Common Law v. National Law

I want to revisit this as there have been several new articles floating around the internet citing the Immigration/Naturalization Act of 1790, what they fail to mention is that this Act was repealed in 1795.

So, I bring back another great review from Leo Donofrio:


On November 28, 2008, Judah Benjamin published an article at the Texas Darlin blog which discussed my case and the natural born citizen issue.  While I enjoyed reading this article, and I agree with the conclusion – that Obama is not eligible – I disagree with the basis upon which that conclusion was made.

Specifically, I disagree that the common law is controlling on the issue of “natural born citizen”.  It is “national law” which is controlling.  I don’t know if Mr. Benjamin is a lawyer, but his reading, explanation and understanding of the natural born citizen issue is not exactly on point.

I do agree with Benjamin’s conclusion, that Obama is not a natural born citizen, but for the wrong reasons.

And I did enjoy Judah’s article above.  He has obviously done much research.  But there is a glaring mistake in his logic where he fails to point out the necessary concept in common law definition of “natural born subject”.

There are two mistakes in his article which need to be addressed.

FIRST MISTAKE: Failure to state cited law was repealed.

Judah mentions the 1790 naturalization act as follows:

“In the United States Naturalization Law of March 26, 1790 (1 Stat. 103) it says:

‘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’.”

Unfortunately, Benjamin fails to mention, as do many others, that this act was specifically repealed in 1795 and replaced with the same exact clause as written above EXCEPT the words “natural born” have been deleted leaving only the word “citizens”.

See Section 3 Naturalization Act of 1795

This leads to the second point of error.

SECOND MISTAKE:  Failure to properly analyze common law.

Congress having repealed the”natural born provision” leads to the core problem in Mr. Benjamin’s analysis.  Naturalization only concerns people who were, “at birth” not US citizens.

People born in other countries as citizens of foreign powers, but who immigrate to the USA are naturalized.  Naturalization has nothing to do with citizens like McCain who are born abroad to American citizens and are US Citizens by statute “at birth”.

Naturalization also could not cover Obama who was (we assume) born on United States soil (Hawaii).

But at the common law, naturalized citizens WERE considered to be “NATURAL BORN SUBJECTS”.  At the common law, the act of naturalization returns them to birth and they are effectively reborn to the allegiance of the King.

The best case which explains this concept is “United States vs. Rhodes” which Mr. Benjamin does quote but fails to mention the case citation, which is always important because it provides the reader the chance to see the context of the quote discussed.  And this is very important.  Here is what Benjamin quoted from Justice Swayne’s eloquent opinion:

“Justice Noah Haynes Swayne was around when they wrote the XIVth Amendment and the Equal Rights Act of 1866 and in 1866 he said this:

‘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…since as before the Revolution.’ “

And this appears to back Mr. Benjamin’s core thesis, that Obama is not a natural born citizen under the common law definition thereof, which may be true, but that in itself is NOT the main reason Obama isn’t eligible.  The common law is not our national law.  Our national law is the Constitution.  We do not follow the common law, we follow the Constitution.

And this is important to note because the common law, which may also bear out that Obama isn’t eligible, at the same time provides Obama with his best argument that he is eligible.  The reason for this lies on that part of Justice Swayne’s opinion which Mr. Benjamin did not quote.  Here is Justice Swayne’s relevant quote:

“An alien naturalized is “to all intents and purposes a natural born subject.” Co. Litt. 129.  “Naturalization takes effect from birth; denization from the date of the patent.” Vin. Abr. tit. “Alien,” D. …The power is applicable only to those of foreign birth. Alienage is an indispensable element in the process.  To make one of domestic birth a citizen is not naturalization, and cannot be brought within the exercise of that power.  There is a universal agreement of opinion upon this subject.  [**26]  Scott v. Sanford, 19 How. [60 U.S.] 578; 2 Story, Const. 44.

United States v. Rhodes, 27 F. Cas. 785, at 790 (1866)

The status of the candidate “at birth” is relevant to Article 2, Section 1.  For somebody to be a “natural born citizen” and therefore eligible to be President, they must have the status “at birth”.

If the common law were applied in the USA, then all naturalized citizens would be eligible to be President since the common law understanding was that, as quoted by Swayne, “Naturalization takes effect from birth”.  If we followed that today, then all naturalized citizens would be returned to birth to be reborn and could therefore claim “natural born citizen” status.

Mr. Benjamin correctly points out that naturalized citizens like Arnold Schwarzenegger can NOT be President since they are naturalized and the US doesn’t recognize those persons as “natural born citizens”.

But Mr. Benjamin also argues that this idea comes from the common law and he is wrong about that.  The common law holds that Arnold Schwarzenegger, having been naturalized, would have been a “natural born subject”.  And if we then apply the common law concept and understanding of “natural born subject” to “natural born citizen” then Arnold Schwarzenegger would be eligible to be President since, at common law, his birth status could change upon naturalization.

But Arnold Schwarzenegger is not eligible to be President because the United States doesn’t follow common law.  The United States follows national law, and our national law is the CONSTITUTION.

Obama was not naturalized, and I do not make the argument above to say that naturalization laws apply to Obama – although they might if he were not born in Hawaii- but let’s assume he was.   I make the argument above to show that the United States is not following common law and the Constitution will not be interpreted as if it were controlled by common law.  There is enough evidence in our history and other laws to bear this out.

The first of which is precedent.  In our history as a nation, every President we have ever had was born in the United States to parents who were both US Citizens.

And it’s very important, especially in light of Justice Scalia’s very recent comments to the Federalist Society of November 22, 2008 wherein he said that the common law is dead and does not control in the USA:

“The common law is gone.  The federal courts never applied the common law and even in the state courts it’s codified now.”

You might want to hear Justice Scalia’s entire presentation:

Furthermore, it is very clear that the those who wrote the 14th Amendment believed that only those so qualified as all previous Presidents were eligible to be President under Article 2, section 1, Clause 5.  This was made clear by Madison’s article:

“Why U.S. v. Wong Kim Ark Can Never Be Considered Settled Birthright Law” Dec 10, 2006

“John A. Bingham, chief architect of the 14th Amendments first section, considered the proposed national law on citizenship as “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…” If this law was simply to reaffirm the common law doctrine then the condition of the parents would be totally irrelevant.”

Article 2, Section 1, Clause 5, must also be read in light of the 14th Amendment which is just as much a part of the Constitution as any other part.


All in all, Mr. Benjamin has made a valiant attempt to provide a clear analysis of the natural born citizen topic.  Please do not assume I am bashing him.  I respect his passion and research, but it’s not entirely accurate.  And considering what Scalia just said to the Federalist Society about the common law being gone (only three days after my case was scheduled for conference), it’s important to keep things in their proper historical perspective.

Leo C. Donofrio

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