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Common Law foundation

From a legal, historical and scholarly perspective the definition of Natural Born Citizen, a term used but not defined in the United States Constitution, should be found in how the term was used in Common Law of the early Republic United States v. Wong Kim Ark 169 U.S. 649 (1898)  [1]:

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.

Who are Citizens

The term citizens includes those who become citizen by birth and those by naturalization. The Constitution recognizes two forms of citizenship, one by birth and the other through naturalization. The latter one is implemented through statutory law, the former by our Constitution.

Minor v. Happersett[?] 88 U.S. 162 (1874)  88 U.S. 162 (Wall.)

Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides6 that 'no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President,'7 and that Congress shall have power 'to establish a uniform rule of naturalization.' Thus new citizens may be born or they may be created by naturalization.

Born Citizens

1. Children born on United States soil to citizen parents.

It was observed in Minor v. Happersett that according to common-law, there was no doubt that all children born in a country of parent citizens, would become by birth citizens as well. Those not natural-born would be born as foreigners, or aliens.

Minor v. Happersett[?] 88 U.S. 162 (1874)  88 U.S. 162 (Wall.)

The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their [88 U.S. 162, 168] parents. As to this class there have been doubts, but never as to the first. For the purposes of this case it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens.

2. Children born United States, regardless of the status of parents.

While the Court in Minor did not have to address the citizenship status of children born on United States soil, without reference to the citizenship of their parents, the Court in United States v. Wong Kim Ark had to make such a decision for the simple reason that Wong Kim Ark's parents could, under US law, never become naturalized citizens of the United States. The Court's ruling went into great detail and depth and found that under Common Law principles at the time of the signing of the Constitution, a child born on United States soil would be a (natural born) citizen, regardless of the status of his parents.

The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin's Case, 7 Rep. 6a, "strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;" and his child, as said by Mr. Binney in his essay before quoted, "if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle."

Legal Cases

Tesibria provides us with an excellent overview of US Supreme Court rulings as well as other cases and legal scholarship on the meaning of "natural born citizen".

1/23 Update: SCOTUS & "Natural Born Citizen":  A compendium of U.S. Supreme Court cases using the term "natural born citizen" in any context) – in light of claims that "native-born" citizenship or "born a US citizen" per the 14th Amendment means something different than "natural born" citizenship per Article II.

1/5 Update: The "Natural Born Citizenship" Clause:  A compendium of cases and legal scholarship on meaning of "natural born citizenship" – in light of claimsthat a native-born US citizen who has "dual citizenship" at birth does not qualify as a "natural born" citizen under Article II.

Objections

John Jay's letter

Vattel's the Law of Nations

There is no US Common Law

The Court in US v. Wong Kim Ark merely declared him to be a citizen, not a natural-born citizen.

Footnotes

[1] The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. Minor v. Happersett, 21 Wall. 162; Ex parte Wilson, 114 U.S. 417, 422; Boyd v. United States, 116 U.S. 616, 624, 625; Smith v. Alabama, 124 U.S. 465. The language of the Constitution, as has been well said, could not be understood without reference to the common law. Kent Com. 336; Bradley, J., in Moore v. United States, 91 U.S. 270, 274. [p655] Source: Cornell University.

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