Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement
“declare” already-existing English common law, actually modified the corpus of the common law to incorporate such principles, and that this body of law was the one known to the framers, such that the provisions of the Constitution must be interpreted in that light. Charles Gordon, who was then general counsel for the United States Immigration and Naturalization Service, explained in 1968 that in addition to recognizing birthright citizenship as to the place of birth (jus soli), “the consistent practice over several centuries, in England and the United States, [was] to recognize citizenship status by descent.”[1] Gordon thus concluded that “[t]he common law, as it had developed through the years, recognized a combination of the jus soli and the jus sanguinis,”[2] and that the English common law adopted by the United States had been expanded by the long-standing statutory inclusions over the centuries in England:
[T]here were doubts concerning the applicability of the jus sanguinis under the early common law. But those doubts were eliminated by statutes enacted in England before the American Revolution, which became part of the body of law followed in England and passed on to this country. It can be argued… that this total corpus was the common law which this country inherited, and that it persevered unless specifically modified.[3]
That the United States was not confined to only the narrow common law of England in our usages and applications, was noted by the Supreme Court in an opinion authored by Justice Story in 1829:
The common law of England is not to be taken, in all respects, to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted, only that portion which was applicable to their situation.[4]
It was, in fact, common in the states after independence, upon the adoption of their constitutions and statutes, to incorporate both the common law of England, as well as the statutory laws adopted by Parliament and applicable in the colonies up until a particular date.[5] There is thus some argument and indication that it was common for a “modified” English common law—modified by long-standing provisions of English statutory law applicable in the colonies—to be among the traditions and bodies of law incorporated into the laws, applications, usages, and interpretations in the beginning of our nation.
Common Understanding in 18th Century of the Term “Natural Born” Citizen
In addition to examining the common law meaning of the term “natural born” as it related to citizenship, there are other interpretive analyses that might be employed in an attempt to understand the “meaning to the framers” of the term “natural born” citizen when the term was
- ↑ Gordon, Who Can Be President of the United States: The Unresolved Enigma, 28 Md. L. Rev. 1, at 12, 18 (1968).
- ↑ Id. at 18.
- ↑ Id. at 12.
- ↑ Van Ness v. Pacard, 27 U.S. [2 Peters] 137, 143–144 (1829).
- ↑ Constitution of Delaware, 1776, Article 25; 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; Constitution of Massachusetts, 1780, Pt. 2, C. 6, Art. 6.
