CRS – THE NATURAL BORN CITIZEN QUALIFICATION FOR THE OFFICE OF PRESIDENT: Is George W. Romney Eligible? (1968)

THE LIBRARY OF CONGRESS LEGISLATIVE REFERENCE SERVICE
THE NATURAL BORN CITIZEN QUALIFICATION FOR THE OFFICE OF PRESIDENT: Is George W. Romney Eligible?

By
Vincent A. Doyle Legislative Attorney
American Law Division
February 27, 1968
Washington D.C.

The Congressional Research Service works exclusively for the Congress, conducting research, analyzing legislation, and providing information at the request of Committees, Members and their staffs.
The Service makes such research available, without partisan bias, in many forms including studies, reports, compilations, digests, and background briefings. Upon request, the CRS assists Committees in analyzing legislative proposals and issues, and in assessing the possible effects of these proposals and their alternatives. The Service’s senior specialists and subject analysts are also available for personal consultations in their respective fields of expertise.

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Isidor Blum – Is Gov. George Romney Eligible to Be President? Part 2

Is Gov. George Romney Eligible to Be President?

Part 2, October 17:

Alternative requirements, one of which has long been a dead letter, are prescribed in Article II of the Constitution for eligibility to the office of President. A person had to be either a natural born citizen of the United States or a citizen at the time of the adoption of the Constitution. In either case he must have been for fourteen years a resident within the United States. The second of these alternative requirements is said to have been included so that men born in foreign lands, who had come here and had rendered great service to their adopted country, might not be ineligible. 2 Story, Commentaries on the Constitution (1833), section 1499; 2 Bancroft, History of the Formation of the Constitution, 6th ed. (1893), 192-93. Alexander Hamilton and James Wilson, in particular, have been mentioned in this connection.

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Isidor Blum – Is Gov. George Romney Eligible to Be President? Part 1

From: Isidor Blum, Is Gov. George Romney Eligible to Be President?, N.Y.L.J., Oct. 16 &. 17, 1967

Part 1, October 16:

“No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; nor shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”Does this provision in Article II, section 1, of the Constitution exclude from the office of President one who was born to American parents in a foreign country and who, under a statute providing for such cases, became a citizen at birth?

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Immigration Act of 1917. Defining Alien

The 1917 Immigration Act shows how aliens are those who are not native-born or naturalized citizens of the United States. As the term native-born is well understood, this shows once again how Congress considers the status of children born abroad to citizen parents to be naturalized.

Act of February 5, 1917

Immigration Act of 1917, Regulating the Immigration of Aliens to and Residence of Aliens in the United States

39 Stat. 874

Sec. 1.  That the word “alien” wherever used in this Act shall include any person not a native-born or naturalized citizen of the United States; but this definition shall not be held to include Indians of the United States not taxes or citizens of the islands under the jurisdiction of the United States.  That the term “United States” as used in the title as well as in the various sections of this Act shall be construed to mean the United States, and any waters, territory or other place subject to the jurisdiction thereof, except the Isthmian Canal Zone…

Benny v O’Brien (1895) NJ Supreme Ct, 58 NJL 36, (7 Jun 1895)

Published in the Atlantic Reporter, Vol 32, West Publishing (1895),p. 696-698

BENNY v. O’BRIEN.

(Supreme Court of New Jersey. June 7, 1895.) CITIZENSHIP—PERSONS BORN IN UNITED STATES.
Persons born in the United States of parents who are domiciled here are citizens of the United States and of the state wherein they reside. Children born of persons resident here in the diplomatic service of foreign governments are excepted.
(Syllabus by the Court.)

Error to circuit court, Hudson county; before Justice Lippincott

Action by Allan Benny against William J. O’Brien to contest an election. Judgment for defendant, and relator brings error. Reversed.

Argued June term, 1895, before the CHIEF JUSTICE and VAN SYCKEL, J.

Charles C. Black, for plaintiff in error.
Thos. F. Noonan, for defendant in error.

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Rogers v. Bellei, 401 US 815 – Supreme Court 1971

Rogers v. Bellei, 401 US 815 – Supreme Court 1971

In this case both sides accept that children born abroad to citizen parents do so through naturalization by statute.

Mr. Justice Gray has observed that the first sentence of the Fourteenth Amendment was “declaratory of existing 830*830 rights, and affirmative of existing law,” so far as the qualifications of being born in the United States, being naturalized in the United States, and being subject to its jurisdiction are concerned. United States v. Wong Kim Ark, 169 U. S., at 688. Then follows a most significant sentence:

“But it [the first sentence of the Fourteenth Amendment] has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.”

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Congress – To Revise and Codify Nationality Laws (1940)

In 1939-1940, Congress undertook a major revision of our nationality and naturalization acts and a Committee on immigration and Naturalization held many hearings and provided a report to Congress. This document outlines hearings held in early 1940.

To revise and codify the nationality laws of the United States into a comprehensive nationality code. Hearings before the Committee on immigration and naturalization, House of representatives, Seventy-sixth Congress, first session, on H. R. 6127, superseded by H. R. 9980, a bill to revise and codify the nationality laws of the United States into a comprehensive nationality code. January 17, February 13, 20, 27, 28, March 5, April 11, 16, 23, May 2, 3, 7, 9, 13, 14, and June 5, 1940 …

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Breyer v. Meissner, 23 F. Supp. 2d 521 – Dist. Court, ED Pennsylvania 1998

Breyer v. Meissner, 23 F. Supp. 2d 521 – Dist. Court, ED Pennsylvania 1998
The court ruled that those born abroad the Jurisdiction of the United States can only become citizens through naturalization, citing United States v. Wong Kim Ark, 169 US 649 – Supreme Court 1898. The Court thereby recognized that a statute conferring citizenship at birth is an exercise of the naturalization power of Congress.

Are children born abroad to US citizen parents ‘natural born’? Part 1

1. In Re: Wong Kim Ark, 71 Fed1 382, US Dist Court, Northern Dist, California, No 11198 (3 Jan 1896)

Let’s start with the fundamental ruling on this: United States v Wong Kim Ark , 169 US 649 – Supreme Court 1898 for which we need to first look at the lower court’s findings, followed by the reply briefs filed with the Supreme Court.

The lower Court was faced with the claims that it was not Common Law but rather Natural/International Law which determines who is born a citizen. The differences is significant because, as the Court found, under Common Law practices the principle is jus soli, birth on soil, while under International Law, it was argued to be jus sanguinis, birth by blood. The former makes anyone born within the limits of a nation and subject to its jurisdiction, an automatic citizen of a nation, the latter reserves this for children born to US citizen parents, wherever born.

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Zimmer v Acheson 91 F.Supp. 313 (1950)

Zimmer v Acheson

There are only two classes of citizens of the United States, native-born citizens and naturalized citizens;1 and a citizen who did not acquire that status by birth in the United States is a naturalized citizen.2

and outlined in Qualifications for President and the “Natural Born” Citizenship Eligibility Requirement by Jack Maskell

In Zimmer v. Acheson, the United States Court of Appeals for the 10th Circuit found that the appellant, who had been born in Germany to a father who had been a naturalized U.S. citizen, was himself a “naturalized” citizen who could be expatriated under the provisions and requirements of the then-existing federal law:

There are only two classes of citizens of the United States, native-born citizens and naturalized citizens; and a citizen who did not acquire that status by birth in the United States is a naturalized citizen.

Revised Statutes § 1993, in force at the time of the birth of Harry Ward Zimmer [appellant], provided: “All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.”

If Werner Herman Zimmer [the appellant’s father], by virtue of his naturalization on October 30, 1896, was a citizen of the United States on August 9, 1905, the date of the birth of Harry Ward Zimmer, then the latter, at the time of his birth, became a citizen of the United States by virtue of the foregoing statute, but his status as a citizen was that of a naturalized citizen and not a native-born citizen.

CA – Robinson v Bowen – Docket (2008)

Docket

Plaintiff: Markham Robinson
Defendants: Secretary of State Debra Bowen, The Republican National Committee, The Republican Party of California and John McCain
Case Number: 3:2008cv03836
Filed: August 11, 2008
Court: California Northern District Court
Office: Constitutional – State Statute Office
County: Solano
Presiding Judge: Hon. William H. Alsup
Presiding Judge: Magistrate Judge James Larson

US v Wong Kim Ark – Birth Abroad and Common Law

United States v. Wong Kim Ark – 169 U.S. 649 (1898), the Court observes how the statutes, declaring children born abroad to subject parents were not declarative of common law.

The earliest statute was passed in the reign of Edward III. In the Rolls of Parliament of 17 Edw. III (1343), it is stated that,

“before these times, there have been great doubt and difficulty among the Lords of this realm, and the Commons, as well men of the law as others, whether children who are born in parts beyond sea ought to bear inheritance after the death of their ancestors in England, because no certain law has been thereon ordained;”

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Attorney General Bates – Opinions on Natural and Foreign Born

Attorney General Bates explains his understanding of who are natural-born citizens, and explains why children born abroad to US citizen parents are under common law not citizens. The logical conclusion is that such children are neither born citizens and thus not natural-born. Bates was Attorney General under Lincoln from  1861 to 1864.

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Emancipation then what? Bates on Citizenship

Few people may have realized that Attorney General Edward Bates declared, in one of his opinions, that free African-Americans born in the United States were citizens. Even though Bates was a surprising candidate to have written such an opinion, the opinion continues to help us understand the birth right citizenship foundation of our Nation

That Bates of all people should defend black citizenship was peculiar. Generally regarded as the most conservative member of Lincoln’s cabinet, he had been born to a slave-owning family in Virginia. When he moved to Missouri, he sold what slaves he could for travel expenses. In Missouri, he helped draft a proslavery state constitution. When Dred Scott, a Missouri slave, sued for freedom, Bates had no problem with the opinion of Chief Justice Roger B. Taney that Scott, as a black person, was not a citizen and thus could not bring suit. He objected only to Taney’s pronouncement that Congress could not prohibit slavery in American territories. Yet Bates also earned some fame by successfully representing a Missouri slave who had sued for her freedom.

Source: The Opinionator

Some relevant quotes which again, lay to rest any ideas that Vattel or the citizenship of the father plays any role in determining the citizenship of the child.

If this be a true principle, and I do not doubt it, it follows that every person born in the country is, at the moment of birth, prima facie a citizen; and he who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the ” natural born” right as recognized by the Constitution in terms the most simple and comprehensive, and without any reference to race or color, or any other accidental circumstance.

That nativity furnishes the rule, both of duty and of right, as between the individual and the government, is a historical and political truth so old and so universally accepted that it is needless to prove it by authority. Nevertheless, for the satisfaction of those who may have doubts upon the subject, I note a few books which, I think, cannot fail to remove all such doubts—Kent’s Com., vol. 2, part 4, sec. 25; Bl. Com., book 1, ch. 10, p. 365; 7 Co. Rep., Calvin’s case; 4 Tenn. Rep., p. 300; Doe v. Jones, 3 Pet. Rep., p. 246; Shanks v. Dupont; and see a very learned treatise, attributed to Mr. Binney, in 2 Am. Law Reporter, 193.

In every civilized country the individual is born to duties and rights—the duty of allegiance and the right to protection; and these are correlative obligations, the one the price of the other, and they constitute the all sufficient bond of union between the individual and his country, and the country he is born in is, prima facie, his country. In most countries the old law was broadly laid down that this natural connection between the individual and his native country was perpetual; at least, that the tie was indissoluble by the act of the subject alone.—(See Bl. Com. supra; 3 Pet. Rep. supra.)

and

It is an error to suppose that citizenship is ever hereditary. It never “passes by descent.” It is as original in the child as it was in his parents. It is always either born with him or given to him directly by law.

Read the full opinion here

Allegiance – McKay v Campbell 1871

The US District Court of Oregon decided on the status of a person born on US soil to non-naturalized parents.

Upon this state of facts, counsel maintains that the plaintiff was born in the allegiance of the United States, because he was born in its territory, and is, therefore, a citizen thereof, and was entitled to vote at such election. If the premises are admitted, the conclusion follows. The rule of the common law upon this subject is plain and well settled, both in England and America. Except in the case of children of ambassadors, who are in theory born upon the soil of the sovereign whom the parent represents, a child born in the allegiance of the king, is born his subject, without reference to the political status or condition of its parents. Birth and allegiance go together. 1 Bl. Comm. 366; 2 Kent, Comm. 39, 42; Ingles v. The Sailor’s Snug Harbor, 3. Pet. [28 U. S.] 120; U. S. v. Rhodes [Case No. 16,151]; Lynch v. Clarke, 1 Sandf. Ch. 630, and authorities there cited.

The Court however found that at the time of birth, he was still born under British Allegiance.

Source: McKAY v. CAMPBELL 2 Sawy. 118;15 Am. Law T. Rep. U. S. Cts. 407

Allegiance – Carlisle v. United States, 83 US 147 – Supreme Court 1873

By allegiance is meant the obligation of fidelity and obedience which the individual owes to the government under which he lives, or to his sovereign in return for the protection he receives. It may be an absolute and permanent obligation, or it may be a qualified and temporary one. The citizen or subject owes an absolute and permanent allegiance to his government or sovereign, or at least until, by some open and distinct act, he renounces it and becomes a citizen or subject of another government or another sovereign. The alien, whilst domiciled in the country, owes a local and temporary allegiance, which continues during the period of his residence.

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Allegiance- Hale – The history of the pleas

Laying to rest that a child born to an illegal immigrant is not born under the jurisdiction of our nation:

But if an alien the subject of a foreign prince in amity with the king live here and enjoy the benefit of the king’s protection and commit a treason he shall be judged and executed as a traitor for he owes a local alligeance.

and

And this alligeance is either natural from all that are subjects born within the king’s alligeance or local which obligeth all that are resident within the king’s dominions and partake of the benefit of the king’s protection altho strangers born.

Source: Hale – The history of the Pleas of the Crown, Vol I, Chap. X

US v Wong Kim Ark – Political Jurisdiction and the Common Law

The foregoing considerations and authorities irresistibly lead us to these conclusions: The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.

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Allegiance – Foster -Discourse on High Treason

Sect. 2. An Alien whose Sovereign is in Amity with the Crown ofEngland, Residing here and Receiving the Protection of the Law oweth a Local Allegiance to the Crown during the time of his Residence. And if, during that Time He committeth an Offence, which in the Case of a Natural-born Subject would amount to Treason, He may be dealt with as a Traitor. For his Person and Personal Estate are as much under the Protection of the Law as the Natural-born Subject’s: and if He is injured in either, He hath the same Remedy at Law for such Injury.

Source: Foster,  Discourse on High Treason

McElwee – Natural Born Citizen

The following document was read into the Congressional Record on 06/14/1967 because of the recurring discussions about the status of children born abroad to US citizens.

Mr. DOWDY. Mr. Speaker, for a num­ber of years, I have heard and read the discussions, pro and con, regarding the meaning or construction that should be placed on the phrase, “natural born citizen,” as used in the U.S. Constitu­tion, limiting eligibility for the office of President.

This has been a recurring discussion, as various persons, born outside the United States, of U.S. citizen parentage, have been mentioned as possible candi­dates for the offices of President and Vice President. The question is again current.

I have never undertaken to brief the question, but have read most of the papers, articles, essays, and briefs that have been written about it over a period of many years, including some prepared prior to my lifetime.

I have just recently read an unpub­lished essay or brief on the meaning of the phrase as it may apply to a current prominent possible candidate for the office of President, the same having been written by the Honorable Pinckney G. McElwee, of the bar of the District of Columbia. As it is not otherwise avail­able, and may be of interest to the Mem­bers of this Congress and others, I would incorporate in the RECORD as a part of my remarks, that it may be easily avail­able for consideration with other disser­tations on the subject, to shed whatever light it merits:

NATURAL BORN CITIZEN

(The meaning of the term “Natural born citizen” as used in clause 4, section 1 of Article II of the Constitution of the United States relating to eligibility for the Office of President, by Pinckney G. McElwee of D.C. Bar.)

Mr. George Romney, present Governor of the State of Michigan, has been frequently mentioned in recent news media as a pro­spective candidate for the Office of Presi­dent of the United States in 1968. According to “Who’s Who” he was born in Chihuahua, Mexico, on July 8, 1907. A question exists whether he would be eligible to be inaugu­rated, if he should be elected to the Presi­dency because of a specific requirement of the Constitution of the United States that the President be “a natural born citizen”. The answer to this question should be found in advance of the party nominating con­ventions, not only in respect to his ability to serve if elected, but also because of the effect that the existence of such question would have on the outcome of an election, if he became the nominee of a party.

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