve for citizenship laws as they did for naturalization laws. Gibbons v. Ogden, 22 U.S. 1, 36 (Wheat) (1824). They would therefore have referred to and accepted Vattel's law of nations definition to give meaning to what an Article II “natural born Citizen” was.
The meaning of a “natural born Citizen” as expressed by Vattel, including that both parents of the child must be citizens at the time of the child’s birth in order to make the child a “natural born Citizen,” was carried forward in American history following the Founding. The standard provided by Vattel has not changed in our jurisprudence and is still valid today as it was during the Founding. Also, the Fourteenth Amendment has not changed the meaning of a “natural born Citizen.” Legislative activity by the early Congresses provides insight into the question of whether Vattel required one or two parents to be citizens. There are Congressional acts that were passed after the Constitution was adopted that give us insight into what the Framers of the Constitution meant by “natural born Citizen.” The 1790 Congress, many of whose members had been members of the Constitutional Convention, passed the Naturalization Act of 1790 (1 Stat.103,104) which provided that “And the 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.” This phrasing followed the literal terms of British statutes, beginning in 1350, under which persons born abroad, whose parents were both British subjects, would enjoy the same rights of inheritance as those born in England; beginning with laws in 1709 and 1731, these statutes expressly provided that such persons were natural-born subjects of the crown.” The Naturalization Act of 1790 declared these children to be "natural born Citizens," but only retrospectively. See Weedin v. Chin Bow, 274 U.S. 657 (1927). It is interesting to note that George Washington was president of the Constitutional Convention and President of the United States when this bill became law and if he had disagreed with the two U.S. citizen-parent requirement, he could have vetoed this bill. One would then at first think that this legislation strongly suggests that the Framers of the Constitution understood this phrase to refer to citizenship acquired from both of the child’s parents at birth, regardless of whether or not that birth had taken place in the United States. This statute shows what role the parents played in the minds of the early founders.
While only retrospectively, the First Congress was willing to declare a child born out of the United States to two United States parents a “natural born Citizen.” This was not consistent with what Vattel wrote in The Law of Nations of Principles of Natural Law, at Sec. 215. Children of citizens, born in a foreign country, where he declared these children just “citizens” and not “natural born citizens”: "It is asked, whether the children born of citizens in a foreign country are citizens? By the law of nature alone, children follow the condition of their fathers, and enter into all their rights (Sec. 212); the place of birth produces no change in this particular, and cannot of itself furnish any reason for taking from a child what nature has given him; I say 'of itself,' for civil or political laws may, for particular reasons, ordain otherwise. . . .” (emphasis supplied). Clearly, Vattel addressed the question of whether these children are “citizens,” not “natural born citizen.” He does not address the question of whether they are “natural born citizens” because according to his own definition, a child had to be born “in the country” in order to be a “natural born citizen.” Being born abroad and therefore not “in the country,” such a child could not be a “natural born citizen.”
In this connection and as an aside which applies to the question of whether Senator McCain is an Article II “natural born Citizen,” it should be noted that according to Vattel, being physically born out of the country did not necessarily mean that one was not born “in the country.” Vattel explained that if a child was born “in the armies of the state,” that child was “reputed born in the country; for a citizen, who is absent with his family on the service of the state, but still dependent on it, and subject to its jurisdiction, cannot be considered as having quitted its territory.” Vattel, Sec. 217. Since this child would have been born in the foreign “armies of the state,” he would normally not be granted citizenship in the country in which he was physically born. Additionally, the country on whose soil the child might be born might adhere to a jus sanguinis system of conferring citizenship (meaning that born on its soil alone would not confer citizenship and therefore allegiance and loyalty on the child). Being born under those conditions, this child would therefore be born with sole allegiance to the country of his parents and would qualify as a “natural born citizen” of that country.
While the 1790 act naturalized all "persons" and so included women, it also declared that "the right of citizenship shall not descend to persons whose fathers have never been resident in the United States...." This prevented the automatic grant of citizenship to children born abroad whose mother, but not father, had resided in the United States. Citizenship was inherited exclusively through the father. As we have seen above, Congress did not remove the inequity until 1934. This focus on the father as the source of citizenship (but not meaning that the status of the mother was not considered) is consistent with what Vattel wrote in Section 212 of The Law of Nations. This is further evidence that the Framers relied upon Vattel in defining citizenship for the new Republic.
In 1795 the Congress passed the Naturalization Act of 1795 which removed the words “natural born” from the term “natural born citizen” and thereby just left “citizens” as the status to be given to children born out of the United States. The fact that the 1790 Act as written was short lived and was only retrospective shows that Congress just wanted to make certain persons born abroad during the early years of the Republic “natural born Citizen” so that they could be eligible to be President. This sort of special allowance was comparable to the grandfather clause of Article II which allowed a “citizen” to be President provided that he was such at the time of the adoption of the Constitution which the Framers in 1790 knew occurred in 1789. It seems that the Third Congress passed this amendment to the 1790 Act to clarify for those living at that time who was and who was not a “natural born Citizen” per the Framers intent at that time, since the 1790 Act had introduced confusion into that subject regarding the use of those special words as found in Article II. United States v. Wong Kim Ark, 169 U.S. 649, 714 (1898) (Fuller, C.J., dissenting) (statute “passed out of abundant caution to obviate misunderstandings” about the citizenship status of foreign-born children of Americans). It is again important to note that George Washington was also President in 1795, making him aware of this change by the Third Congress. If he disagreed with the clarification and change in the wording in the new 1795 Act, he would have vetoed it. The 1790 and 1795 Acts are contemporaneous evidence of who the Framers meant to include as “natural born Citizens.” Pryor, The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty, 97 Yale L.J. 881 (1988).
Subsequent Supreme Court cases have stated that in interpreting the Constitution, we must look to the common law that the Framers accepted at the time of the Founding. There is strong historical evidence that the Framers in constituting the new Constitutional Republic rejected the English common law and accepted the new federal common law which emanated from the law of nations. On this subject, see my article included at this blog entitled, The Law of Nations or Principles of Natural Law as U.S. Federal Common Law Not English Common Law Define What an Article II Natural Born Citizen Is. Indeed, as we will see below, our Supreme Court adopted that definition when defining a “natural born Citizen” and thereby incorporated it into U.S. federal common law.
The definition and two-parent requirement has been reiterated by the Supreme Court and other courts in the cases of The Venus, 12U.S. 253(1814), Shanks v. Dupont, 28 U.S. 242 (1830), Scott v. Sandford, 60 U.S. 393 (1856), Minor v. Happersett, 88 U.S. 162 (1875) , Ex parte Reynolds, 20 F. Cas. 582 (C.C.W.D. Ark 1879), United States v. Ward, 42 F. 320 (1890); Wong Kim Ark, 169 U.S. 649 (1898), and Ludlam, Excutrix, & c., v. Ludlam, 26 N.Y. 356 (1863). It has also been confirmed by renowned legislators, including Senator Trumbull, the author of the Civil Rights Act of 1866, and Representative John A. Bingham, the architect of the 14th Amendment to our Constitution.
In the case of The Venus 12 U.S. 253, 289 (1814), Justice John Marshall said: "Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says 'The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives or indigenes are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.'”
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