Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement
Some of the legal arguments based on American jurisprudence forwarded by those who support an alternate and highly exclusionary reading of the term “natural born” citizen (including reading into the Constitution a requirement for one to have two U.S. citizen-parents) often begin with a citation to language in the 1857 Dred Scott decision, Scott v. Sandford.[1] The Dred Scott decision, in addition to denying that even freed slaves or their progeny could be “citizens” of the United States (and thus finding that the specific petitioner in that case did not have the capacity to bring the original suit under consideration), attempted to provide legal justification under the Constitution for human slavery in the United States and the resultant treatment of “negroes of the African race” as property and chattel without rights under the Constitution. In so doing, the Court fashioned a very exclusive understanding, eventually rejected and overturned by later Supreme Court decisions, of who were “citizens” of the United States, even if one were born to emancipated slaves in this country. The opinion of the Court, written by Chief Justice Taney, noted that the status of those “whose ancestors were negroes of the African race… imported into this country, and sold and held as slaves” was that of non-citizens.[2] That is, that even “descendants of such slaves, when they shall be emancipated, or who had been born of parents who had become free before their birth” were “not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides….”[3] The Court based such findings regarding citizenship and ancestry on the opinion that such persons did not make up, and were not thought to be part of the community or the “political body” of the “sovereign people” of the United States who ratified the Constitution, and were thus not “a constituent member of this sovereignty” since “they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority for, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.”[4]
In a concurring opinion in Scott v. Sandford, one Justice cited to Vattel’s discussion of citizenship and “natural born” citizen (as later interpretations into English had expressed the French usage in his treatise, Law of Nations), not specifically with regard or intent to define “natural born” citizenship in reference to presidential eligibility, but rather to support his opinion that Negroes brought to America as slaves, as well as their progeny, could not be citizens of the United States.[5] It should be noted that this particular opinion was not only a concurring opinion, not joined by any other Justice in the Dred Scott decision, but that such concurrence by Justice Daniel has never formed the basis or authority for any majority ruling of a federal court in the history of American jurisprudence.[6] Similar to the opinion of the Court, Justice Daniels’ opinion has been superseded and controverted by later Supreme Court rulings and constitutional amendments.
- ↑ Scott v. Sandford, 60 U.S. (19 Howard) 393 (1857).
- ↑ 60 U.S. at 403.
- ↑ 60 U.S. at 403–404.
- ↑ 60 U.S. at 404–405. The Court also found that the Congress had exceeded its authority in outlawing slavery in new territories that the United States had acquired, giving a very narrow and restrictive reading of the express constitutional authority of Congress over federal lands (Article IV, §3, cl. 2) to cover only those lands owned at the time of the drafting of the Constitution, and not those subsequently acquired from foreign nations. 60 U.S. at 432.
- ↑ 60 U.S. at 476–477, Daniel, J., concurring.
- ↑ A somewhat parallel, restrictive argument (and reference to de Vattel) was put forth again later in the 1800’s in the minority opinion in Wong Kim Ark, 169 U.S. at 708 (Fuller, C.J., Harlan, J., dissenting) but, as noted, has never since formed the basis of a majority opinion or any controlling precedent in American jurisprudence.
