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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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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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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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

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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Lynch v Clarke – Review of ruling

The whole subject of native citizenship was thoroughly reviewed by  Assistant Vice Chancellor Sandford in his admirable opinion in the  case of Lynch v. Clarke,”3 decided in i844. This opinion is notable  for its common sense and originality as well as for its unusual thoroughness and evidence of wide learning. Up to this time citizenship in the United States had been regarded generally as pertaining primarily to the individual states which had separately adopted the English common  law, but Judge Sandford treated citizenship as essentially national, and thereby anticipated by more than two decades the declaration concerning citizenship contained in the Fourteenth Amendment to the Constitution. In the course of his opinion he said:

“The provisions of the Constitution of the United States demonstrate that the right of citizenship, as distinguished from alienage, is a natural right or condition, and does not pertain to the individual states” (p. 641).

“Citizenship . . . is a political right, which stands not upon the  municipal law of any one state, but upon the more general principles- of national law” (p. 644).

“In my judgment there is no room for doubt, but that to a limited extent, the common law, (or the principles of the common law, as some prefer to express the doctrine,) prevails in the United States as a system of national jurisprudence” (p. 654).

“When the Union was formed and further state regulation on the point terminated, it follows, in the absence of a declaration to the contrary, that the principle which prevailed, and was the law on such point in all the states, became immediately the governing principle and rule of law thereon in the nation formed by such union” (p. 655).

“It is indispensable that there should be some fixed, certain and intelligible rules for determining the question of alienage or citizenship. The place of nativity furnishes one as plain and certain, and as readily to be proved, as any circumstance which can be mentioned” (p. 658).

Judge Sandford goes on to observe that, because of the presence in this country of alien immigrants in such large numbers, if jus sanguinis should be recognized as the sole basis of nationality, this “might lead to “the perpetuation of a race of aliens” (p. 673).14

Source: Richard W. Flournoy, Jr. – Dual Nationality and Election – The Yale Law Journal  - Vol. 30, No. 6, Apr., 1921

Richard W. Flournoy, Jr. – Dual Nationality and Election – The Yale Law Journal – Vol. 30, No. 6, Apr., 1921

Inglis v. Trustees of Stailor’s Snug Harbor

I have spoken in some detail of the British law of nationality because  our own law of nationality was taken from it. While the Constitution  of the United States did not in its original form state what persons were to be considered citizens of the United States, it did speak of “natural  “born citizens,”’0 and the courts, when called upon to decide who were  natural born citizens, held that this term referred to the English common law and should be construed in accordance with it. As early as  the year i804 Chief Justice Marshall, in rendering the decision of the  Supreme Court in the case of The Charming Betsy,” had assumed

that persons born in the United States were citizens of this country,  and in the case of Inglis v. Trustees of Stailor’s Snug Harbor,”2 Justice  Story, in the course of his opinion, said:

“Nothing is better settled at the common law than the doctrine that the  children even of aliens born in a country, while the parents are resident  there under the protection of the government, and owing a temporary  allegiance thereto, are subjects by birth.”

Source: Richard W. Flournoy, Jr. – Dual Nationality and Election – The Yale Law Journal  - Vol. 30, No. 6, Apr., 1921