Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement
The language of the Constitution cannot be interpreted safely except by reference to the common law and to the British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Conventions of the thirteen States, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.[1]
Justice Joseph Story explained in his celebrated work on the United States Constitution, Commentaries on the Constitution, that the British common law formed the “foundation” upon which American jurisprudence stands:
The universal principle (and the practice has conformed to it) has been that the common law is our birthright and inheritance, and that our ancestors brought hither with them upon their emigration all of it, which was applicable to their situation. The whole structure of our present jurisprudence stands upon the original foundations of the common law.[2]
The British common law was, in fact, regularly adopted or recognized as in force expressly in the constitutions, or in the early acts of the legislatures, of the original thirteen states after independence had been declared in July of 1776. The original Constitution of Delaware, for example, stated,
The common law of England, as-well as so much of the statute law as has been heretofore adopted in practice in this State, shall remain in force, unless they shall be altered by a future law of the legislature; such parts only excepted as are repugnant to the rights and privileges contained in this constitution, and the declaration of rights, &c., agreed to by this convention.[3]
The experience and the wording of the constitutions, or original statutes, adopted in most of the other original states were similar to that of Delaware quoted above.[4] Those immediately involved in framing constitutions for the states in the 1770s, many of whom were also prominent in framing the Constitution for the United States in 1787, were thus not only intimately familiar
- ↑ Ex parte Grossman, 267 U.S. 87, 108–109 (1925). See also Ex parte William Wells, 18 Howard (59 U.S.) 307, 311 (1855): “Prior to the revolution, the colonies, being in effect under the laws of England, were accustomed to the exercise of it in the various forms, as they may be found in the English law books. They were, of course, to be applied as occasions occurred, and they constituted a part of the jurisprudence of Anglo-America. At the time of the adoption of the constitution, American statesmen were conversant with the laws of England…. We must then give the word the same meaning as prevailed here and in England at the time it found a place in the constitution.”
- ↑ Justice Joseph Story, Commentaries on the Constitution of the United States, Vol. I, §157, p. 140 (1833).
- ↑ Constitution of Delaware, 1776, Article 25.
- ↑ See, for example, similar language in the Constitution of New Jersey, 1776, Article XXII; Constitution of Maryland, November 11, 1776, Declaration of Rights, paragraph III; Constitution of New York, April 20, 1777, Article XXXVl; Laws of Virginia, July 3, 1776, Ch. 38. Interestingly, the Constitution of Massachusetts, the colony in which the armed rebellion began, did not mention “England” or “Great Britain” in its adoption of “[a]ll the laws which have heretofore been adopted, used and approved in… Massachusetts,… and usually practiced on in the courts of law,” but which, as recognized in case law in Massachusetts, referred, of course, to the British common law. Constitution of Massachusetts, 1780, Pt. 2, C. 6, Art. 6; see, e.g., Com. v. Leach, 1 Mass. 59 (1804); Com. v. Knowlton, 2 Mass. 530 (1807); Pearce v. Atwood, 13 Mass. 324 (1816); Sackett v. Sackett, 25 Mass. 309 (1829); Boynton v. Rees, 26 Mass. 528 (1830); Com. v. Churchill, 43 Mass. 123 (1840); Com. v. Rowe, 257 Mass. 172 (1926); Com. v. Lopes, 318 Mass. 453 (1945).
