Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement
because of the development of statutory law in England to “encourage also foreign commerce.” As stated by Blackstone in his 1765 treatise,
[A]ll children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.[1]
The “commonly understood” meaning of the term “natural born” in the United States at the time of the drafting of the Constitution might thus be broader than the early, strict English “common law” meaning of that term.[2] As noted by Charles Gordon, former Chief Counsel of the Immigration and Naturalization Service, whether the body of English law in the 1770s was from early common law, from statutory law, or from the common law modified over the years by statutory law, these provisions “were part of the corpus of the English law in existence at the time of the Revolution, which was substantially recognized and adopted by our forefathers.”[3] This common usage and popular understanding to the framers of the term “natural born” subject (as employed in England), and the term’s apparent evolution and broadening of meaning through statutory law, has thus led several other legal commentators and historians to conclude: “The constitutional Framers had a broad view of the term ‘natural-born’ and considered all foreign-born children of American citizen parents eligible for the Office of the Presidency;”[4] or, as stated by another: “[T]he delegates meant to apply the evolved, broader common law meaning of the term when they included it in the presidential qualifications clause.”[5]
Presidential historian Michael Nelson has also averred that the term appeared to have a common meaning at the time of the drafting of the Constitution which involved within its concept both the common law definition and mode of acquisition of citizenship (through jus soli), as well as the common understanding of the long-standing broadening of such term by the operation of English statutory law to include those subjects who may have traveled abroad for purposes of commerce, or otherwise. As noted by Nelson (and pointed out by others), a more restrictive meaning to include only those born within the boundaries of the United States would mean that John Jay, who
- ↑ Id. at 361: “When I say that an alien is one who is born out of the king’s dominions, or allegiance, this also must be understood with some restrictions. … [T]he children of the king’s ambassadors born abroad were always held to be natural subjects: for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also…. To encourage also foreign commerce, it was enacted by statute 25 Edw. III. ft. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king… might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still further taken off: so that all children, born out of the king’s ligeance, whose fathers were natural-born subjects, are now natural born subjects themselves, to all intents and purposes, without any exception; unless their said fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a prince at enmity with Great Britain.”
- ↑ As noted in the preceding section of this report, legal scholars in England were not completely unanimous about English common law during this period, as some had averred that it included as “natural born” subjects not only jus soli, but also those born abroad of English parents, and/or that the statute of 1350 in the reign of Edward III was merely a recitation or “declaration” of the common law, which might also have lead to a common or popular perception (or even a commonly held misunderstanding) of the meaning of the term in the U.S. as including the issue of citizens born in foreign lands even in the narrower concept of the “common law.” See also Flourny, Richard W. (Assistant Solicitor, Department of State), Dual Nationality and Election, 30 Yale Law Journal 545, 548 (1921).
- ↑ Gordon, 28 Md. L. Rev., at 18.
- ↑ Lohman, 36 Gonzaga Law Review, at 369.
- ↑ Nelson, at 396. See also 7 Charles Gordon, Stanley Mailman, & Stephen Yale-Loehr, Immigration Law and Procedure, §92.03[1][b] (rev. ed. 2000); Pryor, 97 Yale L.J. at 882 (1988); Gordon, 28 Md. L. Rev. at 5–7.
