Talk:Natural-born-citizen clause (United States)

Unclarity regarding meaning of "natural-born"; need for further research

The interpretation of Art. II "natural-born citizen" clause seems to need further research. It appears that the statute cited in the existing Wikipedia article does not purport to define "natural-born citizen" for purposes of Article II presidential qualifications.

There is at least one law review article that tries to shed light on this (and seems to argue for a fairly liberal interpretation): Jill A. Pryor, The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty, 97 Yale L. J. 881 (1988). Pryor's article (footnote 2) in turn cites the following: Freedman, Presidential Timber: Foreign Born Children of American Parents, 35 CORNELL L.Q. 357 (1950); Gordon, Who Can Be President of the United States: The Unresolved Enigma, 28 MD. L. REV. 1 (1968); Means, Is Presidency Barred to Americans Born Abroad?, U.S. NEWS & WORLD REP., Dec. 23, 1955, at 26; Morse, Natural-Born Citizen of the United States--Eligibility for the Office of President, 66 ALB. L.J. 99 (1904); McElwee, unpublished article reprinted in 113 CONG. REC. 15,875 (1967).

An interesting United States Supreme Court case that discusses and analyzes various related issues is the following:

• United States v. Won Kim Ark, 169 U.S. 649 (1898) (holding that a person born within the jurisdiction of the U.S. but to noncitizens is thereby automatically a "natural-born" citizen, but citing reasons indicating that a person born abroad, even to parents of U.S. citizens, does not constitue a "natural-born" citizen).

Below is some of the discussion from United States vs. Won Kim Ark, 169 U.S. 649 (1898), beginning at page 655: " . . . . In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the fourteenth amendment now in question, said: 'The constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.' And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 167.

In Smith v. Alabama, Mr. Justice Matthews, delivering the judgment of the court, said: 'There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several states each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes.' 'There is, however, one clear exception to the statement that there is no national common law. The interpretation of the constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.' 124 U.S. 478 , 8 Sup. Ct. 569.

II. The fundamental principle of the common law with regard to English nationality was birth within the allegiance-also called 'ligealty,' 'obedience,' 'faith,' or 'power'-of the king. The principle embraced all persons born within the king's allegiance, and subject to his protection. Such allegiance and protection were mutual,-as expressed in the maxim, 'Protectio trahit subjectionem, et subjectio protectionem,'-and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the king's dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the king.

This fundamental principle, with these qualifications or or [169 U.S. 649, 656] explanations of it, was clearly. though quaintly, stated in the leading case known as 'Calvin's Case,' or the 'Case of the Postnati,' decided in 1608, after a hearing in the exchequer chamber before the lord chancellor and all the judges of England, and reported by Lord Coke and by Lord Ellesmere. Calvin's Case, 7 Coke, 1, 4b-6a, 18a, 18b; Ellesmere, Postnati, 62-64; s. c. 2 How. St. Tr. 559, 607, 613-617, 639, 640, 659, 679.

The English authorities ever since are to the like effect. Co. Litt. 8a, 128b; Lord Hale, in Harg. Law Tracts, 210, and in 1 Hale, P. C. 61, 62; 1 Bl. Comm. 366, 369, 370, 374; 4 Bl. Comm. 74, 92; Lord Kenyon, in Doe v. Jones, 4 Term R. 300, 308; Cockb. Nat. 7; Dicey, Confl. Laws, pp. 173-177, 741.

In Udny v. Udny (1869) L. R. 1 H. L. Sc. 441, the point decided was one of inheritance, depending upon the question whether the domicile of the father was in England or in Scotland, he being in either alternative a British subject. Lord Chancellor Hatherley said: 'The question of naturalization and of allegiance is distinct from that of domicile.' Page 452. Lord Westbury, in the passage rei ed on by the counsel for the United States, began by saying: 'The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal states or conditions,-one by virtue of which he becomes the subject of some particular country, binding him by the tie of natural allegiance, and which may be called his political status; another by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status.' And then, while maintaining that the civil status is universally governed by the single principle of domicile (domicilium), the criterion established by international law for the purpose of determining civil status, and the basis on which 'the personal rights of the party-that is to say, the law which determines his majority or minority, his marriage, succession, testacy, or intestacy- [169 U.S. 649, 657] must depend,' he yet distinctly recognized that a man's political status, his country (patria), and his 'nationality,-that is, natural allegiance,'- 'may depend on different laws in different countries.' Pages 457, 460. He evidently used the word 'citizen,' not as equivalent to 'subject,' but rather to 'inhabitant'; and had no thought of impeaching the established rule that all persons born under British dominion are natural-born subjects.

Lord Chief Justice Cockburn, in the same year, reviewing the whole matter, said: 'By the common law of England, every person born within the dominions of the crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled, or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.' Cockb. Nat. 7.

Mr. Dicey, in his careful and thoughtful Digest of the Law of England with Reference to the Conflict of Laws, published in 1896, states the following propositions, his principal rules being printed below in italics : "British subject' means any person who owes permanent allegiance to the crown. 'Permanent' allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien, who, because he is within the British dominions, owes 'temporary' allegiance to the crown. 'Natural- born British subject' means a British subject who has become a British subject at the moment of his birth.' 'Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality.' The exceptions afterwards mentioned by Mr. Dicey are only these two: '(1) Any person who (his father being an alien enemy) is born in a part of the British dominions, which at the time of such [169 U.S. 649, 658] person's birth is in hostile occupation, is an alien.' '(2) Any person whose father (being an alien) is at the time of such person's birth an ambassador or other diplomatic agent accredited to the crown by the sovereign of a foreign state is (though born within the British dominions) an alien.' And he adds: 'The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, though at common law nationality or allegiance in substance depended on the place of a person's birth, it in theory at least depended, not upon the locality of a man's birth, but upon his being born within the jurisdiction and allegiance of the king of Enl and; and it might occasionally happen that a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of the crown.' Dicey, Confl. Laws, pp. 173-177, 741.

It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.

III. The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established.

NOTE: The opinion is rather long and can be read in full, at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=169&invol=649

Cross-references; Also for further research: 14th Amendment

More cross-references from this article might be in order, in addition to the existing two:

• citizenship
• nationality

And any cross-referenced link-out articles (including the two noted above) should be checked for consistency.

Let's invite a constitutional scholar to weigh in on the relevance (if any) to this discussion, of Amendment XIV, section 1, concerning citizenship.

Weedin v. Chin Bow

See also Weedin v. Chin Bow, 274 U.S. 657, 663 (1927) (obiter dictum that "under the common law which applied in his country, the children of citizens born abroad were not citizens but were aliens").

The quote actually says "this country", not "his country" (see Weedin v. Chin Bow in FindLaw). But although that was the original rule under the common law, it should probably be emphasized that this rule was changed by Congress in 1855 (as mentioned in the Chin Bow opinion). Richwales 05:09, 15 October 2006 (UTC)

Latest Changes

I've editted the article to trim it to the basic, most relevant information. Some of the previous info, such as the mentioning of the "United States v. Won Kim Ark" case, I think, is not really directly relevant so I trimmed it out. Since the full 8USC1401 text is quite long, I decided to just have it as a link. People interested in the gory details can always follow it. I think my latest edits most succinctly provides all the info and relevant facts.

I added back in, but in a very pared down form, the citation to Won Kim Ark and another Supreme Court case, but they should definitely be mentioned, as they are highly relevant (even though not conclusive). I did not include mention of U.S. ex rel. Guest v. Perkins, 17 F. Suppl 177 (D.D.C. 1936).68.239.118.207 16:01, 18 Dec 2004 (UTC)

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This is incorrect

However, constitutionally speaking, it should be made clear that the 14th Amendment explicitly says that a person is a citizen at birth only if he is born within the United States and subject to the jurisdiction thereof. There are actually [b]no[/b] provisions anywhere that states that a person born under U.S. jurisdictioin but outside the United States has an automatic claim to U.S. citizenship. It should be noted in this regard that persons born in American Samoa, which is a U.S. territory under U.S. jurisdiction are [b]not[/b] granted U.S. citizenship at birth but are granted the status of United States National and must actually naturalize to become full U.S. citizens. With this in mind, it is not actually clear if people born in, say Puerto Rico, while granted full U.S. citizenship at birth are actually natural-born citizen if one does not conclude that "citizen at-birth" and "natural-born citizen" are equivalent.

The 14th amendment says "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

It doesn't say *only* those people are US citizens at birth.

Wong Kim Ark

Please note that the correct spelling of this man's family name is Wong, not Won. I fixed this misspelling and also added a link to the existing article about Wong Kim Ark and his case. Richwales 14:16, 17 April 2006 (UTC)

Native-born citizen vs Natural-born citizen

The article named "natural-born citizen" was renamed to "native-born citizen" (and redirected). This is incorrect. A person born outside the country to citizen parent(s) may be a natural-born citizen for purposes of US presidential eligibility (ex. John McCain, etc). However, such a person would not be a native-born citizen. Therefore, I have split the two articles. The natural-born citizen article is restored and the native-born citizen article was re-written anew.

John McCain is not a natural-born citizen, his citizenship is statutory, which means it is based on statute as enacted by Congress, not his place of birth. He was born in Panama. —Preceding unsigned comment added by 70.45.127.217 (talk) 16:45, 13 August 2008 (UTC)

The question of statutory citizenship as granting natural-born citizenship is unsettled. However, one cannot acquire citizenship at birth retroactively unless it is explicitly stated in the law. The 1937 law that granted Mr. McCain citizenship via his birth in the Panama Canal Zone does not explicitly state this. As such, that law cannot be used to justify his citizenship at birth. It can be used to justify his citizenship, however. I have added a reference to legal research referenced in the New York Times and generally considered sound by legal scholars (that is a sound argument, not that it is what is the law--only the Supreme Court will be able to weigh in on that) that concludes that John McCain is NOT a natural-born citizen. This is not based on the argument that statutes cannot confer citizenship. It is instead based on the citizenship law that actually applied in 1936 and it serves as the basis for a current lawsuit winding its way through the US court system right now challenging the constitutionality of John McCain becoming President of the United States.72.11.62.13 (talk) 06:49, 23 August 2008 (UTC)

Can someone locate a reference to US Code Title 8 Section 173 from 1925? It seems quite strange that the law contrained the wordings "Excluding the Isthmus Canal Zone" 72.11.62.13, From reading the reference provided, the researcher is trying to interpret the 1925 law quit absurdley - that under his interpretation Born on foreign soil, Naturalized parents, on a US Miitary Base - Not a Citizen Born on foreign soil, Naturalized parents, not on military base - Citizen He states that a US Military base on foreign is outside the limits, but not outside the jurisdiction, of the US. Key being that a child born "outside of the limits and jurisdiction" can become a citizen, but a child born into US jurisdiction cannot. In fact, his inerpretation would seem to exclude children born inside of a foreign embassy (but not outside) from naturlizd citizenship! So please, can someone find 1925 USC 8: 173 and reference it? Phonon266737 (talk) 19:01, 17 September 2008 (UTC)

And what about Outside the USA?

I think this article is too much centered in the United States Constitution, and althought It was the first one which incorporated the concept It is not the only one. In fact I reached the article following a link from the "President of Brazil" page.

--Camahuetos 03:06, 24 August 2006 (UTC)

The term natural born citizen only applies to the United States because it was created as part of the United States Constitution. The term does not apply outside of the U.S. Outside of the U.S., the term would be either "native-born citizen".

So I think It would be a great idea to create that article which is linked from this article or a section within this article refering to that fact.

I think I will add that inmediatly.

PS: Please sing your posts on the talk page.

--Camahuetos 11:20, 27 October 2006 (UTC)

Supreme Court cases: some not relevant here

Several of the Supreme Court cases cited at the end of the article are not really relevant to the question of acquisition of US citizenship at birth. I would propose that the following cases should be removed from this article: Perez v. Brownell; Afroyim v. Rusk; and Vance v. Terrazas. Possibly also Rogers v. Bellei. These cases would be worth mentioning in the United States nationality law article, but not here. Comments? Richwales 02:38, 30 November 2006 (UTC)

The only reason they are mentioned is to show the power of Congress to define citizenship. If Congress is defining this form of citizenship, and even has the power to withdraw it in certain cases (as mentioned in these cases) then it is clear that this form of citizenship is a form of naturalization, not birth. The whole concept behind the term "natural born citizen" is that the person is just that: natural-born, and does not need laws to extend the citizenship to him or her. Today, we have codes that define who gets citizenship and who loses it, and the Court, for the most part, has upheld these statutes. Therefore, and as I wrote in the main article, although there is disagreement over who is a natural-born citizen, I think it is clear that children born to Americans overseas are NOT natural-born (otherwise how could Congress continue to revise the laws dictating who is and who is not, and by what age must they register and so on). Todd gallagher 12:49, 30 November 2006 (UTC)

I can't agree with Todd's reasoning above. Please note the following:

(1) The current Immigration and Nationality Act says that various types of non-US-born individuals are "nationals and citizens of the United States at birth" [INA 301; 8 USC 1401].

(2) The current law also defines the term “naturalization” as meaning "the conferring of nationality of a state upon a person after birth, by any means whatsoever" [INA 101(a)(23); 8 USC 1101(a)(23)].

(3) The current law provides for loss of citizenship by US citizens "whether by birth or naturalization" [INA 349; 8 USC 1481].

Thus, I'm not at all convinced by Todd's assertion that the concept of "natural born citizen" must clearly encompass only those individuals whose citizenship is established under the Constitution and not subject to acts of Congress. Todd may end up being shown to be right (depending on future Supreme Court rulings) — or not — but I do not believe the issue is by any means clear cut or settled at the present time. Richwales 23:31, 30 November 2006 (UTC)

I concur with Richwales. Furthermore, the general legal understanding of naturalization is refers to an act whereby a person acquires a citizenship different from that person's citizenship at birth. If law provides for a person to be recognized as its citizen at the moment of birth than that is not considered "naturalizaton". In fact as Rich Wales points out above in (2), US law explicitly makes this clear. —The preceding unsigned comment was added by 192.88.158.50 (talk) 00:28, 11 February 2007 (UTC).

Based on all relevant facts and reasoning, I have re-organized and trimmed the article to its essentials. The old article rested largely on Todd Gallagher's claim that anyone who obtains citizenship "through ordinary law" is a "naturalized citizen". This has zero basis in law and is explicitly rejected by U.S. law itself. As such it is original research. The current article best summarizes the issue without resorting to original research. —The preceding unsigned comment was added by 192.88.165.35 (talk) 01:58, 11 February 2007 (UTC).

It is clear that this is not a settled issue as you like to promulgate. If it were a settled, black and white issue, then there would not be a half dozen Supreme Court cases all within a 50 year time span swing back and forth on the issue of citizenship at birth overturning each other. If you would like to add commentary to the article, that is fine. But the case law stays because it is the case law that we currently go by. Statutory law on the issue, especially on the term "natural born citizen" is moot. If you want an article on "citizen at birth" then that is fine, but no high court case has ever ruled that the two are the same. In fact, proposed legislation in Congress to define "natural born citizen" and perhaps even amend the Constitution, have all failed. This proposed legislation is proof enough that the issue is far from settled. So do not delete the case law again. If you would like to add, then fine. If you would like to comment, then fine. But this will not be a one-sided argument. —The preceding unsigned comment was added by Todd gallagher (talk • contribs) 01:37, 16 February 2007 (UTC).

While perhaps some of the cases in the case law section might be relevant and should stay, I also think that much of the cited case law is irrelevant. I agree with RichWales that 'Perez v. Brownell; Afroyim v. Rusk; and Vance v. Terrazas. possibly also Rogers v. Bellei. should be removed. I've read Toddgallapher's response and I find it completely unsatisfactory. In particular I completely reject the following reasoning as having no basis whatsoever:

"If Congress is defining this form of citizenship, and even has the power to withdraw it in certain cases (as mentioned in these cases) then it is clear that this form of citizenship is a form of naturalization, not birth" (toddgallagher)

If the citizenship is the original citizenship given to someone at birth then it is not called "naturalization" as that term is defined in law or in almost all dictionaries. None of these case laws claim that they are "naturalizing" these people either. This whole "naturalization at birth" concept is bogus, I've never heard of it.

We can keep the other cases because they are sort of relevant but not all of them.Nayra 22:55, 20 March 2007 (UTC)

I agree. The cases did not add anything tot he point, and no legitimate defense was made against their removal. Consensus seemed to be fore removal, so I removed them. In fact, I personally would go a step further and remove all case cites since none explicitly answer the question, and at best can be easily used as a method for POV pushing. CraigMonroe (talk) —Preceding comment was added at 13:15, 20 March 2008 (UTC)

"Naturalization at birth" concept makes no sense and is original research

I have never come across or heard of this concept of "naturalization at birth". All definitions of "naturalization" mean to obtain a citizenship other than the one that one held originally at birth. The granting of that original citizenship however is never called "naturalization". I've removed all instances of this concept of "naturalization at birth" as it does not exist. Nayra 22:28, 20 March 2007 (UTC)

Amazing someone made you expert. Read Miller v. Albright (1996) and they use the term naturalization at birth. "The rules for naturalization at birth established by Section 309 are fully consistent with the Constitution." This is for kids who under the Constitution would not otherwise be a citizen. Therefore, the statutory law that grants them citizenship at birth is in fact naturalization at birth, further differentiating natural born citizens and naturalized citizen. "Petitioner, having been born outside the territory of the United States, is an alien as far as the Constitution is concerned, and "can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress." Department of Justice Brief:( www.usdoj.gov/osg/briefs/1996/w961060b.txt ). But hey, Justice Stevens agrees with you: "The Court did not say it intended that phrase to include statutes that confer citizenship 'at birth.' And Congress does not believe that this kind of citizenship involves 'naturalization.' 8 U. S. C. §1101(a)(23) ('The term 'naturalization' means the conferring of nationality of a state upon a person after birth, by any means whatsoever')." Too bad that was the dissent and the majority, and thus binding law, did not agree with you. Todd Gallagher 03:32, 26 March 2007 (UTC)

Cite, please, to the above wording? I can't find the expression "naturalization at birth" anywhere in the court's opinion in Miller v. Albright. I did, however, find the sentence you quoted in the government's brief (http://www.usdoj.gov/osg/briefs/1996/w961060b.txt). Richwales 06:46, 26 March 2007 (UTC)

I've looked through Sec 309 and also Miller v Albright. I do not find anything in these that establishes this concept of "naturalization at birth". My objection isn't that it does or doesn't exist per se. My objection is that you are writing it as though it is an established concept. It isn't and you have not shown that to be the case. The U.S. DOJ brief is the only place I've seen it but such a document has zero legal weight. If you can show that "naturalization at birth" is an established concept then I think it is fine to have it in the article. Otherwise it is original research and doesn't belong. Nayra 21:30, 5 April 2007 (UTC)

"A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts." What do we not understand about this ruling? All citizens must be one of two classes: natural-born or naturalized. Even if you are born overseas to American parents, yes you are a citizen at birth, but it is through naturalization. Even the laws themselves that dictate citizenship to American children overseas are titled as the naturalization laws!Todd Gallagher 17:20, 6 April 2007 (UTC)

The above quote is dicta, and not a holding, since Miller v. Albright was about whether or not Miller had any sort of claim to US citizenship — not about whether she was "natural-born" or "naturalized". As dicta, the statement is not a binding interpretation, and it doesn't overrule INA 101(a)(23), which defines the term "naturalization" as meaning "the conferring of nationality of a state upon a person after birth, by any means whatsoever." Richwales 22:02, 6 April 2007 (UTC)

With all due respect to todd, all of the evidence you claim for establishing the concept of "naturalization at birth" is non-existent. You've cited justice department memos and dicta but not any holdings in any case law establishing this concept. In fact in statutory law, INA 101(a) (23), it is clearly stated that naturalization cannot happen at birth but only after birth. Case law and future rulings may invalidate that but nothing like that now exists. There is simply no basis for asserting that "naturalization at birth" is a valid concept.

It doesn't mean of course that just because a person is a citizen at birth that they are still natural born citizens. They still could be the former but not the latter. But it does mean that the whole argument that they are not natural born citizen because they were "naturalized at birth" has no basis in law. Richwales has already pointed out to you all the flaws of your "evidence". Please do not re-insert the concept of "naturalization at birth" again if you can't back it up with nothing more than statements and documents that have zero legal weight and zero legal standing. Magicsprite 03:09, 30 April 2007 (UTC)

"You've cited justice department memos and dicta but not any holdings in any case law establishing this concept." Really? This is what you get for listening to Richwales instead of researching it on your own. The cited Supreme Court ruling does not come from the Albright case; it was referenced to. So much for dicta, huh? "A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts." -United States v. Wong Kim Ark, 169 U.S. 649 (1898). This was the main ruling, not gibberish thrown out. Clearly any citizen at birth born outside the US is a naturalized citizen. This case has never been overturned. So what some federal law might state that has never been challenged holds no grounds in regards to a straightforward ruling by the Supreme Court regarding birth overseas. The Justice Department memo was cited because it was the argument placed before the Supreme Court citing the Wong Kim Ark ruling, and the Supreme Court ruled in favor of the Justice Department (technically the State Department, but it was represented by the DOJ). So I will not remove the term "naturalization at birth" since it supports the Wong Kim Ark case and was used in the Albright case by the government and the Supreme Court ruled in favor of this argument.

Edit some of the language, but don't touch the content based on some misconception of case dicta. Todd Gallagher 03:47, 1 May 2007 (UTC)

The quoted language from the Wong Kim Ark majority opinion is still dicta in the context of that case, because Wong Kim Ark was not born outside the US (and thus any theorizing on the status of foreign-born children of US citizens would not have been directly relevant to Wong's claim to citizenship). Further, the applicability of this part of the opinion (even in the case of the foreign-born) can legitimately be questioned because, despite the prohibitions in the Chinese exclusion acts against Chinese acquiring US citizenship via naturalization, non-US-born children of US-born Chinese fathers (e.g., three of Wong Kim Ark's own sons) were routinely recognized as US citizens (as long as US officials were convinced, or admitted they were convinced, of a given individual's parentage). Richwales 05:27, 1 May 2007 (UTC)

You seem to think that although the Supreme Court has made it clear that only persons born in the US are natural born citizens, Congress must have some special power to bestow upon anyone it wants US citizenship. Congress has only one power regarding US citizenship: The Constitution specifically reads that Congress has the power "To establish an uniform Rule of Naturalization." There is no other form of citizenship Congress has the power to regulate. The 14th Amendment clearly states persons born in the US are citizens and those naturalized are citizens. Where in the Constitution do you pull these theories from? The Supreme Court even noted: "Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution." The Supreme Court has never overruled this case; on the contrary, they have cited it many times as established case law. You seem to throw this wild idea out that this is original research. Look up the definition of original research, for I am citing both precedent and constitutional theories argued by the justices of the Supreme Court themselves. Todd Gallagher 02:15, 2 May 2007 (UTC)

I thought Wikipedia was supposed to be a collection of facts. Mr. Gallagher, what you have added to this Wiki are not facts but an argument - your argument, and a bad one at that. All I can think is that you are either not a lawyer or a really terrible one. Miller v. Albright dealt not with the nature of citizenship (natural-born or naturalized) but whether there was any citizenship at all. More importantly, it dealt with a person born outside the US to a US citizen father and a non-citizen mother - a situation 8 USC 1401 specifically leaves out. The implication that the meaning of 8 USC 1401 "at birth" is limited by dicta in a failed challenge to 8 USC 1409 (Children Born Out of Wedlock) is absurd. Editors, please remove this non-analysis from the Wiki. —Preceding unsigned comment added by 64.243.9.242 (talk) 16:05, 3 March 2008 (UTC)

Thank you Mr. Anonymous. The purpose of the case law you cited being mentioned was to emphasize that Congress has the power to regulate naturalization in any form it deems fit. The high court upheld this power. However, now stay with me here, the Court, as you pointed out, never upholds the power of Congress to change and regulate natural-born citizenship. If Congress wanted to state that you must be 8 feet tall and have a last name with five vowels, to become a naturalized citizen, it could, according to all the case law on the subject. But defining who is a natural-born citizen, with the exception of the dissent in the Dred Scott case, has never been done. In fact, the Constitution only grants Congress the power to naturalize. Todd Gallagher (talk) 16:18, 3 March 2008 (UTC)

"However, now stay with me here, the Court, as you pointed out, never upholds the power of Congress to change and regulate natural-born citizenship." Of course they haven't, because in the instant case, that power of Congress was not challenged. Indeed, the Court has never upheld this power of Congress because this power of Congress has never been challenged in 200+ years. Your implication clearly is that to uphold or strike down acts of Congress that have not been expressly challenged is within the Court's purview. You're wrong; it's not; and this is precisely the type of mindset that suggests that you have no or substandard legal training, and that you haven't the foggiest clue what you are talking about. Congress has exercised the power the define the nature of citizenship on numerous occasions. In 8 USC 1401 et seq. (1978) it drew a distinction between nationality at birth and naturalization. Specifically, it distinguished between citizens "at birth" and another group of people "declared" to be citizens, with respect to whom the expression "at birth" is never used. Since, under the Fourteenth Amendment, every citizen of the United States is either natural-born or naturalized, it is clear that citizen "at birth" means "natural born" citizenship, and any citizens not specified as "at birth" are by default naturalized citizens. Keep in mind that I am not arguing for the above interpretation to be included in the Wiki. I don't want it there, as it is still fundamentally an interpretation and not a fact. Rather I throw it out there as an example of what real legal reasoning is supposed to look like, to show that your diatribe is not real legal reasoning and should be removed.

Furthermore, Todd Gallagher is attempting to argue that 1403 necessarily refers to naturalized citizens only. This is not the case. 1403 simply says that people born in the Canal Zone are citizens; it doesn't say what kind of citizens they might be. That's because they can be either: I call the editors' attentions to 8 USC 1408, "§ 1408. Nationals but not citizens of the United States at birth." This clearly refers to naturalized citizens, and it enumerates all those who qualify as naturalized citizens:[1]Note that 1408 begins, "Unless otherwise provided in section 1401 of this title..." indicating that 1401 is the predominant section (dealing with natural-born citizens) and 1408 the fallback section (dealing with naturalized citizens.) Hence there is no basis for Todd Gallagher's implication that 1403 overrides the longstanding citizenship doctrines (codified in 1401) to classify all people born in the Canal Zone as all either natural-born or naturalized. What type they are depends on whether they fit into 1401 or, barring that, 1408 or 1409.—Preceding unsigned comment added by 64.243.9.242 (talk) 16:35, 3 March 2008 (UTC)

1403 specifically "DECLARES" all children born in the Panama Canal Zone to US citizens to be citizens. Thus, by your own logic, they are naturalized since they are "declared" to be citizens. 1401 is a broad law, and 1403 is a specific law detailing PCZ-born children of Americans. If 1403 did not intend to naturalize all US kids born there, why would it have been passed? 1401 as you state would have taken care of the US children born there. Instead, Congress specifically naturalized all kids born there through 1403. The Supreme Court has been clear on the power of Congress. It specifically stated that all laws pertaining to citizenship are NATURALIZATION laws: "A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts."Todd Gallagher (talk) 18:49, 3 March 2008 (UTC)

Section 1403 did not come into being until 1952 and the original law that declared all children born in the Panama Canal Zone to be citizens did not come into effect until 1937. John McCain was born in 1936. Thus, he could not have been a citizen "at birth" under that law (although he could have had his citizenship conferred as of the date of the statute). However, this is moot. John McCain was a citizen at birth by reason of jus sanguinis.Zagrossadjadi (talk) 04:00, 2 July 2008 (UTC)

Goldwater

Barry Goldwater's case among these three is unique in that although he was born outside the United States, Arizona was later admitted as a state. How is Goldwater even relevant? Arizona was a US territory at the time of his birth. A territory is as much a part of the US as a state is, isn't it? Nik42 21:12, 23 June 2007 (UTC)

Maybe, maybe not. I think this could still be a point of legitimate controversy that deserves to be acknowledged in the article.

Although US territories are considered part of the US by statute, one could try to argue (and I believe some have) that the Constitution doesn't justify treating any area outside the several states as being part of the "United States" for purposes of interpreting the Constitution itself (or amendments thereto).

Carried to an extreme, this view might even call into question the "natural-born-ness" of Al Gore (who was born in Washington, D.C.) -- though I don't recall anyone raising such an objection during the 2000 campaign, and it could certainly be counter-argued that since Article I, Section 8 of the Constitution provided for the formation of the District of Columbia, it counts as part of the US as far as the Constitution is concerned.

In any case, I think there is enough of a possibility for a good-faith disagreement here that the possibility of a problem with Goldwater's eligibility should at least be acknowledged in the article. For what little it may be worth, my vague recollection (I was only 12 at the time) was that when Goldwater ran for President in 1964, some people did in fact question whether he qualified as "natural-born" or not -- though it certainly never became a major point of controversy. If anyone can find references to what was said about Goldwater's eligibility for the Presidency at the time, I'd be very interested in having this added to the article.

Richwales 06:20, 24 June 2007 (UTC)

Yes there should be the names in the article of those who may be affected by a very narrow interpretation of “natural-born.. “ eg Al Gore, Barry Goldwater, George W. Romney, and John McCain (perhaps him again this time?) One website of dubious facts even brings in William Howard Taft on the basis that Ohio’s 1953 application/confirmation of statehood could not be backdated to 1803! (And the requirement does not apply to Justices, Supreme Court or otherwise). Hugo999 13:44, 27 June 2007 (UTC) See U.S. History Fact-o-Rama

"Dubious," indeed. As far as I'm aware, the claim that Ohio didn't officially become a state until 1953 is put forth only by opponents of the US federal income tax who claim the 16th Amendment was never validly ratified, thus the income tax is illegal, no one needs to pay attention to the IRS, etc., etc. I would draw the line before any questioning of Taft's eligibility for the Presidency. Richwales 16:18, 27 June 2007 (UTC)

Re Goldwater, I presume he would qualify as the son of US parents anyway (though some of his grandparents were immigrants). But I think like anyone born in say Alaska or Hawaii when they were (incorporated?) territories would qualify as born in a territory anyway (the page on Goldwater mentions some queries about his eligibility when he was running for President, though evidently not taken seriously). The inhabitants of the territory (was it called Arizona Territory?) vote, move to other states and get passports like anyone else?

• But are there some (unincorporated?) territories eg various islands in the Pacific where the inhabitants are not US citizens and who could not run for President?
• PS: the inhabitants of the Northern Territory in Australia have again found out that the Australian Federal Government can over-rule NT Law but not laws of Australian states (very recently over Aboriginal affairs, and a few years ago over euthanasia. But the NT inhabitants actually voted against becoming a state in 1998 (they would have got fewer federal senators than other states). Hugo999 12:26, 28 June 2007 (UTC)

United States

We have to be carefull throwing around phrases such as 'United States' and saying things like "All persons born in the United States are citizens by birth" and much of the final paragraph of the "Natural Born Citizen" as presidential qualification section. What counts as "United States", with regards to the Natural Born Citizen phrase, and it's relation to the Natural Born requirement, is itself a part of the controversy regarding the clauses meaning. While the person(s) writing the section obviously had cases such as a person born in France (whether or not to US citizens) as a person 'born overseas', there are questions about whether, say, a person born in Washington D.C. is "a person born in the United States"; what about someone born in Peurto Rico, or a US embassy in France, or in some American Territory or Possession, or a US owned airplance or boat. It's not simply whether or not "Natural Born" refers to people other than "persons born in the United States" (to, say, children of US citizens abroad), but how it refers to "persons born in the United States". What does "United States" mean in relation to the Natural Born clause. Does "born in the United States" have any specific meaning relating to the clause anyway (perhaps the final paragraph of the "Natural Born Citizen" as presidential qualification is simply saying things that are false - maybe ""All persons born in the United States are citizens by birth" is not in fact true. - Matthew238 07:57, 5 July 2007 (UTC)

• You state: "there are questions about whether, say, a person born in Washington D.C. is 'a person born in the United States.' This has already been addressed. The U.S. Supreme Court ruled that the Union is perpetual in Texas v. White. The District of Columbia was created out of two states, Virginia and Maryland. The mere fact that Arlington and Alexandria were ceded back to Virginia prior to the Civil War without shows that D.C. is as much a part of the U.S. as any CONUS military installation or post office. To argue that D.C. is not a part of the U.S. within the means of the Constitution's use of the term "United States" would be to say that any federal property is not: The Constitution reads: "To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings." As far as birth in U.S. territories such as Puerto Rico and embassies overseas, federal law dictates these people's citizenship. Congress has only one power regarding citizenship, and that is the power "To establish an uniform Rule of Naturalization." "We have to be carefull throwing around phrases such as 'United States' and saying things like 'All persons born in the United States are citizens by birth.'" This is true; read the 14th Amendment. If they are not "citizens by birth" or "natural born citizens" then I'd like to know what they are.Todd Gallagher 15:18, 5 July 2007 (UTC)

I must respectfully disagree with Mr. Gallagher that Texas v. White is controlling with respect to the status of Washington, D.C. as nowhere in that case is the subject of the federal district resolved. Indeed, the plain language of the US Constitution clearly shows that the District is NOT a state. In the 23rd Amendment it states "The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment." Now let us look at the 14th Amendment, which states, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." However, as already indicated, the District of Columbia is not a State. Therefore, if we are to take Mr. Gallagher's argument seriously that those only those born in the United States are natural-born citizens then we must also conclude that individuals born in the District of Columbia are NOT natural born citizens. Indeed, the fact is that the reason why individuals of the District of Columbia are citizens has nothing to do with the Constitution. They also derive their citizenship by statute. That statute happens to be the Immigration and Nationalization Act, 8 USC Section 1101 (1993), which states in its definitions "(36) The term 'State' includes the District of Columbia, Puerto Rico, Guam, and the Virgin Islands of the United States." I believe that conclusively puts this dispute to rest and means that we either must add Vice President Gore to the list of potential person who violate this act or conclude that natural-born citizens include those born abroad to U.S. citizens.Zagrossadjadi (talk) 05:07, 2 July 2008 (UTC)

If Al Gore was not eligible to be VP, then he would not have been. Was there any legal attempt to stop him from assuming office, or being put on the ballet? Rds865 (talk) 08:23, 22 September 2008 (UTC)

Incorporated US Territory and the Goldwater Case

The article mentions that Goldwater's case is exceptional because Arizona was later admitted as a state. But, it is even more exceptional than that, because the Arizona Territory was an Incorporated Territory of the United Sates, which means it was not merely under US ownership and sovereignty, it was US soil.

The Supreme Court and Congress differentiate between Incorporated Territory (territory over which the entire US Constitution applies in full, and forms a permanent, inseperable part of the national territory), and Unincorporated Territory (territory over which parts of the US Constitution apply, while others do not, and falls under the sovereignty and ownership of the US, but does not form part of its national territory). Most overseas territories, with the sole exception of Palmyra Atoll, are unincorporated, and are not US soil--this is not the case with the historical contiguous Territories.

If many people have put forth the Goldwater argument, then it should remain in the article for documentary purposes, the issue being to list examples of controversy, rather than to pass judgment. But, this is a case where there clearly is a misunderstanding of what constitutes "born in the United States."

--189.156.185.112 (talk) 18:58, 31 December 2007 (UTC)

16:30, 31 January 2008 (UTC)16:30, 31 January 2008 (UTC)~ The article and this discussion is interesting, but it avoids answering the burning question related to this topic; namely - who and when would this issue be ajudicated in the event that John McCain were moving towards being elected president? Would this be when the votes of the electorial college are counted by a joint session of Congress, then one or more senator & one or more representative have to object, and the two bodies individually decide the issue? Or would it be decided by the Supreme court? I am quite confused how this very real possibility would play out and I think it should be addressed here. —Preceding unsigned comment added by 66.105.72.67 (talk) 16:30, 31 January 2008 (UTC)

One possible way this question could reach the courts before the election might be if McCain's eligibility for federal campaign subsidies (matching funds) were challenged. Or, the election officials in one or more states might refuse to list McCain's name on the ballot on the grounds that they didn't think he was a valid candidate. If he were to be elected, though, I would tend to imagine that the current Supreme Court would probably decide to stay out of the fray and defer to Congress's power under the Constitution to choose the President. Richwales (talk) 20:27, 18 February 2008 (UTC)

Maybe. However, the 12th Amendment only allows the House of Representatives to step in and choose the president if no one is able to get a majority of the Electoral College. They basically certify the votes. This happened in the Compromise of 1877 when there were disputed votes. I do not see disputed votes here, but rather Constitutional requirements. Could Congress, for example, pass a law stating that children born abroad are to be "considered 35 when they reach the age of 25"? This is basically what the various laws do that state foreign-born children to US parents are citizens at birth or "considered as natural-born citizens."

The Supreme Court will certainly state that it is the business of Congress to certify the Electoral College, and to choose the president or vice-president if o one receives a majority, but I do not see the high court allowing Congress to determine the qualifications of the president in direct defiance of the Constitution. Otherwise, as I gave an example above, they could make exemption of the age requirement, or the residency requirement, for certain citizens.

As for challenges to the campaign subsidies, that could kick the lawsuits off, or even the state legislatures' choosing of the electoral college members--that is state law though, but would be interesting. In the end, state legislatures, not the voters, decide who the electoral college delegates are, as determined by state law. Todd Gallagher (talk) 23:20, 18 February 2008 (UTC)

"None was" vs. "none were"

We seem to be going endlessly back and forth between people who want to say "none of the candidates [born outside the US] was elected" and people who prefer "none of the candidates were elected." This appears to be an area where usage is evolving, and it's not good enough to simply insist that "none" is singular and absolutely has to take "was" and anyone who disagrees is simply wrong, period, because people who prefer "none were" are simply going to keep on changing it (prompting people who insist on "none was" to keep on changing it back). Is there any sort of dictum from a Wikipedia manual of style that we can cite in order to settle this issue? Richwales (talk) 00:26, 22 February 2008 (UTC)

Sure, Wikipedia policy clearly says that when two policies/rules are both acceptable, the first one stays. The singular was used first in this article. Todd Gallagher (talk) 00:56, 22 February 2008 (UTC)

I'm not sure if I agree with that interpretation of the policy, but if that is the controlling policy, then I believe the plural may in fact have been used first. I looked through the history of this article (as well as that of its predecessor, "Native-born citizen", before the "natural-born" material was split off into its own article), and the earliest use I could find of either "none was" or "none were" was added to the "Native-born citizen" article on December 7, 2004 ([2]). That version said: "Throughout American history, several persons born abroad to US citizen parents have sought the Presidency and none were challenged on their eligibility." Richwales (talk) 07:16, 22 February 2008 (UTC)

I removed the last sentence from that paragraph. The source does not really support the "fact" that this "issue" has not been fully addressed. Can this be reworded or better sources used? Thank you.--72.209.11.186 (talk) 14:49, 24 February 2008 (UTC)

I would still say that the question of exactly what "natural born citizen" means has not been fully addressed, in the sense that it is still an open legal question and will remain such until and unless a case hinging on the meaning of the phrase is ruled upon by the Supreme Court (or until a future constitutional amendment clarifies or supersedes the existing language). Richwales (talk) 16:17, 24 February 2008 (UTC)

The source I removed didn't really say this. Is there a source that specifically says that the issue has never been fully addressed? If that can not be provided, I would leave that phrasing out per original research or maybe reword it? --72.209.11.186 (talk) 18:08, 24 February 2008 (UTC)

Also, looking back, my edit summary in the artilce space wasn't the best. My position is more that the source does not support the material rather than the issue has been fully addressed which has also not been proven by sources. Regardless, I would leave that sentence out until or unless it can be properly sourced. --72.209.11.186 (talk) 18:14, 24 February 2008 (UTC)

Obviously this is not a settled issue. Here is a "fact" from a national newspaper long after the article you posted. The New York Times ran an opinion in 1987 that specifically called into question the natural born citizenship of Americans born abroad: "The natural born phrase unfairly burdens children of Americans born abroad (as it did Gov. George Rom-ney in 1968) because it casts a shadow across any candidacy: if elected, the President-elect would surely face a challenge on the born-abroad impediment in the Supreme Court" http://query.nytimes.com/gst/fullpage.html?res=9B0DE2DA1438F935A3575AC0A961948260&scp=1&sq=The+Constitution%27s+Flaw&st=nyt . Todd Gallagher (talk) 19:43, 24 February 2008 (UTC)

The source still does not support the material. --70.109.223.188 (talk) 14:27, 25 February 2008 (UTC)

Maybe reword that sentence per your "fact" above? --70.109.223.188 (talk) 14:31, 25 February 2008 (UTC)

<outdent> Todd, rather than just reverting, can we reach consensus here for wording this "issue"? Thank you, --70.109.223.188 (talk) 14:11, 26 February 2008 (UTC)

Maybe As none of these candidates has been elected, children born to Americans overseas as "natural-born citizens" qualifing for the Presidency remains constitutionally unchallenged. ect, ect. wow, that needs help :) This material just reads as original research or crystal ball, imho--70.109.223.188 (talk) 14:18, 26 February 2008 (UTC)

John McCain is Constitutionally ineligible to be President

John McCain was born in Panama in 1936!

According to Article II Clause 5 of the U.S. Constitution:

Qualifications for office

No 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; —Preceding unsigned comment added by 70.89.102.214 (talk) 15:10, 28 February 2008 (UTC)

<Sigh.> As has been mentioned numerous times already, the exact meaning of "natural born", and the matter of whether a person born to an American parent or parents outside the US is or is not a "natural born citizen", remains an open question. The mere fact that John McCain was born in the Panama Canal Zone — or that George Romney (Mitt's father and a candidate in 1968) was born in Mexico — or that Barry Goldwater was born in the Arizona Territory — or possibly even that Al Gore was born in Washington, D.C. — does not necessarily mean that any or all of these present or past candidates for the Presidency were not "natural born". Does "natural born" mean "born in the U.S.A."? Or does it mean "a citizen since the moment of birth" (i.e., someone who didn't have to be natural-ized because he was natural-born)? And given that "natural born" is used (though not explicitly defined) only in the Constitution, can any source other than the Constitution itself shed any light on what it really means? Does the 14th Amendment (which, to be sure, was enacted long after the "natural born citizen" clause in the original text of the Constitution) really mean that only people born in the U.S. are automatically citizens, and that anyone else designated by Congress as a "citizen at birth" must by definition be "naturalized" and not "natural born"? These are the relevant questions, and what we need for this Wikipedia article are sources (if any) that address these questions authoritatively. Merely saying "so-and-so can't be President because he was born outside the US" is an incomplete, useless argument. Richwales (talk) 16:19, 28 February 2008 (UTC)

Just mentioning something doesn't make it fact. The meaning of "natural born citizen" is not under any doubt whatsoever from the point of the State Dept. The policy is clearly stated: no one born on a diplomatic mission or a military base on foreign soil is a natural born citizen for the purposes of the 14th amendment. McCain was born on a military base on Panamanian soil. The Panama Canal Zone was never US territory, and was never intended to be. The treaty establishing it was clear on the fact the US would only act as if it were the sovereign from the management point of view, not that the US would be the sovereign of the Zone. The military base has always been on Panama soil, and therefore McCain is a natural born citizen of Panama whose parents claimed US citizenship for him by reason of legislation, not natural birth status. He is ineligible to take the oath of President of the country, he will be challenged if he wins the election, and if any court in the country allows him to take the oath, then the Constitution is not worth its weight in used toilet paper. It's really that simple. He is NOT above the Constitution regardless of how much time he spent in the Hanoi Hilton. Flybd5 (talk) 02:42, 6 March 2008 (UTC)

You're still taking as an unquestioned given that "natural born citizen" can, obviously, self-evidently, and unarguably, only mean "born in the U.S.A.". This may be true, or maybe not, but until an actual case comes before the courts, we cannot conclude that McCain is provably ineligible (or that those who support his eligibility are intentionally spitting on the Constitution). The most we can say in this article is that a controversy exists and report the various sides. As long as it appears clear that lots of people who are generally recognized as legitimate legal experts believe that "natural born citizen" encompasses anyone who has held US citizenship since birth, under acts of Congress in effect at the time of his/her birth, we cannot summarily dismiss this view — any more than we can ignore the fact that there are some other legal experts who question this position and argue that "natural born citizen" can only include people born in the United States who acquired citizenship at birth via the 14th Amendment. —Preceding unsigned comment added by Richwales (talk • contribs) 06:47, 6 March 2008 (UTC)

At issue is the definition of natural born citizen, a term not used since the 1790 naturalization act. To define it for our purposes, the court would base it on the 18th century common law, invoking the principles of Jus suli "right of soil" and Jus sanguinis "right of blood". A definition requiring both could exclude citizens born in the United States (by the 14th amendment) to non-citizens from becoming president. It's an academic curiosity, but realistically the courts would not find a president elect McCain ineligible based on a dubious distinction between the definition of natural born citizen and his status as a u.s. citizen at birth by statute.Richard Tage (talk) 22:14, 6 March 2008 (UTC)

Another point to consider (possibly) is that what few comments we have from the Founding Fathers on the "natural born citizen" rule suggest that their motivation was that they didn't want a president who might owe allegiance to any country other than the US. Unfortunately, this can be a very complicated question, on account of the various citizenship laws of other countries (and the US's inability to control those laws). It's conceivable that someone born in the US to foreign parents could be born both with US citizenship (via jus soli) and also with the citizenship(s) of their parents' country/countries (via jus sanguinis). This could be the case even if the parents are naturalized US citizens, because their "old country" might refuse to recognize their naturalization and insist on considering their original citizenship to be in force. A law demanding that the President must not be considered a citizen of any other country, under that country's laws, would not be advisable, because that would give another country the ability to meddle in US politics by deciding to declare a presidential candidate (or even a president) they didn't like to be one of its citizens -- thus making him ineligible!

It should also be mentioned that even though John McCain was born in the Panama Canal Zone -- and even if it does happen to be the case that the Canal Zone was not considered US soil at the time of his birth -- that doesn't automatically mean he was born with Panamanian citizenship under Panamanian law, just because he was born there. That would depend on what Panama's citizenship laws said at the time, and I will frankly admit that I have never studied Panamanian citizenship law and don't know whether jus soli applied across the board at the time of McCain's birth. And in any case, even if McCain was born with Panamanian citizenship under Panamanian law, that would not affect the fact that he was also born with US citizenship under US law (i.e., he might have been a "born dual"). This observation doesn't, of course, resolve the question of whether "natural born" means "born with US citizenship" or "born in the U.S.A.". Richwales (talk) 07:14, 8 March 2008 (UTC)

I don't understand the above argument any more. First, no statute at the time of McCain's birth granted his citizenship- he became a citizen some time later when Congress fixed its legal hole. Someone seems to question whether only a "14th Amendment" citizen can be president, which strikes me as entirely crazy: why would we look to an amendment 100 years in the future to construe a constitutional provision limiting those eligible for the presidency? Sheesh, that provision was simply inserted by a committee and never discussed again. —Preceding unsigned comment added by 97.115.224.92 (talk) 06:59, 29 August 2008 (UTC)

McCain was born on a military base, which for some purposes was considered US soil. What is the status of Americans living abroad at embassies, consulates and military bases, places considered US soil? Rds865 (talk) 08:11, 22 September 2008 (UTC)

pov tag

Much of this article draws conclusions in an attempt to interpret the law. It, therefore, violates Wikipedia's policy against synthesized research. Please let's not speculate as to what the courts might do with a case that has the term at issue. Thanks. --Evb-wiki (talk) 20:52, 3 March 2008 (UTC)

shouldn't be a pov tag but an original research one then —Preceding unsigned comment added by 86.26.248.225 (talk) 18:26, 16 August 2008 (UTC)

2008 Presidential Election: section needs to be redone for NPOV, or else removed

The entire current content of this section is a POV argument advancing one side of an issue which, both in legal circles and in the public mind, honestly remains unresolved. If this section should stay at all, it needs to be completely rewritten so as to give fair presentation to all sides and acknowledge that a definitive resolution has not yet been reached. If that sort of rewrite is not possible, I believe the section should simply disappear. Richwales (talk) 20:57, 13 March 2008 (UTC)

Why is state department policy being cited?

Why are state department memos being cited. Is someone actually trying to pass them off as precedent? Since when has the state department been given the authority to define when naturalization occurs? Did they somehow get this authority under Chevron? It seems that the inclusion of this is little more than POV.CraigMonroe (talk) 13:20, 20 March 2008 (UTC)

The whole section about Legislation and legal arguments should be removed. Richard Tage (talk) 19:12, 20 March 2008 (UTC)

I agree. CraigMonroe (talk) 20:30, 20 March 2008 (UTC)

The U.S. Department of State, under federal law, registers all American children born overseas. Their policy is stating that even if you are born on a military base, you must register with them since you are not a citizen by birth. Todd Gallagher (talk) 21:17, 20 March 2008 (UTC)

You are in fact a citizen at birth. Children born in the United States must also register with the US Department of State. More to the point, this section relates to citizenship but does not further define the term Natural Born Citizen.Richard Tage (talk) 23:24, 20 March 2008 (UTC)

Really, where does any law say that? Last time I checked children born in the US registered with their STATE, not the State Department (slight difference)! The State Department handles FOREIGN affairs. In fact, the federal government, outside the US Census every ten years and when a parent requests a Social Security card, does not get data on domestic births.Todd Gallagher (talk) 01:58, 21 March 2008 (UTC)

I believe you are correct Todd, my error was thinking about passports which of course is tangential. Though the state department's administrative function appears to be similar to that of states/territories in that it provides a document for proof of citizenship. Interestingly enough foreign born citizens at birth are given a certificate of citizenship, while those naturalized are given a certificates of naturalization. Unfortunately, I don't believe it is of any help in clarifying if a foreign born citizen at birth is also a natural born citizen.Richard Tage (talk) 06:15, 21 March 2008 (UTC)

Thanks Todd, however that in no way answered--any--of my questions. Again, were they given the authority under Chevron? If so, what case stated that, or what statute gave them the explicit authority? If not, it has no precedential value. It seems as if this entire issue has been stretched out of nothing. As has been pointed out by numerous posters.CraigMonroe (talk) 04:10, 21 March 2008 (UTC)

Craig, Read 8 USC 1104. The Department of State is in charge of registering foreign born children of US citizens. So their department policy on exactly whom to register (in this case, military children) is important. It seeks to remind them that military children are not citizens by birth and in fact do need to be registered like other foreign born kids.Todd Gallagher (talk) 21:13, 21 March 2008 (UTC)

Todd, I will lay this out for you very simply. Under the Chevron doctrine, Congress can give any agency the power to interpret a statute, and that interpretation will be given precedential value nearly equal to that of Congress speaking. However, there are certain requirements that must be met. Now you say they have the authority to interpret what “natural born citizen” means. So where did Congress give them the power to interpret the Constitution in an area that only Congress has the Constitutional authority to interpret? What you don’t seem to understand is that the State Department has not say over the “natural born citizen” clause of the Constitution. What they do have authority over is to set up registration and verification for US citizens born oversees, and immigration. These are two entirely different issues. In other words, the state department has little, if any, bearing on this point. So again, where did Congress give the state department the power to define when a person becomes a “natural born citizen?” You have yet to answer this question. CraigMonroe (talk) 13:26, 22 March 2008 (UTC)

Could you reference your statement "are not citizens by birth" more specifically. I am further concerned to see that notes 4,5 do not support their associated statements regarding naturalization. Richard Tage (talk) 21:49, 21 March 2008 (UTC)

Note 4 specifically states: "Current U.S. statutes define certain individuals born overseas as "citizens at birth." How does the reference not support that? The reference takes you to the State Department list of federal laws that apply to each (and clarifies: "A child born abroad to two U.S. citizen parents acquires U.S. citizenship at birth under section 301(c) of the Immigration and Nationality Act (INA).") Note 5 is atatched to the following statement: "One side of the argument interprets the Constitution as meaning that a person either is born in the United States or is a naturalized citizen. According to this view, in order to be a "natural born citizen," a person must be born in the United States; otherwise, he is a citizen "by law" and is therefore "naturalized."" The reference then cites a newspaper article which covers a proposed federal law (Natural Born Citizen Act) which would cover this issue: "His Natural Born Citizen Act would include children born outside the United States to citizen parents or parents able to transfer their citizenship. That would include McCain, whose parents were citizens, as well as an estimated two million others who, according to government figures, have been born to U.S. parents living and working overseas. Such clarification "provides comfort and certainty to members of the American military and foreign services," Nickles explained, "as well as expatriate families, that their children, too, are eligible to run for president." Obviously there is a dispute, as the article reads, or else a law would not be needed and there would not be articles being written covering it (like the recent New York Times article and proposed federal laws to clarify it).Todd Gallagher (talk) 00:16, 22 March 2008 (UTC)

To clarify, the wiki statement "he is a citizen "by law" and is therefore "naturalized." is not supported by the note 5. There is a beautiful quote in the article ""The constitutional wording has left doubts about whether those born on foreign soil are on an equal footing with those whose birth occurred inside the country's borders, and whether they have the same rights."" that gets to the heart of the issue than anything listed in the wiki article though. If Note 4 applies only to statutes using "at birth" fine, but there is no support for the term "by birth" as neither term, by or at, is used in the 14th amendment.Richard Tage (talk) 17:26, 24 March 2008 (UTC)

You keep saying there is a dispute on this issue. Alright, what court case is dealing with this issue right now? Has McCain's candidancy been challenged? If not, there is no dispute and are creating websites on non-existant legal issues. From my perspective--take it for what its worth--to have an actual legal issue, a court must be deciding the case, or it must be affecting the rights of another person. What we have here is neither. Theorhetically--at best--it may affect a person in the future. However, the argument falls apart when looked at through the reality that John McCain has twice run for the Presidency without any challenge. Do you honestly think if there was an issue that at least someone wouldn't have attempted to challenge it? Due to this, the best approach is to remove all of this information since Wikipedia is not a court, or a law review. See WP:FUTURE. When this issue actually arises, it will be different. Look at it from this perspective, there are many differing legal views in thousands--if not millions--of areas of law. If every view gets its space when it hasn't affected anyone, Wikipedia will turn into a law review publisher, and little else. So lets agree to take a reasonable wait and see approach? If it makes it to court, include it. If it doesn't, don't. Additionally, as of right now, the whole argument violates WP:V, WP:POV, WP:FUTURE, and WP:UNDUEWEIGHT. There are probably more...CraigMonroe (talk) 13:08, 22 March 2008 (UTC)

Where does it say there is a legal issue? It states there is dispute and controversy, and the articles and even PROPOSED LEGISLATION addressing this have been cited. Obviously there is dispute. Even the legislator acknowledges this.Todd Gallagher (talk) 14:35, 22 March 2008 (UTC)

Proposed legislation creates a dispute? Are you serious. Do you know how many bills are handled in just Congress in a given year? Do each of those create an issue? Should each have an article? Do you have any idea how far reaching the argument you made is? Not to mention the reality that bills are proposed for reasons that do not include the intent of passage, i.e. political grandstanding. Second, you haven't cited any proposed legislation in the article. Third, you cite to numerous LEGAL arguments. This is a legal issue. Not to mention the dozen or so Supreme Court cases cited at the bottom tend to point to this. Fourth, statements by a Congressmen do not necessarily create a legal issue. Particularly when there has been no challenge to the only current candidate mentioned in the article. So, as has been pointed out by numerous posters, there is no issue here. IF, McCain is challenged on the point, there may be an issue. Again, as of right now, the whole argument violates WP:V, WP:POV, WP:FUTURE, and WP:UNDUEWEIGHT. Please work to fix this. CraigMonroe (talk) 00:30, 23 March 2008 (UTC)

CraigMonroe, I think this section and the case law one is better served by directing the legal arguments to WP:Birthright citizenship in the United States of America and possibly WP:United_States_nationality_law. As they stand on this page, it is a collection of facts about citizenship with arguments/observations how they might relate to the being a natural born citizen.Richard Tage (talk) 19:33, 24 March 2008 (UTC)

I have no problem with the information being moved. However, the fact that the information contains "arguments/observations" with "how they might relate to the being a natural born citizen" from my perspective tells me that the information violtes numerous wikipedia rules for posting. Thus, it should not be included in any article. CraigMonroe (talk) 20:30, 24 March 2008 (UTC)

First 8 or 9 presidents

I find it interesting that there was never an issue concerning the U.S. presidents who were born in the British colonies prior to the existence of a nation called the United States. John Tyler was the first president born in the constitutional U.S. --Evb-wiki (talk) 19:40, 24 March 2008 (UTC)

An interesting point, I suppose those first presidents under the constitution were not considered natural born citizens, otherwise the clause "or a Citizen of the United States, at the time of the Adoption of this Constitution" would have been superfluous.Richard Tage (talk) 20:02, 24 March 2008 (UTC)

I have given up editing this article, as there is obviously much ignorance here. Hopefully a Supreme Court case will resolve this one way or the other. Evb-wiki--are you actually a lawyer? Because your above statement is one of the most ignorant I have seen on here. The Constitution EXEMPTED all persons who were alive at the time of the adoption of the Constitution from the natural-born requirement. So either you did not know that, or you are throwing questions around just to throw them around. Todd Gallagher (talk) 21:01, 24 March 2008 (UTC)

No need to be mean. I was aware the Constituion specifically exempted them. However, the fact remains that the arguments you want to add are incorrect. Not to mention, not an issue, and strictly POV. CraigMonroe (talk) 16:50, 25 March 2008 (UTC)

It should be pointed out that the use of the words "A citizen of the United States at the time of the Constitution" left open the possibility for Alexander Hamilton to eventually become President of the United States, which would otherwise be denied to him by virtue of the fact that he was born in the West Indies. If it was meant to deny him this opportunity the founders would have written "A citizen of the United States at the time of the Constitution who was born in one of the original colonies". —Preceding unsigned comment added by 72.11.62.13 (talk) 03:16, 12 May 2008 (UTC)

Rewording: Legislation and legal arguments

Current U.S. statutes grant 'citizens at birth' which includes amongst others, those born in the United States, those born in certain U.S. territories, children of U.S. citizens, and members of aboriginal tribes. The term natural born citizen is used once in the first naturalization law on March 26, 1790: "And the children of citizens of the United States that may be born beyond sea, or outside the limits of the United States, shall be considered as natural born citizens." The constitutional power of congress to pass a uniform law of naturalization does not include the power to define 'natural born citizen.'

All persons born in the United States, except those not subject to the jurisdiction of the U.S. government (such as children of foreign diplomats or Native Americans) are citizens under the Fourteenth Amendment. If the Fourteenth Amendment exclusively defines citizenship then all citizens not covered by the the Fourteenth Amendment would be considered 'naturalized' by the constitutional power of congress. The constitution as originally adopted has no explicit definition of citizenship, though this does not limit a judicial ruling that it is wider than defined in the fourteenth amendment.

>Trying to bypass the 'by birth" and "at birth" since they appear to be derivative argument from the 14th amendment and U.S. statues. Would the above statements above be an improvement? Also the state department memo could be replaced by a reference addressing the limited geographical scope of the 14th (to US States and DC)).Richard Tage (talk) 23:04, 24 March 2008 (UTC)

Wikipedia is not the place for people to construct legal arguments advocating a specific position. However we discuss this issue, it has got to include a fair acknowledgment that more than one mainstream position exists on the question, but without trying to argue the issue in such a way as to make it look like Wikipedia is advancing a single position.

Thus, for example, it may be appropriate to say that some people consider the two expressions "citizens by birth" and "citizens at birth" to be fundamentally different concepts, whereas other people view them as two completely interchangeable ways of saying exactly the same thing. But we mustn't say that these two expressions are either obviously distinct, or self-evidently equivalent, unless we can cite a definitive source (most likely meaning a decision of the Supreme Court) that says as much.

Or, we can (and probably should) mention that some people argue that anyone not deemed a citizen under the Fourteenth Amendment could be considered a citizen only under Congress's naturalization power — while other people believe that "natural-born" citizenship need not necessarily derive from the Fourteenth Amendment alone. And we should probably point out that since some people believe that anyone not born in the United States must by definition be "naturalized" (and thus not natural-born), controversies have therefore arisen in some circles over whether areas such as the Arizona Territory, the Panama Canal Zone, or even Washington, D.C. are or are not "in the United States" for purposes of the Fourteenth Amendment — whereas other people, who do not accept the notion that natural-born can only mean "born in the U.S.A.", dismiss arguments over the legal status of the Canal Zone as utterly irrelevant to the question at hand. But we can't cross the line and start trying to write a legal brief (in Wikipedia's name) supporting one side or the other.

Or, we can point out that people disagree over whether any act of Congress or regulation of the Executive Branch can validly define "natural born citizen", but we shouldn't be trying to advance any particular position on this question (though, to be sure, it might be pertinent to cite a Supreme Court ruling like Wong Kim Ark, where the court said that acts of Congress "cannot control [the Constitution's] meaning, or impair its effect"). You may feel, personally, that some of these various positions are transparently obvious, or frivolously ludicrous, but we can't say that in a Wikipedia article — especially given that no solidly on-point Supreme Court ruling has ever been issued relating to the question of eligibility of anyone whose "natural-born-ness" was challenged.

And, if I dare say so, if some of us feel so passionately (on either side) about this article that we can't see ourselves writing something that wouldn't inevitably lead the reader to make up his/her mind the same way as we already have, maybe it might be better if we stepped back for a while and allowed others to try to make it balanced and neutral. Richwales (talk) 00:46, 25 March 2008 (UTC)

How do things look from the other direction?

Is a citizen either "natural born" or "naturalized"? If so, would it not make sense that if a citizen is not "naturalized" then s/he must be "natural born"? So, it would seem to me wise to determine what, if any, requirements exist for a person to be "naturalized". Then, if a person who is defined to be a citizen has not met these requirements (assuming some exist), then s/he is therefore "natural born". Q.E.D. Cjbreisch (talk) 19:49, 19 May 2008 (UTC)

No that is an incorrect conclusion, because there is a third type of citizenship that has been widely discussed in legal forums at the state and federal level and which you are excluding: statutory citizenship. That is the citizenship that John McCain has. Not natural-born because he was born in Panama, but rather granted by virtue of statute. That is also the citizenship that people born in Puerto Rico have, because it is based on the Jones Act. The Supreme Court has also stated that Congress can grant citizenship in many ways, but not natural-born citizenship, just statutory citizenship or naturalization processes. —Preceding unsigned comment added by 70.45.127.217 (talk) 15:55, 10 August 2008 (UTC)

Feel free to find more sources exploring this view and add them to the article as appropriate. Just be sure, though, that you do not cross the line by rewriting the text of the article to say anything approximating "John McCain is not really a natural born citizen, but is instead a statutory citizen". Even if you yourself are convinced this is the only true conclusion, we can not adopt one side of this debate in the article itself and say that this or that view is right and other views are wrong; we need to give fair, balanced treatment of all significant positions, even positions we may personally reject. Apologies if I'm jumping the gun and you weren't planning to take sides in the article text itself; I'm just hoping to forestall any such excursion into POV-space. Richwales (talk) 07:20, 14 August 2008 (UTC)

Can someone confirm Hawaiian Naturalization law: Since Barak Obama's Mother was under 24 years of age, and his Father was not a US citizen, he is considered a Naturalized citizen.

I believe the law was changed in the 1970s. —Preceding unsigned comment added by 69.120.106.156 (talk) 02:13, 29 August 2008 (UTC)

Total rubbish, as far as I'm aware. By the time Obama was born in 1961, Hawaii was already the 50th state. Thus, regardless of any other issues or circumstances, he was unquestionably born in the US and (per the 14th Amendment's citizenship clause) has been a US citizen since birth. Richwales (talk) 04:21, 29 August 2008 (UTC)

1937 law: "retrospective" vs. "retroactive"?

Someone just changed the "US presidential candidates born outside the US" paragraph to say the 1937 law declaring people born of US parentage in the Canal Zone to be US citizens had "retroactive" effect, as opposed to "retrospective" effect. I disagree with this change and am reverting it, but before I do so, I want to explain my reasons so people don't think I'm just being stubborn and/or using a weird word that doesn't really exist.

There is a subtle, but important difference, between "retroactive" and "retrospective". Roughly speaking, a retrospective law says that, from now on, things will be different because of something that happened in the past. A retroactive law, on the other hand, effectively rewrites history by declaring that something in the past is and always was different from what everyone thought before the law was passed. (If someone else feels they can do a better job of describing this distinction, by all means please go ahead.)

This distinction could be crucial in the case of the 1937 law because the law said that a person covered by the law "is declared" to be a US citizen, even if he/she was born before the law was enacted. But since the 1937 law did not explicitly say that people born in the Canal Zone before 1937 were to be considered to have been US citizens all along, some people have argued that John McCain still wasn't considered a US citizen at the time of his birth despite the 1937 law. Such an argument may or may not hold water, but it is being made in some circles, so we need to be careful about which term (retrospective vs. retroactive) we use here. Richwales (talk) 18:07, 3 September 2008 (UTC)

What are these circles? Rds865 (talk) 07:51, 22 September 2008 (UTC)

Collaboration to get this to good-article status

This appears to be a very high-importance article and so it would be nice to see what we can do go get it to good-article status. 69.140.152.55 (talk) 19:58, 3 September 2008 (UTC)

proposal: split United States into its own article

There is another possibility that I want to propose as an alternative:

The section on the United States in this article should be written in the same general manner as the section on qualifications for the Presidency in the page on Article Two of the United States Constitution; that is, keep the quote from the Constitution, and include a concise summary of the academic debate on what exactly constitutes a "natural-born citizen."

Then, split the current content of the United States section of this article into a completely new page, and see if we can get both the existing page on Article Two of the United States Constitution and the new page into Good Article status. 69.140.152.55 (talk) 04:04, 4 September 2008 (UTC)

Herbert Hoover

There has been a lot of talk regarding the natural-born requirement, but little concerning the others - age and resdency. For example, Hoover had been living in the U.S. less than 14years prior to his election [3]. Also, the Constitutional amendments proposed would remove the natural born requirement, but not others. I haven't come accross any proposals to remove these, but an argument could be made, similar to the ones made regarding natural-born (eg. "If 60million American's want to elect a 34-year-old President, should the constitution say they can't?") - Matthew238 (talk) 03:27, 18 September 2008 (UTC)

Power of Congress

It states this explicitly under US constitutional definition:

Although the United States Constitution does not explicitly define the term "natural born citizen", Section 8 of Article I confers on Congress the power: "To establish an uniform Rule of Naturalization..." This power has been construed[weasel words] to include defining the characteristics of a "natural born citizen"[citation needed], as well as the conditions of "naturalization".

And implies it when talking about John McCain, but does Congress have the power to define/make someone a "Natural-born citizen". It clearly has the power to make citizenship laws (restricted, however, by the 14th Amendment), but can it define 'Natural-born' or is this a matter for the Constitution only, as suggested in the United States nationality law article? If this is a matter of controversy (I think it is), it should say so in this article. - 121.208.89.240 (talk) 07:28, 18 September 2008 (UTC)

Citizen at adoption of Constitution

Was there a U.S nationality law at the time of the adoption of the Constitution, or was everyone simply a British subject? If so, how can you distinguish between, say, an Alexander Hamilton, and some guy born in England, or one of it's many colonies, in 1880, and who moves to the U.S for the first time at age 60 - could theyu become President? - 121.208.89.240 (talk) 07:28, 18 September 2008 (UTC)