Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement
in the constitution; still more that they should have come to that conclusion without even once declaring their object.[1]
The treatise in question by Emmerich de Vattel was a work concerning the “law of nations,” which we would now classify generally as “international law.” However, the concept of citizenship within a particular country is one governed not by international law or law of nations, but rather is governed by municipal law, that is, the internal law of each country.[2] Vattel’s writings on citizenship by “descent” reflected in many circumstances what the law or practice may have been in certain European nations at the time—that is, that citizenship followed the nationality or citizenship of one’s father, as opposed to the place of birth.[3] This concept, although prevalent on the European Continent was, even as expressly noted in Vattel’s work itself, clearly not the law in England or thus the American colonies,[4] and clearly was not the concept and common understanding upon which U.S. law was based. James Madison, often referred to as the “Father of the Constitution,” expressly explained in the House of Representatives in the First Congress, in 1789, that with regard to citizenship the “place” of birth, and not “parentage” was the controlling concept adopted in the United States.[5] Additionally, the Supreme Court in 1971 simply and succinctly explained, after citing historical legal precedent: “We thus have an acknowledgment that our law in this area follows English concepts with an acceptance of the jus soli, that is, the place of birth governs citizenship status except as modified by statute.”[6] Again in 1998, the Supreme Court expressly recognized jus soli, the place of birth, as controlling in the United States, noting that in this country “citizenship does not pass by descent” except as provided by Congress in statute.[7]
- ↑ Lynch v. Clark at 246-247. Emphasis in original.
- ↑ Inglis v. Sailors’ Snug Harbor, 3 Pet. 99, 162 (1830); United States v. Wong Kim Ark, 169 U.S. 649, 668 (1898); Perkins v. Elg, 307 U.S. 325, 329, (1939); Lynch v. Clark at 249; see also Frederick Van Dyne (Assistant Solicitor, Department of State), Citizenship of the United States, at 3–4 (New York 1904).
- ↑ See discussion of European nations following concepts of citizenship by “descent” through one’s father, in Flournoy, Dual Nationality and Election, 30 Yale Law Journal, at 554–559. Vattel explained that the citizenship of “children naturally follow the condition of their fathers,” and that “in order to be of the country, it is necessary that a person be born of a father who is a citizen….” Vattel, Law of Nations, at Ch. XIX, p. 101 (1797 ed.). It is interesting to recognize that Vattel never expressly postulated a “two-citizen” parent requirement for what he described as natives or indigenes. Rather, grammatically, the plural of parent or relative (parens) merely conforms to the plural subject of “natives” or “indegenes.” That is, for example, if the rule is that the “children born in the United States of foreign diplomats” are not to be considered natural born “citizens” of the United States under common law principles, such statement does not necessarily require that both parents must be foreign diplomats to deny such U.S. citizenship status to that child. See, e.g., In re Thenault, 47 F.Supp. 952 (D.D.C. 1942).
- ↑ Vattel, Law of Nations, at Ch. XIX, p. 102 (1797 ed.). See discussion by the Connecticut Supreme Court of Errors, in Town of New Hartford v. Town of Canaan, 5 A. 360 (Conn. 1886): “In Field’s International Code, 132, it is said: ‘A legitimate child, wherever born, is a member of the nation of which its father at the time of its birth was a member.’ Upon this Morse, in his work on Citizenship, p. 17, thus comments: ‘This is the law in most European States (Westlake, p. 16; Foelix, p. 54), but not in England or in the United States.’”
- ↑ “It is an established maxim that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general, place is the most certain criterion; it is what applies in the United States….” James Madison, explaining the citizenship eligibility of Representative-elect William Smith, in the election contest of Ramsay v. Smith, 1st Cong., 1st Sess. (1789), in Clarke and Hall, Cases of Contested Elections in Congress, from the Year 1789 to 1834, inclusive, at p. 33 (Washington 1834).
- ↑ Rogers v. Bellei, 401 U.S. 815, 828 (1971).
- ↑ Miller v. Albright, 523 U.S. 420, 434, n.11 (1998). The “common” understanding of the term “natural born” citizen during the revolutionary period, the time of the drafting of the Constitution, and in the generation after, was clearly that of one who was a citizen “at birth,” and the determining factor in the United States was the place of birth in the territory of the United States, rather than that of ancestry, lineage, or descent, except as provided in statute. This common understanding has continued up until this day as the term “natural born” citizen has entered the popular, “common”
