Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement
and brought up in” the English common law, they “thought and spoke in its vocabulary,” and that English common law was thus what the “statesmen and lawyers of the Convention” employed for the meaning of the terms in the Constitution “confident that they could be shortly and easily understood.”[1]
The term “natural born” in the context of citizenship appears to derive from the British concept that those born with a “natural liege” (allegiance, tie, or connection) to the nation or to the sovereign, were (under English terminology) “natural born” subjects under the law in England and in the American colonies at the time of independence. There appears to be little scholarly debate that the English common law at the time of independence included at least all persons born on the soil of England (jus soli, that is, “law of the soil”), even to alien parents, as “natural born” subjects (unless the alien parents were diplomatic personnel of a foreign nation, or foreign troops in hostile occupation). As noted by the Supreme Court of the United States, this “same rule” was applicable in the colonies and “in the United States afterwards, and continued to prevail under the Constitution” with respect to “natural born” U.S. citizenship.[2]
Although the British common law at the time of independence with regard to jus soli was apparently clear, there were varying opinions as whether those born abroad of English subjects were “natural born” subjects under the common law, or were considered “natural born” subjects merely by long-standing statutory law. Some commentators have claimed that the statutory provisions of English law, first appearing during the reign of Edward III in 1350, were “incorporated” into, or in the alternative, “reflected” the already established English common law.[3] Regardless of the technical state of the common law in England with respect to children born abroad, however, there appear to be significant arguments that the corpus of English law applicable within the American colonies, known to the framers and adopted in the states, was broader than merely the “law of the soil.” Legal commentators have contended that the body of English law carried forward in the United States relating to citizenship included both the strict common law notion of jus soli, as well as that part of the law of descent (jus sanguinis) included in long-standing British law[4] (including as “natural born” subjects those born abroad of an English father), and that this was part of the “common understanding” of the term “natural born” to the framers at the time of the drafting of the Constitution.[5]
- ↑ Ex parte Grossman, 267 U.S. 87, 108–109 (1925).
- ↑ United States v. Wong Kim Ark, 169 U.S. 649, 658 (1898). See also Inglis v. Sailor’s Snug Harbour, 3 Pet. (28 U.S.) 99, 120 (1830), see specifically Story, J., dissenting on other grounds, 28 U.S. at 164.
- ↑ See discussion of controversy of whether the English common law included only those born on the soil, regardless of the nationality of the parents (jus soli), or whether the common law also included those born abroad of an English father (jus sanguinis), in Flourny, Richard W. (Assistant Solicitor, Department of State), Dual Nationality and Election, 30 Yale Law Journal 545, 548 (1921).
- ↑ See Blackstone, Commentaries on the Laws of England, Volume I, “Of the Rights of Persons,” 354–358, 361 (1765): “… by several more modern statutes… 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 by the Supreme Court in Weedin v. Chin Bow, 274 U.S. 657, 660 (1926): “These statutes applied to the colonies before the War of Independence.” For early references to the term natural liege subjects in the American colonies, see Sydney George Fisher, The Evolution of the Constitution of the United States, (Lippincott 1897) at 189, citing the Virginia Charter of 1611–1612, and the Concessions of East Jersey, 1665.
- ↑ See, for example, Charles Gordon, Who Can Be President of the United States: The Unresolved Enigma, 28 Md. L. Rev. 1, 12, 18 (1968). Charles Gordon was formerly General Counsel of the United States Immigration and Naturalization Service.
