Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement
It is general knowledge that the Dred Scott decision has widely and commonly been described as the “worst” and most vilified Supreme Court decision in the history of the United States.[1] The ruling in that case, not only because of the enactment of the Thirteenth, Fourteenth, and Fifteenth Amendments, but also because of its specious constitutional and legal reasoning,[2] has been reduced to an “historical curiosity.”[3] As explained by historian and professor James Kettner in his work, The Development of American Citizenship, 1608–1870:
In seeking to derive consistent exclusionist principles from an ambivalent legal tradition, Taney could only succeed by distorting history and making “bad law.” … In making national citizenship exclusively the effect of naturalization or pedigree, he disregarded volumes of judicial precedents emphasizing place of birth without regard to ancestry. Taney’s opinion rested instead on the social fact of prejudice and discrimination.[4]
Within a few years of the Dred Scott decision, in 1862, the Attorney General of the United States, Edward Bates, issued a formal legal opinion to a federal department on the question of “citizenship” of those born within the geographic boundaries of the United States which clearly demonstrated the weakness in the legal reasoning of the Court in Dred Scott.[5] This opinion is significant because it preceded the adoption of the Fourteenth Amendment, and was thus based on the then-existing state of the law, constitutional precepts, and common law principles derived from English law, and clearly expressed the legal and constitutional reasoning concerning “citizenship” in the United States underlying previous federal court precedent (other than and ignored by the majority in Dred Scott) as well as the foundational principles in subsequent Supreme Court determinations over the next 150 years. The formal opinion of the Attorney General concluded that those who were “natural born” citizens were those who were U.S. citizens “by birth:”
We have natural-born citizens, (Constitution, article 2, sec. [1],) not made by law or otherwise, but born. And this class is the large majority; in fact, the mass of our citizens, for all others are exceptions specially provided for by law. As they became citizens in the natural way, by birth, so they remain citizens during their natural lives, unless, by their own
- ↑ United States, National Archives and Records Administration, http://www.ourdocuments.gov: “The decision of Scott v. Sandford, considered by legal scholars to be the worst ever rendered by the Supreme Court…”; David Savage, How Did They Get It So Wrong? ABA Journal, January 1, 2009: “… the worst decisions of the U.S. Supreme Court? Historians and court scholars agree on a pair of 19th century opinions: Dred Scott v. Sandford, the 1857 ruling that upheld slavery even in the free states….”; Paul Finkelman, Dred Scott v. Sandford: A Brief History With Documents, at pp. 4–5, citing, among others for the proposition that the case is the worst Supreme Court decision, Justice Antonin Scalia, Professor Alexander Bickel of Yale Law School, Chief Justice Charles Evans Hughes; Justice Felix Frankfurter; and Justice John Marshall Harlan; Junius P. Rodriguez (editor), Slavery in the United States: A Social, Political, and Historical Encyclopedia, p. 265 (2007): “Universally condemned as the U.S. Supreme Court’s worst decision…”; Corinne J. Naden and Rose Blue, Dred Scott: Person or Property, at p. 111 (2005): “Part of the legacy of Scott v. Sandford is that it is generally regarded as the worst decision ever handed down by the Supreme Court and the worst failure of the U.S. judicial system”; Lawrence Baum (Ohio State University), Perspectives on Politics, Cambridge Journal On Line, Cambridge University Press, Vol. 5, No. 2, at p. 338 (June 2007): “Scott v. Sandford (1857), the Dred Scott decision, is the consensus choice as the worst decision in the Supreme Court’s history.”
- ↑ Robert Bork, The Tempting of America, p. 28 (1990): “Speaking only of the constitutional legitimacy of the decision, and not of its morality, this case remained unchallenged as the worst in our history….”
- ↑ Constitution Annotated, S. Doc. 108–17, at 362.
- ↑ Kettner, The Development of American Citizenship, 1608–1870, at 328 (U.N.C. Press 1978). Emphasis added.
- ↑ The Attorney General of the United States has the express statutory authority to issue official legal opinions to the departments and agencies of the federal government. Judiciary Act of 1789, §35, 1 Stat. 73 (September 24, 1789), see now 28 U.S.C. §512.
