“Natural Born Citizen” as intended by the founding fathers is not difficult to figure out; first one needs to get past the fact that the founding fathers were moving beyond the influences of English Common Law and the King’s Law. Therefore the emphasis on the King’s subjects being Natural Born Subject was not synonymous with the new constitutional intent of “Natural Born Citizen” being included in Article II of the United States Constitution; no the founders did not specifically define what they intended with that insertion, but were influenced appropriately by Vatell’s definition of how a “Natural Born Citizen” takes shape and occurs. Some justices, based on their political philosophies and legal training prior to the ratification of the United States Constitution, have made reference in their decisions to English Common Law in trying to define “Natural Born Citizen” to thereafter be rebutted by other justices who see in their arguments the intent of the founding fathers’. Let look at some of the letters, correspondence excerpts to see if we can understand where the founders were coming from.
Before you read below, let also keep in mind: Congress shall make not laws not granted by the Constitution of the United States; that said please remember congress is empowered to right laws, the judiciary is empowered to review the laws and where constitutional legal then enforce the laws as written. In that context, the one law congress cannot write, pass and have signed into law is who is a “Natural Born Citizen”; the founding fathers reserved that to the constitution as written. The Supreme Court of the United States, and its subsidiary courts can interpret the constitution but cannot re-write it. Therefore in their interpretations they must look at the founding father’s intent and rule from there. The justices cannot be activists from the bench.
Now read and reflect on the some excerpts from the founding fathers; and when you get to the current congressional musing; keep in mind what I just wrote.
If congress does not like the constitutional provision, they have every right to offer up a constitutional amendment, but until that is done and affirmed the constitution remains as written.
I have highlighted some in blue.
§ 212. Cituyes & Natureles‘Les Naturels, ou Indigènes’.-Emer Vatell (original version 1758) http://www.greschak.com/essays/natborn/index.htm
I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the law of nations. Accordingly that copy, which I kept, (after depositing one in our own public library here, and sending the other to the College of Massachusetts Bay, as you directed,) has been continually in the hands of the members of our Congress, now sitting, who are much pleased with your notes and preface, and have entertained a high and just esteem for their author. Your manuscript "Idee sur le Gouvernement et la Royaute" is also well relished, and may, in time, have its effect. I thank you, likewise, for the other smaller pieces, which accompanied Vattel.-Ben Franklin (December 9, 1775), \Letter 459: Benjamin Franklin to Charles William Frederic Dumas. http://etext.lib.virginia.edu/toc/modeng/public/DelVol02.html
My dear Friend,Philada. Mar. 24. 1776 Inclos'd is an Answer to the Request from the Inhabitants of Dartmouth. I have comply'd with it upon your Recommendation, and ordered a Post accordingly. (1) I have put into Mr Adam's Hands directed for you, the new Edition of Vattel When you have perus'd it, please to place it in your College Library. (2) I am just setting out for Canada, and have only time to add my best Wishes of Health & Happiness to you & all yours. Permit me to say my Love to Mrs Bowdoin, & believe me ever, with sincere & great Esteem, Yours most affectionately B Franklin-Ben Franklin (March 24, 1776),Letter 454: Benjamin Franklin to James Bowdoinhttp://etext.virginia.edu/toc/modeng/public/DelVol03.html
Qu:1. Can an American citizen, adult, now inherit lands in England? Natural subjects can inherit – Aliens cannot. There is no middle character -- every man must be the one or the other of these.A Natural subject is one born within the king's allegiance & still owing allegiance. No instance can be produced in the English law, nor can it admit the idea of a person's being a natural subject and yet not owing allegiance.An alien is the subject or citizen of a foreign power.- Thomas Jefferson (1783),Letter 151: Jefferson Notes, http://etext.lib.virginia.edu/toc/modeng/public/DelVol21.html
Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expresly that the Command in chief of the american army shall not be given to, nor devolve on, any but a natural born Citizen.-John Jay (July 25, 1787 ) to George Washingtonhttp://teachingamericanhistory.org/library/index.asp?document=1876http://wwwapp.cc.columbia.edu/ldpd/app/jay/item?mode=item&key=c...
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; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.-US Constitution (adopted September 17, 1787) Article II, Section 1, Clause 5http://www.senate.gov/civics/constitution_item/constitution.htm#a2_...
And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens:- Congress’ Rule of Naturalization (March 26,1790; but changed in 1795, to read as “citizens”)http://www.freerepublic.com/focus/f-news/1617002/posts
§ 212. Citizens and natives.The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.-Emer Vatell (English language version, 1797)
They well knew, that to give to the members of Congress a right to give votes in this election, or to decide upon them when given, was to destroy the independence of the Executive, and make him the creature of the Legislature. This therefore they have guarded against, and to insure experience and attachment to the country, they have determined that no man who is not a natural born citizen, or citizen at the adoption of the Constitution, of fourteen years residence, and thirty-five years of age, shall be eligible.-Senator Charles Pinckney, (March 28, 1800). Records Federal Convention 1787 CCLXXXVIII p 385, 387 http://nationalwriterssyndicate.com/content/view/964/2/1/5/
Vatell 455, speaking of the rights of conquest by war says, a Prince taking a town or province from an enemy,…-WILLIAM L. CHEW vs. ALEXANDER CALVERT & OTHERS. Adams County, MS Archives Court.....Chew, William L June 1818http://files.usgwarchives.org/ms/adams/court/chew14gwl.txt
I find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen -Rep. John Bingham, framer of the 14th Amendment, before The US House of Representatives ((Cong. Globe, 39th, 1st Sess., 1291, March 9, 1866 )http://grou.ps/zapem/blogs/3787
“All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.” - Sec. 1992 of U.S. Revised Statutes, 1868 http://famguardian.org/TaxFreedom/CitesByTopic/expatriation-RS1999-...
[If a "citizen" cannot be subject to a foreign power, how can a "natural born citizen" be subject to a foreign power?]All persons born in the allegiance of the king are natural born subjects, and all persons born in the allegiance of the United States are natural born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England.-Circuit Justice Swayne, in United States vs Rhodes (1866)http://www.thecommentary.net/1861-circuit-justice-swayne-defines-na...
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 parents. As to this class there have been doubts, but never as to the first.-Chief Justice Waite in Minor v. Happersett (1875)http://www.law.cornell.edu/supct/html/historics/USSC_CR_0088_0162_Z...
“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.”-Justice Grey, in US v Wong Kim Ark (1898)http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=169&invol=649“Miss Elg was born in Brooklyn, New York, on October 2, 1907. Her parents, who were natives of Sweden, emigrated to the United States sometime prior to 1906 and her father was naturalized here in that year  . In 1911, her mother took her to Sweden where she continued to reside until September 7, 1929. Her father went to Sweden in 1922 and has not since returned to the United States. In November, 1934, he made a statement before an American consul in Sweden that he had voluntarily expatriated himself for the reason that he did not desire to retain the status of an American citizen and wished to preserve his allegiance to Sweden.”[snip]“The court below, properly recognizing the existence of an actual controversy with the defendants [307 U.S. 325, 350] (Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 , 57 S.Ct. 461, 108 A.L.R. 1000), declared Miss Elg 'to be a natural born citizen of the United States' (99 F.2d 414) and we think that the decree should include the Secretary of State as well as the other defendants.”- Chief Justice Hughs, in Perkins v Elg ( 1939) http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=3...
“My assumption and my understanding is that if you are born of American parents, you are naturally a natural-born American citizen,” Chertoff replied.“That is mine, too,” said Leahy-Homeland Security SecretaryMichael Chertoff and Senator Patrick Leahy, (April 03, 2008) http://leahy.senate.gov/press/200804/041008c.htmlWhereas John Sidney McCain, III, was born to American citizens on an American military base in the Panama Canal Zone in 1936: Now, therefore, be itResolved, That John Sidney McCain, III, is a `natural born Citizen' under Article II, Section 1, of the Constitution of the United States. -110th Congress, SR 511http://www.opencongress.org/bill/110-sr511/text
Rep. John Bingham of Ohio, considered the father of the 14th Amendment, confirms that understanding and the construction the framers used in regards to birthright and jurisdiction while speaking on civil rights of citizens in the House on March 9, 1866:" ... I find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents (plural, meaning two) not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen..."Bingham is also quoted saying in the Spring of 1868 some serious warnings:"May God forbid that the future historian shall record of this day's proceedings, that by reason of the failure of the legislative power of the people to triumph over the usurpations of an apostate President, the fabric of American empire fell and perished from the earth!...I ask you to consider that we stand this day pleading for the violated majesty of the law, by the graves of half a million of martyred hero-patriots who made death beautiful by the sacrifice of themselves for their country, the Constitution and the laws, and who, by their sublime example, have taught us all to obey the law; that none are above the law..."
Keep in mind where the founding fathers thoughts were with regard to the British Empire and the King while they set about the business of drafting our constitution. English common law was the furthest thing from their minds and intent. The pre-constitutional legal system in the colonies was obviously English Common Law; but not the basis by which the framers envisioned US laws after the constitution was ratified.
My Personal opinion obviously!