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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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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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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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