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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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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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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