Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement
statutory recognition (since 1350) of the rights of “natural-born subjects” who were born abroad to British parents or a British father.[1]
As pointed out by the Supreme Court in Wong Kim Ark, however, there was not necessarily unanimity in legal scholarship concerning a narrow reading of the British common law with regard to the children of subjects/citizens born abroad.[2] Some legal scholars in England and in the United States have argued that the long-standing statutory and parliamentary recognition of children born abroad to English subjects as “natural-born” was merely “declaratory” of the existing common law principles and understandings in England, although this was disputed in dicta by the Supreme Court in Wong Kim Ark:
It has sometimes been suggested that this general provision of the statute of 25 Edw. III. [1350] was declaratory of the common law. See Bacon, arguendo, in Calvin’s Case, 2 How. St. Tr. 585; Westlake and Pollock, arguendo, in De Geer v. Stone, 22 Ch. Div. 243, 247; 2 Kent, Comm. 50, 53; Lynch v. Clarke, 1 Sandf. Ch. 583, 659, 660; Ludlam v. Ludlam, 26 N. Y. 536. But all suggestions to that effect seem to have been derived, immediately or ultimately, from one or the other of these two sources: The one, the Year Book of 1 Rich. III. (1483) fol. 4, pl. 7, reporting a saying of Hussey, C. J., “that he who is born beyond sea, and his father and mother are English, their issue inherit by the common law, but the statute makes clear,” etc.,—which, at best, was but obiter dictum, for the chief justice appears to have finally rested his opinion on the statute. The other, a note added to the edition of 1688 of Dyer’s Reports, 224a, stating that at Trinity term 7 Edw. III. Rot. 2 B. R., it was adjudged that children of subjects born beyond the sea in the service of the king were inheritable,—which has been shown, by a search of the roll in the king’s bench so referred to, to be a mistake, inasmuch as the child there in question did not appear to have been born beyond sea, but only to be living abroad.[3]
The position of the dissenting Justices in Wong Kim Ark was characterized and discussed by the Court in the later case of Weedin v. Chin Bow: “The attitude of Chief Justice Fuller and Mr. Justice Harlan was, that at common law the children of our citizens born abroad were always natural-born citizens from the standpoint of this Government….”[4] A detailed law review article in 1921 by the assistant solicitor of the Department of State noted that a number of legal scholars and historians contend that the English common law specifically included jus sanguinis, as well as jus soli, and noted that the “question has been a subject of controversy for six centuries or more….”[5]
Other legal scholars have contended that long-standing and commonly accepted principles incorporated into English law by statute over several centuries, even if they did not merely
- ↑ 169 U.S. 655–671. See also Blackstone, at 354–361.
- ↑ It has also been argued, even on the basis of the incorporation of only a very narrow and technical concept of the early English common law rule of jus soli into the Constitution, that the common law understanding, meaning, and usage of the term “natural born” subject/citizen would include, at the very least, the children of U.S. citizens born abroad when one parent is abroad because of service in an official capacity on behalf of, and under the direction and control of, the United States Government. This argument would include both diplomatic personnel as well as military forces who were not in hostile occupation, but were invited into, and stationed, in the foreign country. See Lohman, 36 Gonzaga Law Review, at 351–352, 365–369; Wong Kim Ark, 169 U.S. at 686, citing Chief Justice Marshall, in The Schooner Exchange v. McFaddon, 11 U.S. [7 Cranch] 116 (1812).
- ↑ 169 U.S. at 669–670.
- ↑ 274 U.S. 657, 670 (1926).
- ↑ Flourny, Richard W. (Assistant Solicitor, Department of State), Dual Nationality and Election, 30 Yale Law Journal 545, 548 (1921).
