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Citizenship and Naturalization – From Colonial to United States to Ark

April 10, 2013

In the beginning there where the Thirteen Colonies. The citizens of these Colonies were British subjects. These subjects may have emigrated from Great Britain, emigrated from elsewhere, or have been born in these colonies.

Upon the Declaration of Independence each of the colonies became separate independent sovereign states, and these British subjects became American Citizens.

Each of these sovereign states wrote constitutions and instituted a new frame of Government different from their colonial government.

To prevent anarchy, many states adopted portions of English common law except where it conflicted with their Constitution or laws.

Each sovereign state added new citizens by citizens giving birth and by naturalizing new citizens according to their state law.

After the Revolution those sovereign states joined in the Articles of Confederation. The Articles dealt primarily with mutual defense, amity between states, coinage, diplomatic and international issues.

Each state retained its sovereignty (Article II) and each state continued to add new citizens by birth and by naturalization under their state law.

Eventually the Constitution of the United States was adopted. State sovereignty continued to be retained by the Amendment X reservation of state powers. Notably, states ceeded to the United States their power of naturalization.

New citizens were added by citizens giving birth and by naturalizing new citizens according to United States law.

It is notable that these sovereign states have adopted two frames of government, both of which retain state sovereignty and neither of which adopt the English common law, in whole or in part.

Under the Articles of Confederation the states retained all their sovereign powers.

Under the Constitution the states ceeded all national concerns to the federal government. The Tenth Amendment makes clear that States retain only 1) those powers not delegated to the Federal government and 2) those powers not prohibited to states.

The United States is a compound republic. The Constitution defines how the sovereign states relate to each other as well as to the national government and it to them. The national government handles international affairs.

Under the Constitution there is a hierarchy of law:

• federal constitution
• treaties and acts of Congress
• State constitutions
• acts of State legislatures

This is unique and there is nothing like it found in English law.

Also:

• England does not have a written constitution
• Acts of Parliament can not be questioned
• English common law is customary domestic law, it is municipal in nature

By contrast, the United States has written constitutions and legislative acts are subject to judicial review.

The limited sovereignty of the states leaves them municipal duties and powers.

The supreme sovereignty of the federal government is national and international, not municipal.

For the reasons stated, unlike the states the Federal government does not and can not rely on English common law.

As is obvious: the common law of England is municipal in nature and ill suited to relations between sovereign states (both internal states and internationally). Relations between sovereign states is dealt with by the law of nations.

International relations are handled by the federal government. Naturalization is international by its very nature. Under the Constitution naturalization powers reside in the Federal government, not in the states, customary common law, or courts. Naturalization is controlled by legislated acts of Congress.

Let’s review the cases of citizenship and naturalization that arise prior to the Declaration of Independence and afterwards, and upon the adoption of the Constitution and afterwards:

Case 1

A British Subject in and Citizen of one of the Thirteen Colonies becomes, at the signing of the Declaration of Independence, an American Citizen. At the Time of Adoption, by the grandfather clause of Art. II, this American Citizen is eligible to the Office of President*

Case 2

An Alien naturalizes and becomes a British Subject in and Citizen of one of the Thirteen Colonies. Upon the signing of the Declaration of Independence, he becomes an American Citizen. At the Time of Adoption, by the grandfather clause of Art. II, this American Citizen is eligible to the Office of President*

Case 3

A British Subject in and Citizen of one of the Thirteen Colonies has a child prior to the Declaration of Independence. This child is a British Subject and a native born Citizen of the Colony. At the signing of the Declaration of Independence this British Subject becomes an American Citizen. At the Time of Adoption, by the grandfather clause of Art. II, this American Citizen is eligible to the Office of President*

Case 4

A British Subject in and Citizen of one of the Thirteen Colonies has a child after the Declaration of Independence. The parents become, at the signing of the Declaration of Independence, American Citizens. The child, born from American Citizen parents, is a natural born Citizen. This natural born American Citizen is eligible to the Office of President*

Case 5

Subsequent to the Declaration of Independence and prior to the Adoption an Alien naturalizes (under state law) and becomes a Citizen of one of the Thirteen States. At the Time of Adoption this American Citizen, by the grandfather clause of Art. II, is eligible to the Office of President*

Case 6

Subsequent to the Adoption an Alien naturalizes (under United States law) and becomes a Citizen of the United States. This Citizen is not eligible to the Office of President, they were not a Citizen at the Adoption nor are they a natural born Citizen.

Case 7

Subsequent to the Adoption an Alien has a child. The child is Alien and is not eligible to the Office of President.

* Provided:
• they are at least thirty-five years old
• have been fourteen years a resident within the United States

The Naturalization Act of 1790, et seq. specify the minor children of Aliens naturalize upon the naturalization of the parents.

These means that native born citizen is synonymous with natural born citizen.

There are two kinds of citizenship: native or natural born, and naturalized.

Subsequent to the ruling in United States v. Wong Kim Ark this is no longer true.

Broadening the “subject to the jurisdiction” clause of the 14th Amendment to include domiciled aliens which heretofore were not “subject to the jurisdiction”, the ruling created a distinction between native born citizen and natural born citizen.

This broadened interpretation of the 14th Amendment jurisdiction clause naturalized the children of certain aliens thus creating a distinction where none had existed.

Native born citizen and natural born citizen are no longer synonymous.

Early authorities that citizens born here were natural born citizens are correct. It is no longer true after Wong Kim Ark.

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